Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . COMMERCIAL POLICY - FRUIT AND VEGETABLES - TABLE GRAPES - IMPORTS FROM SPAIN - YEARS 1970 AND 1971 - PROTECTIVE MEASURES - AUTHORIZATION - PERMISSIBILITY
( EEC TREATY , ARTICLE 115 )
2 . COMMERCIAL POLICY - FRUIT AND VEGETABLES - TABLE GRAPES - IMPORTS FROM SPAIN - QUANTITATIVE RESTRICTIONS IN EXISTENCE PRIOR TO REGULATION NO 2513/69 - APPLICATION DURING THE PART OF THE YEAR BETWEEN 1 JULY AND 31 DECEMBER - PERMISSIBILITY
( REGULATION NO 2513/69 OF THE COUNCIL ; AGREEMENT BETWEEN THE EEC AND SPAIN , ANNEX I , ARTICLES 1 AND 11 )
3 . QUESTIONS REFERRED FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS
( EEC TREATY , ARTICLE 177 )
4 . QUANTITATIVE RESTRICTIONS - ELIMINATION - MEASURES HAVING EQUIVALENT EFFECT - PRODUCTS IN FREE CIRCULATION - CUSTOMS DECLARATION - COUNTRY OF ORIGIN - INDICATION - REQUIREMENT BY THE IMPORTING MEMBER STATE - PERMISSIBILITY - CONDITIONS
( EEC TREATY , ARTICLES 30 AND 115 )
5 . TRADE - FRUIT AND VEGETABLES - QUALITY - CONTROL - COMMUNITY RULES - ORIGIN OF PRODUCTS - PROOF - REQUIREMENT NOT JUSTIFIED
( REGULATION NO 158/66/EEC , ARTICLE 3 ; REGULATION NO 93/67/EEC , ARTICLE 3 )
6 . TRADE - FRUIT AND VEGETABLES - QUALITY - INFRINGEMENTS - PENALTIES WITHIN THE MEANING OF ARTICLE 8 OF REGULATION NO 158/66 - PROHIBITION ON DISTINCTION ACCORDING TO THE ORIGIN OF THE PRODUCT
Summary
1 . FOR THE YEARS 1970 AND 1971 THE EXISTENCE OF THE COMMERCIAL AGREE- MENT BETWEEN THE COMMUNITY AND SPAIN FORMED NO OBSTACLE TO THE APPLICATION TO IMPORTS OF TABLE GRAPES OF ARTICLE 115 OF THE TREATY .
2 . HAVING REGARD TO THE COMBINED PROVISIONS OF ARTICLE 1 OF REGULATION NO 2513/69 AND OF ARTICLES 1 AND 11 OF ANNEX I TO THE AGREEMENT BETWEEN THE EEC AND SPAIN , MEMBER STATES COULD CONTINUE TO APPLY TO TABLE GRAPES OF SPANISH ORIGIN DURING THE PART OF THE YEAR BETWEEN 1 JULY AND 31 DECEMBER QUANTITATIVE RESTRICTIONS IN EXISTENCE PRIOR TO REGULATION NO 2513/69 .
3 . IT IS NOT FOR THE COURT OF JUSTICE TO ASSESS WHETHER QUESTIONS REFERRED TO IT BY A NATIONAL COURT UNDER ARTICLE 177 OF THE TREATY ARE RELEVANT TO THE NATURE AND SUBJECT-MATTER OF THE ACTION BEFORE THAT COURT , SINCE IN ACCORDANCE WITH THE STRUCTURE OF THE PROCEDURE FOR A PRELIMINARY RULING SUCH ASSESSMENT COMES WITHIN THE JURISDICTION OF THE NATIONAL COURT .
4 . THE REQUIREMENT BY THE IMPORTING MEMBER STATE OF THE INDICATION OF THE COUNTRY OF ORIGIN ON THE CUSTOMS DECLARATION DOCUMENT FOR PRODUCTS IN FREE CIRCULATION WHOSE COMMUNITY STATUS IS ATTESTED BY THE COMMUNITY MOVEMENT CERTIFICATE DOES NOT IN ITSELF CONSTITUTE A MEASURE EQUIVALENT TO A QUANTITATIVE RESTRICTION IF THE GOODS IN QUESTION ARE COVERED BY MEASURES OF COMMERCIAL POLICY ADOPTED BY THAT STATE IN CONFORMITY WITH THE TREATY . SUCH A REQUIREMENT WOULD , HOWEVER , FALL UNDER THE PROHIBITION CONTAINED IN ARTICLE 30 OF THE TREATY IF THE IMPORTER WERE REQUIRED TO DECLARE , WITH REGARD TO ORIGIN , SOMETHING OTHER THAN WHAT HE KNOWS OR MAY REASONABLY BE EXPECTED TO KNOW OR IF THE OMISSION OR INACCURACY OF THAT DECLARATION WERE TO ATTRACT PENALTIES DISPROPORTIONATE TO THE NATURE OF A CONTRAVENTION OF A PURELY ADMIN- ISTRATIVE CHARACTER . ANY ADMINISTRATIVE OR PENAL MEASURE WHICH GOES BEYOND WHAT IS STRICTLY NECESSARY FOR THE PURPOSES OF ENABLING THE IMPORTING MEMBER STATE TO OBTAIN REASONABLY COMPLETE AND ACCURATE INFORMATION ON THE MOVEMENT OF GOODS FALLING WITHIN SPECIFIC MEASURES OF COMMERCIAL POLICY MUST BE REGARDED AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION PROHIBITED BY THE TREATY .
5 . THE RULES RELATING TO CONTROL OF THE QUALITY OF PRODUCTS CANNOT OF THEMSELVES JUSTIFY A REQUIREMENT TO PRODUCE DOCUMENTS CONCERNING THE ORIGIN OF PRODUCTS , ON CONDITION HOWEVER THAT WHEN AN INSPECTION IS CARRIED OUT THE INSPECTOR MAY REQUIRE PROOF THAT THE COMPULSORY DECLARATIONS ARE IN ACCORDANCE WITH THE FACTS .
6 . ARTICLE 8 OF REGULATION NO 158/66 SEEKS TO PENALIZE ANY INFRINGEMENT , WITHOUT DISTINCTION AS TO THE ORIGIN OF THE PRODUCT . NATIONAL MEASURES ENTAILING SUCH DISTINCTIONS MAY , WHERE APPROPRIATE , BE REGARDED AS DISCRIMI- NATORY AND THEREBY INCOMPATIBLE WITH THE TREATY , IN PARTICULAR ARTICLE 30 .
Parties
IN CASE 52/77 ,
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNALE OF SALUZZO FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
LEONCE CAYROL
AND
GIOVANNI RIVOIRA & FIGLI
Subject of the case
ON THE INTERPRETATION OF ARTICLE 1 OF ANNEX I TO THE AGREEMENT BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND SPAIN ( REGULATION ( EEC ) NO 1524/70 OF THE COUNCIL OF 20 . 7 . 1970 , OJ , ENGLISH SPECIAL EDITION SECOND SERIES , I . EXTERNAL RELATIONS ( 1 ), P . 269 ) AND OF ARTICLES 30 AND 115 OF THE EEC TREATY ,
Grounds
1 BY AN ORDER OF 15 APRIL 1977 , WHICH WAS RECEIVED AT THE COURT ON 19 APRIL 1977 , THE PRESIDENT OF THE TRIBUNALE DI SALUZZO REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING SIX QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 115 AND 30 OF THE TREATY , OF THE AGREEMENT CONCLUDED BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND SPAIN ON 29 JUNE 1970 , WHICH WAS THE SUBJECT OF REGULATION NO 1524/70 OF THE COUNCIL OF 20 JULY 1970 ( OJ , ENGLISH SPECIAL EDITION , SECOND SERIES , I . EXTERNAL RELATIONS ( 1 ), P . 269 ), AND OF REGULATION NO 58/62 OF THE COMMISSION OF 15 JUNE 1962 , LAYING DOWN COMMON QUALITY STANDARDS FOR CERTAIN PRODUCTS LISTED IN ANNEX I B TO REGULATION NO 23 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN FRUIT AND VEGETABLES ( OJ , ENGLISH SPECIAL EDITION 1959-1962 , P . 204 ).
2 THE QUESTIONS ARE REFERRED IN THE FRAMEWORK OF PROCEEDINGS FOR A WARRANT FOR ATTACHMENT BROUGHT BY THE UNDERTAKING LEONCE CAYROL ( HEREINAFTER REFERRED TO AS CAYROL ) AGAINST THE UNDERTAKING GIOVANNI RIVOIRA & FIGLI , SNC ( HEREINAFTER REFERRED TO AS RIVOIRA ).
3 IT APPEARS FROM THE CASE THAT IN DECEMBER 1970 AND DECEMBER 1971 CAYROL IMPORTED INTO FRANCE VARIOUS CONSIGNMENTS OF TABLE GRAPES OF SPANISH ORIGIN WHICH WERE DISPATCHED FROM ITALY ( WHERE THE GRAPES HAD BEEN PUT INTO FREE CIRCULATION ) BY RIVOIRA AND THAT THE SAID CONSIGNMENTS WERE ACCOMPANIED BY THE CERTIFICATE OF THE ISTITUTO NAZIONALE PER IL COMMERCIO ESTERO ( ICE ) CERTIFYING THAT THE GOODS WERE IN CONFORMITY WITH THE QUALITY STANDARDS AND STATING THAT THEY WERE OF ITALIAN ORIGIN .
4 FOLLOWING A CHECK CARRIED OUT BY THE FRENCH CUSTOMS AUTHORITIES ON 9 AUGUST 1972 ( THUS AFTER THE MARKETING OF THE GRAPES ) CAYROL AND RIVOIRA WERE CHARGED WITH HAVING IMPORTED PROHIBITED GOODS BY MEANS OF A FALSE DECLARATION OF ORIGIN AND ON THE BASIS OF FALSE OR INACCURATE DOCUMENTS , SINCE THE QUOTA FIXED BY FRANCE FOR IMPORTS OF SPANISH GRAPES HAD BEEN EXHAUSTED .
5 IN ITS JUDGMENT ON THAT CHARGE THE TRIBUNAL DE GRANDE INSTANCE , MONTPELLIER , ORDERED CAYROL AND RIVOIRA JOINTLY INTER ALIA TO PAY A FINE IN LIEU OF CONFISCATION AND A FINE AMOUNTING TO TWICE THE VALUE OF THE GOODS LIABLE TO CONFISCATION , AND REJECTED THE ARGUMENT PUT FORWARD BY THE DEFENDANTS THAT THE GRAPES HAD ACQUIRED ITALIAN ORIGIN BY REASON OF PROCESSING IN ITALY .
6 CAYROL DISCHARGED THE FINE BY PAYING THE AMOUNT OF A SETTLEMENT WHICH WAS PROPOSED TO HIM AND APPLIED TO THE TRIBUNALE DI SALUZZO FOR A WARRANT FOR ATTACHMENT AGAINST RIVOIRA , ON THE GROUNDS THAT THE PENALTIES APPLIED WERE CAUSED BY THE CONDUCT OF RIVOIRA , WHO HAD DECEIVED THE FRENCH CUSTOMS AUTHORITIES AS TO THE ORIGIN OF THE GOODS BY MEANS OF THE ICE CERTIFICATE . THIS LED THE PRESIDENT OF THE TRIBUNALE TO ASCERTAIN WHETHER THE ACTION OF THOSE AUTHORITIES WAS COMPATIBLE WITH THE PROVISIONS OF COMMUNITY LAW .
7 THE FIRST TWO QUESTIONS CONCERN THE EFFECT ON THE PRESENT CASE OF THE COMMERCIAL AGREEMENT CONCLUDED BETWEEN THE COMMUNITY AND SPAIN ON 29 JUNE 1970 .
8 FIRST , IT IS ASKED WHETHER ARTICLE 115 OF THE TREATY MAY BE RELIED UPON BY MEMBER STATES IN CONNEXION WITH PRODUCTS ORIGINATING IN A THIRD COUNTRY WHICH ARE COVERED ' BY A COMMUNITY IMPORT SYSTEM PURSUANT TO A COMMERCIAL AGREEMENT CONCLUDED BY THE EEC WITH THE SAID THIRD COUNTRY ' .
9 THEN , IT IS ASKED WHETHER ARTICLE 1 OF ANNEX I TO THE AGREEMENT IN QUESTION MUST BE INTERPRETED ' TO MEAN THAT FROM THE DATE OF THE ENTRY INTO FORCE OF THE AGREEMENT , THAT IS , 1 OCTOBER 1970 , THE MEMBER STATES WERE NO LONGER EMPOWERED TO INTRODUCE DIRECTLY ( ON THE BASIS OF BILATERAL COMMERCIAL AGREEMENTS PREVIOUSLY CONCLUDED WITH SPAIN ) QUANTITATIVE RESTRICTIONS OF WHATEVER NATURE , INCLUDING IMPORT QUOTAS , WITH REGARD TO PRODUCTS ORIGINATING IN SPAIN ( AND IN PARTICULAR THOSE COVERED BY ARTICLE 11 OF ANNEX I TO THE AGREEMENT BETWEEN THE EEC AND SPAIN , TARIFF HEADING 08.04 , FRESH TABLE GRAPES ) THROUGHOUT ALL THE MONTHS OF THE YEAR ' .
10 THESE TWO QUESTIONS SHOULD BE CONSIDERED TOGETHER .
11 AS REGARDS THE INTERPRETATION OF THE AGREEMENT , IN ITS OBSERVATIONS RIVOIRA RELIED ON ARTICLES 1 AND 11 ( UNDER HEADING 08.04 OF THE COMMON CUSTOMS TARIFF ) TOGETHER OF ANNEX I TO THE AGREEMENT , TO ARGUE THAT THOSE PROVISIONS PROHIBIT QUANTITATIVE RESTRICTIONS ON IMPORTS OF FRESH GRAPES .
12 IT WAS ARGUED THAT , IN FACT , SINCE ARTICLE 11 PROVIDES THAT IMPORTS OF THE PRODUCT INTO THE COMMUNITY SHALL BE SUBJECT TO CUSTOMS DUTIES REDUCED BY 50 % DURING THE PERIOD BETWEEN 1 JANUARY AND 31 MARCH , ARTICLE 1 , ACCORDING TO WHICH ' IMPORTS INTO THE COMMUNITY OF PRODUCTS ORIGINATING IN SPAIN WHICH ARE COVERED BY THE PROVISIONS OF THIS ANNEX . . . SHALL BE ADMITTED WITHOUT QUANTITATIVE RESTRICTIONS ' , PROHIBITS QUOTA RESTRICTIONS SUCH AS THOSE INVOKED BY THE FRENCH AUTHORITIES .
13 HOWEVER , IN ITS OBSERVATIONS , THE COMMISSION ARGUED THAT THE SAID ARTICLE 1 MUST BE INTERPRETED AS MEANING THAT QUANTITATIVE RESTRICTIONS ARE PROHIBITED ONLY IN SO FAR AS THE PROVISIONS OF THE ANNEX APPLY TO THE PRODUCTS REFERRED TO , AND THAT CONSEQUENTLY , AS FAR AS FRESH TABLE GRAPES ARE CONCERNED , THAT PROHIBITION OPERATES ONLY DURING THE PART OF THE YEAR BETWEEN 1 JANUARY AND 31 MARCH .
14 ALTHOUGH AT FIRST SIGHT THE BROADER INTERPRETATION PUT FORWARD BY RIVOIRA MAY APPEAR ACCEPTABLE , THE INTERPRETATION SUGGESTED BY THE COMMISSION IS MORE IN ACCORDANCE WITH BOTH THE GENERAL SCHEME AND THE OBJECTIVES OF THE AGREEMENT .
15 INDEED , CERTAIN PROVISIONS OF ANNEX I TO THE AGREEMENT - AND AS FAR AS FRESH GRAPES ARE CONCERNED , ARTICLE 9 ( 2 ) THEREOF - PROVIDE FOR QUOTA RESTRICTIONS , AND THEREFORE QUANTITATIVE RESTRICTIONS , SO THAT IT MUST BE CONCLUDED THAT ARTICLE 1 IS NOT INTENDED TO PROHIBIT ALL QUANTITATIVE RESTRICTIONS .
16 HOWEVER , WHERE THE AGREEMENT PROVIDES FOR REDUCED DUTIES ON IMPORTS AT CERTAIN PERIODS , IT IS NORMAL FOR IT TO STIPULATE THAT THAT ADVANTAGE MAY NOT BE FETTERED BY QUANTITATIVE RESTRICTIONS .
17 ON THE OTHER HAND , IT CANNOT BE CONCLUDED THAT FOR THE REST OF THE YEAR , IN THIS CASE FOR THE PERIOD BETWEEN 1 APRIL AND 31 DECEMBER , SUCH RESTRICTIONS ARE ALSO PROHIBITED , AS THE FACT THAT THE REDUCED CUSTOMS DUTY APPLIES ONLY FOR THREE MONTHS OF THE YEAR IS IN ITSELF AN INDICATION THAT OTHER CONSIDERATIONS MAY PREVAIL OUTSIDE THAT PERIOD .
18 MOREOVER , THAT INTERPRETATION IS CONFIRMED BY THE SETTLED PRACTICE OF THE PARTIES TO THE AGREEMENT , AS IT EMERGES FROM THE DOCUMENTS PRODUCED BY THE COMMISSION .
19 FURTHERMORE , ARTICLE 1 OF REGULATION NO 2513/69 OF THE COUNCIL OF 9 DECEMBER 1969 ON THE COORDINATION AND STANDARDIZATION OF THE TREATMENT ACCORDED BY EACH MEMBER STATE TO IMPORTS OF FRUIT AND VEGETABLES FROM THIRD COUNTRIES ( JO L 318 , P . 6 ) PROVIDES THAT :
' 1 . SUBJECT TO COMMUNITY PROVISIONS TO THE CONTRARY AND TO EXCEPTIONS DECIDED UPON BY THE COUNCIL ACTING IN ACCORDANCE WITH THE VOTING PROCEDURE LAID DOWN IN ARTICLE 43 ( 2 ) OF THE TREATY ON A PROPOSAL FROM THE COMMISSION ,
- THE LEVYING OF ANY CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ,
- THE APPLICATION OF ANY QUANTITATIVE RESTRICTION OR MEASURE HAVING EQUIVALENT EFFECT ,
ON IMPORTS FROM THIRD COUNTRIES OF PRODUCTS FALLING WITHIN HEADING 07.01 ( EXCLUDING SUBHEADING 07.01 A ) AND HEADINGS 08.02 TO 08.09 OF THE COMMON CUSTOMS TARIFF SHALL BE PROHIBITED .
HOWEVER , WITHOUT PREJUDICE TO THE PROVISIONS OF THE SECOND SUBPARAGRAPH OF PARAGRAPH 2 , THE PROVISIONS OF THE SECOND INDENT OF THE FIRST SUBPARAGRAPH SHALL NOT APPLY DURING THE PERIODS SPECIFIED IN THE ANNEX IN RESPECT OF THE PRODUCTS LISTED THEREIN .
2 . THE COUNCIL , ACTING IN ACCORDANCE WITH THE VOTING PROCEDURE LAID DOWN IN ARTICLE 43 ( 2 ) OF THE TREATY ON A PROPOSAL FROM THE COMMISSION , SHALL , BEFORE 1 JANUARY 1973 , DECIDE UPON THE CONDITIONS UNDER WHICH THE PROHIBITION CONTAINED IN THE SECOND INDENT OF PARAGRAPH 1 SHALL BE EXTENDED TO THE PRODUCTS LISTED IN THE ANNEX DURING THE PERIODS SPECIFIED THEREIN .
UNTIL THE ENTRY INTO FORCE OF THE MEASURES DECIDED UPON PURSUANT TO THE FIRST SUBPARAGRAPH , MEMBER STATES SHALL APPLY NO QUANTITATIVE RESTRICTIONS OR MEASURES HAVING EQUIVALENT EFFECT OTHER THAN THOSE WHICH THEY APPLIED DURING THE MARKETING YEAR PRECEDING THE DATE OF THE ENTRY INTO FORCE OF THIS REGULATION ; NOR SHALL THEY MAKE SUCH MEASURES MORE RESTRICTIVE .
MEMBER STATES WHICH FULFIL THE CONDITIONS LAID DOWN FOR APPLYING THE MEASURES REFERRED TO IN THE SECOND SUBPARAGRAPH , AND WHICH PROPOSE TO APPLY THEM , SHALL NOTIFY THE COMMISSION THEREOF BEFORE THE BEGINNING OF THE IMPORT YEAR .
HOWEVER , AS FAR AS THE 1969/1970 IMPORT YEAR IS CONCERNED , SUCH NOTIFICATION SHALL BE MADE NOT LATER THAN 15 JANUARY 1970 . '
20 IT EMERGES THEREFROM THAT THE MEMBER STATES WERE EMPOWERED TO APPLY QUANTITATIVE RESTRICTIONS FOR THE PRODUCTS REFERRED TO IN THE ANNEX TO REGULATION NO 2513/69 - WHICH INCLUDED TABLE GRAPES - FOR THE PERIOD OF THE YEAR STATED IN THE ANNEX IN QUESTION , WHICH FOR TABLE GRAPES IS THE PERIOD BETWEEN 1 JULY AND 31 JANUARY .
21 IT IS NOT DISPUTED THAT , MAKING USE OF THE POSSIBILITY LEFT TO THE MEMBER STATES BY THE PROVISION CITED , THE FRENCH REPUBLIC NOTIFIED THE COMMISSION , FOR THE YEARS 1970 AND 1971 , OF A QUANTITATIVE RESTRICTION CONCERNING SPANISH TABLE GRAPES CONSISTING IN A LIMITATION OF IMPORTS THEREOF TO A QUOTA OF FF 5 MILLION FOR THE PERIOD BETWEEN MID-NOVEMBER AND 31 JANUARY .
22 THE EFFECT OF THE AGREEMENT BETWEEN THE COMMUNITY AND SPAIN IS FURTHER TO LIMIT THE FREEDOM OF THE MEMBER STATES AND , CONSEQUENTLY , THE POSSIBILITY FOR THE FRENCH REPUBLIC TO EXTEND THE NOTIFIED RESTRICTION TO THE MONTH OF JANUARY .
23 ON THE OTHER HAND , IT RESULTS FROM THE FOREGOING THAT , HAVING REGARD TO THE COMBINED PROVISIONS OF ARTICLE 1 OF REGULATION NO 2513/69 AND OF ARTICLES 1 AND 11 OF ANNEX I TO THE AGREEMENT BETWEEN THE EEC AND SPAIN , MEMBER STATES COULD CONTINUE TO APPLY TO TABLE GRAPES OF SPANISH ORIGIN DURING THE PART OF THE YEAR BETWEEN 1 JULY AND 31 DECEMBER QUANTITATIVE RESTRICTIONS IN EXISTENCE PRIOR TO REGULATION NO 2513/69 .
24 FINALLY , AS TO THE INTERPRETATION OF ARTICLE 115 OF THE TREATY WHICH HAS BEEN REQUESTED , SINCE CERTAIN MEMBER STATES INCLUDING THE FRENCH REPUBLIC HAVE ACTUALLY MADE USE OF THE POSSIBILITY OF CONTINUING TO APPLY QUANTITATIVE RESTRICTIONS TO IMPORTS OF TABLE GRAPES OF SPANISH ORIGIN , DIFFERENCES AROSE AT THE TIME BETWEEN THE MEASURES OF COMMERCIAL POLICY APPLIED BY THE MEMBER STATES , WHICH IS THE BASIC CONDITION FOR THE APPLICATION OF ARTICLE 115 .
25 IT FOLLOWS FROM THE FOREGOING THAT DURING THE PART OF THE YEAR BETWEEN 1 JULY AND 31 DECEMBER TABLE GRAPES WERE NOT COVERED BY A COMMUNITY IMPORT SYSTEM SUCH AS TO MAKE ARTICLE 115 INAPPLICABLE TO THE CASE .
26 IT IS NOT DISPUTED THAT TWO MEMBER STATES OBTAINED THE AUTHORIZATION OF THE COMMISSION WHICH IS REFERRED TO IN THE SECOND SENTENCE OF THE FIRST PARAGRAPH OF THAT ARTICLE , TO EXCLUDE SPANISH TABLE GRAPES FROM COMMUNITY TREATMENT DURING THE LAST MONTHS OF THE YEAR , WHICH AUTHORIZATION EMPOWERED THEM , BY WAY OF DEROGATION FROM ARTICLE 30 OF THE TREATY , TO CHECK THE ORIGIN OF PRODUCTS IN TRADE WITHIN THE COMMUNITY .
27 IT IS IMPORTANT TO POINT OUT THAT , ACCORDING TO THE INFORMATION SUPPLIED BY THE COMMISSION , THE FRENCH REPUBLIC NEITHER REQUESTED NOR OBTAINED SUCH AUTHORIZATION .
28 BE THAT AS IT MAY , THE ANSWER SHOULD BE THAT , FOR THE YEARS 1970 AND 1971 THE EXISTENCE OF THE COMMERCIAL AGREEMENT BETWEEN THE COMMUNITY AND SPAIN FORMED NO OBSTACLE TO THE APPLICATION TO IMPORTS OF TABLE GRAPES OF ARTICLE 115 OF THE TREATY .
29 QUESTIONS 3 TO 6 REFERRED TO THE COURT BY THE PRESIDENT OF THE TRIBUNALE DI SALUZZO SEEK TO ASCERTAIN WHAT CHECKS AT FRONTIERS WITHIN THE COMMUNITY ARE STILL COMPATIBLE WITH COMMUNITY LAW .
30 THE THIRD AND FOURTH QUESTIONS ASK WHETHER THE FACT THAT THE IMPORTATION OF PRODUCTS IN FREE CIRCULATION IS MADE SUBJECT TO THE PRODUCTION OF CERTIFICATES OF ORIGIN OR OTHER MEANS OF IDENTIFYING THE ORIGIN OF THE PRODUCTS AT ISSUE CONSTITUTES A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION PROHIBITED BY ARTICLE 30 OF THE TREATY , AND IF THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE , WHETHER THE MEMBER STATES MAY DEROGATE FROM THAT PROHIBITION AND REQUIRE CERTIFICATES OF ORIGIN FOR ALL GOODS COMING FROM OTHER MEMBER STATES , BEFORE THE DATE OF THE GRANTING BY THE COMMISSION OF AN AUTHORIZATION UNDER ARTICLE 115 OF THE TREATY .
31 ARGUING THAT IT DOES NOT APPEAR FROM THE CASE FILE THAT THE PRODUCTION OF CERTIFICATES OF ORIGIN WAS DEMANDED IN THIS INSTANCE , THE COMMISSION RAISED THE QUESTION WHETHER THE QUESTIONS ARE RELEVANT TO THE REACHING OF A DECISION IN THE CASE BEFORE THE NATIONAL COURT .
32 HOWEVER , IT IS NOT FOR THE COURT OF JUSTICE TO ASSESS WHETHER QUESTIONS REFERRED TO IT BY A NATIONAL COURT UNDER ARTICLE 177 OF THE TREATY ARE RELEVANT TO THE NATURE AND SUBJECT-MATTER OF THE ACTION BEFORE THAT COURT , SINCE IN ACCORDANCE WITH THE STRUCTURE OF THE PROCEDURE FOR A PRELIMINARY RULING SUCH ASSESSMENT COMES WITHIN THE JURISDICTION OF THE NATIONAL COURT .
33 MEMBER STATES CANNOT IGNORE THE ORIGIN OF GOODS IN FREE CIRCULATION ORIGINATING IN THIRD COUNTRIES AND PRESENTED FOR IMPORTATION PRECISELY IN CASES WHERE , BECAUSE THE COMMON COMMERCIAL POLICY HAS NOT BEEN FULLY ACHIEVED , DIFFERENCES REMAIN BETWEEN THE MEASURES OF COMMERCIAL POLICY APPLIED BY THE MEMBER STATES AND WHERE DEFLECTIONS OF TRADE OR ECONOMIC DIFFICULTIES MAY BE FEARED .
34 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 16 DECEMBER 1976 ( CASE 41/76 DONCKERWOLCKE ( 1976 ) ECR 1921 ) WITHIN SUCH A CONTEXT THE MEMBER STATES ARE NOT PREVENTED FROM REQUIRING FROM AN IMPORTER A DECLARATION CONCERNING THE ACTUAL ORIGIN OF THE GOODS IN QUESTION EVEN IN THE CASE OF GOODS PUT INTO FREE CIRCULATION IN ANOTHER MEMBER STATE AND COVERED BY A COMMUNITY MOVEMENT CERTIFICATE .
35 IN THESE CIRCUMSTANCES IT MAY BE ADMITTED THAT KNOWLEDGE OF THAT ORIGIN IS NECESSARY BOTH FOR THE MEMBER STATE CONCERNED , SO THAT IT MAY DETERMINE THE SCOPE OF COMMERCIAL POLICY MEASURES WHICH IT IS AUTHORIZED TO ADOPT PURSUANT TO THE TREATY , AND FOR THE COMMISSION , FOR THE PURPOSE OF EXERCISING THE RIGHT OF SUPERVISION AND DECISION CONFERRED ON IT BY ARTICLE 115 .
36 NEVERTHELESS , THE MEMBER STATES MAY NOT REQUIRE FROM THE IMPORTER MORE IN THIS RESPECT THAN AN INDICATION OF THE ORIGIN OF THE PRODUCTS IN SO FAR AS HE KNOWS IT OR MAY REASONABLY BE EXPECTED TO KNOW IT .
37 IN ADDITION , THE FACT THAT THE IMPORTER DID NOT COMPLY WITH THE OBLIGATION TO DECLARE THE REAL ORIGIN OF GOODS CANNOT GIVE RISE TO THE APPLICATION OF PENALTIES WHICH ARE DISPROPORTIONATE , TAKING ACCOUNT OF THE PURELY ADMINISTRATIVE NATURE OF THE CONTRAVENTION .
38 IN THIS RESPECT SEIZURE OF THE GOODS OR ANY PECUNIARY PENALTY FIXED ACCORDING TO THE VALUE OF THE GOODS WOULD CERTAINLY BE INCOMPATIBLE WITH THE PROVISIONS OF THE TREATY AS BEING EQUIVALENT TO AN OBSTACLE TO THE FREE MOVEMENT OF GOODS .
39 IN GENERAL TERMS , ANY ADMINISTRATIVE OR PENAL MEASURE WHICH GOES BEYOND WHAT IS STRICTLY NECESSARY FOR THE PURPOSES OF ENABLING THE IMPORTING MEMBER STATE TO OBTAIN REASONABLY COMPLETE AND ACCURATE INFORMATION ON THE MOVEMENT OF GOODS FALLING WITHIN SPECIFIC MEASURES OF COMMERCIAL POLICY MUST BE REGARDED AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION PROHIBITED BY THE TREATY .
40 A FORTIORI , THE REQUIREMENT OF AN IMPORT LICENCE FOR THE INTRODUCTION INTO A MEMBER STATE OF GOODS PUT INTO FREE CIRCULATION IN ANOTHER MEMBER STATE IS INCOMPATIBLE WITH THE PROVISIONS OF THE TREATY IN SO FAR AS THE GOODS ARE NOT THE SUBJECT OF A DEROGATION PROPERLY AUTHORIZED BY THE COMMISSION BY VIRTUE OF THE SECOND SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 115 .
41 THE FIFTH AND SIXTH QUESTIONS ASK WHETHER THE COMMUNITY LEGISLATION RELATING TO QUALITY STANDARDS FOR FRUIT AND VEGETABLES , IN PARTICULAR THE PROVISIONS OF REGULATION NO 58/62 , PERMITS MEMBER STATES TO RENDER INTRA-COMMUNITY TRADE SUBJECT TO PRODUCTION AT THE FRONTIER OF DOCUMENTS RELATING TO THE ORIGIN OF PRODUCTS IN FREE CIRCULATION COMING FROM OTHER MEMBER STATES AND WHETHER , IN THE CASE OF A FAILURE TO COMPLY WITH THOSE STANDARDS , THE APPLICATION TO IMPORTED PRODUCTS OF THE PENALTIES PRESCRIBED FOR THE INFRINGEMENT OF NATIONAL CUSTOMS LEGISLATION DOES NOT CONSTITUTE A MEASURE HAVING EQUIVALENT EFFECT PROHIBITED BY ARTICLE 30 OF THE TREATY , WHEN DOMESTIC PRODUCTS WHICH FAIL TO COMPLY WITH THE SAME STANDARDS ARE SUBJECT ONLY TO THE LIGHTER PENALTIES PROVIDED FOR BY THE NATIONAL RULES .
42 ALTHOUGH IT IS TRUE THAT QUALITY STANDARDS FOR FRUIT AND VEGETABLES , AND HENCE FOR TABLE GRAPES , WERE LAID DOWN FOR THE FIRST TIME IN REGULATION NO 58/62 , AT THE TIME OF THE IMPORTS AT ISSUE THAT FIELD WAS GOVERNED BY REGULATION NO 158/66 OF THE COUNCIL OF 25 OCTOBER 1966 ON APPLYING COMMON QUALITY STANDARDS TO FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY ( JO NO 192 , 27 . 10 . 1966 , P . 3282/66 ) WHICH , ACCORDING TO THE FIRST RECITAL OF ITS PREAMBLE , AIMS TO ' BANISH PRODUCTS OF UNSATISFACTORY QUALITY FROM THE MARKET , TO ORIENTATE PRODUCTION IN SUCH A WAY AS TO SATISFY CONSUMER REQUIREMENTS , AND TO PROMOTE COMMERCIAL DEALING ON THE BASIS OF FAIR COMPETITION AND COMMON RULES ' .
43 ARTICLE 1 OF REGULATION NO 80/63 OF THE COMMISSION OF 31 JULY 1963 ON QUALITY INSPECTION OF FRUIT AND VEGETABLES IMPORTED FROM THIRD COUNTRIES ( OJ , ENGLISH SPECIAL EDITION 1963-1964 , P . 39 ) PROVIDES THAT ' BEFORE ( CERTAIN PRODUCTS ) FROM THIRD COUNTRIES ARE ACCEPTED FOR IMPORTATION INTO MEMBER STATES , THEY SHALL BE SUBJECTED TO AN INSPECTION TO ESTABLISH . . . WHETHER THESE PRODUCTS CONFORM TO THE COMMON QUALITY STANDARDS . . . OR TO STANDARDS WHICH ARE AT LEAST EQUIVALENT ' .
44 REGULATION NO 93/67 OF THE COMMISSION OF 3 MAY 1967 LAYING DOWN INITIAL PROVISIONS ON QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY ( OJ , ENGLISH SPECIAL EDITION 1967 , P . 24 ) AND REGULATION NO 2638/69 OF THE COMMISSION OF 24 DECEMBER 1969 LAYING DOWN ADDITIONAL PROVISIONS ON QUALITY CONTROL OF FRUIT AND VEGETABLES MARKETED WITHIN THE COMMUNITY ( OJ , ENGLISH SPECIAL EDITION 1969 ( II ), P . 611 ) LAID DOWN THE RULES FOR QUALITY CONTROL .
45 ACCORDING TO ARTICLE 3 ( 1 ) OF REGULATION NO 158/66 , THE PARTICULARS REQUIRED BY THE QUALITY STANDARDS - WHICH INCLUDE A STATEMENT OF THE ORIGIN OF THE GOODS - MUST BE LEGIBLY AND INDELIBLY MARKED ON ONE OF THE SIDES OF THE PACKAGE , EITHER PRINTED DIRECTLY ONTO THE PACKAGE OR BY MEANS OF A LABEL FIRMLY AFFIXED THERETO , AND ARTICLE 3 ( 2 ) PROVIDES THAT , AS REGARDS GOODS DISPATCHED IN BULK , THIS INFORMATION SHALL BE GIVEN IN A DOCUMENT TO ACCOMPANY THE GOODS OR ON A FORM PLACED WHERE IT CAN BE SEEN INSIDE THE MEANS OF TRANSPORT .
46 AS FAR AS INSPECTION IS CONCERNED , ARTICLE 3 OF REGULATION NO 93/67 PROVIDES THAT ' WHERE THE ITEMS INSPECTED FAIL TO COMPLY WITH THE RULES IN FORCE ' , THE INSPECTOR SHALL REQUIRE THE COMPULSORY DECLARATIONS TO BE BROUGHT INTO CONFORMITY WITH THOSE RULES , OR REQUIRE THEM TO BE DISPATCHED TO A DESTINATION IN RESPECT OF WHICH THE QUALITY STANDARDS DO NOT APPLY .
47 IT FOLLOWS THAT THE RULES RELATING TO CONTROL OF THE QUALITY OF THE PRODUCTS IN QUESTION CANNOT OF THEMSELVES JUSTIFY A REQUIREMENT TO PRODUCE DOCUMENTS CONCERNING THE ORIGIN OF THE PRODUCTS , ON THE CONDITION HOWEVER THAT WHEN AN INSPECTION IS CARRIED OUT THE INSPECTOR MAY REQUIRE PROOF THAT THE COMPULSORY DECLARATIONS ARE IN ACCORDANCE WITH THE FACTS .
48 THE SECOND PARAGRAPH OF ARTICLE 8 OF REGULATION NO 158/66 PROVIDES THAT ' MEMBER STATES SHALL TAKE ALL APPROPRIATE MEASURES TO PROVIDE PENALTIES FOR INFRINGEMENTS OF THIS REGULATION ' .
49 THAT ARTICLE DOES NOT IN GENERAL DRAW ANY DISTINCTION BETWEEN INFRINGEMENTS CONCERNING DOMESTIC PRODUCTS AND THOSE CONCERNING PRODUCTS FROM OTHER MEMBER STATES OR BETWEEN INFRINGEMENTS CONCERNING COMMUNITY PRODUCTS AND THOSE CONCERNING NON-COMMUNITY PRODUCTS .
50 IT IS TO BE INFERRED FROM THIS THAT ARTICLE 8 SEEKS TO PENALIZE ANY INFRINGEMENT ON THE SAME BASIS , WITHOUT DISTINCTION AS TO THE ORIGIN OF THE PRODUCT , AND THEREFORE THAT NATIONAL MEASURES ENTAILING SUCH DISTINCTIONS COULD , WHERE APPROPRIATE , BE REGARDED AS DISCRIMINATORY AND THEREBY INCOMPATIBLE WITH THE TREATY , IN PARTICULAR ARTICLE 30 .
Decision on costs
COSTS
51 THE COSTS INCURRED BY THE COMMISSION , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
52 AS THESE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRESIDENT OF THE TRIBUNALE DI SALUZZO BY AN ORDER OF 15 APRIL 1977 , HEREBY RULES :
1 . FOR THE YEARS 1970 AND 1971 THE EXISTENCE OF THE COMMERCIAL AGREEMENT BETWEEN THE COMMUNITY AND SPAIN FORMED NO OBSTACLE TO THE APPLICATION TO IMPORTS OF TABLE GRAPES OF ARTICLE 115 OF THE TREATY .
2 . HAVING REGARD TO THE COMBINED PROVISIONS OF ARTICLE 1 OF REGULATION NO 2513/69 AND OF ARTICLES 1 AND 11 OF ANNEX I TO THE AGREEMENT BETWEEN THE EEC AND SPAIN , MEMBER STATES COULD CONTINUE TO APPLY TO TABLE GRAPES OF SPANISH ORIGIN DURING THE PART OF THE YEAR BETWEEN 1 JULY AND 31 DECEMBER QUANTITATIVE RESTRICTIONS IN EXISTENCE PRIOR TO REGULATION 2513/69 .
3 . ANY ADMINISTRATIVE OR PENAL MEASURES WHICH GOES BEYOND WHAT IS STRICTLY NECESSARY FOR THE PURPOSES OF ENABLING THE IMPORTING MEMBER STATE TO OBTAIN REASONABLY COMPLETE AND ACCURATE INFORMATION ON THE MOVEMENT OF GOODS FALLING WITHIN SPECIFIC MEASURES OF COMMERCIAL POLICY MUST BE REGARDED AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION PROHIBITED BY THE TREATY . THE REQUIREMENT OF AN IMPORT LICENCE FOR THE INTRODUCTION INTO A MEMBER STATE OF GOODS PUT INTO FREE CIRCULATION IN ANOTHER MEMBER STATE IS INCOMPATIBLE WITH THE PROVISIONS OF THE TREATY IN SO FAR AS THE GOODS ARE NOT THE SUBJECT OF A DEROGATION PROPERLY AUTHORIZED BY THE COMMISSION BY VIRTUE OF THE SECOND SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 115 .
4 . THE RULES RELATING TO CONTROL OF THE QUALITY OF PRODUCTS CANNOT OF THEMSELVES JUSTIFY A REQUIREMENT TO PRODUCE DOCUMENTS CONCERNING THE ORIGIN OF PRODUCTS , ON CONDITION HOWEVER THAT WHEN AN INSPECTION IS CARRIED OUT THE INSPECTOR MAY REQUIRE PROOF THAT THE COMPULSORY DECLARATIONS ARE IN ACCORDANCE WITH THE FACTS .
5 . ARTICLE 8 OF REGULATION NO 158/66 SEEKS TO PENALIZE ANY INFRINGEMENT , WITHOUT DISTINCTION AS TO THE ORIGIN OF THE PRODUCT . NATIONAL MEASURES ENTAILING SUCH DISTINCTIONS MAY , WHERE APPROPRIATE , BE REGARDED AS DISCRIMINATORY AND THEREBY INCOMPATIBLE WITH THE TREATY , IN PARTICULAR ARTICLE 30 .
Full & Egal Universal Law Academy