Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

The Bundesverwaltungsgericht [Federal Administrative Court] has requested this Court to give a preliminary ruling on the question whether the Commission was entitled to maintain during the second half of 1976 the protective measures which it had taken in 1974 with regard to the import of preserved mushrooms from nonmember countries or whether, by so doing, it infringed the enabling rules adopted by the Council.

The facts are as follows:

Wünsche, the plaintiff, an undertaking specializing in the import trade, imports in particular preserved mushrooms from nonmember countries. In this case, on 15 July 1976, the Federal Republic of Germany refused, on the basis of the protective measures adopted by the Commission, the licence applied for on 9 July 1976 for the import of 1000 tonnes of preserved mushrooms from Taiwan. Wünsche lodged an objection against that refusal, but its objection was rejected; it then brought an action before the Verwaltungsgericht Frankfurt [Administrative Court, Frankfurt]. However, on the abolition of the protective measures it obtained the necessary import licence. It nevertheless maintained its claim on the ground that the Federal Republic of Germany was obliged to grant its application of 9 July 1976 since, in its opinion, the conditions which had led to the adoption of the protective measures were no longer fulfilled. It based its interest in pursuing its action on the existence of a danger of recurrence.

When its action was dismissed, it lodged an appeal directly before the Bundesverwaltungsgericht [Federal Administrative Court] which confirmed the judgment of the court of first instance so far as admissibility was concerned. On the substance of the claim, after making a detailed analysis of the Community rules, it expressed its doubts as to whether the maintenance of Regulation No 21C7/74 of the Commission of 8 August 1974 could still be justified after the second quarter of 1976.

Because of the complexity of the rules applicable to the case, it appears useful to present a brief review of them before embarking upon a discussion of the case.

It is necessary to examine the following point: did the Commission correctly exercise its discretion with regard to the situation on the market in preserved mushrooms?

That examination will cover the four factors listed in Article 1 of Regulation No 1928/75 (situation on the internal Community market and on the import market, in each case in relation both to quantities available and to prices) and will at the same time take into account the requirement of proportionality, laid down in Article 2 (2), between the situation on the market and the severity and duration of the measures taken.

I therefore conclude that the reply to the Bundesverwaltungsgericht should be that consideration of the question posed has disclosed no factor of such a kind as to affect the validity of Regulation No 2107/74 of the Commission, or of Commission Regulations Nos 1412/76 and 2284/76.

1 Translated from the French