61963J0106

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1 . MEASURES ADOPTED BY AN INSTITUTION - APPLICATIONS BY INDIVIDUALS AGAINST A DECISION ADDRESSED TO ANOTHER PERSON - DECISION OF DIRECT CONCERN TO THEM - CONCEPT

( EEC TREATY, ARTICLE 173 )

2 . MEASURES ADOPTED BY AN INSTITUTION - APPLICATIONS BY INDIVIDUALS AGAINST A DECISION ADDRESSED TO ANOTHER PERSON - DECISION OF INDIVIDUAL CONCERN TO THEM - CONCEPT

( EEC TREATY, ARTICLE 173 )

3 . AGRICULTURE - COMMON ORGANIZATION OF MARKETS - CEREALS - PROTECTIVE MEASURES TAKEN BY MEMBER STATES - POWERS OF THE COMMISSION - CHARACTER - EXERCISE BY WAY OF DECISIONS DIRECTLY CONCERNING THE INTERESTED PARTIES

( EEC TREATY, ARTICLE 173, REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962, ARTICLE 22(2 ), OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 20 APRIL 1962, P.942/62 )

1 . A DECISION WHICH COMES INTO FORCE IMMEDIATELY IS OF DIRECT CONCERN TO AN INTERESTED PARTY WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY .

2 . CF . PARA . 1 OF SUMMARY IN CASE 1/64, ( 1964 ) ECR 413 .

PERSONS OTHER THAN THOSE TO WHOM A DECISION IS ADDRESSED MAY ONLY CLAIM TO BE INDIVIDUALLY CONCERNED IF THAT DECISION AFFECTS THEM BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO THEM OR BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS, AND BY VIRTUE OF THESE FACTORS DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

A DECISION OF GENERAL ECONOMIC SCOPE AND EFFECT WITHIN THE COMMON MARKET CANNOT BE OF INDIVIDUAL CONCERN TO AN UNDERTAKING, EVEN IF THE LATTER OCCUPIES, A SPECIAL POSITION AS REGARDS THE RELEVANT PRODUCT IN THE MARKET OF ONE OF THE MEMBER STATES .

*/ 664J0001 /*.

3 . SINCE THEY COME INTO FORCE IMMEDIATELY DECISIONS OF THE COMMISSION AMENDING OR ABOLISHING PROTECTIVE MEASURES TAKEN BY MEMBER STATES FOR THE PROTECTION OF THE MARKET IN CEREALS ARE DIRECTLY APPLICABLE AND CONCERN INTERESTED PARTIES SUBJECT TO THEM AS DIRECTLY AS THE MEASURES WHICH THEY REPLACE . DECISIONS RETAINING PROTECTIVE MEASURES HAVE THE SAME EFFECT BECAUSE THEY DO NOT CONSTITUTE A MERE APPROVAL OF THESE MEASURES BUT RENDER THEM VALID .

IN JOINED CASES

106/63

ALFRED TOEPFER, A LIMITED PARTNERSHIP, WHOSE REGISTERED OFFICE IS AT HAMBURG, REPRESENTED BY MR AUGUSTE SCHULTZ, ITS AGENT,

AND 107/63

GETREIDE-IMPORT GESELLSCHAFT, A LIMITED COMPANY WHOSE REGISTERED OFFICE IS AT DUISBURG, REPRESENTED BY ITS MANAGERS WILHELM SPECHT AND WILHELM BREDER, ASSISTED BY WALTER HEMPEL OF THE HAMBURG BAR ( FOR BOTH CASES ) AND K . REDEKER OF THE BONN BAR ( FOR CASE 107/63 ONLY ), BOTH WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES REUTER, ADVOCATE, 7 AVENUE DE L' ARSENAL,

APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITY, ASSISTED BY CLAUS-DIETER EHLERMANN, MEMBER OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MR HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR ANNULMENT OF THE DECISION OF THE COMMISSION OF 3 OCTOBER 1963 AUTHORIZING THE FEDERAL REPUBLIC OF GERMANY TO RETAIN IN FORCE THE PROTECTIVE MEASURES CONCERNING THE IMPORTATION OF MAIZE, MILLET AND SORGHUM ( 63/553/EEC );

P.410

ADMISSIBILITY OF THE APPLICATIONS

AS THE CONTESTED DECISION WAS NOT ADDRESSED TO THE APPLICANTS THE DEFENDANT ARGUES THAT IT WAS NOT OF DIRECT AND INDIVIDUAL CONCERN TO THEM WITHIN THE MEANING OF ARTICLE 173 OF THE TREATY; IT ONLY CONCERNS THE APPLICANTS THROUGH THE EFFECT OF THE PROTECTIVE MEASURE IN QUESTION, AND THUS INDIRECTLY .

P.411

THE DEFENDANT FURTHER ARGUES THAT, SINCE THE PROTECTIVE MEASURE WAS DRAWN UP IN GENERAL TERMS APPLICABLE TO ALL IMPORTERS IN A POSITION TO ASK FOR AN IMPORT LICENCE DURING THE PERIOD BETWEEN 1 AND 4 OCTOBER 1963, NEITHER THIS MEASURE NOR THE DECISION WHICH UPHELD IT IS OF INDIVIDUAL CONCERN TO THE APPLICANTS .

THE EXPRESSION ' OF DIRECT...CONCERN '

ACCORDING TO THE TERMS OF ARTICLE 22 OF REGULATION NO 19, WHEN A MEMBER STATE HAS GIVEN NOTICE OF THE PROTECTIVE MEASURES PROVIDED FOR IN PARAGRAPH ( 1 ) OF THE SAID ARTICLE, THE COMMISSION SHALL DECIDE WITHIN FOUR WORKING DAYS OF THE NOTIFICATION WHETHER THE MEASURES ARE TO BE RETAINED, AMENDED OR ABOLISHED .

THE LAST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 22 PROVIDES THAT THE COMMISSION'S DECISION SHALL COME INTO FORCE IMMEDIATELY .

THEREFORE A DECISION OF THE COMMISSION AMENDING OR ABOLISHING PROTECTIVE MEASURES IS DIRECTLY APPLICABLE AND CONCERNS INTERESTED PARTIES SUBJECT TO IT AS DIRECTLY AS THE MEASURES WHICH IT REPLACES .

IT WOULD BE ILLOGICAL TO SAY THAT A DECISION TO RETAIN PROTECTIVE MEASURES HAD A DIFFERENT EFFECT, AS THE LATTER TYPE OF DECISION DOES NOT MERELY GIVE APPROVAL TO SUCH MEASURES, BUT RENDERS THEM VALID .

THEREFORE DECISIONS MADE UNDER THE THIRD AND FOURTH SUBPARAGRAPHS OF ARTICLE 22(2 ) ARE OF DIRECT CONCERN TO THE INTERESTED PARTIES .

THE EXPRESSION ' OF...INDIVIDUAL CONCERN '

IT IS CLEAR FROM THE FACT THAT ON 1 OCTOBER 1963 THE COMMISSION TOOK A DECISION FIXING NEW FREE - AT-FRONTIER PRICES FOR MAIZE IMPORTED INTO THE FEDERAL REPUBLIC AS FROM 2 OCTOBER, THAT THE DANGER WHICH THE PROTECTIVE MEASURES RETAINED BY THE COMMISSION WERE TO GUARD AGAINST NO LONGER EXISTED AS FROM THIS LATTER DATE .

THEREFORE THE ONLY PERSONS CONCERNED BY THE SAID MEASURES WERE IMPORTERS WHO HAD APPLIED FOR AN IMPORT LICENCE DURING THE COURSE OF THE DAY OF 1 OCTOBER 1963 . THE NUMBER AND IDENTITY OF THESE IMPORTERS HAD ALREADY BECOME FIXED AND ASCERTAINABLE BEFORE 4 OCTOBER, WHEN THE CONTESTED DECISION WAS MADE . THE COMMISSION WAS IN A POSITION TO KNOW THAT ITS DECISION AFFECTED THE INTERESTS AND THE POSITION OF THE SAID IMPORTERS ALONE .

P.412

THE FACTUAL SITUATION THUS CREATED DIFFERENTIATES THE SAID IMPORTERS, INCLUDING THE APPLICANTS, FROM ALL OTHER PERSONS AND DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

THEREFORE THE OBJECTION OF INADMISSIBILITY WHICH HAS BEEN RAISED IS UNFOUNDED AND THE APPLICATIONS ARE ADMISSIBLE .

ON THE SUBSTANCE OF THE CASE

APART FROM VARIOUS SUBMISSIONS OF INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS AND MISUSE OF POWERS, THE APPLICANTS BASE THEIR CASES UPON THE SUBMISSION OF INFRINGEMENT OF THE TREATY OR OF ANY RULE OF LAW RELATING TO ITS APPLICATION .

WITH REGARD TO THIS THE APPLICANTS ALLEGE IN PARTICULAR THAT IN THIS CASE THE CONDITIONS REQUIRED BY ARTICLE 22 OF REGULATION NO 19 WERE NOT FULFILLED .

THE CONTESTED DECISION IS BASED ON THE CONSIDERATIONS ' THAT APPLICATIONS FOR IMPORT LICENCES WITH ADVANCE FIXING OF THE LEVY IN RESPECT OF VERY LARGE QUANTITIES WERE MADE ON 1 OCTOBER 1963 TO THE APPROPRIATE DEPARTMENTS IN THE FEDERAL REPUBLIC OF GERMANY; ACCEPTANCE OF THESE REQUESTS WOULD HAVE LED TO LARGE QUANTITIES OF MAIZE BEING IMPORTED INTO THAT MEMBER STATE IN JANUARY AT PRICES MUCH BELOW THE THRESHHOLD PRICE . THEREFORE THE GERMAN CEREALS MARKET WAS THREATENED WITH SERIOUS DISTURBANCES LIKELY TO ENDANGER THE OBJECTIVES DEFINED IN ARTICLE 39 OF THE TREATY '.

DURING THE COURSE OF THE PROCEDURE, BOTH WRITTEN AND ORAL, THE COMMISSION EXPLAINED ITS REASONING BY ARGUING THAT A COLLAPSE OF PRICES ON THE MARKET IN MAIZE WOULD HAVE BEEN CAUSED BY THE OFFER OF A QUANTITY OF MAIZE SUCH AS WOULD RESULT FROM THE APPLICATION MADE ON 1 OCTOBER 1963 AT PRICES - ACCORDING TO ITS CALCULATIONS - BELOW DM 70 PER TON, THAT IS TO SAY, 16 OR 17 PER CENT BELOW THE THRESHHOLD PRICE . THE COMMISSION ALSO ARGUED THAT ALTHOUGH MAIZE IS NOT WIDELY PRODUCED IN GERMANY, SUCH A DISTURBANCE OF THE MARKET IN IT MIGHT HAVE JEOPARDIZED IN PARTICULAR THE OBJECTIVES OF ARTICLE 39 OF THE TREATY WHICH INCLUDES STABILIZING MARKETS AND ENSURING A FAIR STANDARD OF LIVING FOR THE AGRICULTURAL COMMUNITY BY MEANS OF REASONABLE PRICES FOR THE PRODUCER .

THE COMMISSION FURTHER ARGUES THAT IN FACT SUCH A COLLAPSE OF PRICES WOULD HAVE CAUSED DANGEROUS REPERCUSSIONS ON THE GERMAN MARKET IN BARLEY, A NATIONAL PRODUCT, AND, ACCORDING TO THE COMMISSION, EASILY INTERCHANGEABLE WITH MAIZE . IN ADDITION THE DEFENDANT OFFERED TO PROVE BY MEANS OF AN EXPERT'S REPORT THAT THE DANGER OF GRAVE DISTURBANCES WHICH MIGHT JEOPARDIZE THE OBJECTIVES LAID DOWN IN ARTICLE 39 WAS A REAL ONE .

P.413

INFORMATION GIVEN BY THE COMMISSION DURING THE ORAL PROCEDURE MAKES IT CLEAR THAT AT THIS MOMENT THERE IS NO NEED TO PROCEED TO THE MEASURE OF INQUIRY ASKED FOR . APPLICATIONS FOR IMPORT LICENCES LODGED ON 1 OCTOBER WITH A VIEW TO IMPORTATION DURING THE MONTH OF JANUARY 1964 AMOUNTED TO A TOTAL OF ABOUT 125 000 METRIC TONS . ACCORDING TO THE STATISTICS PRODUCED BY THE COMMISSION, THIS QUANTITY SCARCELY EXCEEDS THE MONTHLY AVERAGE OF NORMAL IMPORTS . FURTHERMORE, GIVEN THE ACCURATE KNOWLEDGE WHICH EXISTED OF THE STATE OF THE GERMAN MARKET IN MAIZE, THERE WAS A REDUCED DANGER OF OTHER SUBSTANTIAL IMPORTS BEING ADDED TO THE ABOVEMENTIONED QUANTITY IN RESPECT OF THE SAME PERIOD . IN FACT SINCE THE NEWS THAT IMPORT LICENCES SUBJECT TO SUCH A FAVOURABLE RATE OF LEVY HAD BEEN ISSUED WOULD SPREAD RAPIDLY TO ALL THE IMPORTERS INTERESTED, IT WAS UNLIKELY THAT AN APPRECIABLE NUMBER OF THEM WOULD COMPETE WITH THE HOLDERS OF THE LICENCES .

THEREFORE IT DOES NOT SEEM THAT THE QUANTITY OF IMPORTED MAIZE WHICH WAS IN FACT CONCERNED COULD ITSELF HAVE BEEN ENOUGH TO BRING ABOUT SERIOUS DISTURBANCES OF THE MARKET .

ON THE OTHER HAND THE IMPORTING OF A QUANTITY OF 125 000 METRIC TONS AT THE REDUCED PRICES MENTIONED WAS NOT ENOUGH TO BRING ABOUT A COLLAPSE IN PRICES OF MAIZE . IN FACT, WHILE IT CANNOT BE RULED OUT THAT THE OFFER OF A QUANTITY OF 8 TO 10 PER CENT OF THE ANNUAL NEEDS OF A CERTAIN PRODUCT MIGHT BRING ABOUT AN EXCESSIVE DECLINE FROM NORMAL PRICES, NEVERTHELESS SUCH A CONSEQUENCE NEED ONLY BE FEARED WHEN THE AMOUNT OFFERED IS IN THE NATURE OF A SURPLUS AND WHEN IT IS NOT KNOWN HOW MUCH IS BEING OFFERED AT LOW PRICES . SUCH A POSSIBILITY COULD NOT OCCUR IN THIS CASE BECAUSE THE QUANTITIES OF IMPORTED MAIZE IN QUESTION WERE NOT IN THE NATURE OF A SURPLUS, AND THEY WERE FIXED AND KNOWN AS FROM 2 OCTOBER 1963, WHICH WAS THREE MONTHS BEFORE THE CRITICAL PERIOD . THUS IT WAS IMPROBABLE THAT THE GERMAN MARKET COULD NOT HAVE ABSORBED THE SAID QUANTITY WITHOUT MUCH DISTURBANCE, EVEN IF IT WERE OFFERED AT LOW PRICES, WHICH WAS CERTAINLY NOT THE INTENTION OF THE IMPORTERS CONCERNED .

IN SO FAR AS IT ALREADY APPEARS EXTREMELY DOUBTFUL THAT ACCEPTANCE OF THE APPLICATIONS IN QUESTION WOULD HAVE THREATENED THE GERMAN MARKET IN MAIZE WITH DISTURBANCES OF THE SERIOUSNESS REQUIRED BY ARTICLE 22 OF REGULATION NO 19, IT FOLLOWS LOGICALLY THAT NO SUCH DISTURBANCES COULD HAVE HAD DANGEROUS REPERCUSSIONS ON THE GERMAN MARKET IN BARLEY . ACCORDING TO THE DEFENDANT'S OWN STATEMENTS THE TWO MARKETS ARE INTERDEPENDENT MAINLY BECAUSE OF THE RESPECTIVE AMOUNTS OF MAIZE AND BARLEY USED FOR FEEDING STUFFS . THESE AMOUNTS MAY VARY IN RELATION TO THE COST OF THESE BASIC PRODUCTS .

ALTHOUGH IT IS TRUE THAT AN INCREASED SUPPLY OF MAIZE AT LOW PRICES MIGHT ALTER THE SAID AMOUNTS USED IN THE FEDERAL REPUBLIC TO THE DETRIMENT OF BARLEY, SUCH A CHANGE OF PRACTICE PRESUPPOSES THAT PRODUCERS OF FEEDING-STUFFS WOULD HAVE CONFIDENCE IN THE STABILITY OF PRICES AND SUPPLY OF THE IMPORTED PRODUCT . IN THE PRESENT CASE, HOWEVER, EVEN SUPPOSING THAT THERE WERE A TRANSITORY FALL IN PRICES OF MAIZE, SUCH A SITUATION WOULD SCARCELY LEAD PRODUCERS TO CHANGE THEIR PRACTICE .

IT MUST BE CONCLUDED FROM THE FOREGOING THAT EVEN IF THE DISTURBANCES CONTEMPLATED BY THE COMMISSION DID TAKE PLACE AGAINST ALL PROBABILITY, THEY WOULD HAVE BEEN OF TOO TEMPORARY A NATURE TO BE CAPABLE OF JEOPARDIZING THE STABILITY OF THE MARKET IN MAIZE AND BARLEY AND THUS OF JEOPARDIZING ' THE FAIR STANDARD OF LIVING FOR THE AGRICULTURAL COMMUNITY ' MENTIONED IN ARTICLE 39 OF THE TREATY .

THEREFORE, SINCE THE CONDITIONS LAID DOWN IN ARTICLE 22 OF REGULATION NO 19 WERE NOT FULFILLED IN THIS CASE, THE CONTESTED DECISION MUST BE ANNULLED .

BY ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS . THEREFORE IT MUST BE ORDERED TO PAY THE COSTS .

THE COURT

HEREBY :

1 . ANNULS THE DECISION OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY OF 3 OCTOBER 1963, AUTHORIZING THE FEDERAL REPUBLIC OF GERMANY TO RETAIN PROTECTIVE MEASURES CONCERNING THE IMPORTATION OF MAIZE, MILLET AND SORGHUM .

2 . ORDERS THE DEFENDANT TO BEAR THE COSTS .