61982J0345

AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES - PROTECTIVE MEASURES ON THE IMPORTATION OF PRESERVED MUSHROOMS - MEASURES WHICH MAY BE ADOPTED BY THE COMMISSION - LEVYING OF AN ADDITIONAL AMOUNT

( COUNCIL REGULATIONS NO 516/77 , ART . 13 ( 2 ), AND NO 521/77 , ART . 2 ; COMMISSION REGULATION NO 3429/80 , ARTS 1 AND 2 )

THE COMMISSION WAS EMPOWERED TO INCORPORATE IN REGULATION NO 3429/80 , AS A PROTECTIVE MEASURE WITHIN THE MEANING OF REGULATION NO 521/77 , A PROVISION THAT IMPORT LICENCES SHOULD BE ISSUED ON PAYMENT OF AN ADDITIONAL AMOUNT .

IN CASE 345/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT AM MAIN , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

WUNSCHE HANDELSGESELLSCHAFT GMBH & CO ., WHOSE REGISTERED OFFICE IS IN HAMBURG ,

AND

FEDERAL REPUBLIC OF GERMANY , REPRESENTED BY THE BUNDESAMT FUR ERNAHRUNG UND FORSTWIRTSCHAFT ( FEDERAL OFFICE FOR NUTRITION AND FORESTRY MANAGEMENT ), FRANKFURT AM MAIN ,

ON THE VALIDITY OF ARTICLE 1 OF COMMISSION REGULATION ( EEC ) NO 3429/80 OF 29 DECEMBER 1980 ADOPTING PROTECTIVE MEASURES APPLICABLE TO IMPORTS OF PRESERVED MUSHROOMS ( OFFICIAL JOURNAL , L 358 , P . 66 ),

1 BY ORDER OF 25 NOVEMBER 1982 , RECEIVED AT THE COURT ON 29 DECEMBER 1982 , THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION RELATING TO THE VALIDITY OF ARTICLE 1 OF COMMISSION REGULATION ( EEC ) NO 3429/80 OF 29 DECEMBER 1980 ADOPTING PROTECTIVE MEASURES APPLICABLE TO IMPORTS OF PRESERVED MUSHROOMS ( OFFICIAL JOURNAL 1980 , L 358 , P . 66 ).

2 THE QUESTION WAS RAISED IN THE CONTEXT OF LEGAL PROCEEDINGS BROUGHT BY WUNSCHE HANDELSGESELLSCHAFT , OF HAMBURG , AGAINST THE BUNDESAMT FUR ERNAHRUNG UND FORSTWIRTSCHAFT ( FEDERAL OFFICE FOR NUTRITION AND FORESTRY MANAGEMENT , HEREINAFTER REFERRED TO AS THE ' ' BUNDESAMT ' ' ), OF FRANKFURT AM MAIN , AFTER THE BUNDESAMT , BASING ITS DECISION ON THE PROTECTIVE MEASURES ADOPTED BY THE COMMISSION IN THE AFORESAID REGULATION , HAD REJECTED THE APPLICATION LODGED BY WUNSCHE ON 23 FEBRUARY 1981 FOR THE ISSUE OF AN IMPORT CERTIFICATE ' ' CONTAINING NO REFERENCE TO AN ADDITIONAL AMOUNT OF 175 ECU ' ' IN RESPECT OF 3 500 TONNES OF PRESERVED MUSHROOMS FROM THE PEOPLE ' S REPUBLIC OF CHINA .

3 THE ADDITIONAL AMOUNT REFERRED TO IN WUNSCHE ' S APPLICATION WAS PROVIDED FOR BY ARTICLE 1 OF REGULATION NO 3429/80 , UNDER WHICH :

' ' RELEASE INTO FREE CIRCULATION IN THE COMMUNITY OF PRESERVED MUSHROOMS WITHIN SUBHEADING 20.02 A OF THE COMMON CUSTOMS TARIFF , OTHER THAN THOSE REFERRED TO IN ARTICLE 4 AND EXCEEDING THE QUANTITIES LAID DOWN PURSUANT TO ARTICLE 2 ( 1 ) AND ( 3 ), SHALL BE SUBJECT , DURING THE PERIOD 1 JANUARY TO 31 MARCH 1981 , TO LEVY OF AN ADDITIONAL AMOUNT OF 175 ECU PER 100 KILOGRAMS NET . ' '

4 THE PLAINTIFF IN THE MAIN PROCEEDINGS ARGUED IN ITS OBSERVATIONS THAT THE ABOVE PROVISION SHOULD BE CONSIDERED INVALID ON TWO GROUNDS , NAMELY :

FIRST , BECAUSE AT THE TIME WHEN THE COMMISSION ADOPTED REGULATION NO 3429/80 THE CONDITIONS TO WHICH COMMUNITY LEGISLATION SUBJECTS THE ADOPTION OF PROTECTIVE MEASURES WERE NOT SATISFIED ;

SECONDLY , BECAUSE THE COMMISSION WAS NOT EMPOWERED TO ADOPT A PROTECTIVE MEASURE , SUCH AS THE LEVYING OF AN ADDITIONAL AMOUNT , WHICH DID NOT APPEAR IN THE EXHAUSTIVE LIST OF PROTECTIVE MEASURES DRAWN UP BY THE COUNCIL IN ARTICLE 2 ( 1 ) OF ITS REGULATION , REGULATION NO 521/77 OF 14 MARCH 1977 LAYING DOWN DETAILED RULES FOR APPLYING PROTECTIVE MEASURES IN THE MARKET IN PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES ( OFFICIAL JOURNAL 1977 , L 73 , P . 28 ).

5 IN ITS OBSERVATIONS , THE COMMISSION CONTESTS BOTH THOSE ARGUMENTS .

6 AS FAR AS THE FIRST ARGUMENT IS CONCERNED , IT SHOULD BE RECALLED THAT , UNDER REGULATION NO 521/77 , IN ORDER TO JUDGE WHETHER THE COMMUNITY MARKET IN A PRODUCT PROCESSED FROM FRUIT OR VEGETABLES IS , BY REASON OF IMPORTS OR EXPORTS , EXPERIENCING OR THREATENED WITH SERIOUS DISTURBANCES WHICH MIGHT ENDANGER THE OBJECTIVES SET OUT IN ARTICLE 39 OF THE EEC TREATY , PARTICULAR ACCOUNT MUST BE TAKEN OF :

( A ) THE VOLUME OF IMPORTS OR EXPORTS EFFECTED OR FORESEEN ;

( B)THE QUANTITIES OF PRODUCTS AVAILABLE ON THE COMMUNITY MARKET ;

( C)THE PRICES FOR COMMUNITY PRODUCTS ON THE COMMUNITY MARKET OR THE FORESEEABLE TREND OF THOSE PRICES AND IN PARTICULAR ANY EXCESSIVE UPWARD OR DOWNWARD TREND THEREOF IN RELATION TO PRICES IN THE YEARS IMMEDIATELY PRECEDING ;

( D)WHERE THE ABOVEMENTIONED SITUATION ARISES AS A RESULT OF IMPORTS , THE PRICES OBTAINING ON THE COMMUNITY MARKET , AT A COMPARABLE STAGE , FOR PRODUCTS FROM NON-MEMBER COUNTRIES AND IN PARTICULAR ANY EXCESSIVE DOWNWARD TREND IN THOSE PRICES .

7 THE FIRST FACTOR TO BE TAKEN INTO CONSIDERATION UNDER ARTICLE 1 OF REGULATION NO 521/77 IS THEREFORE THE VOLUME OF IMPORTS , EFFECTED OR FORESEEN , INTO THE COMMUNITY .

8 IN THAT REGARD THE PLAINTIFF IN THE MAIN PROCEEDINGS ARGUED THAT , WHEN REGULATION NO 3429/80 WAS ADOPTED , THE IMPORTS FOR 1981 HAD NOT YET BEEN EFFECTED AND THE IMPORT FORECASTS FOR THE FIRST QUARTER OF 1981 WERE STILL UNKNOWN . THE PLAINTIFF ADDED THAT APPLICATIONS FOR IMPORT CERTIFICATES LODGED PRIOR TO 29 DECEMBER 1980 , THE DATE ON WHICH THE REGULATION WAS ADOPTED , GAVE NO CAUSE TO FEAR ANY DISTURBANCES ON THE MARKET FOR PRESERVED MUSHROOMS .

9 IN REPLY , THE COMMISSION STATED THAT THE VOLUME OF IMPORTS FROM NON-MEMBER COUNTRIES WAS HIGHER IN 1980 ( 35 700 TONNES ) THAN IN 1979 ( 29 741 TONNES ) AND THAT THE DIFFICULTIES ENCOUNTERED BY THE COMMISSION IN RENEWING VOLUNTARY-RESTRAINT AGREEMENTS WITH CERTAIN NON-MEMBER COUNTRIES , PARTICULARLY THE PEOPLE ' S REPUBLIC OF CHINA , WHICH WAS BY FAR THE LEADING SUPPLIER TO THE COMMUNITY , OFFERED THE PROSPECT THAT THE GROWTH OF IMPORTS WOULD CONTINUE IN 1981 .

10 HAVING REGARD TO THE FACT THAT , BY THE END OF 1980 , NO VOLUNTARY-RESTRAINT AGREEMENT HAD YET BEEN SIGNED IN RESPECT OF 1981 WITH THE NON-MEMBER COUNTRIES WHICH SUPPLIED PRESERVED MUSHROOMS AND THAT THOSE COUNTRIES INCLUDED THE PEOPLE ' S REPUBLIC OF CHINA , WHICH ACCOUNTED FOR MORE THAN 70% OF IMPORTS , THE CONCLUSION MUST BE DRAWN THAT THE COMMISSION HAD GOOD REASON TO TAKE THE VIEW THAT , UNLESS PROTECTIVE MEASURES WERE TAKEN , IMPORTS WOULD INCREASE TO AN EXTENT LIABLE SERIOUSLY TO DISTURB THE COMMUNITY MARKET .

11 AS FAR AS THE QUANTITIES OF PRODUCTS AVAILABLE ON THE COMMUNITY MARKET ARE CONCERNED , THE PLAINTIFF IN THE MAIN PROCEEDINGS MAINTAINS THAT THE STOCKS RECORDED IN DECEMBER 1980 IN FRANCE AND THE NETHERLANDS - THE TWO MAIN PRODUCERS WITHIN THE COMMUNITY - WERE NO HIGHER THAN AVERAGE .

12 FOR ITS PART , THE COMMISSION CONTENDS THAT THE AVERAGE FRENCH AND NETHERLANDS STOCK LEVELS DURING 1980 WERE HIGHER THAN IN 1979 , THAT THEY ROSE PARTICULARLY TOWARDS THE END OF 1980 AS A RESULT OF THE DISTURBANCE CAUSED ON THE MARKET BY THE GROWTH IN IMPORTS AND THAT THEY DID NOT DECLINE UNTIL 1981 , WHEN THEY DID SO AS A RESULT OF THE PROTECTIVE MEASURES ADOPTED IN REGULATION NO 3429/80 .

13 IN THAT REGARD IT SHOULD BE OBSERVED THAT THE STATISTICS RELATING TO THE MOVEMENT IN STOCK LEVELS OF PRESERVED MUSHROOMS DURING 1979 AND 1980 SHOW , AT 1 DECEMBER 1980 , TOTALS OF 16 500 TONNES FOR FRANCE AND 12 000 FOR THE NETHERLANDS .

14 FOR BOTH COUNTRIES , THOSE FIGURES REPRESENT AN INCREASE IN STOCKS BY COMPARISON WITH THE FIGURES RECORDED DURING 1979 AND 1980 . THE FACT THAT STOCK LEVELS FELL AGAIN IN 1981 CONTRADICTS WUNSCHE ' S CLAIM THAT THE INCREASE IN STOCK LEVELS WAS DUE TO AN INCREASE IN COMMUNITY OUTPUT AND THAT STOCK LEVELS RECORDED IN THE LAST THREE MONTHS OF 1980 DID NOT GO BEYOND WHAT IS NORMAL FOR GUARANTEEING THE CONTINUITY OF SUPPLIES . IN FACT , COMMUNITY OUTPUT IN 1981 CONTINUED TO RISE , WITHOUT CAUSING ANY INCREASE IN STOCK LEVELS . IT MUST THEREFORE BE CONCLUDED THAT STOCK LEVELS IN DECEMBER 1980 WERE ABNORMALLY HIGH .

15 THAT FACT BECOMES PARTICULARLY EVIDENT IF REGARD IS HAD TO THE MOVEMENT IN STOCK LEVELS IN THE NETHERLANDS , WHERE TOTAL STOCKS STOOD AT ABOUT 3 000 TONNES THROUGHOUT 1979 AND AT ABOUT 5 000 TONNES DURING THE GREATER PART OF 1980 , BUT SOARED TO 12 000 TONNES DURING THE LAST QUARTER OF 1980 AND ONLY GRADUALLY RETURNED TO THE LEVEL OF 5 000 TONNES IN THE COURSE OF 1981 .

16 ALTHOUGH WUNSCHE DISPUTED THOSE FIGURES , IT MUST NEVERTHELESS BE SAID THAT THE COMMISSION WAS JUSTIFIED IN BASING ITSELF ON STATISTICS WHICH , AS IT STATED , CAME DIRECTLY FROM THE NETHERLANDS MINISTRY OF AGRICULTURE AND WHICH , MOREOVER , WERE CONFIRMED BY THAT MINISTRY IN REPLY TO TELEX MESSAGES IN WHICH THE COMMISSION HAD EXPRESSLY REQUESTED SUCH CONFIRMATION .

17 THE THIRD FACTOR TO BE TAKEN INTO CONSIDERATION IN JUDGING WHETHER CONDITIONS EXISTED WHICH WARRANTED THE ADOPTION OF A PROTECTIVE MEASURE IS THE TREND IN THE PRICES OF COMMUNITY PRODUCTS .

18 WHEREAS , ACCORDING TO WUNSCHE , THE PRICES OF COMMUNITY PRODUCTS ACTUALLY INCREASED DURING 1980 , THE COMMISSION FOR ITS PART MAINTAINS THAT THE PRICES FELL .

19 IN THAT REGARD IT SHOULD BE OBSERVED THAT THE DOCUMENTS LAID BEFORE THE COURT DISCLOSE THAT COMMUNITY PRICES DURING 1980 DISPLAYED A DEFINITE DOWNWARD TREND AND DID SO IN SPITE OF INFLATION .

20 AS REGARDS THE FOURTH FACTOR TO BE TAKEN INTO CONSIDERATION , NAMELY THE PRICES OF MUSHROOMS IMPORTED FROM NON-MEMBER COUNTRIES , IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT , ALTHOUGH THOSE PRICES HAD RISEN IN RELATIVE TERMS DURING 1980 , THEY WERE STILL COMPETITIVE BY COMPARISON WITH THE PRICES OF MUSHROOMS PRODUCED IN THE COMMUNITY .

21 IN THE LIGTH OF ALL THOSE FACTORS , THE CONCLUSION MUST THEREFORE BE DRAWN THAT IT DOES NOT APPEAR THAT THE COMMISSION , IN ASSESSING THE STATE OF THE MARKET , COMMITTED ANY SERIOUS AND MANIFEST ERROR SUCH AS MIGHT INVALIDATE REGULATION NO 3429/80 .

22 THE SECOND ARGUMENT PUT FORWARD BY WUNSCHE IS BASED ON THE CLAIM THAT THE LIST OF POTENTIAL PROTECTIVE MEASURES SET FORTH IN ARTICLE 2 ( 1 ) OF COUNCIL REGULATION NO 521/77 IS EXHAUSTIVE AND THAT THE COMMISSION IS EMPOWERED , IN THE CIRCUMSTANCES ENVISAGED BY ARTICLE 14 ( 1 ) OF COUNCIL REGULATION NO 516/77 OF 14 MARCH 1977 ON THE COMMON ORGANIZATION OF THE MARKET IN PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES ( OFFICIAL JOURNAL 1977 , L 73 , P . 1 ), TO DO NO MORE THAT ADOPT ONE OF THE PROTECTIVE MEASURES APPEARING IN THAT LIST . BY INTRODUCING AN ADDITIONAL AMOUNT OF 175 ECU PER 100 KG NET AS A PROTECTIVE MEASURE , WHEN THE ONLY MEASURES CONTAINED IN THE ABOVE- MENTIONED LIST ARE , ON THE ONE HAND , THE TOTAL OR PARTIAL DISCONTINUATION OF THE ISSUE OF CERTIFICATES OR THE REJECTION OF ALL OR SOME OF THE APPLICATIONS FOR CERTIFICATES AND , ON THE OTHER , A SYSTEM OF MINIMUM PRICES , THE COMMISSION IS SAID TO HAVE EXCEEDED ITS POWERS .

23 IT SHOULD BE RECALLED IN THAT REGARD THAT , AS THE COMMISSION HAS POINTED OUT , THE COURT , IN ITS JUDGMENT OF 13 MAY 1971 IN A CASE CONCERNING PROTECTIVE MEASURES ON THE IMPORTATION OF DESSERT APPLES ( JOINED CASES 41 TO 44/70 INTERNATIONAL FRUIT COMPANY NV AND OTHERS V COMMISSION ( 1971 ) ECR 411 , AT P . 427 ), HELD AS FOLLOWS : ' ' SINCE THE COMMISSION WAS ENTITLED TO TAKE PROTECTIVE MEASURES LEADING TO A COMPLETE SUSPENSION OF IMPORTS FROM THIRD COUNTRIES , IT WAS , A FORTIORI , ENTITLED TO ADOPT LESS RESTRICTIVE MEASURES ' ' .

24 ARTICLE 2 ( 1 ) OF REGULATION NO 3429/80 PROVIDES : ' ' APPLICATIONS FOR IMPORT LICENCES SHALL BE ACCEPTED FOR PRESERVED MUSHROOMS FOR UP TO 26% OF THE QUANTITIES FOR WHICH IMPORT LICENCES WERE ISSUED DURING THE FIRST 11 MONTHS OF 1980 FOR PRODUCTS FROM EACH SUPPLIER COUNTRY IN THE MEMBER STATE IN WHICH THE LICENCE APPLICATION IS MADE . ' ' IT IS CLEAR THEREFORE THAT THE COMMISSION SELECTED IN THIS PARTICULAR CASE A PROTECTIVE MEASURE WHICH IN SUBSTANCE AMOUNTED TO A ' ' PARTIAL DISCONTINUATION OF THE ISSUE OF CERTIFICATES ' ' .

25 THE MEASURE IN QUESTION IS FORMULATED IN A MANNER VERY SIMILAR TO THE MEASURE ENVISAGED BY THE FIRST INDENT OF ARTICLE 2 ( 1 ) OF REGULATION NO 521/77 , EXCEPT THAT THE POSSIBILITY REMAINS OF ISSUING IMPORT CERTIFICATES AGAINST PAYMENT OF AN ADDITIONAL AMOUNT . THAT POSSIBILITY , EVEN THOUGH IT HAS VERY LIMITED PRACTICAL IMPORTANCE OWING TO THE LEVEL AT WHICH THE ADDITIONAL AMOUNT IS FIXED , ENTAILS A LESSER DEGREE OF RESTRICTION THAN THE ABSENCE OF ANY POSSIBILITY OF ISSUING CERTIFICATES .

26 WUNSCHE HAS ARGUED THAT THE ADDITIONAL AMOUNT IS , IN ANY EVENT , INCOMPATIBLE WITH ARTICLE 13 ( 2 ) OF REGULATION NO 516/77 , WHICH PROVIDES :

' ' SAVE AS OTHERWISE PROVIDED IN THIS REGULATION OR WHERE DEROGATION THEREFROM IS DECIDED BY THE COUNCIL , ACTING BY A QUALIFIED MAJORITY ON A PROPOSAL FROM THE COMMISSION .

THE LEVYING OF ANY CHARGE HAVING EQUIVALENT EFFECT TO A CUSTOMS DUTY , AND

THE APPLICATION OF ANY QUANTITATIVE RESTRICTION OR MEASURE HAVING EQUIVALENT EFFECT ,

SHALL BE PROHIBITED IN TRADE WITH NON-MEMBER COUNTRIES ' ' .

IN ITS OPINION , ARTICLE 14 ( 1 ) OF THE SAME REGULATION DOES NOT PROVIDE ' ' OTHERWISE ' ' , SINCE IT MERELY REFERS TO THE POSSIBILITY OF APPLYING ' ' APPROPRIATE MEASURES ' ' SHOULD THE MARKET BECOME DISTURBED .

27 ARTICLE 2 OF REGULATION NO 521/77 MAKES PROVISION FOR THE TOTAL OR PARTIAL SUSPENSION OF IMPORTS , WHICH IS TANTAMOUNT TO A QUANTITATIVE RESTRICTION . IT MUST THEREFORE BE CONCLUDED THAT ARTICLE 14 OF REGULATION NO 516/77 DOES PROVIDE ' ' OTHERWISE ' ' AS REGARDS MEASURES WHICH MAY CONSIST OF QUANTITATIVE RESTRICTIONS . CONSEQUENTLY , THE SAME MUST HOLD GOOD FOR THE LEVYING OF A CHARGE HAVING EQUIVALENT EFFECT TO A CUSTOMS DUTY , WHENEVER SUCH A CHARGE MAY VALIDLY BE ADOPTED BY THE COMMISSION AS PART OF A PROTECTIVE MEASURE .

28 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS , TAKEN AS A WHOLE , THAT THE COMMISSION WAS EMPOWERED TO PROVIDE FOR AN ADDITIONAL AMOUNT AS A PROTECTIVE MEASURE WITHIN THE MEANING OF REGULATION NO 521/77 .

29 IT MUST THEREFORE BE CONCLUDED THAT CONSIDERATION OF THE QUESTION REFERRED TO THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION REGULATION NO 3429/80 .

COSTS

30 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN 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 , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE VERWALTUNGSGERICHT FRANKFURT BY ORDER OF 25 NOVEMBER 1982 , HEREBY RULES :

CONSIDERATION OF THE QUESTION REFERRED TO THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION REGULATION NO 3429/80 .