OPINION OF MR ROEMER — JOINED CASES 6 AND 11/69 COMMISSION v FRANCE

Mr President,

Members of the Court,

The two cases with which I am now dealing were the subject of the same oral proceedings on 2 October 1969. I shall therefore no doubt be permitted to discuss them together in a single opinion even though there has been no order by the Court joining the two cases. They both raise legal questions relating to the fact that in France a certain preferential rediscount rate for claims arising from exports has been maintained beyond 1 November 1968. It is necessary to know the background in detail in order to be able to judge the problems of the cases.

There has been tor a long time preferential rediscount rates for claims arising from exports (or let us simply say: special rates). It is now worthy of note that after the same rate prevailed for a while for domestic and foreign claims, in April 1957 a difference again arose as a result of raising the domestic rate (or the general rate) while maintaining the foreign rate at 3 %. Since this difference applied to all exports without regard to the nature of the goods, it never gave the ECSC authorities cause to intervene until the summer of 1968. On the other hand the EEC Commission grappled with the problem as early as 1964 and tried to master it with the assistance of the provisions on aid in the EEC Treaty. I mention in this connexion a letter from the President of the Commission dated 4 May 1964 to the French Foreign Minister. It deals with a series of aid measures of the French Government and contains in particular the proposal based on Article 93 of the EEC Treaty to abolish the special rate, which was half a point lower, as soon as possible, at least in respect of claims which arose in other Member States. The French Government however never adopted this proposal. In an answer to the Commission dated 4 September 1964 the Government stressed that the difference was due to national monetary requirements and not to the desire to grant aid to exports. Moreover it said that it did not seem right to regard only one of the factors to be taken into account in determining the cost of credit. Only if there were further harmonization of monetary and financial policies could a change in the special French rate be considered. In a letter dated 12 June 1965 to the French Government the Commission reiterated its request. In this letter it referred to the fact that France was the only Member State with differing rediscount rates since Belgium had stated that it was prepared to abolish the existing differences (which was apparently done with effect from 1 January 1969). Moreover the Commission stated it had resolved to bring proceedings under Article 93(2). Even this produced no results. France maintained that proceedings under Article 92 were not justified because on short-term credits no serious distortion arose from the disparity between the rediscount rates. On 11 April 1968 the Commission made a further urgent appeal of the French Government. In view of the establishment of the customs union on 1 July 1968 it appeared to the Commission particularly desirable that the preferential rediscount rates should be abolished by the latest on this date. This time the viewpoints seemed to come closer together. At least the French Government informed the Commission on 13 May 1968 that it would look into the conditions under which the preferential rediscount rate for short-term credits could be abolished on 1 July 1968.

Meanwhile however France had to undergo the well known troubles and in particular a serious social crisis. In view of its repercussions on the French economy the French Government thought it could not give effect to the intention which it had previously expressed. In a letter to the Commission dated 12 June 1968 it stated on the contrary that in view of the considerable increases in wages and the necessary changes in its customs tariffs it would probably be necessary to apply for approval of protective measures under Article 226 of the EEC Treaty. Until then the French Government must be in a position to take direct measures, inter alia in the field of the rediscount rate for short and medium-term credits. It awaited, therefore, the Commission's agreement que le taux actuel de mobilisation des créances nées à l'exportation soit abaisse d'un point (that the present rate of liquidating claims arising from exports should be reduced by one point). In a memorandum dated 16 June 1968 the Commission said that it wanted to examine whether the measures proposed in view of the existing difficulties were compatible with Article 92. Meanwhile the proceedings under Article 93(2) would not be pursued. Thereafter the French Government informed the Commission in a memorandum dated 24 June 1968 that it had been resolved to reduce temporarily the special rate from 3 % to 2 % as from 1 July 1968 under the provisions in the Treaty allowing Member States the possibility of taking immediate measures. Moreover it stated on 26 June that the French measures were based on Articles 104 to 109 of the EEC Treaty and in particular on Articles 108(1) and 109. The question of the ECSC products was still under consideration. In a memorandum dated 28 June 1968 the Commission queried whether the French measures were not more than was required. It stated at the same time that the proceedings under Article 108 would be pursued (that is the Monetary Committee would be consulted and the granting of mutual assistance recommended to the Council; as regards the steel sector it referred to the procedures under Articles 37 and 67 of the ECSC Treaty. On 30 June 1968 there was published in the Official Journal of the French Republic a notice from the Banque de France according to which its General Council had passed the following resolution on 27 June 1968 :

The Commission thereupon after consulting the Consultative Committee and the Council took a decision on 6 July 1968 under Article 67 of the ECSC Treaty which was notified to the French Government on the same day and published in the Official Journal L 159. In this the French Government, which had previously declared itself in agreement with the conditions, was empowered to grant various aids to the French steel undertakings until 31 January 1969. As regards the preferential rediscount rate it was provided that it should not be less than 2 %; moreover the advantage granted to exporters was not to exceed 3 points in the period to 31 October 1968 and 1.5 points from 1 November 1968 to 31 January 1969. Since, moreover, the recommendations by the Commission under Article 108 and the mutual assistance which had been granted by the Council directive of 20 July 1968 did not prove sufficient, a further decision by the Commission was taken under Article 108(3) of the EEC Treaty on 23 July 1968 whereby the French Republic was empowered to grant additional aids for exports to the other Member States. Such aid included again the preferential rediscount rate, this time relating to all kinds of foreign transactions. The same conditions were to apply to it as under the decision of 6 July 1968. The decision was notified to the French Government in writing on 23 July 1968 and published in the Official Journal on 25 July 1968 (L 178).

The French Government did not contest either decision within the time limits prescribed in the Treaties.

Nevertheless it did not on 1 November 1968 proceed, as laid down in the decisions, to approximate the special rate more closely to the general rate, that is to reduce the difference to 1.5 points. On the contrary it maintained a special rate of 2 % although the general rate had been 5 % since 5 July. This was to apply until 31 December 1968, as the French Foreign Minister informed the President of the Commission on 5 November.

The Commission saw m this a failure to fulfil the obligations under the Treaties. Accordingly it proceeded immediately to draw the necessary consequences which as is known involve different procedures under the two Treaties.

First it requested the French Government in a letter dated 9 November to state its position within 14 days on the complaint that it had infringed the Treaty, that is, it gave the French Government the opportunity to submit its comments as provided for in Article 88 of the ECSC Treaty and in Article 169 of the EEC Treaty. Shortly thereafter on 12 November the general rediscount rate was fixed at 6 % in France whereby the difference from the special rate was increased by a further point. On 13 December 1968 the Permanent Representative of France informed the Commission that in the circumstances it was not possible to reduce the difference to 1.5 points. As from 1 December however the special rate would be fixed at 4 % and the difference thus reduced to 2 %.

The Commission was not satisfied with this. On 18 December therefore it delivered the reasoned opinion provided for in Article 169 of the EEC Treaty, that is, it expressly found an infringement of the Commission's decision of 23 July 1968 and requested the French Government to take the necessary measures within 21 days to terminate the infringement. Similarly on 18 December the Commission took a decision under Article 88 of the ECSC Treaty in which it found that there was an infringement of the Commission's decision of 6 July 1968 and demanded that the French Government conform within a period of 21 days. Notice in writing of the reasoned opinion and decision was given to the French Government on 20 December 1968.

The trench Government answered in a communication dated 26 December 1968 in which it stated that in the context of the general principles of its monetary policy it considered it necessary to fix a special rate for all export claims at 3 % as from 1 January 1969 (that is at an amount which made a difference of 3 points between the general rate). Accordingly there appeared in the Official Journal of the French Republic of 27 December 1968 a notice from the Banque de France that its General Council had resolved at its meeting on 26 December 1968 that the rediscount rate for bills issued for the liquidation of claims in respect of export transactions would be increased from 2 % to 3 % as from 1 January 1969.

Since there was no compliance with the reasoned opinion delivered by the Commission, it resolved to bring the matter before the Court of Justice under Article 169 of the EEC Treaty. This it did in its application lodged on 31 January 1969. As regards the decision of18 December 1968 taken under the ECSC Treaty it was the French Government which took the appropriate initiative. It also brought this matter before the Court in an application which was entered in the Court Registry on 28 February 1969.

The two following sets of conclusions are therefore at issue:

The Commission claims that you should declare that the French Republic

is granting to its exporters in the sphere of intra-Community relations a preferential rediscount rate for their claims arising from export transactions which gives them a benefit in excess of 1.5 points and has thereby failed to fulfil the obligations under Article 2(1)(b) of the decision of the Commission of 23 July 1968 taken under Article 108(3) of the EEC Treaty.

The French Government claims that the Court should declare:

Alternatively the French Government claims a declaration that the decision of 18 December 1968 is illegal because it did not have regard to the new circumstances which had caused the French Government to revoke its agreement to the duration of the approved measures and because it compelled the French Government to act in a way which would bring about distortion of competition.

Finally the French Government claims that the decision of 18 December 1968 should be annulled and there should be a declaration that it can maintain a preferential rediscount rate for claims in respect of foreign transactions without infringing its obligations under the ECSC Treaty.

I will now give my reasons in detail for what I consider is the appropriate assessment of the legal position in this dispute.

1. First of all it appears necessary to me to make clear what the subject of the dispute is. All we have to deal with is the complaint that the French Government did not comply with the decisions taken by the Commission in July 1968 by reducing on 1 November 1968 the difference between the special rate for export claims and the general rate as laid down in the decisions. This appears clearly from Article 1 of the decision of 18 December 1968 which recorded a past infringement of the Treaty under Article 88 of the ECSC Treaty. This follows also however from the conclusions in the application lodged at the Court on 31 January 1969 under Article 169 of the EEC Treaty which is based on the disregard of the reasoned opinion of 18 December 1968, that is, likewise relating to a past infringement of the Treaty. The conduct of the French Government after31 January 1969 is on the other hand not now in dispute. This observation could be of significance in relation to the application in general terms of the French Government for a finding that it has the right to maintain a preferential rediscount rate for foreign claims without infringing the provisions of the ECSC Treaty.

2. You will recall the manner m which the French Government mainly defends the charge of infringing the Treaty. It maintains that the decisions which it is accused of disregarding are illegal. Both the decision of 18 December 1968 which was taken under Article 88 of the ECSC Treaty and the Commission's application under Article 169 of the EEC Treaty therefore lack a legal basis.

3. At the most inquiry could be made whether the complaints against the said decisions reveal such serious infringements in particular against the rules relating to jurisdiction that they can be said to void acts which can naturally be disregarded without annulment by the Court. I would like now to undertake this examination. As appears obvious, there can be no question of a detailed investigation of the legality, but only a summary examination with the accent on the rules on jurisdiction in order to ascertain whether there are serious and obvious defects.

4. Let us therefore turn to the complaints which relate to the contested decision of 18 December 1968 so that, to begin with, we are still concerned with the proceedings which have been brought under Article 88 of the ECSC Treaty.

5. As far as Case 6/69 is concerned it remains to be considered whether the Commission's application for a declaration based on Article 169 of the EEC Treaty is valid or whether the French Government is able to justify its failure to comply with the decision of 23 July.

6. Summary

1 Translated from the German.

2 Rec. 1960, pp. 133-134.