JUDGMENT OF 25.3.1981 — CASE 109/80 TONEMAN v MINISTER FOR ECONOMIC AFFAIRS

In Case 109/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry] (Netherlands) for a preliminary ruling in the action pending before that court between

THE COURT (Third Chamber) composed of: J. Mertens de Wilmars, President, Lord Mackenzie Stuart and U. Everling, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure.

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations of the Netherlands Government

B — Observations of the Commission

First question

Second question

III — Oral procedure

Decision

Costs

I —. Facts and written procedure.

(a). 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) contains provisions which apply to quantitative import and export quotas which the Community has fixed unilaterally or by agreement. It lays down the procedures by which those quotas are fixed and allocated by the Council and administered by the Member States. Article 4 of that regulation provides amongst other things that 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.

(b). Council Decision 75/210 of 27 March 1975 on unilateral import arrangements in respect of State-trading countries (Official Journal 1975, L 99, p. 7), provides, in regard to the State-trading countries listed in the annex to that decision, which include Czechoslovakia, for the opening by Member States of the import quotas indicated in respect of each Member State and each country in question in a list appended to that decision. Decision 75/210 contains a number of rules concerning the procedures to be followed by Member States when amending their unilateral import arrangements in regard to the countries in question. The second paragraph of Article 1 of that decision also states that the decision providing for the opening of quotas by the Member States shall not affect Member States' rules governing the opening and administration of quotas. Under Article 8 of the decision the Council is to adopt each year any amendments which it appears necessary to make for the following year to those quotas. As regards 1979, the list of quotas was adopted by Decision 79/252/EEC.

II —. Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations of the Netherlands Government

B —. Observations of the Commission

III —. Oral procedure

1. By order dated 25 March 1980, which was received at the Court on 8 April 1980, the College van Beroep voor het Bedrijfsleven referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation 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).

2. Those questions have been raised in an action pending before that court between Handelsonderneming C. Toneman BV, the plaintiff in the main action, (hereinafter referred to as Toneman) and the Minister for Economic Affairs of the Netherlands concerning the refusal of the competent Netherlands authorities to grant an importer licences for the import of handkerchiefs from Czechoslovakia.

3. In 1979 the importation of handkerchiefs into the Netherlands from Czechoslovakia, which already required the issue of import licences, became subject to a quota system. The quota in question had been adopted on the basis of Council Decision 79/252/EEC of 21 December 1978 amending the unilateral import arrangements in respect of State-trading countries (Official Journal 1979, L 60, p. 1). In Article 3 thereof that decision provided that Member States were to open import quotas and, in Annex IX thereto, that the quota for the import of handkerchiefs from Czechoslovakia into the Benelux countries was to be 3393000 items. According to the order making the reference for a preliminary ruling, the Netherlands Minister for Economic Affairs decided to distribute that part of the Benelux countries' quota allocated to the Netherlands on the basis of imports of handkerchiefs from Czechoslovakia during 1977. Since the importer concerned in this case had not imported handkerchiefs from Czechoslovakia during the reference period the import licences for 1979 for which the importer applied were refused.

4. Toneman appealed to the College van Beroep voor het Bedrijfsleven against that refusal on the ground that the decision of 21 December 1978 on the opening of the quota in question, which entered into force on 1 January 1979, had not been published in the Official Journal of the European Communities until 12 March 1979, that the Netherlands authorities had never given any general notification of the imposition of the quotas in question, and that the traders concerned had not been informed of that measure in good time.

5. The College van Beroep voor het Bedrijfsleven took the view that the outcome of the dispute depended on the interpretation of Community provisions on the imposition of quotas and referred to the Court of Justice for a preliminary ruling two questions on the interpretation of Article 4 of Regulation No 1023/70 of the Council and the effects of any failure to comply with that provision.

6. The first of those questions is worded as follows :

7. Article 4 of Regulation No 1023/70 provides that 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.

8. The Commission and the Netherlands Government consider that that provision applies only to Community quotas and not to national quotas which in certain cases continue to exist, with the Community's permission, in regard to State-trading countries. The quota involved in this case is such a national quota.

9. The answer to the question submitted by the national court should be sought both within the context of the Community provisions on the imposition of quotas and from the wording of those provisions.

10. When a common commercial policy was introduced after the expiry of the transitional period, Regulation No 1023/70 of the Council laid down, in the case of products whose import was not liberalized, Community provisions on quantitative import quotas and in particular it specified the procedures by which those quotas are to be fixed and allocated by the Council and administered by the Member States. However, since it did not appear possible to establish a Community system in all cases, Council decisions allowed Member States to retain the right to maintain national quota arrangements in certain cases. That was so in particular in the case of Council Decision 75/210 of 27 March 1975 on unilateral import arrangements in respect of State-trading countries (Official Journal 1975, L 99, p. 7), as amended by Council Decision 79/252 of 21 December 1978, pursuant to which the quota in issue was imposed in the Netherlands. According to the recitals in the preamble to Decision 75/210, those arrangements are to apply pending the conclusion of trade agreements between the Community and the various State-trading countries covering inter alia the arrangements to be applied to imports into the Community from those countries and common import arrangements are to be gradually introduced.

11. It is in keeping with the existence of two kinds of quota arrangements that by virtue of Article 1 thereof the provisions of Regulation No 1023/70 apply to the administration of all quantitative import quotas ..., whether autonomous or conventional, established by the Community and therefore, as is stated in the second recital in its preamble, to Community quotas, whereas the first paragraph of Article 1 of Decision 75/210, as amended by Article 3 of Decision 79/252, provides that the quotas involved in the case of measures taken pursuant to that provision are quotas which the Member States shall open and therefore national quotas.

12. Furthermore, the second paragraph of Article 1 of Decision 75/210 states that Member States' rules governing the opening and administration of quotas are not to be affected. Accordingly, the rules and procedures which had to be observed by the Netherlands authorities when adopting the quota measure in issue, particularly those concerning any publication of the measure, were those stipulated by the applicable national law and not those laid down by Regulation No 1023/70 in the case of Community quotas.

13. The answer to the first question put by the College van Beroep voor het Bedrijfsleven should therefore be that Article 4 of Regulation No 1023/70 of the Council does not apply to import quotas to be opened by Member States in regard to State-trading countries under Article 3 of Council Decision 79/252 of 21 December 1978.

14. Since the second question put by the College van Beroep voor het Bedrijfsleven was put only in the event of the first question's being answered in the affirmative, that question no longer has any purpose.

15. The costs incurred by the Government of the Kingdom of the Netherlands and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before that court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Third Chamber), in answer to the questions submitted to it by the College van Beroep voor het Bedrijfsleven (The Netherlands) by order of 25 March 1980 lodged at the Court on 8 April 1980, hereby rules: