OPINION OF MR DUTHEILLET DE LAMOTHE — CASE 62/70 BOCK v COMMISSION

Mr President,

Members of the Court,

In 1970 the Federal Republic of Germany, for various reasons irrelevant to an understanding of the present case, prohibited the import into territory of mushrooms originating in the People's Republic of China.

It was easy to enforce this prohibition when the German importer wanted to import from China or a third country directly into Germany, that is to say, to effect a straight import, to employ the usual jargon.

On the other hand, the problem was much more delicate when the importer wanted to buy Chinese mushrooms in free circulation in one of the countries of the Community.

Until the issue of Regulation No 865/68 of 28 June 1968 the Federal authorities normally had automatically to issue the licence requested within a very short period since the goods were in free circulation in a Member State.

They could refuse only if they have previously received from the Commission the authorization provided for in the first paragraph of Article 115 of the Treaty, which, in exceptional cases and in particular in cases of deflection of trade, allows a Member State to exclude from Community treatment certain products originating in third countries but already in free circulation in one or more of the other Member States.

Such authorization, as regards mushrooms originating in China, was not requested by the Federal Republic of Germany until 11 September 1970 and was not given by the Commission until 15 September.

It is this situation which is the origin of the present proceedings.

On 4 September 1970 the Book company applied for an import licence for a quantity of Chinese mushrooms valued at DM 150000 in respect of which it had a firm offer and which it claimed to be in free circulation in the Netherlands

On 9 September 1970 it reminded the competent Federal authority, that is to say, the Bundesamt für Ernährung und Forstwirtschaft, of its application.

Finally on 11 September it repeated its application by telex.

This telex message gave rise to lively activity on the part of the Federal authorities. On the same day indeed:

The Bock company made fresh efforts which were unsuccessful.

On 15 September the Commission took the decision requested authorizing the Federal Republic to exclude from Community treatment mushrooms originating in the People's Republic of China in free circulation in the Benelux countries. This decision contained a sentence to which I shall return shortly and which related to applications for licences currently and duly pending before the Federal authorities.

On 21 September the Bundesamt, on the basis of this authorization, expressly informed the Bock company of the rejection of its application.

The Bock company therefore brought an action before the Verwaltungsgericht for a declaration that the Bundesamt had acted illegally.

At the same time it brought the present application before you for the annulment of the provision in the Commission's Decision of 15 September 1970 to the effect that the authorization to exclude the said products from Community treatment likewise covers imports of these products in respect of which applications for licences are currently and duly pending.

I

The first question posed by this case is that of admissibility.

A —. The Commission, by a very subtle argument, maintains, first, that the contested provision was of no concern to the Bock company which cannot therefore rely on the provisions of the second paragraph of Article 173 of the Treaty.

1. The judgment of the Verwaltungsgericht is based not on a breach of Community law but on a breach of obligations derived solely from Federal domestic law; it is therefore extremely difficult to adduce from that judgment a decisive argument for the interpretation of the contested Community measure.

2. It is true that the wording, both in French and German, is ambiguous.

3. Since any literal interpretation is therefore impossible, the meaning of these provisions must, in my opinion, be sought by relating them to the application which was the cause of their adoption and the general context in which the problem was posed for the Commission at the time.

B —. It you accept this, as I do, the second question of admissibility raised by the Commission appears to me relatively more simple.

II

If the application is admissible it seems to me to be well-founded.

The company relies on two substantive grounds: retroactivity and violation of the principle of proportionality.

I should have certain scruples about conceding that the retroactive character which the contested provision possesses to a certain extent and in a certain way would be sufficient, in itself, to justify the annulment of that provision.

The requirements of economic law have already led the Court to reject too narrow a conception of the principle of non-retroactivity.

As I said to you in the Rewe Zentrale case, these requirements must sometimes lead to a distinction being drawn between retroactivity stricto sensu and a new situation which certain contemporary experts in public law call the immediate application of new provisions to pre-existing situations.

In any event, on each occasion mat you have considered to be legitimate what may have appeared to be an encroachment on the general principle of confidence in legal positions you have always stressed that such encroachments are justified by the necessity to infringe a general principle of law to a greater or lesser extent in order to achieve the end pursued.

You have, in fact, by a very original and very interesting construction, to some extent interpreted the principle of non-retroactivity in relation to the principle of proportionality.

This line or decisions, in my view, must lead you in the present case to annul the contested provision on the ground that the extension which it effects of rules laid down for the future to preexisting situations was not absolutely necessary in order to attain the end pursued.

I agree with the Commission when it says that the danger of deflections of trade alone justifies the adoption of the measures provided for by Article 115, and, on this point, the validity of the provisions of the Commission's decision relating solely to the future seems to me indisputable.

However, the risk inherent in not applying those measures adopted for the future to the application, or at most to the two applications, for licences pending before the Federal authorities was really too insignificant, in my opinion, to justify even a slight encroachment on the principle of non-retroactivity.

The Verwaltungsgencht calculated that the licence requested by the Bock company represented 0.08 % of annual imports into the Federal Republic of Germany of the products in question, including imports from Taiwan which were merely subject to a quota.

Even if one admits, as does the Commission, that the Lütjens company's application must be added to that of the Bock company, since, according to the total price known to us, the former application seems to cover a quantity slightly less than, or at most equal to, the quantity which the Bock company wanted to import, one arrives at the conclusion that the maximum tonnage for which licences were pending at the date in question represented at most 0.15 or 0.16 % of Federal imports of the product in question.

This is certainly an extremely small quantity.

In these circumstances it seems to me difficult to concede that the desire to prevent operations on such a small scale could justify the application of provisions adopted for the future to operations already undertaken.

There remains to be considered a matter of form raised by the applicant.

The latter maintains mat under Article 115 of the Treaty the Commission, when it has before it an application by a Member State for the exclusion from Community treatment of goods originating from one or more other Member States, must address a recommendation to the State or States in question, and that it is only failing this', that is, in the absence of any result from this recommendation, that the Commission can authorize exclusion from Community treatment.

The applicant's interpretation of Article 115 of the Treaty appears to me to be correct.

The procedure provided seems to me to comprise two stages:

It is true that in the French and Italian versions of the Treaty the provision to be interpreted is not very clear on this point, but the German and Dutch versions are much more explicit.

It is also true that in the present case no recommendation was addressed to the Benelux countries before the authorization was granted by the Commission to the Federal Republic of Germany.

Nevertheless, it seems to me that the submission cannot be accepted for two reasons, the second of which, in my opinion, is of a very subordinate nature.

In fact, the Commission has explained to you, and has certainly convinced me, that although it had not formally made a recommendation, it had, for a very long time, and on numerous occasions, made representations to the Member States concerned without obtaining any result and that the situation would almost certainly not have changed if it had made a formal recommendation.

In these circumstances, the omission or a formality which was known to be futile would not constitute, in my opinion, a defect sufficiently substantial to vitiate the contested provision.

However, as I have just said, the provision seems to me defective for reasons not of form but of substance.

My conclusion is that it should be annulled and that the Commission should bear the costs.

1 Translated from the French.