JUDGMENT OF 18.2.64 — JOINED CASES 73 AND 74/63 HANDELSVERENIGING ROTTERDAM v MINISTER VAN LANDBOUW

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

THE COURT composed of: A. M. Donner (Rapporteur), President, Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux, R. Rossi, R. Lecourt and W. Strauß, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

(a) Case 743

Decisions of the College van Beroep voor het Bedrijfsleven

(b) Case 73/63

II — Observations submitted u nder Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Question 1 :

Question 2 (a) :

Question 2 (b):

Question 3 (a) :

Question 3(b):

The second part of Question 3 (b):

The Government of the Federal Republic of Germany observes inter alia:

A — Admissibility

Question 1:

Question 2:

Question 3

B — The Answers to the Questions

Question 1:

Question 2:

Question 3:

III — Procedure

Grounds of judgment

Costs

I —. Facts

(a). Case 743

I. (a) The Heffingsbeschikking Fondantmassa 1960 conflicts with Article 12 of the EEC Treaty, for it was adopted after 1 January 1958 and creates a duty which did not exist before that date. (b) The Heffingsbeschikking also conflicts with Article 16 of the Treaty. (c) In view ot the regulations, decisions and orders of the Council of the EEC dated 4 April 1962 (Official Journal 1962, No 30), the duty on the export of fondant paste amounts to submitting the product in question to the EEC Treaty provisions relating to agriculture, contrary to Article 38 (3) of the Treaty.

II. The illegality ot the export duty on fondant paste, which becomes apparent when this duty is examined in the light of the Treaty, is not affected by the Decision of the EEC Commission of 27 July 1960, and the subsequent Decisions.

1. 1 he claim that the Heffingsbeschikking Fondantmassa-I960 is not binding upon the parties concerned because it conflicts with Articles 12 and 16 of the EEC Treaty is misconceived, because Article 226 (3) of the Treaty provides expressly that the measures authorized under paragraph (2) may involve derogations from the rules of the Treaty. The fact that the Heffingsbeschikking does not refer to the Commission's Decision changes nothing; provided the power exists, a reference to it is not essential.

2. The opinion of the plaintiffs that the application of Article 226 to fondant paste (a product which does not appear in Annex II to the Treaty) in fact subject it to the special provisions relating to agriculture is mistaken; in view of the similarity between Articles 46 and 226 of the Treaty the same could be said of every application of Article 226 to any product whatsoever.

3. As for the plaintiffs argument that, by virtue of Article 226, the Commission could only authorize Germany (the importing country) to take protective measures and not the Netherlands (the exporting country) to impose an export duty, it must be emphasized that the Decision did not authorize the Netherlands to impose an export duty but subjected the authorization given to the Federal Republic to the condition: in so far as the exporting Member State does not apply the said duty on export.

4. As for the plaintiffs argument that the conditions imposed by226 (1) for the grant of an authorization were not fulfilled in this case, the defendant considers that the preamble to the Commission's Decision contains sufficient factual particulars to prove that it did in fact satisfy these conditions.

(b). Case 73/63

II —. Observations submitted u nder Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. Apart from certain narrowly formulated questions, there is also raised the general question whether it can be concluded on other grounds that the Decision is invalid because it contravenes the law of the European Communities.

2. The difficulties which are the subject of the unpublished Decision of the Commission reside chiefly in the fact (mentioned in the preamble to the Decision granting the authorization of 27 February 1962, Official Journal pp. 861 /62 and 862/62) that countries exporting fondant paste generally grant a drawback in order to reduce sugar prices to the level of the world market. However, Articles 10 and 92 to 94 were intended to apply in such cases, and therefore by applying Article 226 instead — or before — the Commission has infringed the Treaty.

3. The arguments used by the Commission in the preamble to support the existence of serious difficulties liable to persist are inadequate. The Commission states that the German fondant paste manufacturing industry has been almost completely paralysed by the increase in imports (from 3000 metric tons in 1957 to 16000 metric tons in 1959). This is disputed by the plaintiffs, who say that in any case the Commission should have produced figures in support.

4. Decisions of the Commission may be judged according to the requirements normally applicable to the drafting of legislation. Any authorization granted to exporting Member States should therefore be clearly apparent from the wording of the decision. It is otherwise in the case of provisions of the Treaty which may not be altered, for example Article 46 of the EEC Treaty where some attempts at interpretation may perhaps be made.

A —. Admissibility

1. Part (a) of this question raises a problem concerning the interpretation of Article 226 of the Treaty and part (b) goes on to ask whether the Decision is therebyinvalid. The word thereby indicates that the two parts of the question are to be taken as a whole. It is evident that the College regards Question (b) as the crucial one since the purpose of this question is to ascertain whether the Decision granting the authorization is rendered invalid on the ground of an abuse of powers with the result that Article 12 remains fully applicable.

2. If the Court is of the opinion that the mere fact that Question 2 (a) has been made the subject of a reference is sufficient indication that the court making the reference considered a ruling on it to be necessary within the meaning of the second paragraph of Article 177, then one might ask oneself whether this view, representative of the present case law, ought not to be qualified in some way.

3. If one adheres to this view, the admissibility of Question 2 (a) will depend on whether the legality of a decision addressed to a Member State can be raised in the context of a reference for a preliminary ruling. One must begin with the wording of the Treaty when examining this problem, for while Article 177 uses the word validity, referring to the formal features of a legal act, Article 1 73 provides for a review of legality.

B —. The Answers to the Questions

III —. Procedure

On those grounds, Upon reading the pleadings; Upon hearing the report ot the Judge-Rapporteur; Upon hearing the plaintiffs in the main action, the Commission of the European Economic Community and the Government of the Federal Republic of Germany; Upon hearing the opinion ol the Advocate-General; Having regard to the Treaty establishing the European Economic Com munity, especially Articles 12, 16, 177, 191, 226 and 235; Having regard to the Protocol on the statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to the judgments of the Court of Justice in Cases 26/62 and 28 to 30/62; 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 decision on the costs in these proceedings is a matter for the College van Beroep voor het Bedrijfsleven