Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. The present reference for a preliminary ruling concerns the interpretation of a number of aspects of the trade arrangements for restricting Community exports of steel tubes to the United States of America. The arrangements in question are found in a combination of international and Community sources; moreover, it should be pointed out that the replies to be given to the national court require an analysis of a number of documents and circumstances. I therefore consider it necessary, even at the risk of overburdening my Opinion, first of all to give a brief summary of the facts and, in particular, to outline the relevant legislation.
2. On 7 January 1985 the EEC and the United States concluded an arrangement, in the form of an exchange of letters, which restricted, on certain conditions, Community exports of steel tubes. That arrangement, which substantially replaced the previous arrangement of 1982, brought to an end, at least temporarily, a bitter and prolonged quarrel, which came to a head in November 1984 when the American Government imposed a total ban on imports of steel pipes and tubes produced in the Community.
3. In application of Regulation No 60/85, the Federal Republic of Germany issued export licences essentially on the basis of the criterion of traditional export patterns laid down in the second indent of Article 5(2). The years 1979 to 1984 were used as the reference period. Before issuing the licences, however, the German authorities deducted a quota of 20000 tonnes from the total national quota (2.82% of US consumption) and allocated it to Hoesch for supplies of OCTG tubes to a subsidiary in Texas.
4. In addition to the recognition of Bergrohr's status as a new producer, the courts also considered a further question: the lawfulness of the special quantity of 20000 tonnes set aside for Hoesch alone. Bergrohr claimed that Hoesch was not entitled to that special quota because, in its view, the 20000 tonnes in question should also have been shared among the applicant companies in accordance with the common criteria for issuing licences laid down in Regulation No 60/85.
5. In the first part of the first question, the national court asks the Court of Justice to interpret the term new producer.
6. In my view, that argument cannot be upheld.
7. In particular, it is obvious that the implementation of the arrangement does not require the export patterns to the United States of each of the Community steel undertakings to be substantially frozen.
8. The view that the criterion of compliance with traditional export patterns does not constitute the only rule which must be observed is confirmed by the methodology of Article 5.
9. In the light of those considerations, we can also reject the argument that the term new producer — as the sole exception to an almost all-embracing general criterion — must be interpreted restrictively.
10. Having replied in the affirmative to the first part of the first question, I must now consider the next part.
11. In the third part of its first question, the national court asks the Court of Justice whether, having regard to the national authorities' discretion in the issuing of licences, there are nevertheless criteria for assessing the position of a new producer for the purposes of allocating licences among the undertakings concerned.
12. In the second question the national court asks the Court of Justice whether the German authorities are required or authorized to issue preferentially to Hoesch export licences for 20000 tonnes, to be deducted from the national quota.
13. With regard to the arrangement between the EEC and the United States, it should be pointed out that there is no specific provision for the allocation of a special quota to Hoesch in that document either.
14. In fact — and this is the last point to be considered — the only documentary support for charging Hoesch's special quota to the various Member States is in the Council's decision of 29 December 1984 concerning authorization of negotiations for an arrangement with the United States concerning the export of steel pipes and tubes.
1 Original language: Italian.
2 For an analysis of the 1982 Arrangement and its consequences, see in particular: (1) I. Pogany:Steel Wars v Star Wars: the impact of voluntary export restraints on the GATT, in Current issues in international business law, 1988; (2) M. K. Levine: Inside international trade policy formulation, a history of the 1982 USEC steel arrangements, 1985; (3) F. Benyon and J. Bourgeois: The European Community-United States steel arrangement, Common Market Lavi Review, 1984.
3 OJ 1985, L 9, p. 1.
4 OJ 1985, L 9, p. 13.
5 OJ 1985, L 222, p. 1.
6 OJ 1987, L 346, p. 26.
7 See the judgment of 28 February 1989 in Case 201/87 Cargill BV v Produktschap voor Margarine, Vetten en Oliën [1989] ECR 489.
8 Judgment of 30 September 1987 in Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719.
9 See R. Joliet: Le droit institutionnel des Communautés européennes, 1983, p. 184.
10 See the judgment of 30 January 1985 in Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 13.
11 See the ludgmenl of 23 February 1988 in Case 429/85 Commission v Italy [1988] ECR 843, paragraph 9
12 See the judgments of 25 January 1979 in Case 98/78 Racke v Hauptzolfamt Mamz [1979] ECR 69, paragraph 15, and in Case 99/78 Decker v Hauplzollamt Landau [1979] ECR 101, paragraph 3.