Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

By the Invoerbesluit landen 1963 [Import (Countries) Order 1963], which was made pursuant to the In- en Uitvoerwet [Import and Export Law] and whose period of validity was extended by a Law of 16 February 1978, it is prohibited in the Netherlands to import goods from Czechoslovakia without the authorization of the Minister for Economic Affairs. So far as handkerchiefs in particular are concerned, until 1978 import licences were issued as requested until the Minister, having regard to the quantities already imported and after consulting the ministers responsible in the other Benelux countries, took a decision to the contrary effect.

It was provided in Council Decision 79/252 (Official Journal 1979, L 60, p. 1), which was adopted on 21 December 1978 and took effect on 1 January 1979, that in 1979 the Benelux States were to open a quota of 3393000 items for imports of handkerchiefs from Czechoslovakia (see Annex IX to that decision). By a ministerial decision the share of the quota assigned to the Netherlands was allocated in proportion to imports of handkerchiefs from Czechoslovakia in 1977.

The plaintiff in the main action is the representative of a Prague undertaking, Centrotex, which intended to supply handkerchiefs to two Netherlands companies, Peijnenborg's Handelsmij BV and Grotex-Textiles BV. It receives a commission from the Prague undertaking on such exports which is naturally not forthcoming if no goods are supplied because an import licence has been refused.

However, in February 1979, under the rules just described neither of the aforementioned Netherlands companies was granted permission to import cotton handkerchiefs from Czechoslovakia. In the case of Grotex, which had not apparently undertaken any imports of that kind in 1977, a licence was still refused after objections had been raised, whilst in Peijnenborg's case imports were subsequently allowed.

That caused Toneman to initiate court proceedings in which it sought to have the decision refusing an import licence set aside, as well as payment of damages. Toneman relied on the fact that for many years the importation of handkerchiefs from Czechoslovakia had been unrestricted in practice since import licences were issued automatically, it argued in particular that the publication of the decision on the opening of the quota must be regarded as being late because it did not take place until 12 March 1979. Traders concerned should have been given due notice of the import restrictions so that they could have borne them in mind when concluding transactions. At any rate, transitional rules should have been introduced for contracts already concluded.

Accordingly, for the court seised of the proceedings, which considers the action inadmissible in so far as it relates to the decision addressed to Peijnenborg, the question arises whether in such a case there is not a requirement under Community law to give public notice of the products for which an import licence is required and the procedure whereby import licences are issued in view of Article 4 of Regulation No 1023/70 of the Council of 25 May 1970 establishing a common procedure for administering quantitative quotas (Official Journal, English Special Edition 1970 (I), p. 303) which reads:

Not later than three weeks after each quota allocation the Member States shall make known, by official publication, the products which may be imported or exported and the procedure whereby import or export of such products is to be authorized ....

The court consequently stayed the proceedings and submitted the following questions for a preliminary ruling under Article 177 of the EEC Treaty:

My opinion on these questions is as follows :

1. I think it appropriate to preface my opinion with a few general observations on the law of the Community governing external trade as it is applied in regard to State-trading countries.

2. I turn now to the first question which seeks to determine whether the requirement of publication which is laid down in Article 4 of Regulation No 1023/70 has application to import quotas which the Member States have opened in accordance with Article 3 of Decision 79/252. As the Commission and the Netherlands Government are at one in demonstrating, the answer to that question can only be in the negative.

3. In view of the clear outcome to which the examination of the first question leads, the second question, which was put in the event of the first question being answered in the affirmative, need not be considered further.

4. Accordingly, in my opinion the reference from the College van Beroep voor het Bedrijfsleven should be answered as follows :

1 Translated from the German.