Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

In this reference for a preliminary ruling by the Verwaltungsgericht (Administrative Court) Frankfurt which I deal with today, we are concerned with the validity of the Commission's Regulation No 1643/71 of 28 July 1971 having as its purpose introducing a system of minimum prices for imports of tomato concentrates from Greece (OJ L 171, 30. 7. 1971).

In this connection, one might first of all mention the following.

Tomato concentrate under Tariff No 20.02 is within the ambit of the common organization of the market in products processed from fruit and vegetables, created by Council Regulation No 865/68 of 28 June 1968 (OJ L 154, 1. 7. 1968). This organization of the market provided the application of the common customs tariff in relation to third countries only, it did not however contain a protective clause, since it did not yet effect the coordination and unification of import regulations which individual Member States applied towards third countries. This gap was filled by Council Regulation No 1427/71 of 2 July 1971 introducing protective measures for products processed from fruit and vegetables (OJ L 151, 7. 7. 1971). Article 1 provides inter alia: 'If by reason of imports the Community market in one or more of the products listed in Article 1 of Regulation (EEC) No 865/68 experiences or is threatened with serious disturbances which may endanger the objectives of Article 39 of the Treaty, appropriate measures may be applied in trade with third countries until such disturbances or threat of disturbance has ceased. In this respect, there was promulgated on the same day the Council Regulation No 1428/71 for laying down modes of application in relation to protective measures for products processed from fruit and vegetables (OJ L 15, 7. 7. 1971) . In this Regulation there must first of all be mentioned Article 2 (1) which reads the measures which may pursuant to Article 1 (2) and (3) of Regulation (EEC) No 1427/71 be taken upon the occurrence of the situation mentioned in paragraph (1) of this Article are as follows: (a) a complete or partial cessation of imports or exports; (b) a system of minimum prices below which imports may be made dependent upon their taking place at a price in excess of the minimum price laid down for the relevant product. This regulation was, in the first instance, applicable until 30 June 1972; its validity was then by Regulation No 1374/72 (OJ L 149, 1. 7. 1972) extended by one year.

Due to the increase of imports of tomato concentrates into the Community, having regard to the market prices likewise applicable to products from third countries (prices which lay considerably below cost price of processing plants within the Community), bearing in mind the fact that in the main producing areas within the Community a number of tomato processing plants had to cease their activity; finally faced with the threat of a possible surplus of a least 200000 tons of fresh tomatoes during the marketing year 1971, the Commission, in the summer of 1971, thought it necessary to make use of the possibilities afforded by Regulation No 1427. To this end it promulgated Regulation No 1558/71 of 20 July 1971laying down protective measures applicable to imports of tomato concentrates (OJ L 164, 22. 7. 1971). This introduced a system of import licences for limiting imports, without limitation of time. Excepted were imports from Greece and that having regard to the special system governing trade with that country created by the association agreement, or to be more precise Article 41 of that agreement which reads: In so far as the gradual removal of customs duties and quantitative restrictions between the contractual parties might lead to prices that would tend to jeopardize the objects of Article 39 of the Treaty founding the Community, the Community on the one hand as from the date of coming into operation of the common agricultural policy, and Greece on the other hand as from the date of coming into force of this agreement, may in relation to certain products apply a system of minimum prices below which the importation may be either temporarily stopped or limited; or maybe made subject to a condition that it shall take place at prices in excess of the minimum prices laid down for the product concerned.

Having regard to this provision, the previously mentioned Regulation of the Commission No 1643 was promulgated in relation to the importation of tomato concentrates from Greece. I must now draw your attention to Article 1 in that regulation according to which all imports of tomato concentrates from Greece falling within the sub-heading No ex 20.02 C of the Common Customs Tariff shall be subject to the submission of an import licence. In this connection Article 2 provides:

Finally in Article 8 it is stated: Proof of compliance with the minimum price shall be furnished by submitting to the body which issued the licence:

This Regulation came into force on 1 August 1971 and it evidently still remains in force today. For the sake of completeness one ought to add in this context, that the requirement of an import licence and the restrictions on imports as already provided for in Article 1 (4) of Regulation No 1558, was subsequently lifted as regards some countries that had agreed to the guarantee for observing a particular minimum price. This happened in relation to Spain, Portugal and Morocco by Regulation No 1738 of 6 August 1971 and in relation to Tunisia and Switzerland by Regulation No 1786 of 13 August 1971. In this connection the minimum price was by way of agreements fixed at a level which allowed imports from Greece a preference of approximately 4 %.

This Regulation is likewise of importance for the plaintiffs in the national proceedings, the firma Schroeder, a commercial undertaking resident in Hamburg. On 10 September 1971 they made application to the Bundesamt fur Ernährung und Forstwirtschaft (the Federal Office for Food and Forests), the competent German authority, to grant them a licence for the importation from Greece of tomato concentrate in tins, belonging to Tariff No 20.02. This application was however rejected, since Schroeder were not prepared to comply with the conditions mentioned in Article 2 of Regulation No 1643. Schroeder unsuccessfully appealed against this rejection and finally applied to the Verwaltungsgericht in Frankfurt.

By way of motivation of their point of view, they submit that Article 2 of Regulation No 1643 offends against Article 39 (1) (c) of the EEC Treaty and against Article 1 (1), first sentence: or to express it more precisely, that the minimum price system introduced by the Commission was because of existing possibilities of circumvention, not suitable to bring about the market stabilization that was desired. Furthermore, they claim that the Commission had not observed the order of priority in Regulation No 1428 (which refers in the first place to complete or partial cessation of imports and only thereafter to the introduction of a system of minimum prices), that the Commission had wrongly proceeded from the assumption that the conditions precedent for applying protective measures (serious market disturbances) existed and that they had fixed the minimum prices at too high a point, i.e. with prohibitive effect.

Since the doubts raised in relation to the validity of Regulation No 1643 did not appear entirely untenable to the Verwaltungsgericht in Frankfurt, the court by order dated 19 June 1972 adjourned the proceedings and referred the following question for a preliminary ruling:

I will now deal with these questions in detail.

1 Translated from the German.