61970J0041

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1 . PROCEDURE - APPLICATION FOR ANNULMENT - APPLICATIONS BY NATURAL AND LEGAL PERSONS - REGULATIONS - CONGLOMERATION OF INDIVIDUAL DECISIONS - ADMISSIBILITY

( EEC TREATY, ARTICLE 173, SECOND PARAGRAPH )

2 . COMMUNITY MEASURES - EXECUTION WITHIN THE INTERNAL LEGAL ORDER BY NATIONAL MEASURES - ACTS OF DIRECT CONCERN TO THE PARTIES IN QUESTION

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - FRUIT AND VEGETABLES - RULES GOVERNING IMPORTS - DIFFICULTIES IN MARKETING DOMESTIC PRODUCTS - IMPORTS OF SUBSTITUTE PRODUCTS FROM THIRD COUNTRIES - RISK OF REDUCED DEMAND FOR DOMESTIC PRODUCTS - POSSIBILITY OF PROTECTIVE MEASURES

( REGULATION NO 2514/69 OF THE COUNCIL, ARTICLE 1 )

4 . AGRICULTURE - PROTECTIVE MEASURES - CONDITIONS OF APPLICATION

5 . AGRICULTURE - GENERAL OBJECTIVES OF THE TREATY - ARTICLE 39 - RULES ON COMPETITION - LIMITED DEROGATION FROM RULES ON COMPETITION

1 . A PROVISION OF A REGULATION CONCERNING A GROUP OF REQUESTS FOR IMPORT LICENCES AFTER THE TIME-LIMIT FOR SUBMISSION OF REQUESTS HAS EXPIRED, SO THAT NO OTHER REQUESTS CAN BE MADE, IS NOT IN THE NATURE OF A REGULATION IN THE SENSE OF THE SECOND PARAGRAPH OF ARTICLE 189 OF THE EEC TREATY BUT MUST BE REGARDED AS A CONGLOMERATION OF INDIVIDUAL DECISIONS, EACH OF WHICH IS SUCH AS TO BE OF INDIVIDUAL CONCERN, WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY, TO THE PERSON OR PERSONS MAKING EACH REQUEST .

2 . A COMMUNITY MEASURE, IN RELATION TO WHICH THE ONLY DUTY OF NATIONAL AUTHORITIES IS TO COLLECT DATA IN ORDER THAT THE COMMUNITY MAY ADOPT IT, AND SUBSEQUENTLY TO TAKE THE NATIONAL MEASURES NEEDED TO GIVE EFFECT TO IT IN THE NATIONAL LEGAL SYSTEM, IS OF DIRECT AND INDIVIDUAL CONCERN WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY TO THE PARTIES IN QUESTION .

3 . WHERE DIFFICULTIES ARISE IN MARKETING DOMESTIC PRODUCTS, THERE IS A RISK THAT IMPORTS COMING FROM THIRD COUNTRIES, IRRESPECTIVE OF THEIR PRICES, MAY, BECAUSE THEY CAN BE SUBSTITUTED FOR DOMESTIC PRODUCTS, ATTRACT PART OF THE INTERNAL DEMAND AND THUS CAUSE EVEN GREATER QUANTITIES TO FLOW INTO THE INTERVENTION AGENCIES .

4 . IN ACCORDANCE WITH THE GENERAL OBJECTIVES OF THE TREATY, THE PROTECTIVE MEASURES PERMITTED BY THE AGRICULTURAL REGULATIONS CAN ONLY BE ADOPTED IN SO FAR AS THEY ARE STRICTLY NECESSARY FOR THE ATTAINMENT OF THE OBJECTIVES SPECIFIED IN ARTICLE 39 OF THE TREATY, AND IMPAIR AS LITTLE AS POSSIBLE THE FUNCTIONING OF THE COMMON MARKET .

5 . ARTICLE 3 OF THE TREATY LISTS SEVERAL GENERAL OBJECTIVES, TOWARDS THE ATTAINMENT AND HARMONIZATION OF WHICH THE COMMUNITY HAS TO DIRECT ITS ACTIVITY .

AMONGST THESE OBJECTIVES, ARTICLE 3 PRESCRIBES NOT ONLY " THE INSTITUTION OF A SYSTEM ENSURING THAT COMPETITION IN THE COMMON MARKET IS NOT DISTORTED ", BUT ALSO IN SUBPARAGRAPH ( D ) " THE ADOPTION OF A COMMON POLICY IN THE SPHERE OF AGRICULTURE ". THE TREATY ATTACHES VERY GREAT IMPORTANCE TO THE ATTAINMENT OF THIS LATTER OBJECTIVE IN THE SPHERE OF AGRICULTURE, DEVOTING ARTICLE 39 TO IT AND MAKING THE RESERVATION CONTAINED IN THE FIRST PARAGRAPH OF ARTICLE 42 . WHERE PROTECTIVE MEASURES PROVE TO BE NECESSARY WITH A VIEW TO PREVENTING, IN THE MARKET IN THE PRODUCTS IN QUESTION, SERIOUS DISTURBANCES CAPABLE OF ENDANGERING THE OBJECTIVES OF ARTICLE 39, AN EXPLICIT STATEMENT OF THE REASONS FOR SUCH MEASURES, IN RELATION TO ARTICLES 85 AND 86 OF THE TREATY, IS NOT INDISPENSABLE .

IN JOINED CASES

41/70 : NV INTERNATIONAL FRUIT COMPANY, ROTTERDAM,

42/70 : NV VELLEMAN AND TAS, ROTTERDAM,

43/70 : JAN VAN DEN BRINK' S IM - EN EXPORTHANDEL, ROTTERDAM,

44/70 : KOOY ROTTERDAM, ROTTERDAM,

REPRESENTED BY C . R . C . WIJCKERHELD BISDOM AND B . H . TER KUILE, ADVOCATES AT THE HOGE RAAD OF THE NETHERLANDS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH, 2 RUE GOETHE, APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, B . PAULAN AND J . H . J . BOURGEOIS, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF E . REUTER, LEGAL ADVISER TO THE COMMISSION OF THE EUROPEAN COMMUNITIES, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF DECISIONS REFUSING TO ISSUE IMPORT LICENCES FOR DESSERT APPLES COMING FROM THIRD COUNTRIES,

1 THE APPLICANTS SEEK THE ANNULMENT OF A DECISION ADOPTED BY THE COMMISSION PURSUANT TO ARTICLE 2 ( 2 ) OF REGULATION NO 459/70 OF 11 MARCH 1970 ( JO L 57 1970 ), WHEREBY THE COMMISSION REFUSED TO GRANT THEM LICENCES TO IMPORT DESSERT APPLES FROM THIRD COUNTRIES, AND WHICH WAS NOTIFIED TO THEM THROUGH THE INTERMEDIARY TO THE PRODUKTSCHAP VOOR GROENTEN EN FRUIT ( THE " PGF " ) AT THE HAGUE .

ADMISSIBILITY

2 THE DEFENDANT SUBMITS THAT NO DECISION WAS ADDRESSED TO THE APPLICANTS, AND THAT THE REFUSAL TO GRANT THEM IMPORT LICENCES EMANATES FROM THE PGF AND IS IN REALITY AN ADMINISTRATIVE MEASURE GOVERNED BY NATIONAL LAW .

3 IT STATES THAT THE ONLY " DECISIONS " OF THE COMMISSION CONCERNING THE GRANT OF IMPORT LICENCES WERE CONTAINED IN REGULATION NO 565/70 AND THE SUBSEQUENT AMENDING REGULATIONS .

4 THESE " DECISIONS " WERE OF GENERAL APPLICATION AND IN THE NATURE OF REGULATIONS, AND THE DEFENDANT SUBMITS THAT THEY COULD NOT THEREFORE BE OF INDIVIDUAL CONCERN TO THE APPLICANTS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 .

5 BY REGULATION NO 459/70, ADOPTED ON THE BASIS OF REGULATIONS NOS 2513/69 AND 2514/69 OF THE COUNCIL, PROTECTIVE MEASURES WERE TAKEN WITH THE OBJECT OF LIMITING THE IMPORT OF DESSERT APPLES FROM THIRD COUNTRIES INTO THE COMMUNITY IN THE PERIOD FROM 1 APRIL 1970 TO 30 JUNE 1970 .

6 THIS REGULATION PROVIDES FOR A SYSTEM OF IMPORT LICENCES, WHICH ARE GRANTED TO THE EXTENT TO WHICH THE STATE OF THE COMMUNITY MARKET ALLOWS .

7 UNDER THIS SYSTEM AND IN ACCORDANCE WITH ARTICLE 2 ( 1 ) OF REGULATION NO 459/70, " AT THE END OF EACH WEEK ... THE MEMBER STATES SHALL COMMUNICATE TO THE COMMISSION THE QUANTITIES FOR WHICH IMPORT LICENCES HAVE BEEN REQUESTED DURING THE PRECEDING WEEK, STATING THE MONTHS TO WHICH THEY RELATE ".

8 THE FOLLOWING PARAGRAPH OF THE SAME ARTICLE PROVIDES THAT THE COMMISSION, ON THE BASIS INTER ALIA OF THESE COMMUNICATIONS, " SHALL ASSESS THE SITUATION AND DECIDE ON THE ISSUE OF THE LICENCES ".

9 ON THE BASIS OF THE LATTER PROVISION, THE COMMISSION SUBSEQUENTLY STIPULATED IN ARTICLE 1 OF REGULATION NO 565/70 OF 25 MARCH 1970 THAT " APPLICATIONS FOR IMPORT LICENCES LODGED UP TO 20 MARCH 1970 SHALL BE TREATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 1 OF REGULATION NO 459/70, WITHIN THE QUANTITY LIMIT SHOWN IN THE APPLICATION AND UP TO 80 PER CENT OF A REFERENCE QUANTITY ".

10 THE CRITERIA FOR FIXING THIS REFERENCE QUANTITY WERE STATED IN GREATER DETAIL, AND AMENDED, BY ARTICLE 2 OF REGULATION NO 686/70 OF 15 APRIL 1970 .

11 BY VARIOUS REGULATIONS PUBLISHED IN THE PERIOD BETWEEN 2 APRIL 1970 AND 20 JULY 1970, THE EXPIRY DATE OF 20 MARCH 1970 SPECIFIED IN ARTICLE 1 OF REGULATION NO 565/70 WAS REPEATEDLY POSTPONED .

12 BY THESE POSTPONEMENTS THE SAID MEASURES WERE PERIODICALLY EXTENDED AND MADE APPLICABLE TO APPLICATIONS FOR IMPORT LICENCES SUBMITTED WITHIN EACH PERIOD .

13 BY VIRTUE OF ARTICLE 1 OF REGULATION NO 983/70 OF 28 MAY 1970, THIS SYSTEM WAS APPLIED IN THE PERIOD IN WHICH THE APPLICATIONS FOR LICENCES WERE SUBMITTED BY THE APPLICANTS .

14 HENCE, THE ISSUE OF ADMISSIBILITY IN THE PRESENT CASE MUST BE DETERMINED IN THE LIGHT OF THE LASTMENTIONED REGULATION .

15 FOR THIS PURPOSE, IT IS NECESSARY TO CONSIDER WHETHER THE PROVISIONS OF THAT REGULATION - IN SO FAR AS THEY MAKE THE SYSTEM ESTABLISHED BY ARTICLE 1 OF REGULATION NO 565/70 APPLICABLE - ARE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANTS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .

16 IT IS INDISPUTABLE THAT REGULATION NO 983/70 WAS ADOPTED WITH A VIEW ON THE ONE HAND TO THE STATE OF THE MARKET AND ON THE OTHER TO THE QUANTITIES OF DESSERT APPLES FOR WHICH APPLICATIONS FOR IMPORT LICENCES HAD BEEN MADE IN THE WEEK ENDING ON 22 MAY 1970 .

17 IT FOLLOWS THAT WHEN THE SAID REGULATION WAS ADOPTED, THE NUMBER OF APPLICATIONS WHICH COULD BE AFFECTED BY IT WAS FIXED .

18 NO NEW APPLICATION COULD BE ADDED .

19 TO WHAT EXTENT, IN PERCENTAGE TERMS, THE APPLICATIONS COULD BE GRANTED, DEPENDED ON THE TOTAL QUANTITY IN RESPECT OF WHICH APPLICATIONS HAD BEEN SUBMITTED .

20 ACCORDINGLY, BY PROVIDING THAT THE SYSTEM INTRODUCED BY ARTICLE 1 OF REGULATION NO 565/70 SHOULD BE MAINTAINED FOR THE RELEVANT PERIOD, THE COMMISSION DECIDED, EVEN THOUGH IT TOOK ACCOUNT ONLY OF THE QUANTITIES REQUESTED, ON THE SUBSEQUENT FATE OF EACH APPLICATION WHICH HAD BEEN LODGED .

21 CONSEQUENTLY, ARTICLE 1 OF REGULATION NO 983/70 IS NOT A PROVISION OF GENERAL APPLICATION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 189 OF THE TREATY, BUT MUST BE REGARDED AS A CONGLOMERATION OF INDIVIDUAL DECISIONS TAKEN BY THE COMMISSION UNDER THE GUISE OF A REGULATION PURSUANT TO ARTICLE 2 ( 2 ) OF REGULATION NO 459/70, EACH OF WHICH DECISIONS AFFECTS THE LEGAL POSITION OF EACH AUTHOR OF AN APPLICATION FOR A LICENCE .

22 THUS, THE DECISIONS ARE OF INDIVIDUAL CONCERN TO THE APPLICANTS .

23 MOREOVER, IT IS CLEAR FROM THE SYSTEM INTRODUCED BY REGULATION NO 459/70, AND PARTICULARLY FROM ARTICLE 2 ( 2 ) THEREOF, THAT THE DECISION ON THE GRANT OF IMPORT LICENCES IS A MATTER FOR THE COMMISSION .

24 ACCORDING TO THIS PROVISION, THE COMMISSION ALONE IS COMPETENT TO ASSESS THE ECONOMIC SITUATION IN THE LIGHT OF WHICH THE GRANT OF IMPORT LICENCES MUST BE JUSTIFIED .

25 ARTICLE 1 ( 2 ) OF REGULATION NO 459/70, BY PROVIDING THAT " THE MEMBER STATES SHALL IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN ARTICLE 2, ISSUE THE LICENCE TO ANY INTERESTED PARTY APPLYING FOR IT ", MAKES IT CLEAR THAT THE NATIONAL AUTHORITIES DO NOT ENJOY ANY DISCRETION IN THE MATTER OF THE ISSUE OF LICENCES AND THE CONDITIONS ON WHICH APPLICATIONS BY THE PARTIES CONCERNED SHOULD BE GRANTED .

26 THE DUTY OF SUCH AUTHORITIES IS MERELY TO COLLECT THE DATA NECESSARY IN ORDER THAT THE COMMISSION MAY TAKE ITS DECISION IN ACCORDANCE WITH ARTICLE 2 ( 2 ) OF THAT REGULATION, AND SUBSEQUENTLY ADOPT THE NATIONAL MEASURES NEEDED TO GIVE EFFECT TO THAT DECISION .

27 IN THESE CIRCUMSTANCES AS FAR AS THE INTERESTED PARTIES ARE CONCERNED, THE ISSUE OF OR REFUSAL TO ISSUE THE IMPORT LICENCES MUST BE BOUND UP WITH THIS DECISION .

28 THE MEASURE WHEREBY THE COMMISSION DECIDES ON THE ISSUES OF THE IMPORT LICENCES THUS DIRECTLY AFFECTS THE LEGAL POSITION OF THE PARTIES CONCERNED .

29 THE APPLICATIONS THUS FULFIL THE REQUIREMENTS OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY, AND ARE THEREFORE ADMISSIBLE .

THE SUBSTANCE OF THE CASE

30 THE APPLICANTS DISPUTE THE LEGALITY OF THE DECISIONS WHEREBY THEIR APPLICATIONS FOR IMPORT LICENCES WERE REFUSED, ON THE GROUND THAT THE REGULATIONS ON WHICH SUCH DECISIONS WERE BASED, THAT IS TO SAY, REGULATIONS NOS 459/70 OF 11 MARCH 1970, 565/70 OF 25 MARCH 1970 AND 686/70 OF 15 APRIL 1970 OF THE COMMISSION, ARE ILLEGAL .

31 ( 1 ) THE APPLICANTS MAINTAIN THAT REGULATION NO 459/70 IS ILL-FOUNDED, AND THAT IT IS NOT ACCOMPANIED BY A SUFFICIENT STATEMENT OF REASONS, IN SO FAR AS IT IS BASED ON THE VIEW THAT THE COMMUNITY MARKET IS THREATENED, AS A RESULT OF IMPORTS, WITH SERIOUS DISTURBANCES CAPABLE OF ENDANGERING THE OBJECTIVES OF ARTICLE 39 OF THE TREATY .

32 THEY STATE THAT IT IS NOT APPARENT FROM THIS REGULATION THAT THE COMMISSION, IN ENACTING THE PROTECTIVE MEASURES IN QUESTION, TOOK INTO ACCOUNT ALL THE FACTORS MENTIONED IN ARTICLE 1 ( C ) AND ( D ) OF REGULATION NO 2514/69 OF THE COUNCIL .

33 IN PARTICULAR, IT IS SAID THAT THE COMMISSION FAILED TO JUSTIFY THOSE MEASURES BY REFERENCE TO THE " EXPECTED TREND " OF PRICES FOR DOMESTIC PRODUCTS ON THE COMMUNITY MARKET AND " IN PARTICULAR THEIR TENDENCY TO FALL EXCESSIVELY ", SUCH PRICES HAVING IN FACT BEEN QUITE STABLE .

34 ARTICLE 1 ( C ) OF REGULATION NO 2514/69 PROVIDES THAT IN APPLYING PROTECTIVE MEASURES, THE COMMISSION MUST TAKE INTO ACCOUNT IN RELATION TO DOMESTIC PRODUCTS " RECORDED PRICES ON THE COMMUNITY MARKET OR THE EXPECTED TREND OF SUCH PRICES, AND IN PARTICULAR THEIR TENDENCY TO FALL EXCESSIVELY ".

35 THIS PROVISION MUST BE READ IN THE LIGHT OF THE ORGANIZATION OF THE MARKET RESULTING FROM THE REGULATIONS IN FORCE .

36 THESE REGULATIONS PROVIDE, FOR THE MARKET IN QUESTION, FOR PRICE-SUPPORT MECHANISMS, ESPECIALLY INTERVENTION MEASURES, AS SOON AS THE PRICES OF THE PRODUCTS FALL BELOW A CERTAIN LEVEL .

37 THUS, ON A MARKET IN WHICH THE LEVEL OF PRICES IS LOW, A DOWNWARD TREND IN PRICES CANNOT LEAD TO AN EXCESSIVE FALL IN THE STRICT SENSE OF THE WORD, BUT ONLY TO AN INCREASED OFFER OF DOMESTIC PRODUCTS TO THE INTERVENTION AGENCIES .

38 HAVING REGARD TO THE STRUCTURE OF THE MARKET, A TENDENCY OF PRICES TO FALL EXCESSIVELY WITHIN THE MEANING OF THAT ARTICLE MAY THUS BE DEDUCED FROM A SHARP INCREASE IN OFFERS OF THE RELEVANT PRODUCTS TO THE INTERVENTION AGENCIES .

39 THE SECOND RECITAL IN THE PREAMBLE TO REGULATION NO 459/70 STATES THAT PRICE QUOTATIONS FOR DOMESTIC PRODUCTS WERE LOW, NOT ONLY IN GERMANY BUT ALSO IN MOST OTHER MEMBER STATES, WHERE A STATE OF CRISIS WITHIN THE MEANING OF ARTICLE 6 OF REGULATION NO 159/66 HAD BEEN DECLARED .

40 THESE DIFFICULTIES MAY BE EXPLAINED LARGELY BY THE SUBSTANTIAL OVERPRODUCTION OF DESSERT APPLES IN VARIOUS MEMBER STATES AND THE OBSTACLES ENCOUNTERED ON THE COMMUNITY MARKET BY THE NORMAL MARKETING OF THIS PRODUCTION .

41 IT IS NOT DISPUTED THAT THE PRODUCTION PRICES FOUND TO EXIST ON THREE REPRESENTATIVE MARKETS OF THE COMMUNITY WERE, AT THE BEGINNING OF THE RELEVANT PERIOD, LOWER THAN THE PRICES IN THE SAME PERIOD OF THE PRECEDING YEAR .

42 IN THE SPECIAL CIRCUMSTANCES OF THE FRUIT MARKET IN QUESTION, THEREFORE, THE COMMISSION COULD RECKON WITH A SHARP INCREASE IN OFFERS TO THE INTERVENTION AGENCIES, AND COULD DEDUCE FROM THIS A TENDENCY FOR PRICES TO FALL EXCESSIVELY WITHIN THE MEANING OF ARTICLE 1 ( C ) OF REGULATION NO 2514/69 .

43 ( 2 ) FURTHERMORE, THE APPLICANTS CONTEND THAT THE COMMISSION INFRINGED ARTICLE 1 ( D ) OF THIS REGULATION BY FAILING TO TAKE INTO ACCOUNT THE FACT THAT THE PRICES OF IMPORTED PRODUCTS DID NOT IN ANY WAY SHOW A TENDENCY TO FALL EXCESSIVELY AS REQUIRED BY THIS PROVISION, BUT REMAINED SO FAR ABOVE THE REFERENCE PRICES THAT THE COMMISSION DID NOT EVEN FIX ANY REFERENCE PRICES FOR THE MONTH OF JUNE 1970 .

44 THEY ARGUE THAT SINCE, MOREOVER, THE IMPORTED PRODUCTS, BECAUSE OF THEIR PRICE AND QUALITY, WERE NOT INTERCHANGEABLE FOR THE DOMESTIC PRODUCTS DURING THE PERIOD UNDER CONSIDERATION, IT WAS NOT OPEN TO THE COMMISSION TO FIND, ON THE BASIS OF IMPORTS FROM THIRD COUNTRIES, A DISTURBANCE OR THREATENED DISTURBANCE WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 1 OF REGULATION NO 2514/69 .

45 BY VIRTUE OF ARTICLE 1 ( D ) OF REGULATION NO 2514/69, THE COMMISSION, IN A CASE WHERE THE STATE OF CRISIS REFERRED TO IN THE FIRST PARAGRAPH OF THAT ARTICLE ARISES AS A RESULT OF IMPORTS FROM THIRD COUNTRIES, MUST TAKE INTO ACCOUNT IN PARTICULAR " THE QUOTATIONS RECORDED ON THE COMMUNITY MARKET ... IN PARTICULAR THEIR TENDENCY TO FALL EXCESSIVELY ", AND " THE QUANTITIES FOR WHICH WITHDRAWAL TRANSACTIONS ARE TAKING PLACE OR MIGHT TAKE PLACE ".

46 THE SCOPE OF THIS PROVISION MUST BE DETERMINED IN THE LIGHT OF THE WHOLE OF ARTICLE 1, SO THAT NOT ONLY THE FACTORS ALREADY EXAMINED ABOVE, AND CONTAINED IN SUBPARAGRAPH ( C ), BUT ALSO THOSE MENTIONED IN SUBPARAGRAPHS ( A ) AND ( B ), MUST BE TAKEN INTO ACCOUNT .

47 IN WEIGHING UP THE IMPORTANCE OF EACH OF THESE FACTORS FOR AN ASSESSMENT OF THE SITUATION REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 1 OF THAT REGULATION, IN THE CASE OF IMPORTS FROM THIRD COUNTRIES, THE COMMISSION MUST IN PARTICULAR TAKE ACCOUNT OF THE RESULTS WHICH SUCH IMPORTS HAVE OR MAY HAVE ON THE MARKET SITUATION .

48 WHEN A FEATURE OF THIS SITUATION IS THAT THE NORMAL MARKETING OF PRODUCTS PRESENTS DIFFICULTIES, THE PRICES OF DOMESTIC PRODUCTS TEND TO BECOME STABILIZED AROUND THE INTERVENTION PRICE AND CAN NO LONGER BE INFLUENCED BY THE HIGHER PRICES OF THE IMPORTED PRODUCTS .

49 YET, IRRESPECTIVE OF THE PRICES OF THESE PRODUCTS THERE IS STILL A DANGER THAT BECAUSE THEY CAN BE SUBSTITUTED FOR DOMESTIC PRODUCTS THEY MAY ATTRACT PART OF THE INTERNAL DEMAND AND THUS CAUSE EVEN GREATER QUANTITIES TO FLOW IN TO THE INTERVENTION AGENCIES .

50 ACCORDING TO THE FIRST RECITAL IN THE PREAMBLE TO REGULATION NO 459/70, PRODUCTION OF APPLES IN THE 1969 TO 1970 SEASON WAS ABOUT 550 000 METRIC TONS GREATER THAN IN THE 1967 TO 1968 SEASON, IN WHICH MORE THAN 300 000 METRIC TONS HAD HAD TO BE TAKEN OFF THE MARKET .

51 IN VIEW OF THE STOCKS HELD, IT WAS FORESEEABLE THAT A SURPLUS OF THE SAME MAGNITUDE COULD NOT BE RELEASED ON THE MARKET IN NORMAL CONDITIONS BEFORE THE END OF THE SEASON, SO THAT THERE WAS A DANGER THAT INTERVENTION MEASURES WOULD HAVE TO BE ADOPTED, SINCE THESE STOCKS COULD NOT, FOR TECHNICAL REASONS, BE RETAINED FOR MORE THAN A LIMITED TIME .

52 ACCORDING TO THE FIGURES SUPPLIED BY THE DEFENDANT IN ITS NOTE OF 10 MARCH 1971, THE STOCKS AT THE BEGINNING OF THE RELEVANT PERIOD STILL STOOD AT ABOUT ONE MILLION METRIC TONS .

53 IT IS TRUE THAT THE PRODUCTS COMING FROM THIRD COUNTRIES DURING THIS PERIOD WERE MANIFESTLY SUPERIOR BOTH AS TO QUALITY AND PRICE TO THE DOMESTIC PRODUCTS, BUT ON THE OTHER HAND THE QUALITY OF THE LATTER PRODUCTS WAS NOT SO INFERIOR THAT INTERCHANGE OF THE TWO CATEGORIES WAS IN NO CIRCUMSTANCES POSSIBLE .

54 IT WAS THUS NOT INCONCEIVABLE THAT IMPORTS FROM THIRD COUNTRIES IN THIS PERIOD, BY ATTRACTING A DEMAND WHICH OTHERWISE WOULD HAVE BEEN AT LEAST TO A LARGE EXTENT DIRECTED TOWARDS DOMESTIC PRODUCTS, MIGHT HAVE LED IN ANY EVENT TO AN INCREASE IN THE QUANTITIES WHICH WOULD HAVE TO BE TAKEN OFF THE MARKET .

55 ALTHOUGH THE DIFFICULTIES IN DISPOSING OF DOMESTIC PRODUCTS DID NOT AFFECT ALL MEMBER STATES IN THE SAME WAY, AND WERE PARTICULARLY ACUTE IN CERTAIN ONES, NEVERTHELESS THEY AFFECTED THE WHOLE COMMON MARKET, WHERE THE MACHINERY FOR STABILIZING PRICES, SUCH AS THE NATIONAL INTERVENTION ARRANGEMENTS, IS BASED ON THE FINANCIAL PARTICIPATION OF ALL MEMBER STATES AND UPON A COMMUNITY RESPONSIBILITY .

56 IN VIEW OF THE SITUATION ON THE MARKET FOR THE PRODUCTS IN QUESTION AT THAT TIME, AN APPRECIABLE INCREASE IN IMPORTS AFTER THE INTRODUCTION OF THE NEW TRADING SYSTEM ON 1 MARCH 1970 MIGHT HAVE INCREASED THE DIFFICULTIES IN DISPOSING OF THESE PRODUCTS SUBSEQUENTLY, AND MIGHT THUS HAVE BROUGHT ABOUT A DISTURBANCE OF THE MARKET .

57 IT DOES NOT APPEAR, THEREFORE, THAT THE COMMISSION HAS WRONGLY APPLIED ARTICLE 1 OF REGULATION NO 2514/69 BY BASING ITS DECISION ON THE CONSEQUENCES WHICH IMPORTS FROM THIRD COUNTRIES MIGHT HAVE HAD FOR THE " QUANTITIES TO BE TAKEN OFF THE MARKET ".

58 ( 3 ) THE APPLICANTS FURTHER MAINTAIN THAT THE COMMISSION EXCEEDED THE LIMITS OF ITS AUTHORITY BY TAKING PROTECTIVE MEASURES WHEN THE MACHINERY OF REFERENCE PRICES HAD NOT LED TO THE IMPOSITION OF COUNTERVAILING CHARGES ON IMPORTS AND THE COMMISSION HAD FAILED TO FIX ANY REFERENCE PRICE FOR THE MONTH OF JUNE 1970 .

59 IT IS CLEAR FROM THE FACTS ESTABLISHED ABOVE THAT THE DIFFICULTIES FACING THE MARKET IN QUESTION WERE MUCH MORE CONCERNED WITH DISPOSAL OF SURPLUSES THAN WITH SUPPORT FOR THE PRICES OF DOMESTIC PRODUCTS .

60 MOREOVER, AS THE APPLICANTS THEMSELVES HAVE POINTED OUT, THE PRICES OF PRODUCTS FROM THIRD COUNTRIES WERE VERY HIGH IN COMPARISON WITH THE REFERENCE PRICES IN FORCE, SO THAT FIXING THE PRICES AFRESH COULD NOT, HAVING REGARD TO THE METHOD OF CALCULATION USED, HAVE BROUGHT ABOUT THE DESIRED RESULT .

61 ( 4 ) THE APPLICANTS FURTHER MAINTAIN THAT THE COMMISSION HAD NO AUTHORITY TO INTRODUCE A SYSTEM OF IMPORT LICENCES AS PROVIDED FOR IN REGULATIONS NOS 459/70, 565/70 AND 686/70, SINCE SUCH A SYSTEM IS NOT MENTIONED IN ARTICLE 2 ( 1 ) OF REGULATION NO 2514/69 AMONG THE MEASURES WHICH MAY BE ADOPTED PURSUANT TO ARTICLE 2, ( 2 ) AND ( 3 ) OF REGULATION 2513/69 .

62 ACCORDING TO ARTICLE 2 ( 1 ) OF REGULATION NO 2514/69, THESE MEASURES ARE " THE SUSPENSION OF IMPORTS OR EXPORTS OR THE IMPOSITION OF EXPORT TAXES ".

63 THE MEASURES ADOPTED BY THE COMMISSION IN REGULATION NO 459/70 IN THE PRESENT CASE RESULTED, IN ACCORDANCE WITH THE CRITERIA PRESCRIBED IN REGULATIONS NOS 565/70 AND 686/70, IN A LIMITATION OF QUANTITIES TO BE IMPORTED .

64 IN ACCORDANCE WITH THE GENERAL OBJECTIVES OF THE TREATY, THE PROTECTIVE MEASURES PERMITTED BY REGULATIONS NOS 2513/69 AND 2514/69 CAN ONLY BE ADOPTED IN SO FAR AS THEY ARE STRICTLY NECESSARY FOR THE ATTAINMENT OF THE OBJECTIVES SPECIFIED IN ARTICLE 39 OF THE TREATY, AND IMPAIR AS LITTLE AS POSSIBLE THE FUNCTIONING OF THE COMMON MARKET .

65 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 .

66 ( 5 ) FINALLY, THE APPLICANTS CLAIM THAT REGULATIONS NOS 565/70 AND 686/70 ARE VOID OR AT LEAST ARE NOT APPLICABLE TO THEM, INASMUCH AS THEY ESTABLISH A SYSTEM OF IMPORT LICENCES WHICH IS IN CONFLICT WITH ARTICLES 3 ( F ), 85 AND 96 OF THE TREATY .

67 MOREOVER, THESE REGULATIONS ARE SAID TO BE INSUFFICIENTLY SUPPORTED BY REASONS, INASMUCH AS THE GROUNDS ON WHICH THE SYSTEM WAS NECESSARY OR AT LEAST PERMISSIBLE UNDER THE SAID ARTICLES AND UNDER ARTICLE 39 OF THE TREATY ARE NOT STATED .

68 ARTICLE 3 OF THE TREATY LISTS SEVERAL GENERAL OBJECTIVES, TOWARDS THE ATTAINMENT AND HARMONIZATION OF WHICH THE COMMISSION HAS TO DIRECT ITS ACTIVITIES .

69 AMONGST THESE OBJECTIVES ARTICLE 3 SPECIFIES NOT ONLY " THE INSTITUTION OF A SYSTEM ENSURING THAT COMPETITION IN THE COMMON MARKET IS NOT DISTORTED ", BUT ALSO ( SUBPARAGRAPH ( D )) " THE ADOPTION OF A COMMON POLICY IN THE SPHERE OF AGRICULTURE ".

70 THE TREATY ATTACHES VERY GREAT IMPORTANCE TO THE ATTAINMENT OF THIS LATTER OBJECTIVE IN THE SPHERE OF AGRICULTURE, DEVOTING ARTICLE 39 TO IT AND PROVIDING, IN THE FIRST PARAGRAPH OF ARTICLE 42, THAT THE PROVISIONS RELATING TO COMPETITION SHALL APPLY TO AGRICULTURAL PRODUCTS ONLY TO THE EXTENT DETERMINED BY THE COUNCIL, ACCOUNT BEING TAKEN OF THE OBJECTIVES SET OUT IN ARTICLE 39 .

71 IT FOLLOWS FROM THIS THAT THE APPLICATION OF PROTECTIVE MEASURES IN THE FORM OF A RESTRICTION OF IMPORTS FROM THIRD COUNTRIES MIGHT IN THE PRESENT CASE PROVE TO BE NECESSARY WITH A VIEW TO PREVENTING, IN THE MARKET IN THE PRODUCTS IN QUESTION, SERIOUS DISTURBANCES CAPABLE OF ENDANGERING THE OBJECTIVES OF ARTICLE 39 .

72 IN THESE CIRCUMSTANCES AN EXPLICIT STATEMENT OF THE REASONS FOR THE MEASURES IN QUESTION, IN RELATION TO ARTICLES 85 AND 86 OF THE TREATY, WAS NOT INDISPENSABLE .

73 IT MAY WELL BE THAT THE GRANT OF IMPORT LICENCES ACCORDING TO THE CRITERION OF A REFERENCE QUANTITY LED IN THE PRESENT CASE TO A CRYSTALLIZATION OF THE PREVIOUSLY EXISTING TRADE RELATIONS WITH THIRD COUNTRIES . YET, ON THE OTHER HAND, THE LAYING DOWN OF OBJECTIVE CRITERIA FOR CALCULATING THE QUANTITIES OF WHICH IMPORT WAS PERMITTED MADE IT POSSIBLE TO AVOID DISCRIMINATION AMONG THOSE WHO RECEIVED LICENCES ON THE BASIS OF PREVIOUSLY EXISTING TRADE RELATIONS WITH THIRD COUNTRIES .

74 THIS SYSTEM WAS THE ONE BEST ADAPTED TO DISTORT COMPETITION TO THE SMALLEST POSSIBLE EXTENT .

75 FOR THESE REASONS, THE SUBMISSIONS DIRECTED AGAINST REGULATIONS NOS 459/70, 565/70 AND 686/70 MUST BE REJECTED .

76 ( 6 ) THE APPLICANTS SEEK THE ANNULMENT OF THE DECISIONS CONTAINED IN ARTICLE 1 OF REGULATION NO 983/70 ON THE GROUND THAT THE REGULATIONS ON WHICH THOSE DECISIONS ARE BASED, NAMELY REGULATIONS NOS 459/70, 565/70 AND 686/70, INFRINGE THE TREATY .

77 IN PARTICULAR THEY CLAIM THAT, IN SO FAR AS THESE REGULATIONS ARE ILLEGAL IN THE SENSE OF THE SECOND PARAGRAPH OF ARTICLE 174, OR NOT APPLICABLE TO THEM UNDER ARTICLE 184 OF THE TREATY, THE COMMISSION HAD NO LEGAL BASIS FOR ADOPTING SUCH DECISIONS .

78 EXAMINATION OF THE SUBMISSIONS DIRECTED AGAINST THESE REGULATIONS HAS NOT MADE IT POSSIBLE TO FIND THAT THE REGULATIONS ARE ILLEGAL AND THESE SUBMISSIONS MUST ACCORDINGLY BE REJECTED .

79 ACCORDING TO THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY' S PLEADING .

80 THE APPLICANTS HAVE FAILED IN THEIR APPLICATIONS AND MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE ACTION .

THE COURT

HEREBY :

1 . DECLARES THE APPLICATIONS TO BE ADMISSIBLE BUT DISMISSES THEM AS UNFOUNDED;

2 . ORDERS THE APPLICANTS TO BEAR THE COSTS OF THE PROCEEDINGS .