61965J0016

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1 . PRELIMINARY RULING - OBJECT - VALIDITY OF A MEASURE ADOPTED BY A COMMUNITY INSTITUTION - JURISDICTION OF THE COURT

( EEC TREATY, ARTICLE 177 )

2 . MEASURES ADOPTED BY AN INSTITUTION - STATEMENT OF REASONS - GENERAL PRINCIPLES

( EEC TREATY, ARTICLE 190 )

3 . MEASURES ADOPTED BY AN INSTITUTION - STATEMENT OF REASONS - SERIES OF DECISIONS - REFERENCE TO SUBSISTING REASONS GIVEN IN THE ORIGINAL DECISION - PERMISSIBILITY

( EEC TREATY, ARTICLE 190 )

4 . AGRICULTURE - CEREALS - COMMON ORGANIZATION OF THE MARKETS - PRODUCTS HARVESTED IN AN EXPORTING MEMBER STATE - PRODUCTS IN FREE CIRCULATION IN THAT COUNTRY - NO DISTINCTION

( REGULATION NO 19 OF THE COUNCIL, ARTICLES 2 AND 3 )

1 . IF IT APPEARS THAT THE REAL PURPOSE OF THE QUESTIONS SUBMITTED BY A NATIONAL COURT IS CONCERNED RATHER WITH THE VALIDITY OF COMMUNITY MEASURES THAN WITH THEIR INTERPRETATION, IT IS APPROPRIATE FOR THE COURT TO INFORM THE NATIONAL COURT AT ONCE OF ITS VIEW WITHOUT COMPELLING THE NATIONAL COURT TO COMPLY WITH PURELY FORMAL REQUIREMENTS WHICH WOULD USELESSLY PROLONG THE PROCEDURE UNDER ARTICLE 177 AND WOULD BE CONTRARY TO ITS VERY NATURE .

2 . THE DEGREE OF PRECISION OF A STATEMENT OF REASONS IN A MEASURE MUST BE WEIGHED AGAINST PRACTICAL REALITIES AND THE TIME AND TECHNICAL FACILITIES AVAILABLE FOR MAKING IT . IF NECESSARY THE ADMINISTRATION IS ENTITLED TO CONFINE ITSELF TO SETTING OUT IN A GENERAL FORM THE ESSENTIAL FACTORS AND THE PROCEDURE WHICH FORMED THE BACKGROUND TO ITS EVALUATION OF THE FACTS WITHOUT ITS BEING NECESSARY TO SPECIFY THE FACTS THEMSELVES .

3 . WHERE THERE IS A SUCCESSION OF DECISIONS ON THE SAME SUBJECT, THE STATEMENT OF REASONS MAY VALIDLY CONSIST OF A REFERENCE TO THE SUBSISTING GENERAL CONSIDERATIONS SET OUT IN THE ORIGINAL DECISION .

4 . IT WAS NOT THE INTENTION IN REGULATION NO 19 TO DISTINGUISH BETWEEN PRODUCTS HARVESTED IN THE EXPORTING MEMBER STATE AND THOSE IN FREE CIRCULATION WITHIN IT .

IN CASE 16/65

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHES FINANZGERICHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

C . SCHWARZE, BREMEN,

AND

EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT AM MAIN,

P.886

CONTENTS OF THE QUESTIONS REFERRED

THE CONCLUSION TO BE DRAWN FROM THE FORMULATION OF THE QUESTIONS PUT BY THE HESSISCHES FINANZGERICHT IS THAT THE COURT IS CONCERNED LESS WITH THE INTERPRETATION OF THE TREATY OR OF A MEASURE ADOPTED BY A COMMUNITY INSTITUTION THAN WITH OBTAINING A PRELIMINARY RULING ON THE VALIDITY OF SUCH A MEASURE WHICH THE COURT IS EMPOWERED TO GIVE BY SUBPARAGRAPH ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 . IN QUESTIONS 1 TO 3 THE FINANZGERICHT INDICATES THE POINTS WHICH IN ITS VIEW MILITATE AGAINST THE LEGALITY OF THE COMMISSION'S DECISION AND IN QUESTIONS 4 TO 6 IT ASKS THE COURT WHAT WOULD BE THE CONSEQUENCES IF THE DECISION WERE HELD TO BE INVALID . THE FORM TAKEN BY THE DISPUTE IN THE MAIN ACTION AS SET OUT IN THE REFERENCE TO THIS COURT CONFIRMS THIS VIEW AS THE PLAINTIFF IN THE MAIN ACTION HAS BASED ITS CONCLUSIONS ON THE ALLEGED ILLEGALITY OF THE COMMISSION'S DECISION .

THE GOVERNMENT OF THE FRENCH REPUBLIC OBJECTS IN ITS OBSERVATIONS THAT SEVERAL OF THE QUESTIONS EXCEED THE BOUNDS OF AN INTERPRETATION OF THE TREATY AND SAYS THAT IF THE COURT REPLIES TO THESE QUESTIONS ALLEGED TO BE ONES OF INTERPRETATION IT WILL, IN FACT, BE DECIDING QUESTIONS WHICH RELATE NOT TO THE INTERPRETATION OF THE TREATY BUT TO THE VALIDITY OF MEASURES ADOPTED BY INSTITUTIONS OF THE EEC .

ALTHOUGH THE COURT MAY HAVE NO JURISDICTION UNDER ARTICLE 177 TO DECLARE SUCH A MEASURE VOID, AS THE FRENCH GOVERNMENT MAINTAINS, THIS PROVISION DOES EXPRESSLY CONFER JURISDICTION ON THE COURT TO DECIDE ON THE VALIDITY OF SUCH A MEASURE . IF IT APPEARS THAT THE REAL PURPOSE OF THE QUESTIONS SUBMITTED BY A NATIONAL COURT IS CONCERNED RATHER WITH THE VALIDITY OF COMMUNITY MEASURES THAN WITH THEIR INTERPRETATION, IT IS APPROPRIATE FOR THE COURT TO INFORM THE NATIONAL COURT AT ONCE OF ITS VIEW WITHOUT COMPELLING THE NATIONAL COURT TO COMPLY WITH PURELY FORMAL REQUIREMENTS WHICH WOULD USELESSLY PROLONG THE PROCEDURE UNDER ARTICLE 177 AND WOULD BE CONTRARY TO ITS VERY NATURE . ALTHOUGH THIS TYPE OF STRICT ADHERENCE TO FORMAL REQUIREMENTS MAY BE DEFENDED IN THE CASE OF LITIGATION BETWEEN TWO PARTIES WHOSE MUTUAL RIGHTS MUST BE SUBJECT TO STRICT RULES, IT WOULD BE INAPPROPRIATE TO THE SPECIAL FIELD OF JUDICIAL COOPERATION UNDER ARTICLE 177 WHICH REQUIRES THE NATIONAL COURT AND THE COURT OF JUSTICE, BOTH KEEPING WITHIN THEIR RESPECTIVE JURISDICTION, AND WITH THE AIM OF ENSURING THAT COMMUNITY LAW IS APPLIED IN A UNIFIED MANNER, TO MAKE DIRECT AND COMPLEMENTARY CONTRIBUTIONS TO THE WORKING OUT OF A DECISION . ANY OTHER APPROACH WOULD HAVE THE EFFECT OF ALLOWING THE NATIONAL COURTS TO DECIDE THEMSELVES ON THE VALIDITY OF COMMUNITY MEASURES .

P.887

THERE ARE, THEREFORE, NO GROUNDS FOR ALLEGING THAT THE PARTIES TO THE MAIN ACTION HAVE CIRCUMVENTED THE PROVISIONS OF ARTICLE 173 OF THE TREATY . THE NATIONAL COURT DID NOT INTEND TO DETERMINE, ON A NATIONAL LEVEL, QUESTIONS OF LAW EXCLUSIVELY RESERVED FOR THE COURT OF THE COMMUNITIES; THE PARTIES APPLIED FOR A REFERENCE TO THE COURT OF JUSTICE AND THE FINANZGERICHT AGREED, AND COMPLIED WITH THE CONDITIONS AND PROCEDURE LAID DOWN BY THE TREATY .

QUESTIONS 1 AND 2

THE FIRST QUESTION PUT BY THE FINANZGERICHT IS WHETHER THE COMMISSION'S DECISION OF 24 JANUARY 1964 WAS SUBJECT TO THE REQUIREMENT ( UNDER ARTICLE 190 OF THE TREATY ) TO STATE THE REASONS UPON WHICH IT WAS BASED .

THE LAST SENTENCE OF ARTICLE 3 OF REGULATION NO 19 OF THE COUNCIL ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS READS : ' THE COMMISSION SHALL DETERMINE THE FREE - AT-FRONTIER PRICE ACCORDING TO THE CRITERIA LAID DOWN IN ARTICLE 26 '. MEASURES TAKEN WITHIN THIS JURISDICTION WITH REGARD TO PRICE-FIXING ARE BINDING UPON THE MEMBER STATES CONCERNED AND MUST BE TREATED AS DECISIONS WITHIN THE MEANING OF ARTICLES 189, 190 AND 191 OF THE TREATY . THESE ARTICLES THEREFORE APPLY TO SUCH DECISIONS .

THE SECOND QUESTION PUT BY THE FINANZGERICHT IS WHETHER THE DISPUTED DECISION, WHICH MERELY REFERS TO AN EARLIER DECISION GIVING ONLY A GENERAL INDICATION OF THE CONSIDERATIONS WHICH GUIDED THE COMMISSION WHEN FIXING THE FREE - AT-FRONTIER PRICES, SATISFIES THE REQUIREMENTS OF ARTICLE 190 OR WHETHER IT SHOULD HAVE CONTAINED SPECIFIC REASONS SHOWING THE PRICES, THE MARKETS, THE QUALITY AND THE QUANTITIES IN FACT AVAILABLE WHICH THE COMMISSION HAD TAKEN INTO CONSIDERATION AND THE DIFFERENCES IN QUALITY UPON WHICH IT BASED THE DECISION .

THE SECOND QUESTION PUT BY THE FINANZGERICHT IS WHETHER THE DISPUTED DECISION, WHICH MERELY REFERS TO AN EARLIER DECISION GIVING ONLY A GENERAL INDICATION OF THE CONSIDERATIONS WHICH GUIDED THE COMMISSION WHEN FIXING THE FREE-AT-FRONTIER PRICES, SATISFIES THE REQUIREMENTS OF ARTICLE 190 OR WHETHER IT SHOULD HAVE CONTAINED SPECIFIC REASONS SHOWING THE PRICES, THE MARKETS, THE QUALITY AND THE QUANTITIES IN FACT AVAILABLE WHICH THE COMMISSION HAD TAKEN INTO CONSIDERATION AND THE DIFFERENCES IN QUALITY UPON WHICH IT BASED THE DECISION .

THE DECISION OF 24 JANUARY 1964 APPEARS, IN THE FORM IN WHICH IT WAS NOTIFIED TO THE MEMBER STATES TO WHICH IT WAS ADDRESSED, TO BE A MODIFICATION OF EARLIER DECISIONS ON FREE-AT - FRONTIER PRICES AND REFERS EXPRESSLY TO THE ORIGINAL DECISION OF 21 DECEMBER 1962 AND TO THE SUBSEQUENT DECISIONS THROUGH WHICH THE PRICES FIXED BY THIS EARLIER DECISION WERE CORRECTED . THE COMMISSION DECLARED ON THE BASIS OF THE INFORMATION AT ITS DISPOSAL THAT PRICES WERE TO BE CORRECTED ON THE BASIS OF A TABLE ANNEXED TO THE DECISION .

IN VIEW OF THIS SUCCESSION OF DECISIONS FIXING FREE-AT-FRONTIER PRICES IT WAS PERMISSIBLE FOR THE PRESENT DECISION TO BE BASED ON THE SUBSISTING GENERAL CONSIDERATIONS SET OUT IN THE ORIGINAL DECISION OF 21 DECEMBER 1962, SO THAT THOSE CONSIDERATIONS MUST BE DEEMED TO BE SET OUT IN THIS DECISION .

P.888

THE COURSE ADOPTED BY THE COMMISSION, OF PUBLISHING ONLY THE ORIGINAL DECISION IN FULL AND, IN THE CASE OF LATER DECISIONS, CONFINING ITSELF TO PUBLISHING THE TABLES WHICH THEY CONTAINED IN THE AGRICULTURAL SUPPLEMENT TO THE OFFICIAL JOURNAL WAS AN APPROPRIATE MEANS OF MAKING IT KNOWN TO ALL PARTIES CONCERNED THAT THE REASONS UPON WHICH THE ORIGINAL DECISION WAS BASED WERE INCORPORATED WITHOUT MODIFICATION SO FAR AS THE SUBSEQUENT ADJUSTMENTS WERE CONCERNED .

THE NEXT QUESTION TO BE CONSIDERED IS WHETHER THE STATEMENT OF REASONS THUS INCORPORATED IN THE DECISION OF 24 JANUARY 1964 WAS SUFFICIENT TO SUPPORT THE DECISION . THE OBJECTION IS THAT THIS STATEMENT OF REASONS DID NOT GIVE THE CONCRETE FACTS UPON WHICH THE COMMISSION RELIED IN MAKING THE DECISION .

UNDER ARTICLE 7 OF REGULATION NO 89 OF THE COMMISSION THE EXPORTING STATES DETERMINE EVERY THURSDAY THE DATA FOR CALCULATING THE FREE-AT - FRONTIER PRICE FOR EACH PRODUCT FALLING WITHIN THE SCOPE OF THE REGULATION . THEY THEN CALCULATE THE FREE-AT-FRONTIER PRICE THEREFROM AND SUPPLY THE COMMISSION WITH SUCH DATA AND SUCH PRICES EACH THURSDAY NOT LATER THAN 3 P.M . UNDER ARTICLES 8 AND 9 OF THIS REGULATION THE COMMISSION SHALL DETERMINE THE FREE-AT-FRONTIER PRICE ON THE BASIS OF THESE DATA EVERY FRIDAY . IF THE DATA FOR CALCULATING THE SAID PRICES CHANGE BEFORE EITHER OF THOSE DAYS, THE MEMBER STATES SHALL INFORM THE COMMISSION OF THE NEW POSITION AND THE FREE-AT-FRONTIER PRICE RESULTING FROM IT FORTHWITH . THE COMMISSION IS IN TURN TO FIX THE FREE-AT - FRONTIER PRICE BEFORE THE NORMAL DATE SHOULD THIS PROVE NECESSARY ON THE BASIS OF THE DATA FURNISHED BY A MEMBER STATE OR OF INFORMATION DERIVING FROM ITS OWN RESOURCES .

THE DEGREE OF PRECISION OF THE STATEMENT OF REASONS FOR SUCH A DECISION MUST BE WEIGHED AGAINST PRACTICAL REALITIES AND THE TIME AND TECHNICAL FACILITIES AVAILABLE FOR MAKING SUCH A DECISION . A SPECIFIC STATEMENT OF REASONS FOR EACH INDIVIDUAL DECISION FIXING A FREE-AT-FRONTIER PRICE AS ENVISAGED BY THE FINANZGERICHT WOULD MEAN THE PUBLICATION AND TECHNICAL EVALUATION OF ALL THE FACTS SUBMITTED BY THE EXPORTING MEMBER STATE OR GATHERED BY THE COMMISSION'S STAFF FOR SEVERAL HUNDREDS OF PRICES REQUIRING TO BE FIXED . IN VIEW, FIRST, OF THE TIME AVAILABLE FOR THE ISSUE OF THE DECISIONS AND, SECONDLY, OF THE NUMBER OF PRICES TO BE FIXED, THE REQUIREMENT OF SUCH A SPECIFIC STATEMENT OF REASONS WOULD BE INCOMPATIBLE WITH THE PROPER FUNCTIONING OF THE MACHINERY PROVIDED FOR IN REGULATION NO 19 OF THE COUNCIL AND REGULATION NO 89 OF THE COMMISSION . THE PREPARATION AND DRAFTING OF THIS KIND OF STATEMENT OF REASONS WOULD TAKE UP SO MUCH TIME THAT THE DETERMINATION OF PRICES WOULD RUN THE RISK OF BEING, TO SOME EXTENT, OUT OF DATE BY THE TIME IT WAS ISSUED .

P.889

MOREOVER A COMPARISON OF THE FREE-AT-FRONTIER PRICES AS FIXED WITH THE GENERAL CRITERIA PUBLISHED IS SUFFICIENT TO INFORM PERSONS WITH A LEGITIMATE INTEREST OF THE CHARACTER OF THE DATA ON THE BASIS OF WHICH THE DECISION WAS TAKEN AND OF THE CONCLUSIONS TO BE DRAWN THEREFROM . THE NEED TO PROTECT THE PARTIES TO WHOM THE DECISION IS ADDRESSED AND NATIONALS OF MEMBER STATES AFFECTED BY THE DECISION, AS ALSO THE NEED FOR PROPER JUDICIAL REVIEW, IS SUFFICIENTLY MET AS LONG AS THE COMMISSION, AS HERE, PUTS AT THE DISPOSAL OF THE PARTIES THE TECHNICAL DATA USED BY IT IN FIXING THE FREE-AT-FRONTIER PRICES WHENEVER THE DECISION IS CHALLENGED BEFORE A COURT HAVING THE APPROPRIATE JURISDICTION .

FOR THESE REASONS IT MUST BE CONCLUDED THAT THE COMMISSION WAS ENTITLED TO CONFINE ITSELF TO SETTING OUT IN A GENERAL FORM THE ESSENTIAL FACTORS TO AND THE PROCEDURE WHICH FORMED THE BACKGROUND TO ITS EVALUATION OF THE FACTS WITHOUT ITS BEING NECESSARY TO SPECIFY THE FACTS THEMSELVES .

IT MUST THEREFORE BE CONCLUDED THAT THE POINTS RAISED BY THE FINANZGERICHT IN QUESTIONS 1 AND 2 ARE NOT CAPABLE OF AFFECTING THE VALIDITY OF THE COMMISSION'S DECISION .

QUESTION 3

THE FINANZGERICHT'S THIRD QUESTION IS WHETHER THE COMMISSION INFRINGED ARTICLES 2 AND 3 OF REGULATION NO 19 BY BASING ITS DECISION UPON MARKET QUOTATIONS FOR BARLEY HARVESTED OUTSIDE THE MEMBER STATES, AND IN PARTICULAR OUTSIDE THE NETHERLANDS . THIS QUESTION MUST BE CONSIDERED BECAUSE THE COMMISSION HAS ADMITTED IN ITS WRITTEN OBSERVATIONS THAT THE DECISION WAS BASED ON SUCH QUOTATIONS .

THE GERMAN VERSION OF THESE ARTICLES, WHICH SAYS THAT THE FREE-AT-FRONTIER PRICE IS THE PRICE FOR PRODUCTS ' COMING FROM ' (' STAMMEND AUS ') THE EXPORTING MEMBER STATE, DOES NOT SEEM TO BE AMBIGUOUS . THE THREE OTHER VERSIONS OF THE ARTICLES, HOWEVER, IN WHICH THE EXPRESSION ' STAMMEND AUS ' CORRESPONDS TO ' EN PROVENANCE DE ', ' PROVENIENTE DE ' AND ' AFKOMSTIG UIT ', SHOW THAT IT WAS NOT THE INTENTION IN REGULATION NO 19 TO DISTINGUISH BETWEEN PRODUCTS HARVESTED IN THE EXPORTING MEMBER STATE AND THOSE IN FREE CIRCULATION WITHIN IT . THIS INTERPRETATION IS ALSO COMPATIBLE WITH THE PRINCIPLES LAID DOWN IN ARTICLE 9(2 ) OF THE TREATY EXTENDING THE CUSTOMS UNION TO ' PRODUCTS COMING FROM THIRD COUNTRIES WHICH ARE IN FREE CIRCULATION IN MEMBER STATES '.

THE NEXT ARGUMENT OF THE APPLICANT IN THE MAIN ACTION IS THAT REGULATION NO 86 OF THE COMMISSION OF 25 JULY 1962, WHICH CONTAINS PROVISIONS INTENDED TO AVOID DEFLECTION OF TRADE, FIXES DIFFERENT LEVY RATES FOR CEREALS ON WHETHER THEY ARE HARVESTED IN AN EXPORTING MEMBER STATE OR COME FROM IT WITHOUT HAVING BEEN HARVESTED THERE .

THE PROVISION DOES NOT, HOWEVER, REDUCE THE FORCE OF THE ABOVE OBSERVATIONS, ESPECIALLY AS REGULATION NO 89 OF THE COMMISSION, ISSUED ON THE SAME DATE AND LAYING DOWN CRITERIA FOR DETERMINING THE FREE-AT-FRONTIER PRICES FOR CEREALS, REPEATS THE WORDING OF REGULATION NO 19, THUS CONFIRMING THAT THE RULES IN REGULATION NO 86 HAVE NO INFLUENCE ON THE MACHINERY FOR FIXING FREE-AT-FRONTIER PRICES . THUS QUESTION 3 GIVES NO GROUND FOR INVALIDATING THE DISPUTED DECISION .

QUESTIONS 4 TO 6 ONLY APPLY IF THE COURT HOLDS THE STATEMENT OF REASONS TO BE INADEQUATE, OR THE DECISION TO BE UNLAWFUL BECAUSE IT IS BASED ON QUOTATIONS FOR CEREALS COMING FROM THIRD COUNTRIES . IT IS NOT, THEREFORE, NECESSARY TO GIVE AN ANSWER TO THEM .

THE COSTS INCURRED BY THE GOVERNMENT OF THE FRENCH REPUBLIC, THE EEC COMMISSION, THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTIONS PENDING BEFORE THE HESSISCHES FINANZGERICHT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHES FINANZGERICHT HEREBY RULES :

1 . EXAMINATION OF THE QUESTIONS REFERRED BY THE HESSISCHES FINANZGERICHT TO THE COURT REVEALS NO FACTOR CAPABLE OF AFFECTING THE VALIDITY OF THE DECISION OF THE EEC COMMISSION OF 24 JANUARY 1964 FIXING FREE-AT-FRONTIER PRICES FOR CEREALS;

2 . THE DECISION ON COSTS IN THESE PROCEEDINGS IS A MATTER FOR THE HESSISCHES FINANZGERICHT .