OPINION OF MR ROEMER — JOINED CASES 51 TO 54/71 INTERNATIONAL FRUIT COMPANY v PRODUKTSCHAP GROENTEN EN FRUIT

Mr President,

Members of the Court,

The cases referred for a preliminary ruling to be dealt with today, which were submitted to you by the College van Beroep voor het Bedrijsleven, a Netherlands court of last instance having jurisdiction in economic matters, and which were joined for the purposes of the oral procedure by a decision of the Court of 10 November 1971, have their origin in events which were in part dealt with in Joined Cases 41 to 44/70 ([1971] ECR 411). I can accordingly refer, so far as the essential matters are concerned, to the account of the facts given at the time in the opinion and in the judgment and at this point I need only recall certain aspects or elaborate upon them.

The measures at issue in the main action were adopted under the common organization of the market in fruit and vegetables. As the Court is aware that organization of the market was established by Regulation No 23 of the Council of 4 April 1962 (OJ, English Special Edition, 1959-1962, p. 97), as supplemented by Regulation No 159/66 of 25 October 1966 (OJ No 192 of 27 October 1966, p. 3285) and that by means of Regulation No 2513/69 of the Council of 9 December 1969 (OJ 1969, L 318, p. 6) it effected a comprehensive harmonization of the rules governing imports from third countries. Accordingly, from 1 March 1970 a complete liberalization was effected in principle with regard inter alia to dessert apples, that is to say, there was a prohibition on the application to imports of the relevant products from third countries of quantitative restrictions or measures having equivalent effect. However, Regulation No 2513 also introduced a safe-guard clause relating to trade with third countries. The conditions for its application and the details of the measures to be adopted are set out in Regulation No 2514/69 of 9 December 1969 (OJ 1969 L 318, p. 8). At the request of the French Government this safeguard clause was applied in the spring of 1970 on the ground that at that time a difficult situation prevailed on the market in apples in the Community. Accordingly a system of licences for the import of dessert apples from third countries was established for the period from 1 April to 30 June 1970 by Regulation No 549 of the Commission of 11 March 1970 (which entered into force on 15 March 1970 [OJ 1970, L 57, p. 20]). The details of its operation may be recalled from Cases 41-44/70. At present I only wish to mention that on the basis of this regulation and subsequent regulations (in particular Regulation Nos 565, OJ 1970 L 69, p. 33, 686, OJ 1970, L 84, p. 21 and 983/70, OJ 1970, L 116, p. 35) applications for a licence made in the week ending on 22 May 1970 might only be granted to the extent of 80 % of a reference quantity. Consequently it was necessary to dismiss the applications made on 19 May 1970 by four import firms established in Rotterdam, the plaintiffs in the main action. This was notified to the importers on 2 June 1970 by decision of the Produktschap voor groenten en fruit, a Netherlands body governed by public law responsible for economic management in the sector of the organization of the market in fruit and vegetables.

As the Court knows, the importers concerned thereupon brought the matter before the Court. Nevertheless the applications which they made in Joined Cases 41-44/70 for the annulment of the measures taken by the Commission proved unsuccessful: the applications were dismissed as unfounded in a judgment of 13 May 1971. Furthermore, the importers concerned contested the said decision before the College van Beroep voor het Bedrijsleven. Even after delivery of the judgment in Cases 41-44/70 these proceedings were continued since the plaintiffs considered that they could succeed on the basis of various arguments which were not discussed in the proceedings which took place before the European Court of Justice, in particular on the basis of the argument that the defendant Netherlands authority had acted without being competent to do so. In this connexion it is necessary to know the following details of Netherlands law. It is provided in the In- en Uitvoerwet (Law on Imports and Exports) of 5 July 1962 that the executive may issue rules with respect to imports and in particular rules containing a prohibition on imports without an authorization from the Minister. It is provided in Article 2 of the In- en Uitvoerbesluit landbouwgoederen 1963 (order governing the important exports of agricultural products) that the importations of the goods listed in Annex A (including apples) is prohibited without a licence from the Minister for Agriculture and Fisheries. The order further provides in Article 12 that the said Minister may also lift this prohibition. This was done in the Vrijstellingsbeschikking landbouwgoederen EEC 1968/1 which entered into force on 1 November 1968. It authorized an individual exemption from the prohibition of Article 2 of the decision of 1963 with regard to the importation of the products listed at B in Annex II to decision II of 1968 on the system of agricultural levies and refunds (Beschikking landbouwheffingen en restitutieregime 1968) and in addition for the other goods referred to by the regulations issued by the Council listed in Annex I to the Beschikking (in particular, Regulations Nos 23 and 159/66) for which, in accordance with those regulations, it was laid down that an import certificate need not be submitted so far as they were not freely marketed in the Community (this was applicable inter alia to dessert apples). An amending regulation which entered into force on 1 April 1970 further supplemented the first decision of 1968 in that the words or import licence were inserted after the word import certificate. In addition, it should also be stated that in pursuance of Article II of the Law on Imports and Exports the Minister may delegate certain of his powers to the management of a Produktschap. What is now relevant in this respect is that, pursuant to the Over-drachtsbeschikking In- en Uitvoerwet 1968 the Minister for Agriculture and Fisheries delegated to the Produktschap voor groenten en fruit the powers conferred on him under the In- en Uitvoerbesluit landbouwgoederen 1963 relating to the issue of licences for goods coming under Regulation No 23 and Regulation No 159/66 and imported after 31 October 1968. It should finally be mentioned that pursuant to Article 5 of this Overdrachtsbeschikking the board of the Produktschap, in exercising the powers delegated to it, is bound to Observe the provisions of the regulations issued and to be issued by the Council of Ministers of the EEC on the trade in goods falling under Regulations Nos 23 and 159/66, as well as the corresponding provisions on exports.

The arguments of the plaintiffs in the main action were formulated with reference to those provisions. On the one hand they take the view that under the EEC rules on licences laid down by Regulation No 459 of the Commission it was mandatory that administrative authorities should be entrusted with their implementation by means of an express, special delegation. On the other hand neither the authorization of the Minister for Agriculture under the national licence system of 1963 and subsequent implementing measures nor the Minister's delegation to the Produktschap was sufficient for this purpose. Furthermore the plaintiffs consider that since 1 March 1970 (when Article 1 of Regulation No 2513 entered into force) the Netherlands licensing system established by the 1963 rules (prohibition of imports without a licence) was, as from 1 March 1970 (entry into force of Article 1 of Regulation No 2513), no longer compatible with the prohibition on quantitative restrictions set out in that provision and was consequently invalid at that time. On these grounds it could properly be found that the Produktschap had no jurisdiction to implement the protective system established by the Commission.

The court to which the parties applied apparently takes the view that questions have been raised on the interpretation of Community law which are relevant to the decision in the proceedings. Consequently by a judgment of 30 July 1971 it stayed the proceedings and submitted the following questions for a preliminary ruling:

Let us now consider what is to be said regarding these questions on which written observations were lodged by the plaintiffs in the main action, the Netherlands Government and the Commission of the European Communities, but on which only the Commission submitted oral observations.

1. In the first question the court making the reference manifestly had in mind Article 1 of Regulation No 459 according to which the Member States shall issue import licences, after the Commission has taken an appropriate decision upon being informed of the application made for licences, of the quantities mentioned in them and of the import months to which they relate. If it is asked in this respect whether Community law implies that the Member States may delegate these powers and duties to ad-ministratiive authorities solely by express provisions the answer to be given can be relatively short.

2. In the second question the court making the reference inquires as to the relevant definition of the concept quantitative restrictions and measures having equivalent effect which is contained in several articles of the Treaty in very similar wording and also in relation to exports and in Community regulations, especially in Article 1 of Regulation No 2513/69. In this connexion the court wishes to know whether the concept is to be understood in the sense that national rules are included which prohibit imports and exports without a licence if their rules are not in fact applied, or, because provision is made for exemption from hem, or licences are always issued on request (the so-called toute licence accordée system).

3. I accordingly suggest the following answer to the questions which have been put:

1 Translated from the German.