Opinion of Mr advocate general Warner

My Lords,

This case comes to the Court by way of a reference for a preliminary ruling by the Tribunal de Grande Instance of Montpellier. It is a sequel to Case 52/77 Cayrol v Rivoira [1977] ECR 2261. Your Lordships are familiar with the facts of that case and I need not, I think, rehearse them, except to recall that they gave rise to two sets of proceedings.

First, they gave rise to criminal proceedings in the Tribunal de Grande Instance of Montpellier, in which M. Cayrol, the three panners in the firm of Rivoira Giovanni & Figli s.n.c. and that firm itself were charged with having imponed prohibited goods into France by means of false declarations as to their origin. At the time when Case 52/77 came before this Court the defendants in those proceedings had all been convicted of that offence, and had jointly and severally been fined (i) a sum of 1000 FF (ii) a sum of 532435 FF representing the value of the goods in question and (iii) a further sum of 1064870 FF representing twice that value. Because, however, the defendants other than M. Cayrol (I shall call them the Rivoiras) had been convicted in their absence, an application was pending before the Tribunal to have their convictions set aside on the ground that they had not been properly notified of the proceedings. M. Cayrol, for his pan, had reached a settlement with the French Customs authorities under which he agreed to pay a reduced fine of 175000 FF.

Secondly there was a civil action brought by M. Cayrol against the Rivoiras in the Tribunale of Saluzzo, in which he claimed damages on the ground that it was the Rivoiras' use of the ICE mark and cenificate that had led to his conviction in France. Case 52/77 was a reference for a preliminary ruling by the Tribunale of Saluzzo in that action. The Court's Judgment ruling on that reference was dated 30 November 1977.

The subsequent events, in so far as they are relevant, can be stated very briefly.

On 20 December 1977 the President of the Tribunale of Saluzzo, upon reading the Court's Judgment of 30 November 1977, dismissed M. Cayrol's action.

On 5 June 1978 the Tribunal de Grande Instance of Montpellier, having heard argument on the Rivoiras' application for their convictions to be set aside, made the Order for Reference in the present case.

By that Order the Tribunal seeks the Court's ruling on two questions.

The first is:

The answer to that question is manifestly No. I refrain from repeating what I said about that in Case 52/77 (see [1977] ECR at pp. 2288-2289).

It is understandable enough, however, that the Tribunal at Montpellier should have wished to obtain a clear ruling from this Court to that effect, firstly because of the way in which the Judgment of the Court in Case 52/77 was worded and secondly because of a peculiar aspect of the argument presented to the Tribunal in the present case on behalf of the French Customs. The Judgment of the Court in Case 52/77, whilst expressed in such a way as to lead inevitably to the conclusion that the French Republic could not, without having obtained the requisite authorization under Article 115, lawfully restrict the importation of Spanish grapes in free circulation in Italy, nowhere actually states that proposition in categorical terms. The argument presented to the Tribunal on behalf of the French Customs had the peculiarity that, whilst it stressed the fact that this Court, in Case 52/77, had recognized the French Republic's right (by virtue of Council Regulation (EEC) No 2513/69 and despite the Agreement between the Community and Spain of 29 June 1970) to restrict importations of table grapes from Spain in the relevant periods, it totally disregarded the equally important fact that (as was common ground in Case 52/77 and as is expressly admitted in the Observations lodged by the French Government in the present case) the French Republic never sought or obtained, in respect of those periods, any recommendation or authorization of the Commission under Article 115 of the EEC Treaty enabling it to take measures concerning imports of Spanish grapes in free circulation in other Member States.

The second question on which the Tribunal seeks this Court's ruling is expressed as follows:

That question clearly cannot be answered directly by this Court, because it is not for this Court, on a reference under Article 177 of the Treaty, to interpret French customs legislation, whether it be contained in the Code des Douanes or elsewhere, much less to tell a French court when that legislation should be applied and when it should not. The role of this Court, on such a reference, is limited to ruling on the relevant Community law. It is then for the national Court to apply its own law consistently with that ruling.

Here again, however, the form of the question referred to this Court by the Tribunal is explicable if one looks at the argument that was submitted to the Tribunal, this time on behalf of the Rivoiras. That argument, taking as its starting point the circumstance that the prosecution is based on certain articles of the French Code des Douanes, suggested that there was to be discerned in the relevant decisions of this Court, and in particular in its Judgment in Case 52/77, a distinction between an offence against customs law (une infraction douanière) and an offence against commercial law (une infraction à la loi commerciale) or against consumer protection law (une infraction en matière de protection des consommateurs). The argument concluded that, in a case such as this, Community law confined a national court to imposing sanctions of an administrative nature (de nature administrative) and precluded it from imposing any sanction provided for by customs law (sanction d'ordre douanier).

In my opinion that argument was wholly misconceived, though it may have been prompted by the references in paragraph 36 of the Judgment of the Court in Case 41/76 Donckerwolcke v Procureur de la République [1976] 2 ECR 1921 and in paragraph 37 of the Judgment in Case 52/77 to the purely administrative nature of the contravention.

It is no part of the function of this Court to classify into such categories either the offences or the sanctions that may be recognized by the national laws of Member States. There is no reason to suppose that the same categories are recognized in the legal systems of all the Member States or that, if they are, each category has the same content in every one of those systems. The function of this Court is confined to saying within what limits national courts may, consistently with Community law, recognize offences of the kind here charged and punish people for them. It is for the national courts of each Member State to identify the provisions of the law of that Member State under which, within those limits, such an offence may be charged and punished.

What those limits are, in circumstances such as those of this case, is clearly apparent from the Judgment of the Court in Case 52/77, the terms of which I need not rehearse.

The French Government, in the written observations that it submitted to us, accepted that the law was correctly laid down in that Judgment. Its main contention was that a false declaration of origin ought to lead to heavier penalties if it was made for a fraudulent purpose than if it was made bona fide. This provoked a contention on behalf of the Rivoiras, at the hearing, that, on the evidence, a true declaration of origin in this case would have led the French Customs to forbid the importations in question, which would have been an unlawful act on their part. On the law as laid down by this Court, the French Customs could have been concerned to obtain a true declaration of origin only if they had been concerned to monitor importations of Spanish grapes into France through other Member States with a view to a possible application to the Commission under Article 115, or if they had been concerned to enforce the Community legislation on quality standards. Clearly, however, so the contention continued, neither of those objects was in their minds.

In my opinion such contentions, whilst perhaps of a kind that it will be proper for the parties to advance before the Tribunal de Grande Instance of Montpellier when it comes to consider its final decision in this case, are not contentions that have any bearing on the questions on which this Court is called upon to rule on the present reference (consider and compare (i) the Judgment of this Court in Case 53/76 Procureur de la République v Bouhelier [1977] ECR 197 and (ii) the resultant Judgment of the Tribunal de Grande Instance of Besançon dated 29 September 1978, which also constitutes the Order for Reference in Case 225/78).

On those questions I am of the opinion that Your Lordships should rule as follows: