C-7/61

JUDGMENT OF 19. 12. 1961-CASE 7/61

is to say, on unequivocal, formal applica­ 6. As distinct from Article 226 of the EEC tion by the government concerned, since Treaty, Article 36 of the Treaty is the measures constitute exceptions to the directed to eventualities of a non- rules of the Treaty, liable to disturb the economic kind which are not liable to functioning of the Common Market. prejudice the principles laid down by Ar­ 5. Member States may not rely on either ticles 30 to 34. In particular, that article the urgency or the seriousness of a situa­ does not establish a generic protective tion to evade the procedure of Article clause additional to that provided by Ar­ 226. By the very fact that it was ticle 226 and allowing Member States to provided as an emergency procedure, derogate by unilateral action from the this procedure excludes any unilateral procedure and the guarantees laid down action by Member States. by that provision.

In Case 7/61

Commission of the European Economic Community, represented by its Legal Adviser, Giancarlo Olmi, acting as Agent, with an address for service in Luxem­ bourg at the offices of Henri Manzanarès, Secretary of the Legal Department of the European Executives, 2 place de Metz,

applicant, v

Government of the Italian Republic , represented by Professor Riccardo Monaco, Head of the Diplomatic Legal Department of the Ministry for Foreign Affairs (replaced at the oral procedure by Dr Paolo Massimo Antici, Counsellor at the Italian Embassy in Luxembourg), acting as Agent, assisted by Pietro Peronaci, Deputy State Advocate-General, acting as Adviser, with an address for service in Luxembourg at the Italian Embassy, 5 rue Marie-Adélaide, defendant,

Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Conclusions of the parties order the applicant to pay the costs of the action'.

By additional conclusions dated 18 The applicant claims that the Court should: November 1961 the defendant requested 'rule that by suspending imports from that the Court should by order: Member States of the following products '(a) Invite the Commission to provide without following the procedures laid down details of the terms, the arguments and for putting the protective clauses into effect, the outcome of the authorized contacts after the liberalization of those products has and discussions between the Commis­ been consolidated pursuant to the second sion and the Italian Government paragraph of Article 31 of the Treaty es­ referred to in this case; tablishing the EEC, (b) invite the Commission to lodge with the live swine, other than those intended for Court originals or copies of all cor­ slaughter, respondence between the parties from 1 unrendered pig fat, fresh, chilled, frozen, March 1961 to the present, relating to salted, in brine, dried or smoked, the provisions mentioned in this case lard or other rendered animal fat, and to the opinion of 21 December cooked hams, 1960 which gave rise to this action, in­ the Italian Republic has failed to fulfil an cluding the communications of the obligation under the Treaty; Italian Government to the Commission order the Italian Republic to pay the costs'. as well as those of the Commission to the Italian Government; The defendant contends that the Court (c) in the event of the Commission's refus­ should: ing to carry out the order of the Court 'declare the Commission's action of 18 relating to points (a) and (b) above, March 1961 inadmissible; order such other means of inquiry as it alternatively, dismiss it; finds expedient in this case, including

countries of certain pigmeat products. such an application could not suspend the Most of these pigmeat products appeared on procedure opened pursuant to Article 169 of the list of products liberalized in pursuance the EEC Treaty. of the OEEC decisions of 14 January 1955, Accordingly, on 20 March 1961, the Com­ and in pursuance of Article 31 of the EEC mission brought this action before the Court Treaty the Italian Government had in a of Justice. letter of 17 December 1958 supplied the During the judicial stage of the dispute, the Commission of the EEC with a list of these Commission decided by a letter of 25 March products as being liberalized, this list thus 1961 not to authorize the protective being consolidated between Member States. measures (Article 226 of the EEC Treaty) The suspension of imports of the products but suggested to the Italian Government cited above was extended on successive occa­ that it institute a system of minimum prices sions until 31 March 1961. (Article 44 of the EEC Treaty). After once By a letter of 21 October 1960, the Commis­ again extending the suspension of the im­ sion of the EEC informed the Italian ports to 30 June 1961, the Italian Govern­ Government that the measures taken by the ment decided to carry out the suggestions of latter constituted an infringement of Article the Commission and from 1 July 1961 in­ 31 of the EEC Treaty, which prohibits stituted a scheme of minimum prices for Member States from introducing between some of the products concerned and, themselves any new quantitative restrictions meanwhile, reestablished complete freedom or measures having equivalent effect; this of importation for the others. By conclu­ letter was addressed to the Italian Govern­ sions received on 18 November 1961, the ment with the intention of giving it the op­ Italian Government requested the Court to portunity to submit its observations, as invite the Commission, by order of the provided for in the first paragraph of Article Court, to provide details of the contacts and 169 of the EEC Treaty. discussions between the parties and to lodge When no official reply came from the Italian with the Court all correspondence between Government within the stipulated period, the parties as from 1 March 1961. The main the Commission addressed to it on 21 part of the correspondence was lodged with December 1960 a reasoned opinion (first the Court on 21 November 1961, when the paragraph of Article 169 of the EEC oral procedure was opened, and annexed to Treaty), pointing out the infringement of the file of the case. Article 31 and stipulating a period of one month to bring it to an end. By a letter of 5 January 1961, the Italian III— Submissions and arguments Government informed the Commission of its of the parties decision to extend the suspension of the im­ ports in question until 31 March 1961, and The submissions and arguments of the par­ asked the Commission for its agreement ties may be summarized as follows:

A — Admissibility The defendant rejoins that under Article The defendant challenges the admissibility 169 of the EEC Treaty it is a condition of the action.' It considers that in the present precedent of the Commission's bringing an case the conditions for bringing a matter action that it produce an opinion in due before the Court of Justice under Article legal form. The article prescribed a 169 of the EEC Treaty have not been procedure in two stages, the first ad fulfilled and that the Court should dismiss ministrative and the second judicial.

matter. It is the defendant's contention that the Commission has scrupulously assessed the Commission"s letter dated 21 December the factual circumstances. In this instance, 1960 cannot be considered as a reasoned the Commission's letter-opinion does not opinion. Indeed, this letter goes no further contain any adequate reasoning as to the than to point out the provisional measures circumstances brought to its attention by the Italian Government and cannot con taken by the Italian Government, and the subsequent extensions of them, and to state stitute a fulfilment of the legal condition that, since the measures concerned certain precedent to litigation.

It is The applicant replies that the purpose of a therefore contradictory, in the defendant's reasoned opinion pursuant to Article 169 of submission, for the Commission to consider the EEC Treaty is to inform the Italian itself, as of 21 December 1960, able to assess Government of the Commission's opinion the situation and deliver a reasoned opinion, on the factual circumstances and on the in whilst on 10 March 1961 expressly stating terpretation of the Treaty, and to enable it that it had not yet managed to collect all the to assess that opinion. In the present case, material essential to the making of a deci

stitute an issue as to the admissibility of the called upon to make, the first being to pur­ action but an issue as to the substance of the sue the procedure under Article 169 for in­ case itself to be heard before the Court. fringement of Article 31, and the second

JUDGMENT OF 19. 12. 1961-CASE 7/61

ly. The defendant fails to understand how The defendant rejoins that Article 36 of the the Commission could examine and settle EEC Treaty allows Member States prohibi the same problem from two different angles tions or restrictions on imports in certain and draw from it one consequence for the specified circumstances. Therefore it does Article 169 procedure and another for that not see why in a particular emergency situa of Article 226. tion the Commission could not validate a (3) Thirdly, the defendant pleads that, even measure taken by a Member State and com granting that the letter of 21 December ing within the scope of Article 226, if the 1960 constitutes the reasoned opinion re Commission considers the measure justified. quired under Article 169, it is none the less still the case that the admissibility of an ac B — The substance of the case tion before the Court of Justice is subject to the condition that the Member State to 1. Failure to fulfil the obligations imposed which the opinion was addressed should not by Article 31 of the EEC Treaty have complied with it within the prescribed The applicant states that the measures

application, it could not maintain that the fall within the standstill obligation laid Italian Government had not complied with down in the first paragraph of Article 31 of the opinion. the EEC Treaty, that is to say, the prohibi The applicant replies that Article 226 does tion on creating any new obstacles to the not constitute an automatic protective free movement of goods and on making clause under which any unilateral action by more restrictive any obstacles already ex a Member State contrary to the Treaty can isting on the entry into force of the Treaty. be legalized upon the fulfilment of certain The standstill obligation is absolute; it does

COMMISSION v ITALY

measures taken are absolutely provisional But this article does not enable the Member

and that when they expire normal condi­ State which invokes it to take protective tions will be re-established on the market measures spontaneously. They must be concerned. Moreover, the Italian Govern­ authorized by the Commission, which is ment's intention to re-establish imports of bound to determine the measures which it

the products in question as soon as possible considers necessary and is bound to specify is demonstrated by the fact that the term of the circumstances and the manner in which

measures under Article 226 of the EEC ing of this fundamental provision of the Treaty was not introduced until 5 January treaty. 1961. It avers that, in stressing the critical (b) The defendant replies, secondly, that situation in the sector concerned on 20 June there were hardly any other means than 1976, the Italian Government applied on those used to remedy the artificially low that date to the Commission to examine the prices prevailing in the sector in question. In provisional measures which had been particular, it was not possible to adopt adopted. In the defendant's contention, it 'minimum prices', since the European was not necessary to refer expressly to Arti Economic Community has not yet estab cle 226 since that article does not require lished the general conditions which must any particular formality and goes no further prevail in order to implement this system. than to provide that in such a case the Com The applicant rejoins that, if the market in mission cannot act on its own authority, but pigmeat was encountering serious and per only on the application of the State con sistent difficulties in June 1960, the Italian cerned. Government had only to apply to the Com The applicant rejoins that, even if Article mission under the emergency procedure laid 226 does not require any special formalities, down in Article 226 to obtain authorization in any case it does require an application by to take protective measures, which might, if the State concerned which cannot be aimed necessary, consist of a temporary restriction at the ratification of measures already on imports of liberalized and consolidated carried out, but only the preliminary

JUDGMENT OF 19. 12. 1961-CASE 7/61

Hence the right adopt such emergency measures as it deems to take an emergency measure unilaterally, necessary when events arise which demand allowed in the cases referred to in Articles an immediate decision and cannot be dealt 73 (2) and 109 and the second paragraph of with otherwise. The Treaty of Rome did not Article 115, cannot be extended to Article exclude the possibility of interventions of 226, which provides exclusively for the this kind by Member States, but it did re authorization of the measure by the Com quire that they should be followed as soon as mission. possible by a communication to the Com Not only does Article 226 not provide for mission and an application to it to decide the unilateral taking of protective measures definitive long-term measures within the by the Member State, but expressly provides framework of Article 226. The Italian that, on the application of the Member Government complied with these principles State, the Commission's decision shall be when confronted with the crisis concerning taken 'by emergency procedure'.

Further situation of exceptional seriousness for the more, it avers that the arguments drawn by nation. The difficulties resulting from a the applicant from Articles 73 (2) and 109 drop in prices on the market in pigmeat are and the second paragraph of Article 115 obviously not of such an order. Further relate to particular instances which do not more, in the present case there would be cover the matter in its entirety. It examines grounds for inquiring into which general Articles 224 and 36, which both provide for principles of public law apply in the unilateral measures to be taken by Member Member States, only if it were a question of States in the case of specific events of an ex filling a lacuna in the EEC Treaty. In fact, tremely serious nature (Article 224) and in the matter is clearly regulated by express the case of less serious reasons generally per provisions of the EEC Treaty. taining to public policy (Article 36).

COMMISSION v ITALY

Treaty, anticipating an even less serious must, if necessary, form the subject-matter form of injurious phenomenon, provided the of fresh proceedings. As to the failure which protective measures of Article 226 as a gave rise to the present proceedings it means of dealing with it. A Member State, ceased to exist owing to the fact that the opi­ over-estimating the seriousness of the in­ nion was eventually followed. jurious event, might have recourse to the The applicant Commission replies that the measures under Article 36, and the Commis­ purpose of the action is to obtain a ruling by sion might then invite the State to consider the Court that a Member State has failed to

less rigorous remedies. In such a case, the fulfil an obligation under the Treaty (Article State may either revoke the emergency 171 of the EEC Treaty). When a matter has measure adopted or fall back on the protec­ been brought before the Court, it is for it to tive measures under Article 226. The Com­ decide ex tunc whether the failure was com­

obtain a ruling by the Court that the Italian Government did not follow the reasoned The procedure followed the normal course. opinion delivered pursuant to Article 169, The additional conclusions lodged by the and in so doing, failed to fulfil its obligations defendant on 18 November 1961 were con­

under the Treaty. In this instance, the Com­ tested during the oral procedure. mission admits that in the end the Italian Upon hearing the report of the Judge- Government did fulfil its obligations. If it be Rapporteur and the views of the Advocate- the case that the period laid down in the General, the Court decided on 26 reasoned opinion was not observed, that September 1961 not to make any delay constitutes a fresh infringement which preparatory inquiry

Grounds of judgment A — The purpose of the action The correspondence between the parties from 1 March 1961, lodged at the Court Registry on 18 November 1961, shows that the Italian Government finally complied

JUDGMENT OF 19. 12. 1961-CASE 7/61

with the Commission's point of view and, as from 1 July 1961, instituted a scheme of minimum prices for some of the products concerned, whilst re-establishing com­ plete freedom of importation for the others.

It is incumbent on the Court to examine whether the conclusions in the application no longer have any purpose, so that there is no point in proceeding to judgment.

B — Admissibility

Three objections of inadmissibility are raised against the action.

(a) The first consists in maintaining that the Commission's letter of 21 December 1960 did not constitute a 'reasoned opinion' within the meaning of Article 169 of the Treaty, owing to the fact that it did not examine the pertinence of the argu­ ments advanced by the Italian Government as to the existence and seriousness of the crisis affecting the market in pigmeat and the necessity for the provisional measures decided upon to bring it to an end.

COMMISSION v ITALY

The opinion referred to in Article 169 of the Treaty must be considered to contain a sufficient statement of reasons to satisfy the law when it contains—as it does in this case—a coherent statement of the reasons which led the Commission to believe

that the State in question has failed to fulfil an obligation under the Treaty.

In order to comply with the reasoned opinion, the Italian Government should within the prescribed period have instituted the procedures necessary to bring to an end the suspension measures judged contrary to Article 31. The presentation of an application for putting protective measures into effect has a completely different purport.

For the reasons set out above, the objections of inadmissibility raised by the defen­ dant must be rejected.

C — The substance of the case

The defendant does not formally dispute that the re-establishment by a Member State of measures restricting imports of products, the liberalization of which has been consolidated between Member States, conflicts with the provisions of Article

JUDGMENT OF 19. 12. 1961-CASE 7/61

31 of the Treaty. The defendant does however raise several arguments to the effect that, none the less, in the particular circumstances of this action, the failure to observe Article 31 does not constitute a failure by the Italian Government to fulfil its obligations under the Treaty.

Consequently the Commission was not bound to decide on the application for protective measures before 5 January 1961, the date on which it was expressly in­ vited by the defendant to do so.

(c) The defendant maintains, thirdly, that it had no other means than the provisional suspension of imports at its disposal to remedy the aritificially low prices prevailing in the pigmeat sector. Moreover, the general principles of public law authorize every State, in an emergency, to take such provisional measures as are necessary to remedy serious occurrences.

Article 226 contains a formal provision laying down an emergency procedure which allows a remedy to be brought to the most serious situations in the shortest time.

COMMISSION v ITALY

The very fact that an emergency procedure has been provided excludes any un­ ilateral action by Member States, which may not therefore rely on either the urgency or the seriousness of the situation to evade the procedure of Article 226.

In the present case such a procedure was not begun until several months after the start of the administrative stage of the dispute.

For the reasons stated above, the action must be declared well founded.

D — Co s t s

Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

The defendant has failed in all its submissions and must therefore be ordered to pay the costs.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 30 to 34, 36, 169, 171 and 226 of the Treaty establishing the European Economic Community;

Donner Riese Rueff

Delvaux Hammes Rossi Catalano

Delivered in open court in Luxembourg on 19 December 1961

A. Van Houtte A. M. Donner

President Registrar

OPINION OF MR ADVOCATE-GENERAL LAGRANGE DELIVERED ON 29 NOVEMBER 1961 1