Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court

In the case with which we are concerned today an institution of the Communities and a Member State are in dispute for the first time regarding questions of Euratom law. Before examining these questions the following preliminary observations must be made.

Simultaneously with the establishment of the European Economic Community, the Member States agreed to pool their resources in the field of the development of atomic energy. In the legal system created for this purpose, the Treaty establishing the European Atomic Energy Community, the first provision relevant here is Article 2 (d) which provides that in order to perform its task, the Community shall, as provided in the Treaty, ensure that all users in the Community receive a regular and equitable supply of ores and nuclear fuels. Title Two, Chapter VI, of the Treaty contains the detailed rules relating to the achievement of this objective which need not be cited in full in the present context. They are characterized by a compulsory centralization of supply of and demand for ores, source materials and special fissile materials. This centralization is achieved by means of a commercial agency, the Supply Agency, a body governed by public law with legal personality and financial autonomy which operates under the supervision of the Commission. This Agency has an option to purchase the products listed in Article 197 of the Treaty; every producer in the Community must offer to it on terms defined in detail the substances that it produces. The Agency also has an exclusive right to conclude supply contracts in respect of these substances with users in the Community, both in relation to supplies from the territory of the Community and to those originating outside the Community. These rules are intended to guarantee equal access to these substances for the users in the Community. The Supply Agency commenced its activities on 1 June 1960, in accordance with a decision of the Commission of 5 May 1960. Apart from the provisions of the Treaty in Title Two, Chapter VI, the Agency is governed by the provisions of a constitution laid down by the Council on 6 November 1958. This provides inter alia that the Agency shall function on commercial principles but shall be non-profit-making. In addition the constitution provides for the establishment by the Council of a consultative committee composed of representatives of producers and users as well as of experts. The manner in which demand is to be balanced against the supply of ores, source materials and special fissile materials is governed by rules of 5 May 1960 adopted by the Agency after consultation with the Consultative Committee and approved by the Commission by its Decision of 5 May 1960. We shall come to the details of this procedure later. For the moment, among the numerous relevant provisions of the Treaty I would merely mention in the present context Article 70 whereby the Member States are obliged, with regard to prospecting and mineral reserves, to facilitate the activity of the Community by submitting a report to the Commission each year for their respective territories.

Obviously the development of this new field could not be envisaged clearly at the time when the Treaty was being drafted. Thereafter Chapter VI of Title Two contains in Article 76 (2) the following final provision: Seven years after the entry into force of this Treaty, the Council may confirm these provisions in their entirety. Failing confirmation, new provisions relating to the subject-matter of this Chapter shall be adopted in accordance with the procedure laid down in the preceding paragraph. The present proceedings concern above all the interpretation of this provision.

As we have heard in the course of the proceedings, the Commission had already presented a proposal for the amendment of this chapter of the Treaty to the Council in November 1964. This proposal was discussed at the beginning of 1965 and it was also submitted to the Parliament; however, it led neither to the confirmation of the Treaty provisions in their original version nor to the issue of new provisions. This situation has continued until now; the Council has still not completed its deliberations and, despite seemingly intense activities, the end of the negotiations is not in sight. This has given rise to the difficulties in the present case.

The French Government maintains, in fact, that the validity of the provisions of Title Two, Chapter VI, of the Euratom Treaty was limited to a period of seven years. Since these provisions were not confirmed before the expiry of this period, or shortly thereafter, it contends that it is now only possible to issue new provisions. Until they come into force the original provisions of the Treaty are no longer applicable; it must be assumed, on the contrary, that the Treaty contains a lacuna in this respect. As early as 1964 (inter alia at the meeting of the Council of Ministers on 28 November 1964) the French Government drew attention to this possible interpretation and, in any event, to the uncertainty of the legal position. In November 1965, in accordance with its view of the law, it informed French public and private undertakings that the provisions of Chapter VI were no longer applicable (this emerges from a letter dated 10 September 1970 addressed to the Supply Agency from a French undertaking). The French Atomic Energy Commission (CEA) has behaved accordingly. As the Euratom Commission stated, that body embodies a range of powers which make it … the preferred instrument for the use of atomic energy in its various aspects and it is at the same time very close to the Government and, as it were, associated with it although granted a wide freedom of action (under Ordonnance 45-2563 of 18 October 1945, establishing an Atomic Energy Commission). The CEA Commission in fact concluded (apparently in 1968) contracts for the importation of enriched uranium and plutonium and contracts relating to the supply of enriched uranium directly, without the knowledge of the Supply Agency. Moreover, the CEA did not notify the Agency of the existence of a commitment for the processing of materials imported from South Africa and the quantities involved in the delivery in question. In addition, after 1964 the French Republic no longer submitted to the Euratom Commission the annual reports on the development of prospecting and production, on probable reserves and on investment which had been made or planned in the French territory.

When the Commission learnt of these transactions through inspection reports, its Directorate-General for Energy sent a letter to the French Atomic Energy Commission on 24 April 1969. In this letter the Directorate-General maintained that the direct conclusion of import and supply contracts constituted an infringement of the provisions of Chapter VI of the Euratom Treaty which were still in force. In a letter addressed to the Directorate-General for Energy on 30 May 1969, the CEA expressed the view that Chapter VI had been invalid since 1 January 1965, and this view was also reiterated in a letter, dated 5 January 1970, from the Interministerial Technical Committee on Questions concerning the Application of the Euratom Treaty to the Director-General of the Supply Agency.

This attitude induced the Commission, which was still convinced that Chapter VI had remained, at least provisionally, in force after 1 January 1965, to initiate proceedings under Article 141 of the Euratom Treaty for a declaration that the Treaty had been infringed. In a letter of 12 March 1970 to the French Minister for Foreign Affairs the President of the Commission indicated in detail in what way provisions of the Euratom Treaty had, in the opinion of the Commission, been infringed by the French Republic and invited the French Government to submit its observations. These observations were sent to the President of the Commission in a letter of 20 May 1970 from the French Permenent Representatives. In this letter the French Government reiterated the fundamental view that it had already made known. In addition, it defined its position on each of the various particular complaints. Finally, it maintained that the provisions of the Euratom Treaty in question had not been appropriate ab initio for the actual situation and had therefore only been applied purely formally.

On 14 October 1970, the Commission, still convinced of the untenability of the position adopted by France, issued a formal opinion in accordance with Article 141 of the Euratom Treaty. In this opinion the Commission set out once again the alleged infringements and attempted to refute point by point the arguments raised by France in its defence. The opinion concluded with a request to adopt the measures necessary to comply with the opinion within 45 days.

As this was not done the Commission brought the matter before the Court of Justice on 11 March 1971. It continues to maintain that in view of the instructions issued by the French Government already mentioned and the fact that it is responsible for the activities of the French Atomic Energy Commission, France has committed a number of infringements of the provisions of the Euratom Treaty. Its application for a declaration is worded accordingly.

The French Government, on the other hand, considers that the application is inadmissible. It maintains, in addition, that it must in any event be dismissed as unfounded.

I should now like to examine in detail how this dispute is to be resolved. I shall mainly follow the plan that the parties have chosen for their respective arguments, even if this method does not clearly distinguish from one another the problems of admissibility and of the substance of the case.

1. However, in the first instance I must deal with one question of admissibility since it may clearly be distinguished from the substance of the case. This is the opinion, expressed for the first time by the French Government in the rejoinder, that the application was submitted out of time. The French Government maintains that this follows from the fact that it had already in 1965 described as invalid the provisions which it is now accused of infringing. Moreover, it has subsequently, by words and conduct, continually made it known that it persisted in this opinion (failure to submit reports under Article 70, failure to submit proposals for the appointment of members of the consultative committee, reservations with regard to the 1967 budget, reservations with regard to a regulation issued by the Commission under Article 74). Thus the Commission could have had the position adopted by the French Government considered earlier, in that it could have obtained clarification of the legal position by submitting an application to the Court; it was not permissible on the other hand only to refer the matter to the Court until five years had elapsed since the commencement of the situation that was now criticised.

2. The main argument submitted against the Commission, to which I shall now turn, is to the effect that the provisions of Chapter VI of the Euratom Treaty were no longer valid at the time when the French Government is accused of failing to observe them. In this respect the French Government refers to Article 76 (2), the final provision of Chapter VI. According to the French Government it follows from this that the decision regarding the provisions to be applied in the field of supplies had to be made before the expiry of seven years after the entry into force of the Treaty, that is, before 1 January 1965, so that if the original provisions were not confirmed new provisions could come into force on 1 January 1965. The French Government maintains that the most that could be said is that it was still possible to confirm the old provisions for a short period after the expiry of seven years. Since this opportunity had not been taken within a reasonable time, it must be assumed that the original provisions ceased to have effect and that the Council was obliged to issue new provisions (an objective, moreover, which the Commission itself sought to achieve with its proposals of November 1964, and which was evidently in accordance with the intentions of all the Member States). Until the adoption of such new provisions the only conclusion possible is that there was a lacuna in Community law. The Commission emphatically rejects this argument. It contends that it must be assumed that in any event the provisions originally contained in the Treaty were transitionally and provisionally valid beyond 1 January 1965, without any limitation in time, until new provisions had been adopted or the original provisions had been confirmed.

3. If this view is adopted no particular difficulties are encountered in answering the question whether the behaviour of the French Atomic Energy Commission from 1965 onwards, which must undoubtedly be attributed to the French Government, and the behaviour of the French Government itself constitute an infringement of the provisions of Chap ter VI and the regulations issued for their implementation.

4. Of course these facts still do not justify a finding that the French Government has infringed the Treaty and that the application must succeed. A number of other objections, which the French Government regards as relevant, must also be examined.

5. As you know, a further argument that has been put forward with a view to the dismissal of the application is to the effect that the state of the law regarding Chapter VI had been uncertain as from 1956 as a result of the Council's inactivity. It is contended that this obviates a finding that the French Republic has infringed the Treaty, as was held in Case 26/69, Commission v France ([1970] ECR 565), in which the Commission brought proceedings against France.

6. As will quickly become apparent, this also applies to the French Government's contention that it has not been proved that its behaviour has damaged the interests of third parties and in particular affected the supply of undertakings in other Member States.

7. A final group of arguments advanced by the French Government may be described under the heading abuse of procedure. The essence of these arguments is that in the situation that existed after 1 January 1965, proceedings on the ground of a failure to act should really have been instituted against the Council since this was the only measure that could have hastened the adoption of new supply provisions. On the other hand, the aim of the proceedings brought against France was to confirm the original provisions and this actually delayed the introduction of a new system. On this point the French Government added certain observations, some of which have already been made in another context, for example, that the Commission had not done enough to bring about the adoption of new provisions and that any condemnation of France in proceedings under Article 141 would in any event be of no avail for achieving the essential objective of the adoption of new provisions. Let us now examine these arguments.

8. I can. therefore summarize my views as follows:

1 Translated from the German.