C-24/80

ORDER OF THE COURT OF 28 MARCH 1980 '

Commission of the European Communities v French Republic

" M u t t o n a n d lamb — interim m e a s u r e s "

Joined Cases 24 and 97/80 R

Application for a declaration that a Member State has failed to fulfil its obligations — Judgment of the Court making such a declaration — Effects (EEC Treaty, Arts. 169 and 171)

The finding in a judgment having the require, an obligation on them to Jake force of res judicata that the Member all appropriate measures to enable State concerned has failed to fulfil its Community law to be fully applied. It obligations under Community law follows that by reason solely of the amounts to a prohibition having the full judgment declaring the Member State to force of law on the competent national be in default, the State concerned is authorities against applying a national required to take the necessary measures rule recognized as incompatible with the to remedy its default and may not create Treaty and, if the circumstances so any impediment whatsoever.

defendant,

APPLICATION for the adoption of interim measures ordering the defendant to desist forthwith from applying any restriction and/or levying a charge on imports of mutton and lamb from the United Kingdom,

THE COURT

composed of H . Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

makes the following

des Viandes [National Cattle and Meat British and French markets abruptly into Trades Board] (hereinafter referred to as contact with each other would have "the Board") was based on a threshold particularly serious consequences not price, which was protected by a system only in economic terms but in terms of of bans on imports and of surcharges public order. He asked the Commission ("reversements"). Imports of mutton and for assistance in the adoption of interim lamb into France were authorized only measures and then in the establishment when a certain reference price quotation of a permanent system making it possible in France reached or exceeded the at least to limit if not to prevent such threshold price. In addition a surcharge consequences. On 17 November 1979 ('reversement'), the amount of which the French Government officially gave varied according to the domestic quoted the Comission confirmation of this reference price of sheep on the French attitude. market, was imposed on imports of live animals for slaughter and of fresh or refrigerated mutton and lamb carcases. On 22 November 1979 the Commission delivered the reasoned opinion as provided for in Article 169 of the Treaty 2. It is common ground that after the and invited the French Republic to take judgment referred to above had been all necessary steps to comply with the delivered meetings took place between opinion by 12 December 1979 at the the Commission and the French latest (a date brought forward sub- Government in connexion with the sequently to 17 December 1979). On the measures which the latter should adopt sam day the President of the in order to comply with the said Commission expressed the same views in judgment. his reply to the French Prime Minister.

facilitate the elimination of the French market are lower than a given difficulties encountered" and requested level and a system of import licences and the Commission "to look into ways of frontier levies when its prices exceed that adopting the necessary measures as level. In accordance with that mechanism rapidly as possible", a task in which it France has since 7 January 1980 made declared itself ready to participate. the products in question subject to a system of licensing and to a charge of FF 8.50 per kilogram, which corresponds to As far as the future common organi- 70 % of the British price. Since that zation of the market in mutton and lamb mechanism has not been dismantled it is concerned the French Government might lead the French authorities at any stated that "progress has already been time either to impose quantitative recorded within the Council on the restrictions or measures having external aspect of the file. It will be equivalent effect or to introduce charges approved by France if the partners having equivalent effect, according to the display during the discussion of the price conditions on the domestic market. national aspect of the definitive system the same spirit of compromise as that shown by France during the negotiation of the national aspect". 6. The French Government's principal submission in its defence is that, although Article 171 of the Treaty places the responsibility for compliance upon 4. Although this reply was not in the the Member States, it does not in any opinion of the Commission of such a way preclude such compliance being kind as to bring the infringement to an spread over a reasonable period of time. end, the Commission stated that it In this case the exceptional speed with endeavoured, according to its own words which the Commission initiated the "in a final attempt", to find together procedure provided for in Article 169 of with the French Republic a solution the EEC Treaty should cause the Court which would be lawful and at the same to ask itself during what period of time time offer guarantees to French its judgment as a whole was to be producers. complied with.

it by the judgment of the Court of B — The main action, Case 97/80 Justice so as to permit the Community to take, in a better legal and political context, the "special measures" envisaged in paragraph 7 of the 1. It is common ground that as from 7 judgment. It also hoped that the January 1980, the French Government, common organization of the market in pursuant to its above-mentioned national mutton and lamb would be speedily system, instructed the competent auth- established by a decision of the Council. orities to allow imports of mutton and lamb from the United Kingdom without any quantitative restriction but subject to However, the steps thus taken have not a licence being obtained beforehand and produced the expected understanding. a charge which was at first FF 8.50 per For that reason the French Government, kilogram of meat, corresponding to in the absence of any interim measure about 70 % of the British price. and of any common organization of the market, was forced on 7 January 1980 to have recourse to another formula. In- structions have therefore been given that 2. Since the Commission considered imports from the United Kingdom may that levying such a charge on imports continue, subject it is true to payment of constituted a charge having an effect a charge, but without any quantitative equivalent to customs duties within the restriction, whatever the price level on meaning of Article 12 of the EEC Treaty the French market, the French and therefore disregarded the Court's Government being concerned to facilitate judgment of 25 September 1979, it the effort to adopt interim measures and initiated, by a letter dated 22 January not to impede the conclusion of the final 1980, a fresh procedure under Article settlement. 169 of the EEC Treaty against the French Republic for infringement of Article 171 of the said Treaty. Moreover France, in compliance with the judgment, requested the Commission several times to put forward for its consideration a system of interim In its reply dated 30 January 1980 the measures designed to meet the French Government conceded in aspirations of producers whilst particular that, as far as the disputed complying with the Treaty. steps taken on 7 January 1980 are concerned, in the absence of interim measures or a final settlement at Hasty compliance with the judgment of Community level "there was no option 25 September 1979 would have the but to have recourse to a modified most serious political and economic application of the previous national consequences. The judgment can organization of the market", its concern therefore be complied with in its entirety being to "facilitate the search for interim only within a reasonable period which measures and not to hinder discussions will allow suitable interim measures to be on these lines". brought into force. Pending a common organization of the market in mutton and lamb and taking into account the difficulties peculiar to the matter and the The Commission by a reasoned opinion practice of the Community institutions of 8 February 1980 delivered pursuant to this period has not yet expired in this the first paragraph of Article 169 of the case. EEC Treaty and addressed to the French

Republic found that "by continuing to were joined for the purpose of the impose tariff restrictions on imports of written and of the oral procedure. mutton and lamb from the United Kingdom in spite of the judgment delivered by the Court of Justice on 25 September 1979 the French Republic has C — Application for the adoption of failed to fulfil its obligations under interim measures in Joined Cases Article 171 of the Treaty". The 24/80 and 97/80 Commission invited the French Republic to take all necessary steps to comply with 1. On 13 March 1980 the Commission, its reasoned opinion by 14 February 1980 pursuant to Article 186 of the EEC at the latest. Treaty and Article 83 of the Rules of Procedure, made an application for the The French Government replied to the adoption of interim measures in which it Commission's reasoned opinion on 15 asks the Court to "order the French February 1980 but without complying Republic to desist forthwith from with the Commission's request. applying any restriction and/or levying any charge on imports of mutton and lamb from the United Kingdom". Subsequently the Commission, in what it describes as a final effort to end the serious crisis resulting from the 2. The President of the Court, by an continuing refusal of the French order dated 13 March 1980, pursuant to Government to apply in its entirety the the first paragraph of Article 85 of the Court's judgment of 25 September 1979, Rules of Procedure, decided to refer the submitted to the Council a draft of application for the adoption of interim interim measures designed to allow free measures to the Court for a decision. movement of goods and to protect the earnings of producers in those regions of the Community which are most 3. The French Government submitted dependent upon the production of its written observations on 20 March mutton and lamb. However, the Council 1980. at its meeting on 3 and 4 March 1980 did not reach agreement on the solution which was proposed. 4. The Court decided to hear the oral observations of the parties on 24 March 1980. 3. The Commission, by an application originating proceedings lodged on 13 March 1980, asked the Court to "declare that the French Republic, by continuing II — O u t l i n e of t h e s u b m i s s i o n s after 25 September 1979 to levy a charge and arguments of the on imports of mutton and lamb from the parties United Kingdom has failed to fulfil its obligations under Article 171 of the EEC Treaty". It also asked the Court to join 1. As far as the facts are concerned the this case to Case 24/80. Commission points out that in this case it is common ground that the French Government has still not complied with 4. By order of the Court dated 24 the Court's judgment of 25 September March 1980 Cases 24/80 and 97/80 1979. Since it persisted in applying, first

the system of restrictions on trade, then without waiting for the judgment in the system of taxing imports — both the main action. being provided for in its national organi- zation of the market but having been censured by the Court — the 2. The existence of these preconditions in Commission found itself compelled to this case bring two fresh actions for infringement (a) The existence of the first condition against it one after the other. does not present any difficulty, and Since its representations to the French moreover is not disputed; the Government (as far as concerns the need Commission's application is based'in fact to comply speedily with the Court's on the judgment delivered by the Court judgment) and to the Council (as far as of Justice in Case 232/78. concerns the adoption of measures — if only interim measures) have failed, the (b) That the conduct of the French Commission is now forced to have Government has caused damage is recourse to the emergency procedure beyond question. It is mainly the specific provided for in Article 186 of the Treaty damage suffered by British sheep farmers and to request the Court to prescribe the who find their hopes of gaining access to interim measures which the situation the French market frustrated. To this calls for. must be added the total damage - to the British economy caused by the fact that The Commission puts forward the the exporting capacity of one of its following legal considerations : economic sectors has been adversely affected. Viewed from another angle 1. The prerequisites of an application for there is no doubt that the continuance of interim measures a situation in which one Member State wrongly delays compliance with a According to the Commission the judgment of the Court and thus brings following conditions may be discerned into disrepute the concept of a from the orders of the Court in Cases Community founded on law is a state of 31/77 R and 63/77 R, Commission of the affairs which is extremely detrimental to European Communities v United Kingdom the future of the Community. of Great Britain and Northern Ireland and United Kingdom of Great Britain and The Commission then discusses in Northern Ireland v Commission of the particular two considerations, one European Communities [1977] ECR 921 relating to the need for a balancing of the and in Case 61/77 R, Commission of the interests opposing each other and the other European Communities v Ireland [1977] to the effect that the interim measures ECR 937 and 1411: themselves ought not to be irreversible — and in addition the obligation (a) the applicant must prove first that his mentioned by the French Government in main action has every likelihood of its defence in Case 24/80 which succeeding; established that, although every (b) he must show that the legal act or judgment of the Court must indeed be the conduct giving rise to his main complied with, there is a reasonable action makes him run the risk of period of time for such compliance which suffering damage which is substantial has not yet expired in the case in point. and cannot easily be made good; According to the Commission the (c) he must show that it is a matter of concept of balancing the interests ought urgency to remedy this situation not to apply in this case where the

The Commission asks itself whether, taking into account the fact that the As far as the question of a reasonable judgment delivered in Case 232/78 period of time is concerned the imposes upon France a clear, precise and Commission sees no objection to unconditional obligation and that France accepting the idea of a reasonable period does not dispute that obligation, the of time for the purpose of complying Commission has an interest in asking the with the Court's judgment whether that Court to order interim measures to be period is to be attributed to technical or adopted in these cases. However, if it is legal obstacles. Naturally that must not accepted that the question of a prevent the Court's judgment from reasonable period of time deserves to producing all its legal effects immediately receive attention and that France was and even retroactively on each occasion unable to comply with every aspect of when this is possible (following the Court's judgment at the moment it applications by individuals for example). was notified thereof, then it stands to The period in question in this case is that reason that it is very much in the interest which every Member State needs, of the Commission to ask the Court to however diligent it may be, to adopt the bring this uncertainty to an end by necessary measures to ensure perfect defining more clearly the point which it compliance with the judgment of the left open in its judgment in Case 232/78.

COMMISSION v FRANCE

(c) the measure asked for does not According to the French Republic this prejudge the substance of the case case raises a preliminary question of and does not lead to the Court's importance: does the Commission's substituting its own discretion for application fall within Article 186 of the that of the administration; EEC Treaty? In this connexion the French Republic points out that the purpose of the applications in the main (d) the main action is prima facie clearly actions in Cases 24/80 and 97/80 is to well-founded or there is at the very obtain a declaration from the Court that least "a strong presumption" that it France, by maintaining under varying is well founded; forms its national system restricting imports of mutton and lamb from the (e) the applicant cannot wait for the United Kingdom, has disregarded Article outcome of the main action without 171 of the Treaty. In this case the suffering damage which is Commission is asking the Court to order sufficiently serious and difficult if the French Republic to desist from not impossible to make good; applying this system with a view to

ORDER OF 28. 3. 1980 — JOINED CASES 24 AND 97/80 R

COMMISSION v FRANCE

Decision

v T h e C o u r t in its j u d g m e n t of 25 September 1979 in Case 2 3 2 / 7 8 {Commission of the European Communities v French Republic [1979] E C R ) declared that by continuing to apply after 1 J a n u a r y 1978 its restrictive

ORDER OF 28. 3. 1980 — JOINEDCASES 24 AND 97/80 R

national system to the importation of mutton and lamb from the United Kingdom the French Republic had failed to fulfil its obligations under Articles 12 and 30 of the EEC Treaty.

2 The Commission by applications lodged at the Court Registry on 14 January and 13 March 1980 has brought two actions before the Court for declarations that the French Republic by neglecting to take the necessary steps to comply with the above-mentioned judgment has failed to fulfil its obligations under Article 171 of the EEC Treaty.

3 The first application (Case 24/80) requests the Court to "declare that the French Republic, by continuing to apply after 25 September 1979 its restrictive national system to the importation of mutton and lamb from the United Kingdom, has failed to fulfil its obligations under Article 171 of the E E C Treaty".

9 The Commission replies that the period which has elapsed since the delivery by the Court of its judgment in Case 232/78 exceeds the "reasonable period" for the adoption of the requisite measures for ensuring that the judgment of the Court is enforced. The Commission therefore considers that, owing to the serious damage which has flowed from the French Republic's maintaining in force measures restricting imports of mutton and lamb from the United Kingdom, it is a matter of urgency to order by way of interim measures the repeal of the said measures.

io Article 171 of the Treaty states that "If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice".

1 1 As provided for in Article 155 of the Treaty it is for the Commission to "ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied"; the Commission is therefore under a duty to ensure also that Member States comply with the judgments delivered by the Court of Justice.

i2 The Commission in the exercise of this power may bring actions pursuant to Article 169 of the Treaty if it considers that a Member State has not taken the necessary steps to ensure compliance with a judgment or that any measures taken for this purpose do not comply with the obligations arising out of the latter. In the context of such an action the possibility cannot be

ORDER OF 28. 3. 1980 — JOINED CASES 24 AND 97/80 R

i5 Although the Court stressed in its judgment that "it is for the competent institutions and for them alone to adopt within the appropriate periods the requisite measures with a view to finding, in a Community context, a comprehensive solution of the problem of the market in mutton and lamb and of the special difficulties which arise in this connexion in certain areas", it stated that the fact that the work done by the Community institutions with a view to establishing a common organization of the market in the sector under consideration has not yet been successful "is not a sufficient just- ification for the maintenance by a Member State of a national organization of the market which includes features which are incompatible with the requirements of the Treaty relating to the free movement of goods, such as bans on imports and levying dues on imported products, under any designation whatsoever".

COMMISSION v FRANCE

i6 As the Court held in its judgment of 13 July 1972 in Case 48/71, Commission of the European Communities v Italian Republic [1972] ECR 527 the finding in a judgment having the force of res judicata that the Member State concerned has failed to fulfil its obligations under Community law amounts to "a prohibition having the full force of law on the competent national authorities against applying a national rule recognized as incompatible with the Treaty and, if the circumstances so require, an obligation on them to take all appropriate measures to enable Community law to be fully applied". It follows that by reason solely of the judgment declaring the Member State to be in default, the State concerned is required to take the necessary measures to remedy its default and may not create any impediment whatsoever.

T H E COURT,

as an interlocutory decision, hereby orders as follows:

(1) There are no grounds for ordering the interim measures requested by the Commission.

(2) The costs are reserved.

Luxembourg, 28 March 1980.

A. Van Houtte H. Kutscher Registrar President