TOEPFER v COMMISSION
THE COURT
hereby:
I. Annuls the decision of the Commission of the European Economic Community of 3 October 1963, authorizing the Federal Republic of Germany to retain protective measures concerning the importa tion of maize, millet and sorghum.
2. Orders the defendant to bear the costs.
Hammes Donner Lecourt
Delvaux Trabucchi Strauß Monaco
Delivered in open court in Luxembourg on 1 July 1965.
A. Van Houtte Ch. L. Hammes
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 20 MAY 1965
Index
Facts 416
Legal consideration 416
I — Admissibility of the applications 417 1. Individual interest 417
2. Direct Interest 418
II — On the substance of the case 420 1. nfringement of essential procedural requirements 420 2. Infringement of the Treaty 421
(a) Definition of the conditions necessary for apply ing Article 22 of Regulation No 19 422 (aa) Can Article 22 only be applied when there is a disaster? 422 (bb) Can Article 22 be applied to rectify a defect in a decision of the Commission 423
(b) Are the conditions required for applying Article 22 fulfilled in the present case? 423 (aa) The relevant prices of maize 423
1 — Translated from the German.
415 OPINION OF MR ROEMER — JOINED CASES 106 AND 107/63
(bb) Was it right to allow for an excess of maize on the German market for the month of January 1964? 424 (cc) Was it right to fear repercussions on the market in barley in the Federal Republic? 425 (dd) What were the amounts of barley expected on the market in the Federal Republic in January 1964? 426
(c) Other points at issue 427 (aa) Breach of the second subparagraph of Article 22 (2) 427 (bb) Is a retroactive halt imposed on imports permissible or not? 427 (cc) Has the Commission disregarded the prin ciple of proportionality? 428
3. Misuse of powers 428
III — Summary and conclusion 429
Mr President, without examining its subject-matter as Members of the Court, a whole. In fact the problems of ad missibility seemed to me to be connect For the facts of the case with which ed with a number of arguments as to we are dealing today, I would refer you substance. to my opinion delivered on 16 June In consequence on 25 June 1964 the 1964 and, in so far as new aspects have Court decided to reserve for the final come to light since then, to the report judgment its decision on the objection at the hearing made by the Judge- of inadmissability raised by the Com Rapporteur. mission. The matter at issue is a decision of the Since then the procedure has followed Commission of 3 October 1963 (pub the normal course and has given rise to lished in the Official Journal of 11 a profound written and oral discussion October 1963, page 2 479), stating that of all the disputed questions which the the protective measure adopted on 1 adoption of the protective measures October 1963 by the Federal Republic taken by the Federal Republic of Ger of Germany in accordance with Article many, and the authorizing of them, have 22 of Regulation No 19 could be re raised. tained until 4 October 1963. As we know, the Commission still thinks The applications lodged against this de that the applications must be dismissed cision by Getreide-Import-Gesellschaft as inadmissible. It is only as an alterna and by the firm Toepfer have given tive that it claims that as to substance rise to written and oral procedures con they must be dismissed as unfounded. fined to the question of admissibility, in On the other hand the applicants still accordance with a request made by the claim that it is just as hard to throw Commission. doubt on the admissibility of the appli At the oral hearing on 16 June 1964, I cations as to throw doubt on their made a thorough study of the subject- soundness as to substance. matter of the dispute. In the end my Legal consideration impression at that time was that it was not possible to take a valid decision on I shall now pronounce my view of the the admissibility of the applications facts for the second time, and shall first
416 TOEPFER v COMMISSION
of all examine the questions of admissi In its view and as a matter of law, bility which have been raised. This time this event has nothing to do with the I shall do so in tine light of the supple protective measure adopted by the mentary explanations furnished by the Federal Republic and authorized by parties since 16 June 1964.—But at the itself. Having regard to the protective same time I wish to emphasize that, measure in question, the new free-at- independently of the result to which my frontier prices were a purely fortuitous considerations on admissibility will lead, change. I shall also give my view as to the sub These propositions must sound odd to stance of the case. I think that I am anyone who knows how the facts un under a duty to do so given that there folded at Brussels, Frankfurt and Bonn, is not yet any case-law as to admissi starting on 1 October 1963. The bility, where this is tied up with the sequence of events makes it clear that criterion of direct interest as it is here. there was objectively a close connexion between the various measures taken at national and supranational level. It could I—Admissibility of the ap not be otherwise, seeing that they all plications follow from the same cause, the er roneous fixing of the free-at-frontier price for imports of maize from France. The method of presentation for the The Commission took the obvious questions of admissibility has not under gone any change: since I am consider course within its sphere of power: it ing a decision addressed to a Member altered the price which it had origin ally fixed. As for the state concerned, it State, only two questions can be of interest: did what it could, so it seems, to prevent any undesirable consequences by invok — Is the contested decision of individual ing Article 22 of Regulation No 19, and concern to the applicants? the Commission, in its turn, gave the — Is it of direct concern to them? necessary authorization. But even if the measures were not thus objectively 1. Individual interest linked, in my opinion it would be neces sary to take account, when examining In my opinion of 16 June 1964, I came the right to take legal action, of the to the conclusion that it was necessary different legal situations existing on 1 to recognize that the applicants were October and during the following days. individually concerned, because of the As regards the question of concern it special circumstances of the present is enough to state that on any objective case. I shall refrain from repeating the grounds the position of an applicant reasons here. in legal proceedings is markedly differ During the further course of the pro ent from the position of other interested ceedings, counsel for the Commission parties for he thus becomes disting has added some new material on this uished as an individual in the sense of point which makes it necessary for me Article 173 of the Treaty. So I continue to add some finishing touches to what I to think that, since the prices on 1 and said before. 2 October 1963 were different, it was The Commission trunks it wrong to possible to ascertain a specific class of attach any special importance to the persons interested. fixing, on 2 October 1963, of new free- The Commission then argues that it is at-frontier prices in the Federal Re not possible to reduce the number of public for imports of maize from persons interested by ascertaining how France. many lodged requests for import
417 OPINION OF MR ROEMER — JOINED CASES 106 AND 107/63 licences. In its view it is the national Likewise it matters not that the decision measures which concern the importers by the Commission to authorize the pro directly; when those measures were tective measure came after it had been adopted it was not possible to ascertain taken by the State. which of the importers would be con I still hold this view after having cerned because the scope of the meas examined the questions of admissibility ures partly included the future and again. The applicants, who have a dif because it was not known how long they ferent opinion, base their view princi would last. pally on an inaccurate analysis of the I shall not follow the Commission on authorization given by the Commission; this point either. In reality the question they think that the effect of this of interest must be settled by reference authorization was to give a definite to the measure contested, namely the confirmation of the measure taken at authorization given by the Commission national level. In my view, however, for the measure taken by the Federal even after the Commission has given Government. Now, at the time when its authorization, the Member State re this authorization was given, it was tains its complete freedom of action in possible to ascertain the number of the sense that it can revoke the protec undertakings which had lodged requests tive measure which has been adopted. for import licences. In my opinion For example it can do so for reasons these persons are concerned in a par appertaining to national constitutional ticular way because the lodging of the law, or when a further examination request goes hand in hand with certain raises doubts as to the seriousness of compulsory financial charges and is the threat to the market. This freedom usually followed by the conclusion of of action on the part of the State is commercial contracts. To equate these the decisive element in the collaboration persons, in the context of the question between the Commission and the nation of interest, with those who could only al authorities and this is why the com be considered as potential importers parisons made by the applicants with seems to me to be untenable. national civil law (ratification of a meas In these circumstances I do not see any ure taken by a person who had no reason for changing the point of view authority to take it, ratification of de expressed in my opinion of 16 June clarations made by an unauthorized 1964 concerning individual interest.— representative) are not relevant. Thus the criterion cannot justify dis However, after the arguments which the missing the applications. applicants put forward relating to the Commission's request for a preliminary 2. Direct interest decision on the admissibility of the ap As regards the question of direct interest, plications, it did not seem absolutely I said in principle in my previous certain in this case that the various acts opinion that there could be no direct of the national and supranational auth interest when a Community measure orities could be fitted into the legal can only make its legal effects felt with framework which I have mentioned. A regard to nationals of the Community conscious collaboration has been men through the medium of discretionary tioned, as have agreements between the acts adopted at national level. This is authorities concerned, which means acts what happens when the protective clause which go well beyond what the Com provided for in Article 22 of Regulation mission considers as usual (and proper) No 19 is applied, in so far at all events collaboration between national and as the Commission does not order the supranational authorities (for example amendment or abrogation of it. with a view to a mutual exchange of
418 TOEPFER v COMMISSION information). This collaboration could Federal Republic of maize coming from be explained by the pursuit of common France, such price to take effect retro but improper objectives, for example actively from 1 October 1963. This the rectification of an administrative would have made it unnecessary to error for which the two parties are re apply the protective clause. It was only sponsible, and which, therefore, they after the protective measure in question both wish to eradicate. When looking at had been adopted by the German auth this type of collaboration, which makes orities (it was announced to the 'Ein- mutual demands of a compulsory nature, fuhrstelle' by telephone 'before 3.30 p.m. it should be asked whether it is still and confirmed by telex at 4.05 p.m.) right to talk of a discretionary power that the officials of the Directorate- and a freedom of action on the part of General of Agriculture and, through the national authorities, and whether them, the officials of the Bundeser agreements which are legally or merely nahrungsministerium learned that the politically binding 'be involved, since in practice was not to fix the free-at- both cases the effect is the same for the frontier price retroactively because of nationals of Member States. objections raised by the legal depart In my opinion the full and frank ex ment of the Commission. Finally it position by the Commission of what must not be forgotten that the discus exactly happened as from 1 October sions which certain officials of the Com 1963 makes it now possible to be clear mission took part in did not constitute on this .point. From this we learn that decisions and clearly did not have any after it was realized how far the fixing binding effect. It is only the Commis of a zero levy misrepresented the true sion, acting as a collegiate body, which price situation on 1 October 1963, the has the power to take a decision such officials of the E.V.G., the Bundeser- as the one contested here. The Com nährungsministerium and the Commis mission alone can issue binding meas sion communicated with each other ures, whereas the activity of its officials numerous times by telephone and by is only in the nature of ground work telex. Likewise it cannot be denied that and as such cannot bind the Com the officials of the Commission displayed mission. some initiative in the sense that they In these circumstances the impression made a suggestion to the officials of the which one might have had at first that Bundesernahrungsministerium. However certain binding agreements had been it is not possible to see more in these reached between the national authorities discussions than a proposition made on and the Commission even before the one side and the promise given on the protective clause had been applied can other to see whether the application of not be confirmed. As I see it, therefore, the protective clause contained in Article the fact remains that a direct interest on 22 could possibly be used. In (particular the part of the applicants is lacking and it is not possible to see in the discus that for this reason the applications must sions a promise given by the officials of be dismissed as inadmissible. the Commission that the Commission To be fair I must admit that this would confirm .the application of the conclusion could be described as ex protective clause. There is nothing sur treme. I realize that it is within your prising in this because at the critical power to make a different assessment moment (a telephone conversation at of the factual elements and to arrive at 3.30 p.m.) the officials of the Commis a different result: for example the sion's Directorate-General of Agriculture Court could consider the chronological were still thinking of fixing a new free- order in which the various national and at-frontier price for imports into the supranational measures followed one
419 OPINION OF MR ROEMER — JOINED CASES 106 AND 107/63 another to be decisive. In this case the many to observe certain rules of form Court could hold that the authorizing and of procedure. They say that these by the Commission of a protective rules should be examined in the light measure after it has been taken is itself of national administrative and public a measure which is directly 'binding on law. In doing so the conclusion would the nationals of Member States, in so be reached that in giving its authoriza far as the Commission is certain that tion the Commission adopted as its own upon receiving the authorization the a State measure which, according to State will use it. While I am convinced national law, is void. that the facts of this case do not permit On the contrary, when the system laid such an appraisal and deduction, I down by Regulation No 19 is looked must allow for the possibility of a dif at, it is certain that the Commission ferent interpretation and make the fol cannot have adopted as its own the lowing supplementary remarks. measure taken by the German author ities. There was nothing else for it to do and it did nothing else but express II — On the substance of its view on a national measure in accord the case ance with Community law. The Court's duty to exercise control has analogous As regards the substance of the appli limits. Its function is limited to deciding cations I shall distinguish several cate whether the Commission has applied gories of submissions. A first category Community law, and it can only make includes alleged infringements of pro a declaration of nullity if the require cedural requirements; a second infringe ments of that law have been infringed. ment of the Treaty (incorrect interpre Therefore in this case the following tation of Article 22 of Regulation No questions must foe eliminated: 19, non-fulfilment of the factual con — Was the national protective measure ditions required for its application); in fact taken by the German Govern finally there is an alleged misuse of ment or by other authorities who did power by the Commission. not have capacity to act under Ger man law? (As the Commission rightly 1. Infringement of essential procedural stresses, it is enough for the Com requirements mission to observe that notice of the protective measure has been given to As regards the first complaint two pre it by a competent national author liminary remarks must be made straight ity.) away. — Was the protective measure taken in — The assertions put forward by the the appropriate legal form with re applicants include complaints which in spect to national law (namely in the my opinion fall without any possible form of a 'Rechtsverordnune')? doubt within the concept of infringe — Did the Federal Government give ment of the Treaty. I do not wish to reasons for and publish the protec go into any more detail on this here tive measure in due form? and I shall simply examine the corres — Did the Federal Government state ponding submissions when I get to the the exact time of the entry into force complaint of breach of the Treaty. of the protective measure and the — Under the heading Infringement or exact time when it was notified to essential procedural requirements' the the Commission of the EEC? applicants have also raised complaints If all these questions are subtracted which relate to a failure by the author from the subject matter of the case ities of the Federal Republic of Ger before the Court, the only complaint
420 TOEPFER v COMMISSION which remains in the present context is duction in the Community, because it that insufficient reasons were given for was claimed that there was an excess the contested decision. of production inside the Community. The applicants point out in particular I must however admit that in the same that recital 5 of the preamble to the judgment the Court emphasized that it decision only contains a repetition of the is enough for the decision to explain the text of Article 22 (1) of Regulation No principle issues of law and of fact which 19. The statement of reasons does not are necessary for understanding the say how many requests for import licen reasoning which has led the administra ces had been lodged, or what was their tive authority to the decision. In follow total tonnage, and it does not make any ing this line of thought the Court did comparison as to quantities. It does not not criticize the reasons given in Case even contain any information on the 24/62, although these were limited, purchase prices of maize in France and without giving figures, to general re the selling prices likely to be in force marks on the price level which corres during the month of January 1964. All ponded to the rates of the common this means that it does not contain any customs tariff on fruit and on reason fact about the nature and extent of the able prices for other categories of fruit, anticipated disturbance of the market. etc. (Rec. 1963, pp. 315 et seq.). Finally it does not give the reasons for There will perhaps be seen here a new which less radical measures (allotment trend in the case-law against over of quotas) were deemed inadequate. emphasizing the obligation to state In fact a reading of the statement of reasons, particularly when decisions are reasons gives, to say the least, the taken during a procedure in which speed impression that it is extremely short. is essential (as is the case with Article It is limited to stating that 'a very 22 of Regulation No 19). However it large number of requests' reached the may always be objected that even urgent E.V.St on 1 October 1963 so that it measures must, like any others, be was to be feared that during the month based on definite facts and that the of January 1964 there might be im statement of these facts in the reasons ported into the Federal Republic 'con for a decision can scarcely be a hind siderable quantities of maize' at prices rance to drawing it up. 'markedly below the threshold price', In spite of some serious objections in view of the fact that no levy of any which I have just mentioned and the amount was laid down for 1 October list of which I shall make complete by 1963. The suspension of the granting reminding you that the reasons given of import certificates might therefore as to choice of means when the pro appear as the most appropriate pro tective measure was adopted were not tective measure. sufficient, I shall not suggest that the Taking these few imprecise reasons into decision should be annulled for infringe account, it seems doubtful whether the ment of a procedural requirement, but Court can exercise its legal powers of I shall go on to examine the other sub review, although this is what the state missions raised in the case. ment of reasons for a decision should render possible (see Case 24/62, Rec., 2. Infringement of the Treaty 1963, p. 143). It may also be noted that the Court in Case 24/62 held it to be With the complaint of infringement of necessary to demand figures on the size the Treaty there is submitted to us a of the production of wine suitable for series of objections which, for the sake the production of wine intended for dis of convenience, may be classified under tilling and on the trend of this pro- three heads:
421 OPINION OF MR ROEMER — JOINED CASES 106 AND 107/63
— First, it must be considered whether, in Article 39 of the Treaty. Amongst from the legal point of view, the these objectives, those enumerated in Commission correcdy interpreted the subparagraphs (d) and (e) (to assure conditions required for applying the the availability of supplies; to ensure protective measure laid down in that supplies reach consumers at reason Article 22. able prices) need not be taken into ac — It will then be necessary to consider count, as the Commission rightly points whether the conditions required for out, for imports at low prices, far from applying Article 22 were fulfilled making it less likely that these objec in fact. tives will come about, tend rather to — Finally it will be appropriate to make further their cause. Therefore the only a number of remarks on the choice objectives to be considered are the ones of the means which are to be taken directed at stabilizing markets and en into account as possible protective suring a fair standard of living for the measures, and on the limits on the agricultural community by means of scope of those means. reasonable production prices.—On the other hand, in accordance with the sys (a) Definition of. the conditions required tem laid down by Regulation No 19, for the application of Article 22 it is a fact that for the main kinds of (aa) Under Article 22 of Regulation No cereals (including barley, in respect of 19, if as a result of the adoption of which a disturbance was feared) the measures concerned with the progressive national intervention agencies must buy establishment of a common organiza in national cereals when production tion of the market in cereals, the re prices fall below the level of interven suiting imports should cause or threaten tion prices. The Commission rightly to cause serious disturbances to the said concludes that producers of these kinds market in one or more Member States, of cereals can never run any other which might endanger the objectives risk than that the prices might fall to laid down in Article 39 of the Treaty, the level of the intervention prices. the Member State or States concerned Therefore it must be admitted that seri may, during the transitional period, take ous disturbances within the meaning of the necessary protective measures as re Article 22 exist where there is a threat gards the importation of the products of a slump in prices of this sort which in question. might affect considerable quantities of The applicants wish this provision to be cereals. strictly interpreted, in view of the fact I think this opinion is correct and it that it is a provision for exceptional cannot be undermined by the reference circumstances. In their opinion it must to Article 22 (5) and the attempt to only be applied where there is a dis base upon it an argument to the con aster. trary for the other paragraphs of this However—the Commission has given a provision. In fact, if it be admitted that, convincing demonstration of this—it after the expiry of the transitional will appear that this interpretation of period, the need for the intervention the words 'serious disturbance' would agencies to make substantial purchases in practice make Article 22 inapplic at a time of considerable imports from able. third countries constitutes a serious dis We should proceed on the basis of the turbance, this is a fortiori the case dur following considerations: ing the transitional period in the course The disturbances must be due to im of which there are to 'be expected from ports and these imports must threaten the agricultural community efforts to jeopardize the objectives laid down towards adjustment linked with a num-
422 TOEPFER v COMMISSION ber of financial burdens. In these cir protective clause in this case. cumstances it seems impossible to re I must confess that at this point I am serve the application of Article 22 only encroaching on economic territory and to cases of disaster. A lesser risk and a from the outset it must be doubted weaker disturbance—I say no more whether the questions which arise can about this for the moment—must be in the final analysis be resolved without sufficient. the assistance of experts. At all events (bb) Still dealing with the question of it is necessary to attempt to give an the legal interpretation of Article 22, the idea of the situation by means of the applicants ask if its application can be figures before us. entertained for rectifying some side- First of all I shall give myself the effects of an erroneous decision made by opportunity of reminding you once the Commission (here the inaccurate again of the decisive argument of the fixing of the free-at-frontier price for Commission. It declares that the im French maize). portation at low prices of considerable I think the Commission is right on this quantities of maize (in excess of Ger point also. The provision in Article 22, man needs) during the month of Janu according to which the application of ary 1964, for which the import licences measures concerning the progressive were requested, brought with it a danger establishment of a common organization that supply would be greater than de of the market in cereals must have given mand, and that the price of maize rise to serious disturbances, is drafted would fall. Therefore it was to be ex in a completely general way. One can pected that consumption would be di interpret it to include cases where the verted from maize to barley, which information given for the levy system is would have resulted in a corresponding inaccurate because of mistakes made in slump in the prices on the barley mar the calculation of prices by the national ket. Such a fall would have meant sub or supranational authorities, which leads stantial purchases of German barley by to an increase in imports at noticeably the intervention agencies. lower prices. As the Commission rightly (aa) Thus the first point at issue is points out, it is not impossible for such whether imports of maize into the cases to occur, particularly in the com Federal Republic did in fact take place plicated system of common organizations during the month of January 1964 at of the market. If the application of a price which, according to the infor Article 22 were to be ruled out here it mation given by the Commission, was would not in fact be possible to succeed about 70 DM below the German thres in giving enough protection to national hold price for that month (434.50 DM, agricultural markets which are only cf. Annex 2 to the Regulation amend partly integrated at the present time. ing the second 'cereals' implementing Therefore Article 22 can also be used Regulation of 19 July 1963). This point where an error or a failing has occurred includes the question whether these in the operation of the mechanisms of imports were made by means of the the market. This makes it unnecessary licences requested on 1 October 1963, for me to consider whether such an by the applicants amongst others. error was given as a cause of possible In support of its view the Commission disturbances in this case. relies on information furnished by the E.V.St on 1 October 1963; on some (b) Do the conditions required for ap quotations, of which it became aware, plying Article 22 in fact exist? for French maize c.i.f. Duisburg, made Let us now consider what the factual by some Hamburg importers on 30 situation looks like for applying the September 1963 for consignment in
423 OPINION OF MR ROEMER — JOINED CASES 106 AND 107/63
November and December 1963; on the normal demand for imported maize, quotations for French maize by Ham which is between 80 000 and 90 000 burg importers starting on 8 October metric tons per month. It compares 1963 for consignment in December these with the imports which in fact 1963; and on the arbitration award pro took place from July to September 1963 duced by the second applicant, made (419 000 metric tons) and to the fart after a failure to perform a contract of that for the period from October to sale, which includes similar figures. December 1963 import licences repre As against this the applicants rely on senting a total quantity of 133 '000 their own agreements (offering to prove metric tons were in existence. These them) on prices, some of which were facts as a whole made it seem probable noticeably higher. They also rely on that normal needs would be met until figures supplied by the Deutsches the end of the year 1963. According Getreidekontor (German cereals office) to the Commission, there must also be and also on the fact that, since there taken into account the facts that during was a strong demand for French maize the months October to December 1963 on 1 October 1963, a rise in prices was unused import licences were still in felt (to which the Commission replies circulation and that the lodging of new by saying that there was a record har requests for licences for this period had vest in France in 1963 and a surplus of to foe expected. All told, therefore, it French exports which was likely to lead had to be accepted that there would to a fall in the price later on). be a very heavy supply not only be The arguments put forward during the cause of the 125 000 metric tons or so case .perhaps give the impression that as to foe imported on the basis of the regards the amounts of maize concerned licences requested on 1 October 1963, the prices stated by the (Commission are but also because of supplementary im at least not very wide of the mark. ports of maize during the month of However, it does not seem to me to be January 1964. possible to make an exact assessment On the other hand the applicants think of this disputed question, which is in that it is wrong to start with an average deed an important one in this case. An figure for imports of between 80 000 expert's report on prices would be and 90 000 metric tons per month, given needed to elucidate this point. Never that these figures are taken from a theless I shall not interrupt my exam period (before the financial year 1961/ ination here, and from now on I shall 1962) during which imports were still suppose, as the Commission has done, kept in check by quantitative restric that the prices for maize imported in tions at national level. They say that January 1964 would have been sub after this provision was repealed to stantially below the German threshold make way for the Common Market a price if the requests for import licences marked rise in imports was felt, which had been accepted. can be explained by the increase in the (bb) The second point at issue is consumption of meat, particularly poul whether it was reasonable to take the try, in the Federal Republic. view that if the imports of maize re In my opinion it is not possible to quested on 1 October 1963 had been dispute the fundamental validity of this authorized in January 1964 supply objection. Therefore the Court should would exceed demand for maize in adhere to the import figures for the Germany. This means that quantities financial year 1961/1962 and the follow would have been involved likely to have ing ones. The tables produced for this an effect on the 'barley market. purpose by the Commission show that The Commission's thinking starts with the imports of maize during the course
424 TOEPFER v COMMISSION of the financial year 1963/1964 were conditions, which were created by their of the order of 1.7 million metric tons, obtaining licences free of duty on 1 which gives a monthly average of October 1963, by limiting any supple 140 000 metric tons. They also show mentary imports they might make for that no harmful effect was felt on the the month of January 1964 to reasonable market in home-produced barley during amounts. It may also be assumed that this time. The figures relating to the the pressure of supply would have been year 1964/1965 even show a monthly reduced, if necessary, by putting certain average of about 170 000 metric tons amounts into storage. This is not felt for imports of maize. For the financial as an insufferable burden when favour year 1961/1962 the monthly averages able terms of buying in France can be are also noticeably higher than the used to the full. figures put forward by the Commission All of this is authority, in my opinion, (about 120 000 metric tons). All these for being extremely doubtful about the figures make it possible to conclude first correctness of the Commission's argu of all that the 125 000 metric tons of ment that the granting of the import imports or thereabouts (in the official licences requested on 1 October 1963 notice only 85 000 metric tons are men would have made likely a noticeable tioned) which could be anticipated for excess in the supply of maize in the the month of January 1964 on the basis Federal Republic during the month of of the requests lodged on 1 October "January 1964. 1963 are not of an order of magnitude (cc) But supposing the prognostications such as to justify the fears felt by the of the Commission to have been correct, Commission. it would then be necessary to examine There is a further point to be made. whether dangerous repercussions on the As the applicants stress, it is definitely market in barley in the Federal Repub not right simply to add to the licences lic could be feared, along with an ap requested on 1 October 1963 the im preciable reduction in prices for home- ports normally made each month into grown barley as a consequence. the Federal Republic. In fact the situa The reply to this question depends in tion on the market in cereals is very the first place on the greater or lesser clear, thanks in particular to the monthly interchangeability of maize and barley publication of the total of import licen as feeding-stuffs. In principle it seems ces requested, to information provided that this interchangeability cannot be by the cereals exchange and to informa called in question; even the applicants tion from private sources. This makes do not dispute it. It is shown in the it possible for importers to arrange their proportions contained in cereal fodder own transactions over a period of time and in feeding-stuffs, which vary per and to bring them in line with the ceptibly in the different countries of transactions of their competitors. It is the Community, as the Commission has to be supposed that that would also shown. If the figures quoted by the have been the case after the granting of Commission at page 26 of its rejoinder the licences requested for the month of are examined, it cannot be denied that January 1964 because, according to the in the Federal Republic the part played figures put forward by the Commission, by maize in feeding-stuffs for livestock, the importers who lodged their requests as a whole, is much lower than it is on 1 October 1963 are responsible for in the neighbouring countries, Belgium about two thirds of the total imports of and the Netherlands. From this it may cereals into the Federal Republic. Finan be concluded that in the Federal Re cial common sense would have led them public maize, in its capacity as a cereal to retain the favourable commercial for fodder, is indeed in a position where
425 OPINION OF MR ROEMER — JOINED CASES 106 AND 107/63
it can to a large extent be used as a also used for the feeding of livestock. substitute for other kinds of fodder. It does not seem possible to resolve this But on the other hand the applicants question on the basis of the few facts show clearly that too much weight which are to hand. should not be given to this view in the But this does not seem to be indispens present case. They point out that when able. Even if the Commission's figures maize is used as a cereal for fodder it be taken, it is not possible to accept the is usually processed, that is to say trans idea that the market in barley was under formed into a mixed fodder. However, threat. The Cornmission only declares in fact, according to the applicants, that a home-produced supply of about relatively constant amounts go into the 300 000 metric tons of barley was still manufacture of fodder over a fairly long anticipated on 1 January 1964. It follows period of time, as the German law on that only a fraction of this tonnage and fodder contains provisions to this not the whole of it would have been effect.
1 — Law of 22 December 1926, text published in the BGB1., III, 1963, page 43.
426 TOEPFER v COMMISSION assessment made by the Commission ciple against imports' being suspended raises so large a number of objections in the context of Article 22 (1) of that the application of the protective Regulation No 19 (which is what hap clause found in Article 22 must be con pened on 1 October 1963 towards 3 sidered as unjustified for reasons relating p.m.), nor have I anything against this to the facts. It would at least appear measure's being given a certain retro impossible to approve it on the basis of active effect having regard to the date the information to hand. Thus if the on which the national measure was Court were not to share my point of adopted. This opinion is not affected by view on the factual elements, an ex the third subparagraph of Article 22 (2) pert's report would appear to be under which the Commission shall take necessary. its decision bearing in mind the im portance of not increasing the level of protection between Member States, be (c) In view of these results I feel at cause this provision clearly refers not to liberty to go over the other points of the standard rules laid down in Regu dispute in the case very rapidly. lation No 19, but to national systems applied before it came into force (let (aa) The fact that the Commission did me say by the way that the former not invite the Member State benefiting German market organizaton for cereals, from the authorization given to it to through its system of sluice-gate prices enter into negotiations with the export and quotas, resulted in a higher degree ing state concerned cannot be used as a of protection than that achieved in this means of raising objections directed at case by applying the protective clause). the legality of the contested decision. My opinion is not contradicted by The second subparagraph of Article 22 Article 22 (5) either. This paragraph (2) does indeed provide that a Member only envisages a suspension of the State which applies protective measures grant of import licences in cases where must be prepared to enter into negotia disturbances of the market of a par tions immediately so as to try to make ticular kind have arisen after the expiry temporary arrangements which will save of the transitional period by reason of the exporters from excessive or avoid imports from third countries. This is able losses. However, the terms of this because this provision is clearly not in provision impose at most an obligation tended to establish for general purposes on the Member States, and, in truth, particular rules for imports from third it is an obligation which only exists in countries. It does no more than make it certain circumstances and with a view clear that after 'the expiry of the transi to reducing the effects of a protective tional period protective measures will measure. In my opinion it is not possible to say no longer be available except in relation that in this case the Commission must to third countries. Finally, in so far as act in an almost automatic way. I think Article 18 of Regulation No 19 pro that such a statement is all the less vides that the imposition of quantita tenable when it is certain in fact that tive restrictions or measures having neither the exporters nor the Member equivalent effect as regards trade be State of which they are nationals have tween Member States is incompatible lodged complaints against the refusal of with the application of the system of the Federal Republic to negotiate. levies within the Community, it does (bb) Again, contrary to the opimon of not contradict my opinion. In fact the applicants, I have nothing in prin Article -18 governs the normal case,
427 OPINION OF MR ROEMER — JOINED CASES 106 AND 107/63
whereas the protective clause in Article sufficient to prevent the risk that the 22 applies when there is a crisis. market might be disturbed. Nevertheless I think that measures of Thus it is possible to see an additional such a radical and sweeping nature as reason for annulling the Commission's calling a halt to imports on a retroactive decision in the choice of means adopted basis must be limited to extreme cases for applying the protective measure in which every other measure appears and in the definition of its scope. I have ineffective. After everything I have said limited myself to giving a brief view on the conditions of fact for applying of this here. Article 22, it definitely seems that the present case cannot be described as an emergency situation. 3. Misuse of powers (cc) Having said this, I have now come to the complaint that the Commission After all that, it only remains to say a violated the principle of proportion word about the complaint of misuse ality when it authorized the German of powers. protective measure. As the applicants In my opinion tins complaint cannot be righdy point out this principle follows supported in so far as it is argued that from the words of Article 22 (1) on the (Commission wished to cover up a 'necessary' protective measures, and fault on the part of the German ad from the general precept that excep ministrative departments which are tions from a normal case should always be said to have wrongly interpreted the limited to what is strictly necessary. decision of the Commission fixing the To tell the truth I do not see how the free-at-frontier price from 1 to 6 October observance of this principle in this case 1963. As we have learned during the had necessarily to lead to averting the proceedings, the German authorities did supposed threat to the market in maize not commit such a mistake. On the and in barley in January 1964 by means contrary the dash appearing in the de of agreements between the Einfuhr- cision of the Commission as regards und Vorratsstelle and the importers on imports of maize from France in fact the maintenance of a given sale price. means an exemption from levy, and not This threat was inferred in the first a refusal to grant import licences exempt place from the fact that no levy was to from levy. be made for the import licences re Furthermore the proceedings have not quested on 1 October 1963. Agree succeeded in corroborating the idea that ments of this kind are in fact an un in adopting its decision the (Commission had ulterior motives in mind — for usual way of proceeding from the point of view of administrative practice. More example, defending the interests of the over, the effective guarantee that they German revenue authorities, avoiding will be kept, upon which their pre the proper rectification of an error or ventive value ultimately depends, could protecting itself against some action by give rise to difficulties. the German authorities. The existence However, according to the view which of such an intention could only be we are able to form of the economic presumed if the conditions required for situation, one cannot rule out the possi applying the protective clause were bility that other measures, less radical obviously not present, a proposition for than a halt to imports, such as, for which the arguments put forward do example, sharing out the import licences not allow any support. applied for, or purchases of maize by For this reason this submission cannot the Vorratsstelle would have been be relevant.
428 TOEPFER v COMMISSION
III — Summary and conclusion
Finally let me sum up:
In my opinion even a thorough discussion of the subject-matter of the dis pute cannot lead to holding that the contested measure is of direct concern to applicants. For this reason I propose that their cases be dismissed as in admissible. Such is my main conclusion.
Should the Court not follow me on this point, the applicants should be upheld as to substance, since the conditions required for the adoption of pro tective measures were not present. This matter would at least have to be elucidated by means of an expert's report before it would be possible to give judgment in favour of the Commission.
Since my main conclusion is that the applications must be dismissed as in admissible, the applicants should bear the costs.
ORDER OF THE COURT 25 JUNE 1964
In Joined Cases
106/63
Alfred Toepfer, a limited partnership, whose registered office is at Hamburg, represented by August Schultz, its special commercial agent, and 107/63
Getreide-Import Gesellschaft, a limited company, whose registered office is at Duisburg, represented by its managers Wilhelm Specht and Wilhelm Breder, assisted by Walter Hempel of the Hamburg Bar and Mr Redeker of the Bonn Bar (for Case 107/63 only), both with an address for service in Luxembourg at the Chambers of Georges Reuter, avocat-avoué, 7 avenue de l'Arsenal, applicants,
v
1 — Language of the Case: German.
429