61963J0073

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1 . TRANSITIONAL PERIOD - PROTECTIVE MEASURES - MANNER OF IMPLEMENTATION - LEAST DISTURBANCE - CONDITIONAL AUTHORIZATION OF MEASURES SOUGHT

( EEC TREATY, ARTICLE 226 )

2 . TRANSITIONAL PERIOD - PROTECTIVE MEASURES - SERIOUS DIFFICULTIES - CONCEPT

( EEC TREATY, ARTICLE 226 )

3 . CUSTOMS DUTIES - ELIMINATION - PROHIBITION AGAINST INTRODUCTION OF NEW DUTIES - PROTECTIVE MEASURES UNDER ARTICLE 226 - CLEARLY STIPULATED EXCEPTION TO THIS PROHIBITION

1 . ARTICLE 226 CONSTITUTES AN EXCEPTIONAL PROVISION ONLY AS REGARDS THE NATURE AND THE EXTENT OF DEROGATION FROM THE TREATY AND NOT AS REGARDS THE DETAILED RULES LAID DOWN BY THE COMMISSION IN ORDER TO ACHIEVE THE PROTECTION SOUGHT . IN THIS RESPECT, THE COMMISSION, WHICH IS BOUND TO GIVE PRIORITY TO SUCH MEASURES AS WILL LEAST DISTURB THE FUNCTIONING OF THE COMMON MARKET, MUST USE THE MEANS WHICH ARE LEAST LIKELY TO HAVE AN ADVERSE EFFECT ON THE STATE, A SECTOR OF WHOSE ECONOMIC ACTIVITY IS AFFECTED BY THE MEASURES AUTHORIZED .

WITH THIS IN VIEW, THE AUTHORIZATION GRANTED TO THE STATE APPLYING TO TAKE THE PROTECTIVE MEASURES MAY BE MADE SUBJECT TO THE CONDITION, EXPRESS OR IMPLIED, THAT THE STATE, A SECTOR OF WHOSE ECONOMIC ACTIVITY IS AFFECTED BY THESE MEASURES, DOES NOT ITSELF PREFER TO APPLY THEM .

CF . JUDGMENT IN CASE 13/63, PARAGRAPH 4 OF SUMMARY, ( 1964 ) ECR 165 .

2 . ARTICLE 226 EMPLOYS THE TERM ' DIFFICULTIES ' WITHOUT MAKING ANY DISTINCTION ON THE BASIS OF WHETHER THE DIFFICULTIES ARE CAUSED BY THE APPLICATION OF THE TREATY OR OTHERWISE .

3 . ARTICLE 226 CONSTITUTES A CLEARLY STIPULATED EXCEPTION TO THE PROHIBITION AGAINST THE INTRODUCTION OF NEW CUSTOMS DUTIES .

CF . JUDGMENT IN JOINED CASES 2 AND 3/63, PARAGRAPH 3 OF SUMMARY, ( 1962 ) ECR 817 .

IN JOINED CASES 73 AND 74/63

TWO REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY MADE BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE THAT COURT BETWEEN

1 . N.V . INTERNATIONALE CREDIET - EN HANDELSVERENIGING ' ROTTERDAM ', HAVING ITS REGISTERED OFFICE AT ROTTERDAM,

FIRST PLAINTIFF,

2 . DE COOEPERATIVE SUIKERFABRIEK EN RAFFINADERIJ G.A . ' PUTTERSHOEK ', HAVING ITS REGISTERED OFFICE AT PUTTERSHOEK,

SECOND PLAINTIFF,

REPRESENTED BY F . SALOMONSON, ADVOCATE AT DORDRECHT,

AND

MINISTER VAN LANDBOUW EN VISSERIJ, THE HAGUE, REPRESENTED BY HIS AGENTS J.H . WEBER AND L.J . SCHIPPERS,

ON THE FOLLOWING QUESTIONS ( IN SO FAR AS EACH IS NECESSARY BY REASON OF THEIR INTERDEPENDENCE ):

1 . DOES THE DECISION OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY OF 27 JULY 1960 ( EXTENDED ON 21 DECEMBER 1960, RENEWED ON 28 JUNE 1961 AND AGAIN AMENDED ON 27 FEBRUARY 1962 ) FIXING THE PROTECTIVE MEASURES CONCERNING THE IMPORTATION INTO THE FEDERAL REPUBLIC OF GERMANY OF BREAD AND FONDANT PASTE ORIGINATING IN OTHER MEMBER STATES AUTHORIZE THE NETHERLANDS TO IMPOSE A DUTY ON THE EXPORT OF FONDANT PASTE TO THE FEDERAL REPUBLIC OF GERMANY?

2 . IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE :

( A ) WAS THE COMMISSION COMPETENT, UNDER ARTICLE 226 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, TO GRANT THIS AUTHORIZATION TO THE NETHERLANDS WHEN THE LATTER DID NOT APPLY FOR IT?

IF NOT :

( B ) IS THE DECISION THEREBY INVALID IN SO FAR AS IT CONFERS THIS AUTHORITY ON THE NETHERLANDS?

3 . IF THE ANSWERS TO QUESTION 2 DO NOT ESTABLISH THE INVALIDITY OF THE DECISION :

( A ) DO THE DIFFICULTIES REFERRED TO IN ARTICLE 226(1 ) OF THE TREATY INCLUDE THOSE ARISING EXCLUSIVELY FROM THE APPLICATION OF THE MANDATORY PROVISIONS OF THE TREATY AND ESPECIALLY FROM THE APPLICATION OF THE RULES CONCERNING THE ELIMINATION OF CUSTOMS DUTIES?

IF THIS QUESTION IS ANSWERED IN THE NEGATIVE :

( B ) CAN IT BE CONCLUDED FROM THIS THAT THE DECISION IS INVALID IN SO FAR AS IT CONFERS THE ABOVE-MENTIONED AUTHORITY ON THE NETHERLANDS? OR CAN IT BE CONCLUDED ON OTHER GROUNDS THAT THE DECISION IS INVALID BECAUSE IT CONTRAVENES THE LAW OF THE EUROPEAN COMMUNITIES, AS SUGGESTED BY THE PLAINTIFFS' ARGUMENT THAT IN MAKING ITS DECISION THE COMMISSION HAD RECOURSE TO ARTICLE 226 OF THE TREATY IN ORDER TO AVOID THE PROCEDURE UNDER ARTICLE 235 OF THE TREATY?

P.11

THE COMMISSION HAS RAISED THE QUESTION WHETHER THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN, A COURT OF FINAL APPEAL, HAS INFRINGED THE THIRD PARAGRAPH OF ARTICLE 177 OF THE TREATY IN NOT BRINGING BEFORE THE COURT FOR A PRELIMINARY RULING THE INTERPRETATION OF ARTICLE 12 OF THE EEC TREATY ON WHICH THE COLLEGE BASED THE QUESTIONS ACTUALLY REFERRED FOR A PRELIMINARY RULING .

HOWEVER, IT APPEARS FROM THE GROUNDS OF THE JUDGMENT OF THE COLLEGE THAT IT DID NOT ITSELF INTERPRET ARTICLE 12 BUT LIMITED ITSELF TO APPLYING AN INTERPRETATION DRAWN FROM THE JUDGMENTS PREVIOUSLY DELIVERED BY THE COURT OF JUSTICE UNDER ARTICLE 177 ( IN CASES 26/62 AND 28 TO 30/62 ).

THERE IS THUS NO REASON TO EXAMINE THE POINT RAISED BY THE COMMISSION .

P.12

THE FIRST QUESTION PUT TO THE COURT IS WHETHER THE CONTESTED DECISIONS OF THE COMMISSION AUTHORIZING THE IMPOSITION BY THE FEDERAL REPUBLIC OF GERMANY OF A SPECIAL DUTY ON THE IMPORTATION OF FONDANT PASTE CONFERRED EQUALLY ON THE KINGDOM OF THE NETHERLANDS THE POWER TO INTRODUCE A DUTY OF THE SAME AMOUNT ON THE EXPORTATION OF THIS PRODUCT TO THE FEDERAL REPUBLIC OF GERMANY .

THE AUTHORIZATION GIVEN TO THE FEDERAL REPUBLIC IS SUBJECT TO THE CONDITION THAT THE EXPORTING MEMBER STATE DOES NOT ITSELF IMPOSE THE DUTY FIXED BY THESE DECISIONS . MOREOVER, THE DECISIONS ADDRESSED, INTER ALIA, TO THE GOVERNMENTS OF THE FEDERAL REPUBLIC OF GERMANY AND OF THE KINGDOM OF THE NETHERLANDS, FIXED THE AMOUNT OF THE DUTY FIRST IN DUTCH GUILDERS AND ONLY SECONDLY IN DEUTSCHMARKS .

ALTHOUGH AN EXPLICIT AUTHORIZATION, MORE IN CONFORMITY WITH THE REQUIREMENTS OF LEGAL CERTAINTY, WAS NOT FORMULATED IN THE DECISIONS, THE LATTER NONETHELESS BY IMPLICATION AUTHORIZED THE NETHERLANDS GOVERNMENT TO IMPOSE THE DUTY IN QUESTION .

BY THE TERMS OF THE SECOND QUESTION THE COURT IS ASKED TO SAY WHETHER ARTICLE 226 OF THE EEC TREATY ENABLED THE COMMISSION TO AUTHORIZE THE GOVERNMENT OF THE NETHERLANDS TO INTRODUCE A DUTY, WHEN NO APPLICATION TO THAT END HAD BEEN MADE BY THE SAID GOVERNMENT, AND, IF THE ANSWER IS IN THE NEGATIVE, WHETHER THE VALIDITY OF THE DECISIONS IS THEREBY AFFECTED .

PROTECTIVE MEASURES CAN ONLY BE DESIGNED TO PROTECT TEMPORARILY A SECTOR OF ECONOMIC ACTIVITY WHICH IS IN DIFFICULTY . WHILE ARTICLE 226(1 ) PROVIDES THAT THE STATE CONCERNED SHOULD APPLY FOR AUTHORIZATION TO TAKE PROTECTIVE MEASURES ITSELF, IT IS NO LESS TRUE THAT PARAGRAPH ( 2 ) OF THIS PROVISION CONFERS UPON THE COMMISSION, WHEN SUCH A REQUEST IS BEFORE IT, THE POWER TO FIX ' THE PROTECTIVE MEASURES WHICH IT CONSIDERS NECESSARY, SPECIFYING THE CIRCUMSTANCES AND THE MANNER IN WHICH THEY ARE TO BE PUT INTO EFFECT '.

ARTICLE 226 CONSTITUTES AN EXCEPTIONAL PROVISION ONLY AS REGARDS THE NATURE AND THE EXTENT OF THE DEROGATIONS FROM THE TREATY AND NOT AS REGARDS THE DETAILED RULES LAID DOWN BY THE COMMISSION FOR ACHIEVING THE PROTECTION SOUGHT . IN THIS RESPECT, THE COMMISSION MUST USE THE MEANS WHICH ARE LEAST LIKELY TO HAVE AN ADVERSE EFFECT ON THE STATE A SECTOR OF WHOSE ECONOMIC ACTIVITY IS AFFECTED BY THE MEASURES AUTHORIZED .

WITH THIS IN VIEW, THE AUTHORIZATION GRANTED TO THE STATE APPLYING TO TAKE THE PROTECTIVE MEASURES MAY BE MADE SUBJECT TO THE CONDITION THAT THE STATE, A SECTOR OF WHOSE ECONOMIC ACTIVITY IS AFFECTED BY THESE MEASURES, DOES NOT ITSELF PREFER TO APPLY THEM .

P.13

FURTHERMORE, THE FACT THAT THE COMMISSION HAS POWER TO SUBJECT ITS AUTHORIZATION TO SUCH A CONDITION IS EMPHASIZED BY ARTICLE 226(3 ) WHICH GIVES PRIORITY TO THE CHOIE OF SUCH MEASURES AS WILL LEAST DISTURB THE FUNCTIONING OF THE COMMON MARKET .

IN THIS RESPECT, THEREFORE, THE DECISIONS IN DISPUTE AFFORD NO GROUNDS FOR CRITICISM .

IN THE THIRD QUESTION THE COLLEGE VAN BEROEP ASKS FIRST WHETHER DIFFICULTIES ARISING EXCLUSIVELY FROM THE APPLICATION OF THE MANDATORY PROVISIONS OF THE TREATY AND IN PARTICULAR THE ELIMINATION OF INTERNAL TARIFFS CAN CONSTITUTE DIFFICULTIES WITHIN THE MEANING OF ARTICLE 226 .

IT APPEARS FROM THE STATEMENTS OF REASONS FOR THE DECISIONS IN QUESTION THAT THE COMMISSION THOUGHT THAT IN THIS CASE THE DIFFICULTIES EXISTED EVEN BEFORE THE ENTRY INTO FORCE OF THE TREATY AND WERE ONLY AGGRAVATED BY THE ELIMINATION OF RESTRICTIONS ON TRADE WITHIN THE COMMON MARKET . SINCE IT HAS NOT BEEN SHOWN THAT THE REASONS ARE INCORRECT, THIS QUESTION DOES NOT APPEAR TO BE RELEVANT AS REGARDS THE DECISIONS OF THE COMMISSION WHICH HAVE BEEN REFERRED TO THE COURT FOR REVIEW .

MOREOVER, ARTICLE 226 EMPLOYS THE TERM ' DIFFICULTIES ' WITHOUT MAKING ANY DISTINCTION ON THE BASIS OF WHETHER THE DIFFICULTIES WERE CAUSED BY THE APPLICATION OF THE TREATY OR OTHERWISE . ON THIS POINT TOO, THEN, IT APPEARS THAT THE VALIDITY OF THE DISPUTED DECISIONS CANNOT BE ASSAILED .

SECONDLY, THE COURT IS ASKED, IN THE THIRD QUESTION, TO SAY WHETHER THE VALIDITY OF THESE DECISIONS IS AFFECTED BY THE FAILURE TO STATE REASONS OR ON THE GROUND THAT THE COMMISSION HAD RECOURSE TO ARTICLE 226 OF THE TREATY IN ORDER TO AVOID THE APPLICATION OF ARTICLE 235 .

IN THIS RESPECT, IT IS ENOUGH FOR THE COURT TO EXAMINE ON THE ONE HAND WHETHER THE COMMISSION, IN HAVING RECOURSE TO ARTICLE 226, CONTRAVENED ARTICLE 235 AND ON THE OTHER HAND WHETHER THE DECISIONS IN QUESTION CONTAIN A DEFECT WHICH CAN BE REMOVED BY ACTION TAKEN BY THE COMMISSION OF ITS OWN MOTION .

ARTICLE 235 OFFERS A SUPPLEMENTARY MEANS OF ACTION AND APPLIES ONLY IN THE CASES FOR WHICH THE TREATY HAS NOT PROVIDED THE NECESSARY POWERS FOR THE REALIZATION OF THE OBJECT IN VIEW . CONSEQUENTLY THE LAWFUL EXERCISE OF THE POWERS CONFERRED BY THE TREATY CANNOT CONSTITUTE AN INFRINGEMENT OF THIS PROVISION .

THE PLAINTIFFS IN THE MAIN ACTION INVOKE THE JUDGMENT OF THE COURT IN JOINED CASES 2 AND 3/62, ALLEGING THAT AN UNPUBLISHED AUTHORIZATION CANNOT BE CONSIDERED AS THE ' CLEARLY STIPULATED ' EXCEPTION WHICH THAT JUDGMENT STATES TO BE NECESSARY .

P.14

SINCE THE FAILURE TO PROVIDE THE NECESSARY PUBLICITY CAN BE CONSIDERED BY THE COURT OF ITS OWN MOTION, THIS ALLEGATION SHOULD BE EXAMINED .

ALTHOUGH IT APPEARS TO BE DESIRABLE THAT A DECISION OF THIS NATURE, AFFECTING THE RIGHTS AND INTERESTS OF NATIONALS OF SEVERAL MEMBER STATES, SHOULD BE BROUGHT TO THE ATTENTION OF THE PUBLIC, AS HAS BEEN THE PRACTICE IN SIMILAR CASES, ARTICLE 191 LAYS DOWN ONLY THAT DECISIONS SHOULD BE NOTIFIED TO THOSE TO WHOM THEY ARE ADDRESSED, AS WAS DONE IN THE PRESENT CASES .

MOREOVER, THE ' CLEARLY STIPULATED ' EXCEPTION WAS IN THE CIRCUMSTANCES CONSTITUTED BY ARTICLE 226 ITSELF, IN THAT IT PERMITS THE TAKING OF PROTECTIVE MEASURES INVOLVING A DEPARTURE FROM THE PROVISIONS OF ARTICLES 12 AND 16 OF THE TREATY .

THEREFORE, IN THE ABSENCE OF ANY OTHER DEFECT WHICH CAN BE EXAMINED BY THE COURT OF ITS OWN MOTION, THERE APPEARS TO BE NO OTHER FACTOR CAPABLE OF AFFECTING THE VALIDITY OF THE DECISIONS IN QUESTION .

THE COSTS INCURRED BY THE EEC COMMISSION 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 ACTION PENDING BEFORE THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY ORDERS OF THAT COURT OF 10 JULY 1963, HEREBY RULES :

1 . THE DECISIONS OF THE EEC COMMISSION OF 27 JULY 1960, 21 DECEMBER 1960, 28 JUNE 1961, 22 DECEMBER 1961 AND 27 FEBRUARY 1962, FIXING THE PROTECTIVE MEASURES APPLICABLE TO THE IMPORTATION INTO THE FEDERAL REPUBLIC OF GERMANY OF BREAD AND FONDANT PASTE ORIGINATING IN OTHER MEMBER STATES CONFER UPON THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS THE POWER TO INTRODUCE A DUTY OF THE SAME AMOUNT ON THE EXPORT OF THOSE PRODUCTS TO THE FEDERAL REPUBLIC OF GERMANY;

2 . EXAMINATION OF THE QUESTIONS REFERRED TO THE COURT REVEALS NO FACTOR CAPABLE OF AFFECTING THE VALIDITY OF THE SAID DECISIONS;

3 . THE DECISIONS ON THE COSTS IN THESE PROCEEDINGS IS A MATTER FOR THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN .