C-42/82

ORDER OF T H E COURT 4 MARCH 1982 '

Commission of the European Communities v French Republic

(Interim measures — Importation of Italian wine)

Case 42/82 R

Application for the adoption of interim measures — Interim measures — Powers of the Court on hearing such application (ECC Treaty, Art. 186; Rules of Procedure, Art. 83 (2))

In Case 42/82 R COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Jean-Claude Séché, acting as Agent, with an address for service in Luxem- bourg at the office of Oreste Montalto, a member of its Legal Department, Jean Monnet Building, Kirchberg, applicant,

composed of: J. Menens de Wilmars,. President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grevisse, Judges,

Advocate General: Sir Gordon Slynn Registrar: P. Heim

makes the following

ORDER

Facts and Issues

I — The main action were thus held up at various frontier posts in France and in particular at the port of Séte. By application received at the Court Registry on 4 February 1982, the Following that information, and several Commission brought an action against exchanges of letters and telex messages, the French Republic under Article 169 of the Commission initiated two procedures the EEC Treaty, relating to the failures under Article 169 of the EEC Treaty and on the p a n of the French Republic to asked the French Government to submit fulfil its obligations under the its observations on the failures on its pan Community rules applicable to the wine which were at the origin of the sector and under Article 30 of the EEC difficulties and delays in the customs Treaty. clearance of the wine.

proof, which considerably exceeded the alia by the modes of transport used, and lime needed for completing the required a lack of cooperation on the pan of the substantive formalities and that the Italian authorities in this matter. French authorities were systematically subjecting all Italian wines to a qualitative analysis before giving them customs clearance. The above-mentioned delays resulted inter alia from a decision emanating from the Ministr)' of Agri- culture, the purpose of which is to penalize importers not practising, under the aegis of the National Committee for Following that letter, the Commission Community Trade in Wines and Spirits, sent to the French Government on 12 self-restraint wiht regard to the import- October 1981 a reasoned opinion in ation of Italian wines of less than 13 which the Commission considered that degrees proof. neither the Community provisions cited by the French Government nor the discovery of a number of irregularities justified such a serious obstacle to the free movement of goods as was constituted by the systematic checking of all imponed wines. Subjecting Italian table wines to customs clearance formalities for a far greater duration than the time needed for their In a note dated 21 September 1981 and completion and making clearance subject delivered to the Commission on 2 to a systematic analysis, as the result of a October 1981, the French authorities decision designed to ensure compliance claimed that systematic checks of all with the measures of self-restraint on the imported wines were justified under pan of the imponers, constituted a Article 64 of Council Regulation (EEC) measure equivalent to a quantitative No 337/79 of 5 February 1979 on the restriction on impons, prohibited by common organization of the market in Anicie 30 of the EEC Treaty, and a wine (Official Journal L 54, p. 1) and failure by the French Republic to fulfil its Article 10 of Regulation (EEC) No obligations under Council Regulation 1153/73 of the Commission of 30 April No 337/79. 1975 prescribing the form of accompanying documents for wine products and specifying the obligations of wine producers and traders other than retailers (Official Journal L 113, p. 1). The necessary controls involved a certain extension of the time required for customs clearance. The need for main- taining this practice was strengthened by In answer to that reasoned opinion the the discovery of serious irregularities and French Government informed the by the delay on the part of the Italian Commission by letter of 20 October authorities in mutual cooperation in 1981 that it had decided to subiect cases of fraud. In that respect the French imponed wines only to random checks, Government listed irregularities found in the procedures for which would not be respect of wines from Italy between discriminatory and it considered that, in March and July 1981, in particular the this way, it could appreciably shorten the pollution of certain wines, caused inter time taken for customs clearance.

Bv a telex message dated 10 November 1981, the French Government replied With regard to those agreements, the that the checks would henceforth be Commission has annexed to its carried out on a random basis, at the application various circulars issued by the rate of about one case in ten, which National Committee for Community- would, on the whole, represent the Trade in Wines and Spirits in which percentage of checks normally carried mention is made of commitments to out by the customs on importation and exercise self-restraint, both as regards this would be done in accordance with quantity and quality, undertaken six procedures which were being prepared years ago by that Committee in return and which would apply to all operations for the formal assurance given by the as from mid-December. Until then public authorities that Italian wine of less customs clearance of wines held up than 13 degrees proof, and of whatever would take place in conformity with a degree if imported by non-members of Franco-Italian agreement made on 13 the Committee, would be released to the October 1981. With regard to the market only after penalty periods of four "agreements relating to self-restraint" months. According to those circulars the French Government stated that it contacts and consultations took place in could in no way be bound by such the summer' of 1981 between the agreements made in the wine-growing Committee and the French Minister of trade. Agriculture during which the Committee proposed in particular to pursue the practice of limiting imports of Italian wines in return for a guarantee to be given by the public authorities to adopt certain measures. The Committee in By letter of 10 December 1981, the question considered it reasonable, in the Commission requested the French proposals which it submitted to the Government inter alia to inform it Minister of Agriculture, to fix for the whether measures relating to self- coming marketing year a level of imports restraint were then being applied by- of Italian wines on the basis of about French trading circles. 450 00C hectolitres per month. In a circular of 20 October 1981 that Committee informed its members of the decision of the Minister to release the wines which had been held up between The Permanent Representation of France 19 October and 13 December at the rate to the European Communities replied by of some 120 000 hectolitres per week

By letter of 24 September 1981 the Permanent Representation of France to In its letter of 9 September 1981 the the European Communities addressed to Commission put forward, as the second the Commission a note in answer to the failure on the part of the French letter of 9 September 1981. The French Republic to fulfil its obligation, the fact Government stated in that note that the that the French authorities, finding that a wine in question arrived in France under number of accompanying documents for cover of incomplete documents VA 1, Italian wine imported into France did that is to say, as the French Government not, amongst other things, specify the had mentioned in a note of 9 September Member State of origin, as provided for 1981 addressed by it to the Commission, in Articles 1, 4 (3) and 8 (1) of Regu- they gave no indication of origin by use lation No 1153/75 of the Commission in of the expression "Italian wine", conjunction with Article 9 (1) of Council frequently failed to indicate the degree Regulation (EEC) No 355/79 of 5 of proof of the wines and displayed irre- February 1979 laying down general rules gularities regarding the accompanying for the description and presentation of numbers and dates of dispatch. The wines and grape musts (Official Journal Italian authorities were therefore asked L 54, p. 99), were applying Anicie 46 of to supply all particulars of such a nature Regulation No 355/79 prohibiting the as to facilitate the regularizaron of the holding for sale, putting into circulation carriage operation. In many cases the in the Community, or exportation of irregularities found were of a substantial products the description or presentation nature involving a reasonable cause for of which did not conform to the suspicion within the meaning of Anicie 3 provisions of that regulation. In the of Council Regulaiton No 359/79 by Commission's opinion, however, the vinue of which the French authorities omission to indicate the Member State of might request the competent Italian origin in the accompanying document is bodies to forward the documents or

By letter of 2 October 1981 the 3. The Commission of the European Commission sent to the French Communities to be approached for Government a reasoned opinion. It the release to be accompanied by contended that by failing to initiate Community aid for contracts of speedily the procedure for regularizing storage." the carriage operations in respect of a number of consignments of Italian wines as soon as the accompanying documents were presented for customs clearance at By letter of 26 October the Commission its frontier posts, by subjecting in many requested the French Government to cases the regularization of the carriage inform it whether the agreement in operations in respect of wine held up at question contained matters other than frontier posts to the forwarding by the those referred to above. In its letter of 10 Italian authorities of the documents or December 1981 the Commission other evidence on which those auth­ reminded the French Government that it orities based their certificates and by had received no answer to this question delaying customs clearance even in regu­ and requested that the whole text of the larized cases the French Republic had Franco-Italian agreement in question be failed to fulfil its obligations under the communicated to it. Community rules applicable to the wine sector and under Article 30 of the Treaty. By letter of 5 January 1982 the French Government replied that the particulars forwarded to the Commission on 16 October 1981 on the results of the Franco-Italian meeting of 13 October By a note dated 16 October 1981 the 1981 constituted the whole agreement French Government stated that the facts The wine amounting to 1 068 CCw on which that reasoned opinion had been hectolitres which had been held up based had changed, since a Franco- pending the answer from the halun Italian meeting had resulted in authorities regarding the incomplete agreement that the wines from Italy documents VA 1 had been released in which were then being held up should be stages and the operation had been released within two months. The details completed on 15 December 1981 of the agreement reached between the Italian Minister of Agriculture and the French Secretary of State for Agriculture at a meeting near Pisa on 13 October (c) Recent developments 1981 were as follows:

In a letter dated 2 February 1982 sent to The Commission claims that the Court the Commission the Italian Government should: said that the return, in January, of imports of wine into the French market to a normal rate of about 200 000 Declare that the French Republic, hectolitres per week and the reactions of the French wine-growers with regard thereto brought about the decision by the French authorities, openly by subjecting customs clearance of acknowledged by them, to slow down Italian table wines to a delay imports by limiting them to 400 000 considerably in excess of the time hectolitres per month and by re-intro- necessary for the performance of the ducing systematic checks on quality. permissible substantive formalities and by making clearance subject to a systematic analysis,'

2. Object of the main action by omitting to commence promptly the procedure for regularizing the carriage operations in respect of a number of consignments of Iulian wine as soon as In its application the Commission the accompanying documents were considers that the events which occurred presented for customs clearance at its after the transmission of the two frontier posts,

ORDER OF 4. 3. 1982 — CASE 42/8: R

Bv application lodged on 18 February 1982 the Italian Government asked for II — T h e application for the leave to intervene in support of the adoption of interim Commission and referred in that respect measures to a letter sent to the Commission on 29 September 1981. In that letter the Italian Government stressed the urgency of immediate action by the Commission and 1. Procedure the necessity for the adoption of interim measures against the French authorities in order to avoid serious damage. It had By a document lodged on 5 February stated in particular that the alleged irre- 1982 the Commission submitted, gularities in certain accompanying pursuant to Anicie 186 of the EEC documents were not the true reason for Treaty and Anicie 83 of the Rules of the refusal of customs clearance. In fact Procedure, an application for the the refusal was a reaction by the French adoption of interim measures. authorities to acts of violence against Italian wine and against boats transporting Italian wine which had By order of 8 Februar,- 1982 the occurred at the beginning of August President of the Court decided, in 1981. Only after a delay of several days pursuance of the first paragraph of and after the holding up of numerous Article 85 of the Rules of Procedure, to carriage operations in respect of wine at refer the decision on the interim the customs did the French authorities measures to the Court.

COMMISSION v FRANCE

The Court decided to hear the parties at products presented for importation the sitting on 1 March 1982. at its frontier.

Order the French Republic to adopt the Order the Commission to pay the costs. interim measures needed to ensure the free movement of wine products while the case is pending. Ill — Submissions and argu- m e n t s of the p a r t i e s It considers that such measures should comprise: 1. The Commission has stated in (a) The immediate suspension of support of its application for the systematic checks, France adoption of interim measures that the nevertheless being allowed to carry likelihood of the success of the main out random checks. The random application cannot be disputed. checks must be carried out, at each Disregard of the fundamental rules customs post, among all importers in concerning the free movement of goods proportion to the number of contained in Articles 3 (a), 9 and 30 of consignments presented by each of the EEC Treaty constitutes a serious them for importation at the customs breach of that principle. post. The conduct of the French Government Any analyses must be completed is causing undeniable damage and only within a fortnight at the latest. an interim measure taking effect immediately is capable of preventing that damage from becoming irreparable. The (b) An obligation imposed upon France Italian producers and exponers are to grant immediate customs seeing their aspirations of penetrating the clearance to all consignments of wine French market frustrated. The export

ORDER OF 4. 3. 1982 — CASE 42/82 R

capacity of an important sector of and in particular the irreversible nature activity of the Italian economy is being of the damage caused by the unilateral impeded. French importers and traders measures adopted by France. are to a certain extent deprived of the opportunity of pursuing their activities. The long-term storage measures which are at present in force are in danger of being disrupted both in Italy and in 2. The French Government considers France. There is a danger that that the interim measures sought by the comparable measures restricting trade Commission are not justified either in may be adopted by other Member States. law or by the facts of the case.

There is no serious and irreparable The urgency of the interim measures damage such as that alleged by the results from all circumstances referred to Commission. First, consignments of wine

COMMISSION v FRANCE

ORDER OF «. 3. 1982 — CASE 42/82 R

COMMISSION v FRANCE

Decision

1 By application lodged at the Court Registry on 5 February 1982 the Commission submitted, pursuant to Anicie 186 of the EEC Treaty and Anicie 83 of the Rules of Procedure, an application for the adoption of interim measures requiring the French Republic to adopt the interim measures needed to ensure the free movement of wine products pending the outcome of the main action.

2 The application refers to an action brought by the Commission against the French Republic pursuant to Article 169 of the EEC Treaty by application lodged on 4 February 1982 seeking a declaration that the French Republic, by subjecting customs clearance, that is to say, release to the market, of Italian table wines to a period considerably in excess of the time necessary for the performance of the permissible substantive formalities and by making release to the market subject to a systematic analysis, by omitting to commence promptly the procedure for regularizing carriage operations in respect of a number of consignments of Italian wine as soon as the accompanying documents have been presented for clearance at its frontier posts, by making the regularization of carriage operations in respect of Italian wines held up at frontier posts subject in numerous cases to the transmission by the Italian authorities of the documents or other evidence upon which their certificates are based and by delaying clearance even in cases which have been regularized, has failed to fulfil its obligations under the Community rules applicable to the wine sector and under Article 30 of the EEC Treaty.

4 In requesting the Court to order interim measures pending the outcome of the main proceedings the Commission is seeking the suspension of the above- mentioned national practices. On the one hand it is asking for the systematic analyses of wines at the frontier to be suspended forthwith and to be replaced by random checks carried out, at each frontier post, among all importers in proportion to the number of consignments presented by each of them for importation and that any analyses be completed within a fortnight at the most. It further requests that the French authorities be ordered to release immediately to the market all consignments of wine products presented for importation and that in the event of irregularity in the accompanying documents such release may be delayed only for the time strictly necessary for regularizing the documents unless there is reasonable cause for suspicion of fraud regarding the origin of the products or their compliance with Community provisions in relation to their composition or to oenological processes.

s Article 83 (2) of the Rules of Procedure provides that an order for interim measures is to be conditional upon there being circumstances giving rise to urgency and factual and legal grounds establishing a prima facie case for the interim measures applied for.

6 It is necessary therefore, to examine whether those conditions are fulfilled in the present case.

? According to the Commission and the Italian Government the analyses in question and the procedures for checking the accompanying documents are intended in reality to prevent or restrict the importation of wines from Italy. Those measures were adopted in the context of a commitment to exercise

ORDER OF 4. 3. 1982 — CASE 42/82 R

of the rules which it had discovered between March and July 1981 and to which it refers in order to justify the need for a reinforcement of controls. The French Government has adduced no evidence capable of showing that the position has changed since then as regards the risks to health which might result from the importation of Italian wines, and which would henceforth justify analyses in three out of every four cases.

12 The French Government sent to the Commission a communication dated 2 February 1982 and containing inter alia the following passage: "The wine- growing trade of the South of France has become very anxious as a result of the large increase in imports of wine from Italy during January 1982 at prices appreciably lower than those of the market. As a result the Government has made provisions as from 30 January for more qualitative analyses to be carried out by the competent administrative departments before release to the market. Contrary to what has been stated by certain sections of the press imports have not been stopped but slowed down with a view to a return to a normal rate".

is The circumstances in which the practices in question were adopted by the French authorities, the existence of the arrangements made in October 1981 between the French and Italian Governments providing for the release, in stages and subject to certain conditions, of consignments held up at the frontier, and finally the explanation referred to above given to the Commission by French Government authorities on the subject of the analyses constitute, prima facie, evidence of a substantial nature in support of the Commission's allegation that the practices with which the French Government is charged were pursued by it in Januar)· 1982 for the purpose of restricting the volume of imports.

1? It is true that the Court may not order interim measures which would result in an infringement of the Community rules or a risk to public health. That, however, is not the case in regard to interim measures which are intended not to prevent the necessary checks for those purposes but to ensure that the procedures for carrying out those checks do not create unjustified damage.

2c During the present proceedings the question has been raised of economic and political difficulties which may result from an increase in the imports of wine from Italy or from an unsatisfactory functioning of the common organization of the market in wine. Such difficulties cannot, however, justify unilateral measures adopted by one Member State. They must if necessary be

ORDER OF 4. 3. 1982 — CASE 42/82 R

resolved within the framework of the Community procedures provided for that purpose.

2i It follows from the foregoing that the conditions to which the grant of interim measures is subject are fulfilled in this case and that pending the delivery of the judgment in the main action it is necessary, under Anicie 186 of the EEC Treaty, to suspend the practices at issue which are being applied by the French authorities.

22 As regards the terms of the measures to be ordered it is appropriate to record that the French Government itself considered in October 1981 that random checks on roughly one consignment in 10 would suffice to avoid any risks and that no evidence has been put forward to show that the basis of that assessment has changed in the meantime. It therefore appears appropriate, apart from special cases where specific evidence may justify' a suspicion of fraud, to restrict the frequency of analyses before release to the market of the consignments concerned. Having regard to the necessarily provisional nature of the measures to be ordered and in order not to pre-judge factors which may, in one way or another, emerge during the main proceedings it is proper to restrict those analyses to a maximum of 15% of the consignments presented at the frontier.

24 As regards the checking of the accompanying documents it has not been denied during the present proceedings that it is for the French authorities to verify that all the consignments of wine presented at the frontier are accompanied by the appropriate documents duly completed and issued by the competent Italian departments. Difficulties and obstacles created by such checking of documents must however be proportionate to the end pursued. Only substantial irregularities may therefore justify delay in the release to the market of the consignments in question. When such irregularities are found by the French authorities and when, according to those authorities, they justify refusal of release to the market, they must without delay inform the Italian authorities of the irregularities and supply them with the necessary documents in order to enable them to furnish the requisite verifications or particulars. Where the accompanying document in respect of anv consignment has been regularized by the Italian authorities that consignment must immediately be released to the market.

25 Having regard to the obligation which Article 155 of the EEC Treaty imposes on the Commission to ensure that the measures adopted by the institutions, in the present case this order, are applied, it is proper to order that when the release to the market of quantities of wine from Italy in excess of 50 000 hectolitres is refused for more than 21 days on grounds either of analyses or irregularities in accompanying documents the French authorities must inform the Commission of the reasons for such refusal.

(a) Apart from special cases in which specific evidence may justify a suspicion of fraud the frequency of analyses before the release to the market of the consignments in question must not exceed 15 % of the consignments presented at the frontier; (b) The duration of analyses made before the release to the market of the consignments in question must not exceed 21 days from pre- sentation of the consignments and the documents at the frontier unless there are special grounds which justify specific analyses in exceptional cases; (c) The release to the market of consignments of wine may not be refused on grounds of irregularity of the accompanying documents unless the irregularities are substantial. (d) When substantial irregularities are found by the French auth- orities they must without delay inform the Italian authorities of such irregularities and supply them with the necessary documents. Where the accompanying document in respect of any consignment has been regularized by the Italian authorities that consignment must immediately be released to the market.

2. When the release to the market of quantities of wine from Italy in excess of 50 000 hectolitres is refused for more than 21 days on grounds either of analyses or irregularities in accompanying documents the French authorities must inform the Commission of the reasons for such refusal.

3. The costs are reserved.

Luxembourg, 4 March 1982.

J. A. Pompe J. Mertens de Wilmars Deputy Registrar President