CJEC, December 19, 1961, No 7-61

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 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 complete 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.

It follows from the terms of Article 171 of the Treaty that the purpose of the action is to obtain the judgment of the Court, to the effect that a Member State has failed to fulfil an obligation under the Treaty.

It is for the Court to say whether the failure has occurred, without having to examine whether, subsequent to the bringing of the action, the state in question took the measures necessary to bring the infringement to an end.

It is true that the second paragraph of Article 169 gives the Commission the right to bring the matter before the Court only if the state concerned does not comply with the Commission's opinion within the period laid down by the Commission, the period being such as to allow the state in question to regularize its position in accordance with the provisions of the Treaty.

However, if the Member State does not comply with the opinion within the prescribed period, there is no question that the Commission has the right to obtain the Court's judgment on that Member State's failure to fulfil the obligations flowing from the Treaty.

In the present case, although it recognizes that the Italian government finally respected its obligations, albeit after the expiry of the period referred to above, the Commission retains an interest in obtaining a decision on the issue whether the failure occurred.

The action cannot be declared lacking in purpose.

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 arguments 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.

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.

The letter of 21 December 1960 cited above, although not drawn up in due form, fulfils this requirement.

(b) The defendant maintains, secondly, that there is a contradiction between the attitude of the Commission at the date of the reasoned opinion, 21 December 1960, when it considered itself able to appraise the situation and deliver a reasoned opinion, and its attitude at the date of its reply to the application for putting protective measures into effect, 10 March 1961, when it stated that it was waiting for the information necessary to decide on the application.

An application based on Article 226 of the Treaty demands at one and the same time an investigation and an appraisal of the facts, followed by a decision, that is to say, that a certain sequence of procedural steps be carried out.

The first paragraph of Article 169, on the other hand, applies whenever the Commission considers -whether rightly or wrongly- that a Member State has failed to fulfil an obligation under the Treaty.

No contradiction is to be found between the Commission's attitude at the date when it delivered the reasoned opinion, and its attitude at the date of its reply to the application for putting protective measures into effect.

(c) The defendant maintains, thirdly, that an action under the second paragraph of Article 169 is admissible only if the state concerned has not complied with the reasoned opinion, and that the defendant did so comply by submitting to the Commission on 5 January 1961, before the expiry of the period stipulated, an application for putting protective measures into effect based on Article 226.

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 defendant 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 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.

(a) The defendant raises, first, the provisional nature of the measures adopted. It asserts that its intention to re-establish freedom for imports of the products concerned as quickly as possible is demonstrated by the fact that the term of validity of the suspension measures was renewed on several occasions, each time for a short period only.

The 'standstill' obligation laid down by Article 31 is absolute. It comprises no exceptions, not even partial or temporary ones. The interpretation pleaded by the defendant would open the way to unilateral actions by Member States going directly against the aim pursued by the Treaty in regard to free movement of goods.

The defendant's argument must be rejected.

(b) The defendant maintains, secondly, that Article 226 relating to protective measures applies in the present case and that the Commission should have decided on the matter, although it had not been formally invited to do so before 5 January 1961.

The protective measures referred to in Article 226 may only be authorized within the framework of the special procedure prescribed by that Article, that is to say, on unequivocal, formal application by the government concerned, since the measures constitute exceptions to the rules of the Treaty, liable to disturb the functioning of the common market.

In this case the Italian government's letter dated 20 June 1960 had in view only the measures taken by that government, and did not even allude to protective measures subject to the Commission's authorization.

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 invited 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 artificially 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.

The very fact that an emergency procedure has been provided excludes any unilateral 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.

The arguments based on necessity and urgency must be rejected.

(d) Finally, the defendant relies on Article 36 of the Treaty, which authorizes in particular prohibitions on imports justified on grounds of public policy. In the defendant's submission, when the problem was brought before the Commission, it should have inquired spontaneously whether Article 36 was applicable in this case.

Article 36, as distinct from Article 226, is directed to eventualities of a non-economic kind which are not liable to prejudice the principles laid down by Articles 30 to 34, as the last sentence of the Article confirms.

In particular, it does not establish a generic protective clause additional to that provided by Article 226 and allowing Member States to derogate by unilateral action from the procedure and the guarantees laid down by that Article.

In conclusion, nothing indicated to the Commission a priori that the temporary restrictions on imports, abruptly decided on by the Italian government, could be justified on the basis of Article 36, as no mention was made of this argument during the discussions which preceded the judicial stage.

This argument must be rejected.

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

Costs

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.

The Court

Hereby declares this case admissible and

1. Rules that the Italian government, by provisionally suspending imports of the products concerned from Member States, failed to fulfil the obligation laid down in the first paragraph of Article 31 of the Treaty;

2. Orders the defendant to pay the costs.