Grounds of the judgment
1 By
application lodged at the Court Registry on 4 August 1995, the
Commission of the European Communities brought an action under
Article 169 of the EC Treaty for a declaration that, by
failing to take all necessary and proportionate measures in
order to prevent the free movement of fruit and vegetables
from being obstructed by actions by private individuals, the
French Republic has failed to fulfil its obligations under the
common organization of the markets in agricultural products
and Article 30 of the EC Treaty, in conjunction with Article 5
of that Treaty.
2 The Commission states that for more than
a decade it has regularly received complaints concerning the
passivity of the French authorities in face of violent acts
committed by private individuals and by protest movements of
French farmers directed against agricultural products from
other Member States. Those acts consist, inter alia, in the
interception of lorries transporting such products in France
and the destruction of their loads, violence against lorry
drivers, threats against French supermarkets selling
agricultural products originating in other Member States, and
the damaging of those goods when on display in shops in
France.
3 The Commission has noted that as from 1993
certain groupings of French farmers, including an organization
known as `Coordination Rurale', launched a systematic campaign
to restrict the supply of agricultural products from other
Member States, which takes the form in particular of threats
to wholesalers and retailers in order to induce them to stock
exclusively French products, the imposition of a minimum
selling price for the products concerned, and the organization
of checks to verify whether those traders are complying with
the instructions given.
4 Thus, from April to July 1993
that campaign was directed particularly at strawberries
originating in Spain. In August and September 1993 tomatoes
from Belgium were treated in the same way.
5 In 1994 the
same type of action, involving threats against shopping
centres and destruction of goods and means of transport, was
directed against Spanish strawberries in particular. Violent
incidents took place on two occasions at the same place within
a period of two weeks but the police who were present took no
action to provide effective protection for the lorries and
their loads.
6 The Commission also refers to other cases
of vandalism which have hindered the free movement in France
of agricultural products originating in Italy and Denmark.
7 After the Commission had raised the matter on several
occasions with the French authorities, it took the view that,
by failing to take all necessary and proportionate measures in
order to prevent the free movement of agricultural products
from being obstructed by criminal acts of private individuals,
the French Republic had failed to fulfil its obligations under
the common organizations of the markets in agricultural
products and Article 30 of the EC Treaty, in conjunction with
Article 5 of that Treaty. Consequently, by letter of 19 July
1994, the Commission gave the French Government formal notice
under Article 169 of the Treaty to submit its observations
within a period of two months on the failure to fulfil
obligations with which it was charged.
8 In a letter dated
10 October 1994 the French Government replied that it had
always strongly condemned the acts of vandalism committed by
French farmers. It stated that the preventive measures which
it had taken by way of surveillance, protection and the
gathering of information had brought about a notable reduction
in incidents between 1993 and 1994. Moreover, the fact that
public prosecutors had systematically conducted criminal
investigations showed the French authorities' determination to
bring prosecutions in respect of all criminal conduct aimed at
obstructing imports of agricultural products from other Member
States. However, unpredictable commando-type operations
conducted by small, highly mobile groups made it extremely
difficult for the police to intervene and explained the often
unsuccessful nature of the criminal proceedings initiated.
Lastly, the practices of `Coordination Rurale' that aimed to
regulate the market for agricultural products through threats
and destruction were the subject of proceedings before the
Conseil de la Concurrence (Competition Council).
9 None
the less, on 20 April 1995 further serious incidents occurred
in the south west of France, in the course of which
agricultural products from Spain were destroyed.
10 On 5
May 1995 the Commission therefore delivered a reasoned opinion
under the first paragraph of Article 169 of the Treaty. In
that opinion it stated that, by failing to take all necessary
and proportionate measures in order to prevent the free
movement of fruit and vegetables from being obstructed by
actions by private individuals, the French Republic had failed
to fulfil its obligations under the common organizations of
the markets in agricultural products and Article 30 of the EC
Treaty, in conjunction with Article 5 of that Treaty. Pursuant
to the second paragraph of Article 169 of the Treaty, the
Commission called upon the French Republic to adopt the
measures necessary in order to comply with that opinion within
a period of one month from the date thereof.
11 On 16 June
1995 the French Government stressed that it had adopted all
the measures open to it in order to ensure the free movement
of goods on its territory and that the means of deterrence
introduced had substantially contained the number of acts of
violence committed in 1995. At national level, joint action to
combat the recurrence of acts of vandalism had been agreed
between the ministries concerned. This included, in
particular, increased surveillance and instructions to
prefects and the police to take firm action. Moreover, at the
local level, an early-warning scheme consisting of a system of
close surveillance of premises at risk had enabled a number of
incidents to be prevented. Although it was impossible to
prevent all risk of destruction, since the actions concerned
were unforeseeable, isolated acts, whose perpetrators were
very difficult to identify, in 1994 the Tribunal Correctionnel
de Nîmes (Criminal Court, Nîmes) had convicted 24 farmers on
charges of damage to property. Since the entry into force on 1
March 1994 of Article 322-13 of the new Criminal Code,
prosecution and punishment for threats of damage to property
had been made more effective. Finally, responsibility for the
damage caused was assumed by the State and instructions had
been given to expedite settlement of compensation for the loss
or damage sustained by the economic operators concerned.
12 According to the Commission, however, in 1995 the
French Minister for Agriculture stated that, although he
disapproved of and condemned the violence by the farmers, he
in no way contemplated any intervention by the police in order
to put a stop to it.
13 On 3 June 1995 three lorries
transporting fruit and vegetables from Spain were the subject
of acts of violence in the south of France, without any
intervention by the police. At the beginning of July 1995
Italian and Spanish fruit were once again destroyed by French
farmers.
14 The Commission therefore brought the present
action.
15 By orders of 14 and 27 February 1996
respectively, the Court granted the United Kingdom of Great
Britain and Northern Ireland and the Kingdom of Spain leave to
intervene in support of the form of order sought by the
Commission.
16 In support of its application the
Commission claims that Article 30 of the Treaty and the common
organizations of the markets in fruit and vegetables, which
are based on the same principle of the elimination of
obstacles to trade, prohibit quantitative restrictions on
imports between the Member States and any measures having
equivalent effect. Furthermore, in accordance with Article 5
of the Treaty, the Member States are required to take all
appropriate measures to ensure fulfilment of their obligations
arising out of that Treaty.
17 Consequently, the
interception of means of transport and the damaging of
agricultural products originating in other Member States, and
also the climate of insecurity caused by the threats made by
various farmers' organizations against distributors of fruit
and vegetables from those States, which have been found to
have taken place in France, constitute an obstacle to
intra-Community trade in those products, which the Member
States are required to prevent by adopting appropriate
measures, including measures against private individuals who
imperil the free movement of goods.
18 In the present
case, the fact that, year after year, serious incidents
continued to hinder the importation and transit in France of
fruit and vegetables originating in other Member States shows
that the preventive and penal measures to which the French
Government refers in defence are in practice neither adequate
nor proportionate for the purpose of deterring the
perpetrators of such offences from committing and repeating
them. Moreover, it is clear from the factual evidence before
the Commission that the French authorities have persistently
abstained from taking effective action to prevent violent acts
by farmers in France or to prosecute and punish them for the
commission of such acts.
19 The United Kingdom Government
and the Spanish Government support the form of order sought by
the Commission.
20 On the other hand, the French
Government contends that there is no foundation for the
Commission's action.
21 Thus, it claims that it put into
effect, under conditions similar to those applicable to
comparable breaches of domestic law, all necessary and
appropriate means to prevent actions by private individuals
that impeded the free movement of agricultural products and to
prosecute and punish them for such actions. The surveillance
measures implemented in 1993 enabled the number of acts of
violence committed during subsequent years to be contained to
a substantial degree.
22 However, in view of the large
number of lorries transporting agricultural products in France
and the wide variety of their destinations, on the one hand,
and the unforeseeable nature of actions by farmers acting in
small, commando-type groups, on the other, it is not possible
to eliminate all risk of destruction. The latter reason also
explains why it is very difficult to identify the perpetrators
and to prove their individual participation in the acts of
violence so as systematically to prosecute and punish such
persons. Six more persons have, however, been convicted or
placed under investigation since 1994. Moreover, the police
must be allowed a discretion in deciding whether they should
intervene in order to safeguard public order. In any event,
the State compensates the victims of the offences on the basis
of liability without fault on the part of the public
authorities. Thus, a sum in excess of FF 17 million was paid
by way of damages in respect of the years 1993, 1994 and 1995.
23 The French Government adds that the dissatisfaction of
French farmers is due to the considerable increase in exports
of Spanish products since the accession of the Kingdom of
Spain, which has led to a substantial fall in prices magnified
by the competitive devaluation of the peseta and the dumping
prices charged by Spanish producers. The French market for
fruit and vegetables was seriously disrupted by the fact that
the transitional period provided for on that accession had not
been accompanied by any mechanism for monitoring the export
prices charged by Spanish producers. The French Government
also states that, far from having adopted a protectionist
attitude, in this case it had demonstrated its constructive
approach by taking steps in the Council to resolve the
difficulties on the market for fruit and vegetables and in
conferring with the Spanish authorities.
24 In order to
determine whether the Commission's action is well founded, it
should be stressed from the outset that the free movement of
goods is one of the fundamental principles of the Treaty.
25 Article 3(c) of the EC Treaty provides that, for the
purposes set out in Article 2, the activities of the Community
are to include an internal market characterized by the
abolition, as between Member States, of, inter alia, obstacles
to the free movement of goods.
26 Pursuant to the second
paragraph of Article 7a of the EC Treaty, the internal market
is to comprise an area without internal frontiers in which the
free movement of goods is ensured in accordance with the
provisions of the Treaty.
27 That fundamental principle is
implemented by Article 30 et seq. of the Treaty.
28 In
particular, Article 30 provides that quantitative restrictions
on imports and all measures having equivalent effect are
prohibited between Member States.
29 That provision, taken
in its context, must be understood as being intended to
eliminate all barriers, whether direct or indirect, actual or
potential, to flows of imports in intra-Community trade.
30 As an indispensable instrument for the realization of a
market without internal frontiers, Article 30 therefore does
not prohibit solely measures emanating from the State which,
in themselves, create restrictions on trade between Member
States. It also applies where a Member State abstains from
adopting the measures required in order to deal with obstacles
to the free movement of goods which are not caused by the
State.
31 The fact that a Member State abstains from
taking action or, as the case may be, fails to adopt adequate
measures to prevent obstacles to the free movement of goods
that are created, in particular, by actions by private
individuals on its territory aimed at products originating in
other Member States is just as likely to obstruct
intra-Community trade as is a positive act.
32 Article 30
therefore requires the Member States not merely themselves to
abstain from adopting measures or engaging in conduct liable
to constitute an obstacle to trade but also, when read with
Article 5 of the Treaty, to take all necessary and appropriate
measures to ensure that that fundamental freedom is respected
on their territory.
33 In the latter context, the Member
States, which retain exclusive competence as regards the
maintenance of public order and the safeguarding of internal
security, unquestionably enjoy a margin of discretion in
determining what measures are most appropriate to eliminate
barriers to the importation of products in a given situation.
34 It is therefore not for the Community institutions to
act in place of the Member States and to prescribe for them
the measures which they must adopt and effectively apply in
order to safeguard the free movement of goods on their
territories.
35 However, it falls to the Court, taking due
account of the discretion referred to above, to verify, in
cases brought before it, whether the Member State concerned
has adopted appropriate measures for ensuring the free
movement of goods.
36 It should be added that, by virtue
of the combined provisions of Articles 38 to 46 and Article
7(7) of the EC Treaty, the foregoing considerations apply also
to Council regulations on the common organization of the
markets for the various agricultural products (see Joined
Cases 3/76, 4/76 and 6/76 Kramer and Others [1976] ECR 1279,
paragraphs 53 and 54, and Case C-228/91 Commission v Italy
[1993] ECR I-2701, paragraph 11, relating to regulations on
the common organization of the markets in fishery products).
37 As regards more specifically the present case, the
facts which gave rise to the action brought by the Commission
against the French Republic for failure to fulfil obligations
are not in dispute.
38 The acts of violence committed in
France and directed against agricultural products originating
in other Member States, such as the interception of lorries
transporting those products, the destruction of their loads
and violence towards drivers, as well as threats to
wholesalers and retailers and the damaging of goods on
display, unquestionably create obstacles to intra-Community
trade in those products.
39 It is therefore necessary to
consider whether in the present case the French Government
complied with its obligations under Article 30, in conjunction
with Article 5, of the Treaty, by adopting adequate and
appropriate measures to deal with actions by private
individuals which create obstacles to the free movement of
certain agricultural products.
40 It should be stressed
that the Commission's written pleadings show that the
incidents to which it objects in the present proceedings have
taken place regularly for more than 10 years.
41 It was as
long ago as 8 May 1985 that the Commission first sent a formal
letter to the French Republic calling on it to adopt the
preventive and penal measures necessary to put an end to acts
of that kind.
42 Moreover, in the present case the
Commission reminded the French Government on numerous
occasions that Community law imposes an obligation to ensure
de facto compliance with the principle of the free movement of
goods by eliminating all restrictions on the freedom to trade
in agricultural products from other Member States.
43 In
the present case the French authorities therefore had ample
time to adopt the measures necessary to ensure compliance with
their obligations under Community law.
44 Moreover,
notwithstanding the explanations given by the French
Government, which claims that all possible measures were
adopted in order to prevent the continuation of the violence
and to prosecute and punish those responsible, it is a fact
that, year after year, serious incidents have gravely
jeopardized trade in agricultural products in France.
45
According to the summary of the facts submitted by the
Commission, which is not contested by the French Government,
there are particular periods of the year which are primarily
concerned and there are places which are particularly
vulnerable where incidents have occurred on several occasions
during one and the same year.
46 Since 1993 acts of
violence and vandalism have not been directed solely at the
means of transport of agricultural products but have extended
to the wholesale and retail sector for those products.
47
Further serious incidents of the same type also occurred in
1996 and 1997.
48 Moreover, it is not denied that when
such incidents occurred the French police were either not
present on the spot, despite the fact that in certain cases
the competent authorities had been warned of the imminence of
demonstrations by farmers, or did not intervene, even where
they far outnumbered the perpetrators of the disturbances.
Furthermore, the actions in question were not always rapid,
surprise actions by demonstrators who then immediately took
flight, since in certain cases the disruption continued for
several hours.
49 Furthermore, it is undisputed that a
number of acts of vandalism were filmed by television cameras,
that the demonstrators' faces were often not covered and that
the groups of farmers responsible for the violent
demonstrations are known to the police.
50 Notwithstanding
this, it is common ground that only a very small number of the
persons who participated in those serious breaches of public
order has been identified and prosecuted.
51 Thus, as
regards the numerous acts of vandalism committed between April
and August 1993, the French authorities have been able to cite
only a single case of criminal prosecution.
52 In the
light of all the foregoing factors, the Court, while not
discounting the difficulties faced by the competent
authorities in dealing with situations of the type in question
in this case, cannot but find that, having regard to the
frequency and seriousness of the incidents cited by the
Commission, the measures adopted by the French Government were
manifestly inadequate to ensure freedom of intra-Community
trade in agricultural products on its territory by preventing
and effectively dissuading the perpetrators of the offences in
question from committing and repeating them.
53 That
finding is all the more compelling since the damage and
threats to which the Commission refers not only affect the
importation into or transit in France of the products directly
affected by the violent acts, but are also such as to create a
climate of insecurity which has a deterrent effect on trade
flows as a whole.
54 The above finding is in no way
affected by the French Government's argument that the
situation of French farmers was so difficult that there were
reasonable grounds for fearing that more determined action by
the competent authorities might provoke violent reactions by
those concerned, which would lead to still more serious
breaches of public order or even to social conflict.
55
Apprehension of internal difficulties cannot justify a failure
by a Member State to apply Community law correctly (see, to
that effect, Case C-52/95 Commission v France [1995] ECR
I-4443, paragraph 38).
56 It is for the Member State
concerned, unless it can show that action on its part would
have consequences for public order with which it could not
cope by using the means at its disposal, to adopt all
appropriate measures to guarantee the full scope and effect of
Community law so as to ensure its proper implementation in the
interests of all economic operators.
57 In the present
case the French Government has adduced no concrete evidence
proving the existence of a danger to public order with which
it could not cope.
58 Moreover, although it is not
impossible that the threat of serious disruption to public
order may, in appropriate cases, justify non-intervention by
the police, that argument can, on any view, be put forward
only with respect to a specific incident and not, as in this
case, in a general way covering all the incidents cited by the
Commission.
59 As regards the fact that the French
Republic has assumed responsibility for the losses caused to
the victims, this cannot be put forward as an argument by the
French Government in order to escape its obligations under
Community law.
60 Even though compensation can provide
reparation for at least part of the loss or damage sustained
by the economic operators concerned, the provision of such
compensation does not mean that the Member State has fulfilled
its obligations.
61 Nor is it possible to accept the
arguments based on the very difficult socio-economic context
of the French market in fruit and vegetables after the
accession of the Kingdom of Spain.
62 It is settled
case-law that economic grounds can never serve as
justification for barriers prohibited by Article 30 of the
Treaty (see, inter alia, Case 288/83 Commission v Ireland
[1985] ECR 1761, paragraph 28).
63 As regards the
suggestion by the French Government, in support of those
arguments, that the destabilization of the French market for
fruit and vegetables was brought about by unfair practices,
and even infringements of Community law, by Spanish producers,
it must be remembered that a Member State may not unilaterally
adopt protective measures or conduct itself in such a way as
to obviate any breach by another Member State of rules of
Community law (see, to that effect, Case C-5/94 R v MAFF, ex
parte Hedley Lomas [1996] ECR I-2553, paragraph 20).
64
This must be so a fortiori in the sphere of the common
agricultural policy, where it is for the Community alone to
adopt, if necessary, the measures required in order to deal
with difficulties which some economic operators may be
experiencing, in particular following a new accession.
65
Having regard to all the foregoing considerations, it must be
concluded that in the present case the French Government has
manifestly and persistently abstained from adopting
appropriate and adequate measures to put an end to the acts of
vandalism which jeopardize the free movement on its territory
of certain agricultural products originating in other Member
States and to prevent the recurrence of such acts.
66
Consequently, it must be held that, by failing to adopt all
necessary and proportionate measures in order to prevent the
free movement of fruit and vegetables from being obstructed by
actions by private individuals, the French Government has
failed to fulfil its obligations under Article 30, in
conjunction with Article 5, of the Treaty and under the common
organizations of the markets in agricultural products.
Decision on costs
Costs
67 Under
Article 69(2) of the Rules of Procedure, the unsuccessful
party is to be ordered to pay the costs if they have been
applied for in the successful party's pleadings. Since the
French Republic has been unsuccessful, it must be ordered to
pay the costs. Under Article 69(4) of those rules the Member
States and the institutions which have intervened in the case
must bear their own costs.
Operative part of the judgment
On
those grounds,
THE COURT
hereby:
1. Declares that,
by failing to adopt all necessary and proportionate measures
in order to prevent the free movement of fruit and vegetables
from being obstructed by actions by private individuals, the
French Republic has failed to fulfil its obligations under
Article 30 of the EC Treaty, in conjunction with Article 5 of
that Treaty, and under the common organizations of the markets
in agricultural products;
2. Orders the French Republic to
pay the costs;
3. Orders the Kingdom of Spain and the
United Kingdom of Great Britain and Northern Ireland to bear
their own costs.
