Change for the better at the European Court of Justice

Date: 19/02/1998

Ian S Forrester QC
IT IS rare for public authorities to be confronted publicly with truly embarrassing questions before the European Courts.

But in a judgement rendered by the European Court of Justice in December 1997, the French Republic was confronted not with a technically imperfect implementation of a directive, but with a more startling reproach: failing to keep the peace.

French governments are surprisingly susceptible to civil disobedience. When farmers, truck drivers, students or others are strongly opposed to a situation or policy, they are able to paralyse daily life. The forces of law and order have appeared amazingly feeble when confronted with disruption which increases pressure on employers and government to make concessions. This is remarkable from the anthropological viewpoint, but it has, until now, been left alone by European law.

In August 1995, the European Commission challenged the legality of the government's tolerance of civil disruption.

For more than a decade, the Commission has received complaints about the "passivity of the French authorities in the 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 consisted 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."

In 1994, Spanish, Danish and British goods were attacked. There was a systematic campaign aimed at deterring importers, traders and even shopkeepers from handling agricultural produts which inconvenienced French farmers.

The police took no action to prevent the destruction. The French government responded to international criticism by promising to compensate those who had suffered property damage, and endeavoured to mount a number of prosecutions. Nevertheless, the farm minister said he did not favour police action to end the violence.

It was a curious situation: when a government fails to do what any normal government would do, this is obviously inconvenient and perhaps imprudent.

But is it illegal under the EC treaty?

The Commission submitted that the state's persistent abstention from effective action constituted a breach of its obligations under Article 30 (which calls for the elimination of obstacles to cross-border trade in goods) and Article 5 (which calls for member states to strive to achieve Ec treaty goals).

The UK and Spain supported the Commission. France argued that, although it was very difficult to identify the perpetrators, there had been six convictions since 1994; the police should be free to elect whether or not to intervene in special circumstances; and that France deserved credit for pursuing a Community solution to the underlying problem, the disruption caused by cheap foreign fruits and vegetables.

In former years, the Court might well have pronounced itself unable to find an infringement in these circumstances. But times have changed.

The Court found that Article 30 could be infringed by failing to deal with obstacles to trade: abstaining "from taking action ... is just as likely to obstruct intra-Community trade as is a positive act". It said member states must take "all necessary and appropriate measures" to ensure respect for the fundamental right of free movement of goods.

While member states have a margin of discretion on how they police their territory, there was little dispute about the facts. Acts of violence against unwelcome imports have occurred in France annually for at least ten years. 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.

"... It is undisputed that a number of acts of vandalism were filmed by television cameras, that the demonstrators' faces were often not covered and the groups of farmers responsible for the violent demonstrations are known to the police ... Only a very small number of the persons who participated in those serious breaches of public order has been identified and prosecuted."

The Court concluded that the French government adduced "no concrete evidence proving the existence of a danger to public order with which it could not cope", and its inaction created "a climate of insecurity which has a deterrent effect on trade flows as a whole". It had therefore "manifestly and persistently abstained" from measures which would end the vandalism.

These are very sober words, and it is very remarkable that they come from a judgement of the European Court of Justice.

Times have indeed changed. This ruling is crisp, interesting and easy to understand. The constitutional facts were somewhat unusual and the Court could have produced a mushy compromise, but did not.

The decision is a sign of its institutional and legal maturity.

This article reflects the personal views of the author.

Commentary on ECJ Case C-265/95 Commission vs France. See previous issue of European Access for further references.