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EC Commission V. Ireland (Case 288/83)

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EC Commission V. Ireland (Case 288/83) Re Imports of Cyprus Potatoes: E.C. Commission v. Ireland (Case 288/83) Before the Court of Justice of the European Communities ECJ (Presiding, Lord Mackenzie Stuart C.J.; Bosco, Due and Kakouris PP.C.; Pescatore, Koopmans, Everling, Bahlmann and Galmot JJ.) M. Marco Darmon Advocate General. 11 June 1985 Application under Article 169 EEC. Imports. Quantitative restrictions. Article 30 EEC prohibits, in trade between member-States, all public bans on imports and all other restrictive measures in the form of import licences or other similar procedures. [20] Constitutional law. Community law and national law. The E.C. Commission cannot, even by approving expressly or by implication a measure adopted unilaterally by a member-State and whether or not there has been prior consultation, confer on such State the right to maintain in force provisions which are objectively contrary to Community law. [22] Agriculture. Common organisation of markets. Inter-State trade. Agricultural products (in casu potatoes) in respect of which a common organisation of the market has not been established are subject to the general rules of the Common Market with regard to import, export and movement within the Community. A member-State may not, therefore, rely on the special rules of Article 39 et seq. to derogate from those rules in respect of such a product. [23] Imports. Free circulation. Articles 9, 10 and 30 EECapply without distinction to products originating in the member-States and to those coming from non-member countries and put into 'free circulation' within the Community. Once the latter have been duly imported into the Community they are definitively and wholly assimilated to products originating in member-States. [24] Criel (Donckerwolcke) v. Procureur de la Republique (41/76) : [1976] E.C.R. 1921, [1977] 2 C.M.L.R. 535, reaffirmed. Imports. Free circulation. Tariff quotas. *153 Once goods forming part of a Community tariff or import quota (even if the quota is more particularly intended for the market of a particular member-State) have been duly imported into the relevant member-State, they are assimilated to the products which are in free circulation in that State. They must therefore be freely importable into the other member-States without hindrance, unless an express provision to the contrary has been adopted by a competent institution of the Community. [25] Imports. Public policy. The public policy exception in Article 36 EEC to the free movement of goods may not be relied on by a member-State to protect its economic interests. [28] Re Pork Products: EEC Commission v. Italy (7/61): [1961] E.C.R. 317, [1962] C.M.L.R. 39, and Duphar BV v. the State (Netherlands) (238/82): [1984] E.C.R. 523, [1985] 1 C.M.L.R. 256, reaffirmed. The Court held thatby requiring licences for the import of potatoes originating in non-member countries (in casu Cyprus) and which were in free circulation in another member-State (the United Kingdom) and by prohibiting such imports in the absence of a licence, Ireland was in breach of Article 30 EEC. Representation Richard Wainwright, Legal Adviser to the E.C. Commission, and Julian Currall, of the Legal Service of the E.C. Commission, for the applicant Commission. James O'Reilly, of the Irish Bar, with him in the written proceedings Louis J. Dockery, Chief State Solicitor, for the defendant Government. The following cases were referred to by the Court in its judgment: 1. Criel (Donckerwolcke) v. Procureur de la Republique (41/76) , 15 December 1976: [1976] E.C.R. 1921, [1977] 2 C.M.L.R. 535. Gaz:41/76 2. Re the Export of Potatoes: E.C. Commission v. France (68/76), 16 March 1977: [1977] E.C.R. 515, [1977] 2 C.M.L.R. 161. Gaz:68/76 3. Re Import of Potatoes: E.C. Commission v. United Kingdom (231/78), 29 March 1979: [1979] E.C.R. 1447, [1979] 2 C.M.L.R. 427. Gaz:231/78 4. Re Restriction on Imports of Lamb: E.C. Commission v. France (232/78), 25 September 1979: [1979] E.C.R. 2729, [1980] 1 C.M.L.R. 418. Gaz:232/78 5. Charmasson v. Minister for Economic Affairs and Finance (48/74), 10 December 1974: [1974] E.C.R. 1383, [1975] 2 C.M.L.R. 208. Gaz:48/74 6. Re Quantitative Restrictions on Imports of Pork Products into Italy: EEC Commission v. Italian Government (7/61), *154 19 December 1961 : [1961] E.C.R. 317, [1962] C.M.L.R. 39. Gaz:7/61 7. Duphar BV v. the State of the Netherlands (Minister of Health and the Environment) (232/82), 7 February 1984: [1984] E.C.R. 523, [1985] 1 C.M.L.R. 256. Gaz:238/82 The following further case was referred to by the Advocate General: 8. C.J. Meijer BV v. Department of Trade (118/78), 29 March 1979: [1979] E.C.R. 1387, [1979] 2 C.M.L.R. 398. Gaz:118/78 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Opinion of the Advocate General (M. Marco Darmon) 1 The action brought before the Court under Article 169 of the EEC Treaty by the Commission for a declaration that Ireland has failed to fulfil its obligations under the Treaty concerns the Community rules applicable to the circulation of new potatoes imported into the Community from Cyprus. Under an Association Agreement concluded in 1973 between the Republic of Cyprus and the European Community [FN1] the Republic of Cyprus benefited initially from annual tariff quotas, free of customs duties, in respect of imports of new potatoes into the United Kingdom, the annual tariff quota taking into account 'the traditional United Kingdom imports from Cyprus'. Later, potatoes originating in Cyprus and imported into the Community were admitted at reduced rates of duty under the Common Customs Tariff, by virtue of a supplementary Protocol laying down certain provisions relating to trade in agricultural products between the European Economic Community and the Republic of Cyprus. [FN2] FN1 [1973] O.J. L133/2. FN2 [1978] O.J. L172/3 and L172/11. It appears from the documents in the case that until the entry into force on 1 March 1980 of the Community plant health system, the consequences of that Association Agreement had not been felt on the Irish potato market because of the national rules applicable in the matter until then. According to the Irish Government, large quantities of new potatoes were imported into Ireland from the summer of 1980 onwards. Since, according to the Irish Government, the national market has always been self-sufficient, if not slightly in *155 surplus, the effect of the imports was to destabilise prices and to pose a serious threat to the income of the country's small potato growers. It was in that context that an order of the Minister for Agriculture entitled the Potatoes (Regulation of Import) Order (hereinafter referred to as 'the Order') entered into force in Ireland on 6 March 1981 and established a system of licences for the importation of potatoes into Ireland. Articles 3 and 4 of the Order read as follows: 3. This Order applies to potatoes which are raw, unprocessed and are produced in any country or territory other than a country which is a member- State of the European Economic Community. 4. The importation of potatoes to which this Order applies is hereby prohibited unless (a) such potatoes are imported under and in accordance with a licence granted by the Minister for the purposes of this Order, and (b) such licence is at the time of importation delivered to the proper officer of Customs and Excise. Following a complaint received in April 1982 from an Irish importer who had been refused an import licence for new potatoes originating in Cyprus, the Commission decided to initiate the procedure laid down in Article 169 of the EEC Treaty on the ground that Ireland was applying that provision not merely to potatoes directly imported into Ireland from non-member countries but also to those which had been in free circulation in another member-State before being imported into Ireland. On 1 August 1983, it formulated a reasoned opinion requesting Ireland to abolish the requirement that a licence be obtained for the importation of potatoes in free circulation in another member-State. In the statement of the reasons for its opinion, it reminded the Irish Government that it should apply to the Commission for an authorisation under Article 115 of the EEC Treaty to exclude potatoes originating in non-member countries from Community treatment and that the Commission would then verify whether the conditions for the grant of the authorisation were fulfilled. By a letter in reply to the reasoned opinion, dated 25 October 1983, Ireland maintained its standpoint, namely that the sole purpose of the Order was to give effect in Ireland to the true intention of the Community provisions. It also applied for retroactive authorisation under Article 115 in respect of the matters complained of. 2 Although it is clear from the context outlined above that the Order was promulgated for the purpose of alleviating the harmful effects on the Irish market of imports of potatoes originating in Cyprus, it is however above all from the point of view of the principles of Community law that the case must be considered. *156 It is clear just from reading Articles 3 and 4 of the Irish Ministerial Order of 6 March 1981that only potatoes produced in the member-States of the European Economic Community are excluded from the requirement to obtain a licence.
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