C-26/69
ECLI:EU:C:1970:67
- Súd
- Súdny dvor Európskej únie
- IČS
- 61969CJ0026
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF 9. 7. 1970 — CASE 26/69
tection technique under Regulation No the said regulation and compatible with 136/66 is different from systems based the principles underlying the common exclusively on the application of customs organization of the market in oils and duties both in its aim and in the means fats. which it employs. Whilst not excluding any steps taken by the Member State holding the rights 3. The Protocol on goods originating in and reserved under Protocol I.7, such an coming from certain countries and adaptation could only be the task of the enjoying special treatment when im Community institutions competent to ported into a Member State, annexed to implement the common agricultural the EEC Treaty, has the purpose of policy and to regulate the Community's preserving exising patterns of trade relationship with third countries. Since between certain Member States and the silence of Regulation No 136/66 on certain third countries. After the entry this point has created an equivocal situa into force of Regulation No 136/66 on the tion, a failure to fulfil its obligations establishment of a common organiza cannot be alleged against a Member tion of the market in oils and fats the State which has excluded from the appli objective of Protocol I.7 can however be cation of the levy introduced by the said achieved as regards the importation of regulation imports of olive oil which olive oil by means which are in con have previously benefited from the formity with the new situation created by preference under Protocol I.7.
In Case 26/69
Commission of the European Communities, represented by its Legal Adviser, Georges Le Tallec, acting as Agent, with an address for service in Luxembourg at the offices of its Legal Adviser, Émile Reuter, 4 boulevard Royal,
applicant,
v
French Republic, represented by Renaud Sivan, Ambassador Extraordinary and Plenipotentiary and Guy de Lacharrière, Minister Plenipotentiary, Director of Legal Services at the Ministry for Foreign Affairs, acting as Agents, with an address for service in Luxembourg at the Embassy of the French Republic,
defendant,
Application for a declaration that the French Republic has failed to fulfil its obligations under Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organization of the market in oils and fats by exempting from payment of the levy, within the limit of a quota fixed annually, imports of olive oil originating in and coming from Tunisia,
COMMISSION ν FRANCE
THE COURT
composed of: R. Lecourt, President, R. Monaco and P. Pescatore (Rapporteur), Presidents of Chambers, A. M. Donner, A. Trabucchi, W. Strauß and J. Mertens de Wilmars, Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I —Summary of the facts arrangements in force between France and that country could not benefit from the Article 13 (1) of Regulation No 136/66/EEC provisions on free movement within the of the Council of 22 September 1966 on the Community. establishment of a common organization of An inter-ministerial decree published in the the market in oils and fats (OJ No 172 of Journal Officiel of the French Republic on 30.9.1966, p. 3025; OJ 1965-1966, (English 19 January 1967 fixed the tariff quota for Special Edition November 1972), p. 221) olive oil from Tunisia, subject to zero duty, provides that if the threshold price is higher at 20 000 metric tonnes for the year 1967. than the cif price, a levy equal to the differ Under the provisions of a further notice ence between these two prices shall be published in the Journal Officiel of the charged on imports of unrefined olive oil French Republic on 2 June 1967 the levies from third countries. under Regulation No 136/66/EEC were not Under Article 14 (1) of that regulation a applicable to imports of olive oil originating levy is also charged on imports of refined in and coming from Tunisia within the limit olive oil from third countries. of the tariff quota for 1967 opened by the By a notice published in the Journal Officiel inter-ministerial decree of January 1967. of the French Republic of 8 December 1966, Considering that the importation free of the French Government excluded the appli levies of olive oil originating in and coming cation of the said levies to unrefined, puri from Tunisia took place in breach of Arti fied or refined olive oil in particular, cles 13 (1) and 14 (1) of Regulation No originating in and coming from Tunisia, 136/66/EEC, the Commission of the within the limit of the proportion remaining European Communities, by letter of 1 available of the tariff quotas open to that August 1967 addressed to the Minister for country in respect of the year 1966 or the Foreign Affairs of the French Republic, financial year 1966/67. requested the French Government pur This notice also drew attention to the fact suant to Article 169 of the Treaty to for that products imported from Tunisia under ward its observations. the provisions of the preferential customs By further notice published in the Journal
JUDGMENT OF 9. 7. 1970 — CASE 26/69
Officiel of the French Republic on 12 Janua — declare that, by excluding from the ap ry 1968 importers were notified that within plication of the levy within the limit of a the limit of the quota of 20 000 metric quota fixed annually imports of olive oil tonnes for the year 1968 the levies under originating in and coming from Tunisia, Regulation No 136/66/EEC were not the French Republic has failed to fulfil applicable to imports of olive oil originating the obligation imposed under Article 13 in and coming from Tunisia. (1) and 14 (1) of Regulation No 136/66 Since the Commission did not consider the EEC; observations submitted to it by the French Government on 3 November 1967 to be — order the defendant to pay the costs.
. satisfactory it delivered an opinion on 3 May 1968 under Article 169 of the Treaty in The French Republic contends that the which on the one hand it gave reasons for Court should: the finding of a failure on the part of the French Republic to meet the obligations — reject the Commission's application and imposed upon it under Articles 13 (1) and declare that the French Republic has not 14(1) of Regulation No 136/66/EEC, and on failed to fulfil its obligations under the the other hand called on the French EEC Treaty; Republic to take such measures as were necessary to remedy this failure within a — order the applicant to pay the costs. period of one month, such period being subject to extension to meet possible needs arising from parliamentary procedures. IV — Submissions and arguments of A fresh notice to importers of olive oil from the parties Tunisia renewing for 1969 the measures in force for 1968 having appeared in, the Journal Officiel of the French Republic on The submissions and arguments of the 31 January 1969, the Commission by an parties may, be summarized as follows: application lodged on 14 June 1969 has brought before the Court the failures under A — The alleged failure Regulation No 136/66/EEC of which it is complaining to the French Republic. The Commission is of the opinion that the action of the French Republic in excluding II — Procedure from the levies instituted by Regulation No 136/66/EEC, within the limit of a quota, fixed annually, imports of olive oil origin The written procedure followed the normal ating in and coming from Tunisia amounts
course. to a failure to fulfil the obligations imposed On the report of the Judge-Rapporteur and' upon it by the said regulation. after hearing the views of the Advocate- The French Republic denies that the facts set General, the Court decided to proceed out by the Commission constitute a failure without a preparatory inquiry. to fulfil its obligations. Nevertheless the parties replied in writing within the prescribed time-limits to the B — The applicability of Protocol I.7 annex questions put to them by the Court. ed to the EEC Treaty to the levies under They submitted their observations at the hearing on 20 January 1970.
Regulation No 136/66/EEC The Advocate-General delivered his opinion The Commission argues that the French at the hearing on 17 February 1970. Republic is wrong in thinking that it can justify its refusal to apply to imports of olive III — Conclusions of the parties oil from Tunisia the levies provided for under Regulation No 136/66/EEC by The Commission claims that the Court recourse to Protocol I.7 relating to goods should: originating in and coming from certain
COMMISSION ν FRANCE
countries and enjoying special treatment the Community, annexed to the EEC when imported into a Member State. Treaty, that the concept of 'customs treat Under this Protocol which, it is claimed, ment' refers only to the customs duties and does not in any event confer upon third excludes even charges having equivalent countries the right to retain a system of effect. Protocol I.7 does not confer any preferential treatment and which amounts wider meaning on that concept; nothing to no more than a facility granted to the would justify giving third countries listed in Member State concerned, the application of this Protocol, in whose favour the Treaty the EEC Treaty requires no alteration in the contains only a simple declaration of intent customs treatment applicable at the time of as regards an ultimate association, more the entry into force of the Treaty, in par favourable treatment than that given to the ticular as regards imports into France of overseas countries and territories for whom goods originating in an dcoming from the Treaty had already instituted a genuine
Tunisia. association. In the Commission's view the Protocol's sole purpose is to relieve Member States (c) Any measure adopted by the Commun concerned, including France, of the obliga ity for putting into operation the common tion to bring the customs duties which they agricultural policy must be looked at in the apply to certain third countries into line light of its function and of its specific pur with the Common Customs Tariff. Since pose within the framework of that policy. the levies instituted by the agricultural The levies fit into it as elements of a common market arrangements are not customs price system in the common agricultural duties they therefore fall outside the range policy and thus become essential instru
of this Protocol. ments thereof : The view that Protocol I.7 is not applicable to the levies is justified by the following — the levies vis-à-vis third countries are arguments : determined by reference to a 'political' price (as a general rule the threshold (a) Any exempting provision must be price, based on the target price) fixed in strictly interpreted and applied ; a restrictive line with the objectives of the Common interpretation of the Protocol is particularly Market, in particular that of assuring a called for where there exists a single market, fair standard of living to procedure with which is the case with olive oil ; out neglecting the need to ensure that supplies reach consumers at reasonable
(b) The definition given by the Customs prices. (Article 39 (1)); Cooperation Council to the concept of 'customs treatment' has no mandatory — as a flexible protective measure, liable to effect; it has moreover been further devel variation in accordance with the vagaries oped and permits of no definite conclusion. of market conditions, the levy constitutes GATT practice confirms the thesis under a 'common machinery for stabilizing which the 'customs treatment' concerns imports' within the meaning of Article 40 only customs duty and not other charges. (3); it fulfils a market-regulating func For the purpose of applying the EEC Treaty tion, avoiding massive imports at a price
lower, than that in force within the Com and Protocol I.7 one cannot give to the term 'customs treatment' the scope which munity; the French Republic contends that it has; — the 'political' price of agricultural it certainly does not include 'all the products applies to the whole Commun elements of the system of imports known at ity; it is the consequence of the need for the time when the Treaty, was negotiated'; a single Community market similar to it is for example evident that it does not that of a national market in which goods include quantitative restrictions. move freely (Article 43 (3) (b));
It follows particularly from the Imple menting Convention on the Association of — a corollary of this principle is the exclu the Overseas Countries and Territories with sion expressly laid down in Article 40 (3)
JUDGMENT OF 9. 7. 1970 — CASE 26/69
of any discrimination between producers In conclusion the Commission considers and consumers within the Community; that the levies cannot fall within the field of Protocol I.7. Quite apart from its actual — Under Article 11 of Regulation No 130/ wording, the ratio legis of the Protocol 66/EEC on the financing of the common prevents this. agricultural policy, each Member State The Protocol only exempts Member States is bound to make to the European Agri from the obligation under Article 23 of the cultural Guidance and Guarantee Fund Treaty progressively to introduce the a contribution equal to 90 % of the total Common Customs Tariff; the Member amount of the levies in relation to third States remain on the other hand subject to countries collected by Member States, all other obligations of the Treaty, in partic the remainder of the Fund's expenses ular in matters of the common agricultural being covered by contributions cal
policy. Protocol I.7 had as its one and only culated on the basis of a fixed scale. purpose to derogate in certain cases from the automatic effect of the introduction of the Common Customs Tariff. (d) It is by reason of this specific function of the system of levies—which is moreover The French Republic points out that in the established by the Court's case-law—that case of the independent countries in the during the transitional period the applica Franc Area, Protocol I.7 was intended to be tion of levies becomes necessary even in applied only temporarily and that the trade between Member States notwith definitive trading arrangements between standing the reduction of customs duties those countries and the Community were to provided for by the Treaty for as long as be settled in the Association Agreements. price differences remain. There is thus all the In particular this was so in the case of more reason to apply them to third coun Tunisia, ever since the agreement establish tries which do not participate in the com ing an association between the EEC and the mon agricultural policy, whatever the tariff Tunisian Republic, which was signed in
treatment which they enjoy. Tunis on 28 March 1969 and which entered into force on 1 September 1969. (e) The levies, which are essential elements As to the substance, the French Republic of the common agricultural policy, require takes the view that in the present case, over a non-discriminatory application. Any and above semantic arguments, the problem unjustified derogation from the system of is one of good faith in the relationship levies can only hinder the realization of the between the Community or one of its common agricultural policy. That is why Member States and a developing country. only the Community is in a position to The Community and, before it existed, judge whether and under what conditions certain of its Member States assumed a exemptions may be granted. responsibility towards the developing coun
tries. The Community undertook to main (f) The existence of this very clear principle tain and intensify the traditional patterns of is moreover confirmed by the attitude of the trade between the Member States of the Community and of the Member States on EEC and the independent countries of the previous occasions, in particular within the Franc Area and to contribute towards framework of the Association Agreements their economic and social development. In with the African and Malagasy States and anticipation of the conclusions of an Asso with Greece. This attitude establishes in an ciation Agreement the transitional system eloquent manner the Community doctrine set up by Protocol I.7 provided in particular in the field of levies: by reason of their a specific system for the importation of specific function within the framework of certain goods originating in and coming the common agricultural policy they cannot from those countries. The essential purpose be equated with other tariff measures nor, of the Protocol was therefore to ensure that a fortiori, can they be brought within the the establishment of the EEC did not cause term 'customs treatment'. major damage to the economy of certain
COMMISSION ν FRANCE
developing third countries which before the (b) To exclude the levies from Protocol I.7 entry into force of the Treaty had had would, as regards olive oil, and more privileged relationships with their former generally all the agricultural products mother country. In the relationships falling within a common organization of between certain Member States and certain the market, have the result of depriving the third countries it permitted suspending the Protocol of any substance, since the levies application of those Treaty provisions would have taken the place of all the pro which would have required a modification tective devices previously in operation. of the customs treatment applicable at the time of the entry into force of the Treaty to (c) Without claiming that the levies can imports from those third countries and thus immediately be assimilated to customs permitted the special import systems to duties it is right to place on record that the remain in force, except in case of any collection of the levies has the effect of damage resulting therefrom to the other modifying the 'customs treatment' within Member States. The Protocol in no way the meaning of the Protocol. intended to exclude agricultural products; on the contrary, it is essentially in their — The expression 'customs treatment' used favour that this exception to Community in the Protocol includes all the elements rules was made. of treatment on importation known at The claim on the part of the Commission to the time when the Treaty was negotiated, be entitled to exclude levies from the ambit since the Protocol undoubtedly provides of the Protocol and to limit this to customs the Member States with an opportunity duties proper cannot really be maintained. of totally avoiding the Treaty obligations Since the levies were unknown at the time in their relationships with some of their when the Protocol entered into force one former colonies.
must in replying to the question whether The Protocol refers not only to the they ought to be included in or excluded concept of 'customs treatment' since the from the customs system look to the spirit preamble includes the expression 'special of the Protocol and the intention of its treatment when imported' which is authors. referred to again in Article 3 of the body of the Protocol.
(a) The authors of the Treaty and of the — It is hardly to be denied that the levy Protocol desired to safeguard a continuity collected upon the entry of a product into between the already existing bilateral ad the territory of a Member State is one of vantages and the Association Agreements the elements of the import regime. which would one day be concluded. They certainly did not intend to allow Tunisia to — The introduction of levies has enlarged benefit from a preferential system so long as the concept of 'customs treatment' with the common organization of the markets, in the meaning of the Protocol by the new with the system of levies, had not been set element of treatment on importation. up for the product in question, then, as soon as it had been, to take away all preference (d) As regards the criticism of excessively and then after the conclusion of the Asso wide interpretation of the Protocol, the ciation Agreement again to confer upon it French Republic points out that, since the advantages equivalent to those from which Protocol does not confer any right on third it had benefited on a bilateral basis. countries and since it does not impose any The purpose of Protocol I.7, that is to say obligation on Member States, it provides in the continuation of a system of privileged itself the possibility of a restrictive applica exports, would be misunderstood if it were tion of those exceptions which it authorizes possible whilst keeping in force a preferen and leaves discretion in this respect to the tial customs system to limit or in an extreme Member States. Besides France has always case even to prohibit any importation by kept within limits in the application of the using the device of the levy. Protocol, seeking to maintain a certain
JUDGMENT OF 9. 7. 1970 — CASE 26/69
equilibrium between the essential interests portation of olive oil from Tunisia free of of the third States in question and the customs duty and of Community levy re requirements for the construction of presents approximately 20% of the total Europe. Community imports; the exemption from levy on Tunisian olive oil therefore jeo (e) International terminology and practice pardize the implementation of the objectives in no way assimilate customs treatment of the common organization of the market for olive oil. and tariff treatment; the terminolgies used In fact the consequences of this exemption in particular by the Customs Cooperation Council and by GATT allow the term are in particular as follows : 'customs treatment' to include various — It does hot allow the raising of the price measures .which, at, the frontiers, may ob struct trade by the levy thereon of sums of imported olive oil to the level of the threshold price fixed for all the imports calculated according to varying rules but which all have the effect of influencing the into the Community ; it leads therefore to consumers' choice by a deliberate increase a market price lower than the common organization wanted to fix for the pro in the price of products ultimately imported. ducers and consumers of all the Member States. (f) It would be inaccurate to claim that The fact 'that during the whole of the only the Community is in a position to 1967/1968 marketing year the price on assess whether and on what condition the Italian market was lower than the exemptions from levy may be granted. target price, is partly due to the absence The examples of certain Association Agree of outlets on the French market. > ments cited in support of this thesis lack It is not correct that the Italian offer relevance ; they refer to situations altogether price for extra quality virgin oil suited different from that envisaged by Protocol to the French consumer was in excess I.7: the Treaty itself distinguishes them and of the target price; the Italian extra since these concern agreements entered into quality oils are in fact of a superior kind. with the Community, any derogation naturally is a matter for the Community. — Exemption would compromise the main The system provided by the Protocol is tenance of the target price and could by altogether different ; it requires no modifica favouring imports contribute to an tion of the customs treatment applicable to accumulation of surpluses which would certain bilateral commercial relations; thereafter have to be disposed of at the pending the ultimate conclusion of Asso expense of the European Agricultural ciation Agreements with the Community it Guidance and Guarantee Fund. only imposes upon the Member States involved an obligation to supply informa — Notwithstanding the common organ tion; the Commission may not intervene ization of the markets it causes a par except in case of damage caused to a titioning off within the Common Market : Member State.
— since on the one hand the quota opened in favour of Tunisia amounts C — The effects of exemption granted by the of itself to the average annual require French Republic ments of France, the French market is in fact closed to olive oil produced within the Community; The Commission in essence points to the following effects of exemption at issue in the — on the other hand excluding from free proceedings: circulation Tunisian oil imported into France constitutes an obstacle to the (a) The quota of 20 000 metric tonnes free movement of goods and necessi opened by the French Republic for the im- tates keeping control at the frontiers
COMMISSION ν FRANCE
between Member States which is the granted by the Community is lower than negation of a single market; difficul both that stablished by the legal system of ties of a practical kind have in fact Protocol I.7 and that illegally applied to the manifested themselves, particularly French Republic. between France and Italy. (d) The inapplicability of the Protocol to the levies does not result in the exclusion of — By setting in France a price level lower than that achieved in accordance with agricultural products from the scope of this
Protocol. Regulation No 136/66/EEC it creates in the other Member States a discrimina This indeed applies to all industrial and agricultural products but only as regards tion to the detriment of French producers their 'customs treatment'. At the level of and to the advantage of French con sumers. practical application no difficulty arises for agricultural products so long as no common organization of the market has been set up ; — It reduces the share of the receipts of the furthermore several European organiza guarantee section of the European Agri cultural Guidance and Guarantee Fund, tions of the markets provide for no levy, protection being ensured by the customs amounting to 90 % of the levies raised by duties of the Common Customs Tariff. the Member States, by an amount equi valent to the levies not imposed against (e) Contrary to the view held by the French Tunisia and this increases proportion- Republic, the whole problem of the econo mic relationship between France and the contribution of Member States ately calculated on the basis of the scale. Tunisia is not finally resolved by the im plementation of the association between France has for some years unilaterally the EEC and Tunisia; Protocol I.7 remains reduced its contribution to the European applicable, to products not included in the Agricultural Guidance and Guarantee Association Agreement and in respect of other products the Protocol is merely sus Fund, which is set at 90 % of the levies and as
pended. It is therefore not without interest a consequence has increased that of the other Member States which is calculated on for the Community and particularly for the full attainment of the Common Market the basis of the fixed scale. It would be a very different solution for the Community that the Court should interpret the Protocol itself to renounce certain receipts from the in question. European Agricultural Guidance and Gua As regards the effects of the exemption from which olive oil from Tunisia benefits the rantee Fund. Besides, the advantage grant ed by France involves the Community in a French Republic makes the following ob
servations : reduction in the levy by 8.50 units of account per 100 kg whilst by Regulation No (a) The fact that olive oil imported free of 1471/69 the Community had only granted duty from Tunisia does not benefit from a reduction of 5 units of account. 'free circulation' in case of re-export to another Member State follows from (b) The exemption without any justification Article 2 of the Protocol itself, a Com results in Tunisia and the other countries munity provision, just like Articles 38 to referred to in Protocol I.7 being more 47 of the Treaty. favourably treated than the countries and overseas territories more closely linked to (b) The decision of the French Government the mother countries which already under to exempt Tunisian olive oil from the the EEC Treaty benefit from a full associa levy, justified by Article 4 of the Proto tion. col, cannot be criticized except to the extent to which it may prejudice other (c) It is no doubt true that the Community Member States; this possible prejudice intended by the Association Agreement to can only be judged in relation to that favour olive oil from Tunisia; but it must be caused to the third State in question placed on record that the preferential rate through the application of the levies.
JUDGMENT OF 9. 7. 1970 — CASE 26/69
In this respect it must be pointed out that: No 1471/69 applied on the basis of the Association Agreement; — on the one hand the effect of the exemp the effect which the exemption from levy tion granted by France on the economy enjoyed by Tunisia had on the receipts of of other Member States is far from being the European Agricultural Guidance and as serious as is claimed by the Commis Guarantee Fund is not easy to access; in sion; any event by Protocol I.7 the Commun the Italian offer price for extra quality ity accepted the possible consequences of virgin oils suited to the French consumer a diminution in receipts; is in excess of the target price; the effect of the suspension of a levy on the absorption by France of a few the Tunisian oils was so insignificant that thousand metric tonnes of Italian olive it has never come up in discussions oil cannot have had any serious influence within the Council on the fixing of target on the fixing of prices for a product the and intervention prices; market volume of which in Italy amounts to almost 500 000 metric tonnes ; — on the other hand in considering the the market price for olive oil in Italy economic consequences which might depends on the level of the price of seed have resulted in the case of the countries oils; referred to in the Protocol, in particular it is unlikely that Italy had any intention Tunisia, in whose case the Protocol of developing an extensive export trade undoubtedly involved an obligation on with France; besides, the Italian sales in the part of the Community the possibil France have increased from 98 metric ity of a change in trade with certain tonnes in 1966 to 1039 metric tonnes in Member States as it stood at the date 1968; when the Treaty came into force cannot the quota set for Tunisia does not cover be disregarded; without the French pur the average French annual requirements ; chases of olive oil Tunisia's commercial this quota is only utilized to a very small deficit would have seriously worsened degree and the amount lost by the and the loss of considerable receipts European Agricultural Guidance and from export sales would have had Guarantee Fund is for that reason at a effects on the economic development of level comparable to the advantage which 'that country which would be quite con Tunisia ought to derive from Regulation trary to the spirit of the Protocol.
Grounds of judgment
1 By application of 14 June 1969 the Commission has brought before the Court under Article 169 of the EEC Treaty an action with a view to establishing a failure on the part of the French Republic to fulfil its obligations under Regulation No 136/66/EEC of the Council of 22 September 1966 (OJ 1966, p. 3025; OJ 1965-1966, (English Special Edition November 1972) p. 221) on the establishment of a com mon organization of the market in oils and fats, by excluding from the application of the levy within the limits of a quota fixed annually imports of olive oil originating in and coming from Tunisia.
I — The legal interest in taking proceedings
2 Prior to the entry into force of Regulation No 136/66, imports into France of
COMMISSION ν FRANCE
Tunisian olive oil enjoyed an exemption from customs duties under the provisions of the Protocol on goods originating in and coming from certain countries and enjoying special treatment when imported into a Member State, annexed to the Treaty establishing the European Economic Community (known as 'Protocol I.7').
3 After the establishment of a common organization of the market in oils and fats under the provisions of the said regulation the French Government, relying on Protocol I.7 excluded such imports from the application of the levy.
4 As a result of the first measures published to this effect in the Journal Officiel of the French Republic the Commission by letter of 1 August 1967 addressed to the French Minister for Foreign Affairs raised objections and gave the defendant an opportunity to submit its observations under Article 169 of the Treaty.
5 The treatment in question having been extended by a notice published in the Journal Officiel of the French Republic, the Commission on 3 May 1968 delivered a reasoned opinion in which it found that there had been a failure to comply with the Treaty and required that the matter be rectified within a period of one month.
6 This act on the part of the Commission was followed by the publication of a new notice in the Journal Officiel of the French Republic continuing the same treatment in respect of the year 1969.
7 An Association Agreement between the Community and the Tunisian Republic signed in Tunis on 28 March 1969 came into force on 1 September 1969 (OJ L 198, p. 1).
8 With a view to carrying this agreement into effect Regulation No 1471/69/CEE of the Council (OJ L 198, p. 93) was adopted on 23 July 1969 on imports of olive oil from Tunisia.
9 It thus appears that the action was brought by the Commission just at a time when the failure alleged against the defendant had virtually ceased through the substitu tion for the treatment on importation in force in the French Republic of the treat ment provided for under Article 5 of Annex I to the Association Agreement.
10 In these circumstances the Court, although not in a position to determine how far it was expedient for the Commission to bring the action under Article 169, must consider whether the Commission still has a sufficient legal interest.
JUDGMENT OF 9. 7. 1970 — CASE 26/69
11 Even before the action was brought the Commission's attitude was set out in the letter of 1 August 1967 and the reasoned opinion of 3 May 1968 and the time-limit laid down by this opinion expired at a time when the failure complained of was still continuing.
12 In an exchange of letters contemporaneous with the signing of the Association Agreement it is on the other hand expressly provided that as regards the products listed in Annexes I and II to the Agreement—which include olive oil—the applica tion of Protocol I.7 is only suspended for the duration of the Agreement, which was entered into for a period of five years and 'shall again take effect when the latter is no longer in force'.
13 Finally, in view of the importance of the problems raised by the application of Protocol I.7 from the point of view both of the common organization of agri cultural markets and of the common commercial policy, there can be no doubt as to the legal interest in the action brought by the Commission.
II — The substance
14 In the Commission's view the introduction by means of Regulation No 136/66 of a common organization of the market in oils and fats, characterized in particular by the collection of levies, put an end to the 'customs treatment' applicable under Protocol I.7 to imports into France of olive oil originating in Tunisia.
15 The defendant relies on the same Protocol, having regard to its purpose, in order to justify the continuation of a system of exemption in favour of such imports nothwithstanding the introduction of a levy by Regulation 136/66, until the entry into force of the provisions of the Association Agreement between the Community and the Tunisian Republic.
16 Protocol I.7 has the purpose of preserving existing patterns of trade between on the one hand certain Member States and on the other hand various third countries with which these States maintain traditional links.
17 As regards more particularly the independent countries belonging to the Franc Area—including the Tunisian Republic—a Declaration of Intent annexed to the Treaty establishing the European Economic Community, after expressing the anxiety 'to maintain and intensify the traditional trade flows between the Member
COMMISSION ν FRANCE
States of the European Economic Community and these independent countries and to contribute to the economic and social development of the latter', offers these countries negotiations with a view to concluding conventions for economic association with the Community.
18 It therefore seems that the intention evinced by the French Government of avoiding any measure which might have led to a deterioration of commercial relations with Tunisia in the sector in question in the present action, is based on the objectives of both Protocol I.7 and the aforementioned Declaration of Intent.
19 Nevertheless, after the entry into force of Regulation No 136/66 this objective could only be achieved by means which are in conformity with the new situation created by that regulation.
20 Regulation No 136/66 implementing Article 40 of the Treaty, established a com mon organization of the market in oils and fats based on a price policy which is determined in accordance with a number of objectives concerning the level of agricultural income, the putting into effect of a coherent production policy, competitive conditions of trade in the different oils and fats, the stabilization of the markets and the fixing of an appropriate price level to consumers.
21 This policy is put into effect by means of a complex system of steps involving purchases, storage and sales by intervention agencies, a set of regulations on im ports and exports by means of a system of levies and refunds, as well as measures for restoring the balance and protective measures in case of disturbances affecting the market in question.
22 Under the provisions of Article 3 (2) of Regulation No 136/66, save in case of express derogation, 'the levying of any customs duty' is incompatible with the provisions of that regulation.
23 It therefore seems that the intervention and protection technique under Regulation No 136/66 is different from the systems of customs treatment under Protocol I.7 both in its aim and in the means which it employs.
24 This innovation which results from the extension of the common agricultural policy to the sector in question no longer allows the mere application of duty-free import, conceived for the purpose of a system of protection based exclusively on the application of customs duties, without regard to any organization of the market.
JUDGMENT OF 9. 7. 1970 — CASE 26/69
25 In these circumstances, the purpose of Protocol I.7 had to be achieved, as from the entry into force of Regulation No 136/66 by means of provisions compatible with the principles forming the basis of the common organization of the market in oils and fats.
26 Consequently the exercise of rights reserved to the French Republic by Protocol I.7 had to be adapted to the new organizational technique introduced by Regula tion No 136/66.
27 Whilst not excluding any steps taken by the Member State holding the rights reserved by Protocol I.7, such an adaptation could only be the task of the Com munity institutions competent to implement the common agricultural policy and to regulate the Community's relationship with third countries, taking into account the common nature of the organization for the sector of the market in question and the consequences, both commercial and financial, which affect the whole Community by any derogation from the principles of the regulation.
28 it would therefore have been the Commission's task to suggest and the Council's to enact, at the time when Regulation No 136/66 was adopted, express provisions for the purpose of regulating the problem resulting from the effect upon the preference under Protocol I.7 of the new legal situation created by the organization of the market in oils and fats.
29 Such provisions appear all the more necessary since the authors of Regulation No 136/66 must have known that an Association Agreement with the Tunisian Republic was envisaged by which the preference in favour of imports of olive oil would in some measure be continued.
30 In these circumstances it would have been advisable to adopt certain derogations from Regulation No 136/66 in respect of the interim period between the introduc tion of the organization of the market in oils and fats and the entry into force of the Association Agreement.
31 The fact that Regulation No 136/66 is silent on the point may have given rise to the question whether the unchanged exercise of the rights deriving from Protocol I.7 was, at any rate provisionally, compatible with the provisions of that regulation.
32 Bearing in mind the equivocal nature of the situation thus brought about, the French Republic cannot be accused of any failure to fulfil its obligations.
COMMISSION ν FRANCE
зз The application brought by the Commission must therefore be rejected as not sufficiently well founded.
III — Costs
34 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
35 The Commission has failed in its submissions.
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 the Treaty establishing the European Economic Community, especially Articles 23, 38 to 47 and 169 as well as the Protocol on goods originating in and coming from certain countries and enjoying special treatment when im ported into a Member State, annexed to the said Treaty; Having regard to the Protocol on the Statute of the Court of Justice of the Euro pean Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT,
hereby:
1. Dismisses the application;
2. Orders the Commission of the European Communities to pay the costs.
Lecourt Monaco Pescatore
Donner Trabucchi Strauß Mertens de Wilmars
Delivered in open court in Luxembourg on 9 July 1970.
A. Van Houtte R. Lecourt
Registrar President