Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court

1. This case concerns the interpretation of certain provisions on international trade contained in the agreements concluded by the European Economic Community with Greece on 9 July 1961, with Spain on 29 June 1970 and with Austria on 22 July 1972. In essence, the Court is asked to establish whether or not those agreements impose a prohibition on measures equivalent to quantitative restrictions on exports.

2. Article 28 (1) of the Association Agreement with Greece, using an expression almost identical to that found in Article 34 (1) of the EEC Treaty, provides that quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between the Contracting Parties. However, the second part of the same paragraph provides that the Member States of the Community and Greece shall, by the end of the transitional period laid down in Article 6 at the latest, abolish between themselves all quantitative restrictions on exports and any measures having equivalent effect. It is clear therefore that the Contracting Parties had until the end of the transitional period, that is to say until 1 November 1974, to abolish between themselves quantitative restrictions on exports and measures having equivalent effect, unless in the meantime the Council of Association were to address to them a recommendation to proceed with the abolition more rapidly, and the Contracting Parties were to decide to act upon such a recommendation (that is the effect of Article 29 of the Agreement). But such an acceleration — which would have had to be compatible with the general economic situation and with the situation in the sector concerned — did not occur: the Council of Association did not before 1 November 1974 make any recommendation to the Contracting Parties inviting them to abolish the various quantitative restrictions more rapidly. Consequently, the obligation imposed by the said Article 28 (1) applied only as from 1 November 1974; whilst the facts which the national court is called upon to consider arose prior to that date, having occurred between June and October of 1972.

3. In the Agreement with Spain — which of course is much more limited in scope than that with Greece, in that it aims to create a free-trade area not an associate relationship — there are no provisions imposing a prohibition on quantitative restrictions on exports or measures having equivalent effect. However, there is a provision (Article 12) which states that the provisions of the Agreement shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade. It is easy to see that that rule reproduces with very slight amendments Article 36 of the EEC Treaty; that leads to the question whether the two provisions have the same scope. Taking account of the fact that Article 36 is a derogation from the prohibitions imposed by Articles 30 to 34 of the same Treaty, an affirmative reply would suggest that those prohibitions also must be considered to have been incorporated by implication into the agreement in question.

4. Finally, as regards the Interim Agreement between the EEC and Austria in force at the material time, the national court draws the attention of the Court of Justice particularly to Articles 10 and 16. But in my opinion neither of those provisions prohibits restrictions on exports or measures having equivalent effect.

5. I therefore propose that the Court should, in reply to the questions submitted by the Tribunal Correctionnel, Besançon, by its judgment of 29 September 1978, declare that:

1 Translated from the Italian.