Opinion of Mr advocate-general Capotorti
Mr President,
Members of the Court,
1. The present case is submitted for a decision as a matter brought before the Court by the Commission under Article 169 of the Treaty of Rome. The defendant is the French Government, which, in the Commission's view, has been guilty of an infringement of Article 34 of the Treaty.
2. Article 34 (1) of the EEC Treaty reads: Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States. The Commission maintains that the measure adopted by the French Government infringes that rule and, in support of its case, refers to the relevant precedents established by this Court.
3. It is true that, as I had occasion to point out in my opinion of 24 November last, in Case 41/76, Criel née Donckerwolcke v Procureur de la République, the conclusion can be drawn from the precedents established by this Court that certain national measures which are liable to render intra-Community trade more difficult may escape the prohibition in Articles 30 and 34, even apart from the express provision in Article 36, if they are adopted for a purpose which accords with the Community's interests and which is therefore worthy of protection, always provided that the restrictive effect is in proportion to the object thereby being pursued.
4. According to the French Government, in the absence of a common organization of the market in a particular sector of agricultural production, each Member State remains entitled to lay down rules for that sector pending the appearance of Community legislation. This entitlement must extend to the adoption of the provisions necessary to cope with particular situations without their being limited by the rules in Title I of the Treaty. The French Government contends that it is possible to find evidence in support of its argument in the judgment of the Court of 31 March 1971 in Case 22/70 (Commission v Council [1971] ECR 263), the famous case involving the European Agreement concerning the work of crews of vehicles engaged in international road transport (AETR). In that judgment it was held that when, in pursuance of a common policy provided for by the Treaty, the Community has, in a given field, adopted common rules, this excludes the powers of the Member States. The defendant in the present case concludes from this that as long as such rules are lacking, as they are in the case of the potato industry, national powers remain intact.
5. The defendant tries to overcome the difficulty of these decisions in the first place by saying that if the failure of the Council to make regulations for certain agricultural sectors does not prevent the application of the principles of the Treaty concerning the free movement of goods, neither should it constitute an obstacle for the exceptions allowed by the Treaty to the application of those principles. It states that the need for some flexibility in agricultural matters is clear from the said provision of Article 38 (2) of the Treaty in that, while it provides that the rules laid down for the establishment of the common market shall apply to agricultural products, it makes an exception where otherwise provided in Articles 39 to 46. It is accordingly possible for the Community institutions to derogate from the general rules relating to the establishment of the common market for agricultural products which are subject to specific common legislation. According to the defendant, the States should be acknowledged to have the same option in the case of products which are not yet the subject of a common organization and which, accordingly, have remained subject to action on their part. In the defendant's view, to take the opposite view might create a legislative vacuum.
6. The question may still arise whether, in cases of emergency, it is permissible for the States to adopt restrictive provisions on an exceptional and temporary basis in so far as there is a lack of Community provisions capable of coping with a particular situation and to the extent to which the provisions in question are, accordingly, necessary in order to deal with serious difficulties.
7. Finally, it must be borne in mind that, even if the unilateral actions of the State were to be recognized as being of unavoidable necessity and urgency, it would nevertheless be necessary to determine whether the measures taken were not more restrictive than was necessary for the achievement of their purpose.
8. For all the foregoing reasons, I recommend the Court to declare that, in issuing the Avis aux Exportateurs of 25 October 1975, whereunder the export of potatoes was made subject to the production of an export certificate endorsed by the FORMA, the French Government has infringed Article 34 of the EEC Treaty.
1 Translated from the Italian.