Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

Article 29 (1) of Regulation No 1035/72 of the Council on the common organization of the market in fruit and vegetables (Official Journal, English Special Edition 1972 (II), p. 437) as amended by Regulation No 2454/72 of the Council (Official Journal, English Special Edition 1972 (November), p. 60) provides :

By Article 29 (2) the Commission is to lay down provisions for the application of that paragraph. Article 29 (2) further provides that if the situation mentioned in paragraph (1) arises the Commission is to decide upon the necessary measures and the measures are to be communicated to the Member States and are to be immediately applicable.

The conditions for the application of protective measures in the fruit and vegetable sector were laid down in Regulation No 2707/72 of the Council (Official Journal, English Special Edition 1972 (28-30 December), p. 3). Article 1 thereof provides :

Article 3 states:

In the spring of 1979 the Commission came to the conclusion that it should use those provisions once it had determined that the production of apples in the current marketing year had considerably exceeded that of the previous year, that the stocks still available were substantially higher than those at the same period in the two previous years, that producer prices in several Member States were at a particularly low level in relation to the basic price and that the quantities available for export in the then current marketing year in the countries of the southern hemisphere seemed to be considerably larger than in previous years. However, at the beginning of March it first tried through negotiations with the most important supplier countries to achieve a reduction of the probable exports of 380000 tonnes, of which 75000 tonnes were to come from Chile, to 310000 tonnes. It was able to reach an agreement with South Africa, Argentina, Australia and New Zealand. Chile on the other hand insisted on being able to export at least 55000 tonnes to the Community because export contracts had already been concluded for that quantity. On the assumption that the Community market could not, without creating a disturbance, absorb more than 310000 tonnes, of which 42000 tonnes were to be allocated to Chile after a proportionate reduction of the probable exports, the Commission therefore set out to achieve that object with regard to Chile by the use of unilateral protective measures.

With that aim in view, and because from information available to it on goods already in the course of transit or recently loaded on board ship it was to be expected that the amount in question would be reached on 25 April, the Commission, on 5 April 1979, adopted Regulation No 687/79 (Official Journal L 86 of 6 April 1979, p. 18). Article 1 thereof provided that the placing in free circulation of apples falling under subheading 08.06 A II of the Common Customs Tariff originating in Chile was to be suspended during the period 25 April to 15 August 1979. At the same time by a note verbale of 6 April 1979 the Commission notified the Chilean Government that it was prepared to reconsider the measure adopted if imports had not reached the stated amount (42000 tonnes) on 25 April.

The Commission was informed by an aide-mémoire from the Chilean Embassy of 17 April 1979 that three ships with a cargo of 6400 tonnes which had been taken into account in the earlier estimates would not arrive in the Community before 25 April and on 23 April 1979 it adopted Regulation No 797/79 (Official Journal L 101 of 24 April 1979, p. 7) in order to make those imports possible but also to ensure that there were no further imports. Article 1 thereof added the following provision to Article 1 of Regulation No 687/79:

On 5 May 1979 it became clear that certain quantities of Chilean apples previously taken into account were not destined for the Community market and that only 38600 tonnes of the quantity allocated to Chile had been imported. As it was known that two ships with a cargo of 3800 tonnes had reached the Community between 5 and 19 May — the goods having been put in a customs warehouse — on 12 June 1979 the Commission adopted another regulation, No 1152/79 (Official Journal L 144 of 13 June 1979, p. 13) which replaced the second paragraph of Article 1 of Regulation No 687/79 with the following paragraph :

Thus apparently a total of 42400 tonnes of Chilean apples was allowed to be imported into the Community in 1978/79.

Firma Dürbeck, an importer and wholesaler of fruit and vegetables and the plaintiff in the main action, had made contracts for the import from Chile of 300000 boxes of apples of which only 180000 boxes had been imported when Regulation No 687/79 was adopted. The remainder was to be loaded so as to enable the ship to leave port in Chile between 18 and 20 April 1979. In view of the measures adopted by the Commission and because the Commission had not granted an application made to it in telex messages of 10 and 12 April 1979 to make an exemption in the case of 2000 tonnes, Dürbeck cancelled its purchase and affreightment contract.

In order to be able to test the legality of the measures adopted by the Commission and perhaps also in order to prepare the way for an action for damages which was subsequently brought against the Commission (see Case 11/81) on 25 July 1979 Dürbeck imported by air two cartons of Chilean apples weighing 45 kilograms. The Hauptzollamt Frankfurt am Main-Flughafen refused to allow them to be released into free circulation on the ground of Commission Regulation No 687/79.

Dürbeck brought the matter before the Hessisches Finanzgericht on the ground that the regulations adopted by the Commission, which I have already mentioned, were invalid. It alleged that the Commission had not made a diligent inquiry into and assessment of the facts as required by the Community provisions referred to. Moreover the Commission regulations offend against the principle of the protection of legitimate expectation and the prohibition of discrimination. Finally the measures adopted should be treated as inadmissible because they infringe Article 110 of the EEC Treaty ih conjunction with the provisions of GATT and the provisions of international commercial law.

In view of those arguments, by an order dated 24 March 1980 the Hessisches Finanzgericht stayed the proceedings and submitted the following question for a preliminary ruling under Article 177 of the EEC Treaty:

Before dealing with this question I would point out that in view of the measures which had been adopted the Chilean Government sought consultations in accordance with Article XXIII (2) of GATT and as a result a working group met on 24 March 1980 and 18 June 1980. The Commission's representative informed us in the oral procedure about the results of those investigations.

Moreover the Commission measures in issue here have been contested in three further sets of proceedings (Cases 201, 202 and 253/80) which have been brought directly before the Court under the second paragraph of Article 215 of the EEC Treaty by other undertakings. In so far as additional arguments about the legality of the measures which were adopted have been advanced in those proceedings I will of course deal with them here, too. For, even if it is not obliged to do so when considering a matter of validity under Article 177 of the EEC Treaty, the Court of Justice should in my view nevertheless still include in its examination actions concerning the same issue.

1. I must preface my opinion with a brief remark on the matter of admissibility. Although it is not expressly questioned by the Commission it does however indicate in its written submissions that it regards the method of importation at issue in the main action, the importation by air of a small quantity of Chilean apples, as wholly out of the ordinary.

2. It is clear from the legal grounds on which the Commission measures were based and which I described at the beginning of my opinion that investigations of an economic nature — into the situation on the Community market and the effect of imports thereon — are of great importance in answering the question which has been raised. Before I go into them I should like to start with some purely or mainly legal considerations to which the submissions in these proceedings and in the actions for damages give rise.

3. I now come to the heart of the proceedings, namely the question whether the Commission correctly assumed in the spring of 1979 that serious disturbances were to be expected on the Community market in dessert apples owing to imports. We must determine in particular, as Regulation No 2707/72 requires, which findings the Commission arrived at and was properly entitled to arrive at with respect to the volume of probable imports, the quantities available on the common market, the prices of domestic produce on the common market and the quantities for which withdrawals were or might be effected; then we must consider whether the supension of imports from Chile appears justified.

4. The next matter requiring examination is whether the Commission regulations are invalid for offending against the principle of the protection of legitimate expectation, which is the view taken by the plaintiff in the main action.

5. The plaintiff in the main action has claimed that a further ground of invalidity is the breach of the prohibition of discrimination.

6. Finally, it is still necessary to consider whether there is anything in the plaintiff's allegation that Articles 39 and 110 of the EEC Treaty and provisions of GATT have been infringed.

7. In conclusion I can accordingly only propose that a reply should be sent to the Hessisches Finanzgericht to the effect that no factors have emerged in the proceedings which would lead to the conclusion that Regulations Nos 687/79, 797/79 and 1152/79 are void.

1 Translated from the German.