C-73/63

Two references to the Court under Article 177 of the Treaty establishing the European Economic Community made by the College van Beroep voor het Bedrijfsleven for a preliminary ruling in the actions pending before that court between

1. N.V. Internationale CREDIET- en Handelsvereniging 'Rotterdam',

having its registered office at Rotterdam, first plaintiff,

2. De Cooperative SUIKERFABRIEK G.A. 'PUTTERS- en Raffinaderij hoek ', having its registered office at Puttershoek,

second plaintiff,

represented by F. Salomonson, advocate at Dordrecht,

Germany of bread and fondant paste originating in other Member

States authorize the Netherlands to impose a duty on the export of

fondant paste to the Federal Republic of Germany?

2. If Question 1 is answered in the afirmative:

(a) was the Commission competent, under Article 226 of the Treaty establishing the European Economic Community, to grant this

authorization to the Netherlands when the latter did not apply for it ?

(b) can it be concluded from this that the Decision is invalid in so far as it

confers the above-mentioned authority on the Netherlands? Or can it be concluded on other grounds that the Decision is invalid because it contravenes the law of the European Communities, as suggested by

the plaintiffs' argument that in making its Decision the Commission had recourse to Article 226 of the Treaty in order to avoid the pro­

cedure under Article 235 of the Treaty ?

THE COURT

composed of: A. M. Donner (Rapporteur), President, Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux, R. Rossi, R. Lecourt and W. Strauß, Judges,

duct originating in the Netherlands at

(a) Case 74\63 the rate of 18.25 Fl. per kg.; this levy was authorized save where the Nether­

On 27 July 1960, at the request of the lands applied this duty on the export

Federal Republic of Germany, the EEC of the product.

Commission took a Decision (notified to This Decision De­ was extended by a

the Governments concerned, but not cision of 21 December 1960 (not pub­

duty on the export of fondant paste, 27 July 1960, and the subsequent

of the Land­ relying on both Article 42 Decisions. bouwwet (Agriculture Law) and the In In the light ot the wording of this — en Uitvoerbesluit Landbouwproduk- Decision, it must be asked whether it ten (Import and Export of Agricultural Mem­ effectively authorizes exporting Products Order) 1958; the order was ber States to impose an export duty. If designated the 'Heffingsbeschikking it is considered to do so, the Commission 1960' Fondantmassa (Fondant Paste in giving this authorization would have Duty Order). exceeded its own powers and infringed On 27 April Hoofdprodukt­ 1962, the the Treaty:

(Agri­ schap voor Akkerbouwprodukten (a) Article 226 (2) does not give the

cultural Products Authority) sent (in Commission power, to authorize

the name defendant) to the first of the protective measures for the benefit plaintiff a of assessment to duty notice of Member States which are not

based on the Heffingsbeschikking Fon­ experiencing the difficulties referred dantmassa 1960 amounting to 4000 to in paragraph (1) and which have

dantmassa 1960 conflicts with due exclusively to the application

Article 12 of the EEC Treaty, for of the mandatory rules of the Treaty. it was January adopted after 1 (c) The Commission relied on Article 1958 and creates a duty which 226 in order to evade the procedure did not exist before that date. laid down in Article 235. This

(b) The Heffingsbeschikking also constitutes an abuse of procedure.

conflicts with Article 16 of the In its statement of defence the defendant Treaty. put forward inter alia the following In decis­ (c) view ot the regulations, submis ons:

ions and orders of the Council of 1. 1 he claim that the Heffingsbeschik­

the EEC dated 4 April 1962 king is not bind­ Fondantmassa-I960

changes nothing; provided the power tiffs do would lead to the opposite

exists, a reference to it is not essential. result. This interpretation cannot

2. The opinion of the plaintiffs that the therefore be correct.

application of Article 226 to fondant 4. As for the plaintiffs argument that

paste (a product which does not ap­ the conditions imposed by\Article pear in Annex II to the Treaty) in fact 226 (1) for the grant of an authoriza­

subject it to the special provisions tion were not fulfilled in this case,

tective measures and not the Nether­ College Beroep voor het Bedrijfs­ van

lands (the exporting country) to leven made the following findings, impose an export duty, it must be amongst others:

emphasized that the Decision did not The College finds provisionally that

authorize the Netherlands to impose fondant paste is a product to which

an export duty but subjected the Article 12 of the Treaty applies; the authorization given to the Federal export duty imposed by the Heffings­ Republic to the conditon: 'in so far beschikking on this product is of equiv­

as the exporting Member State does alent effect to a customs duty on export

JUDGMENT OF 18.2.64 — JOINED CASES 73 AND 74/63

the Heffingsbeschikking is contrary to The plaintiffs in the main action state

Articles 16 or 38 of the Treaty. that:

It follows that the decision to be reached 1. Apart from certain narrowly formul­ in the present action depends on the ated questions, there is also raised the

reply to the above mentioned question, general question whether it can 'be the between Hef­ that the whether conflict the concluded on other grounds

fingsbeschikking and Article 12 and Decision is invalid because it contra­

and validity of a measure adopted by a Court. The Decision granting the

Community institution. Consequently authorization cannot therefore be the College, the decisions of which are sufficient to vindicate provisions

not subject to appeal under Netherlands which conflict with Article 12, and

law, must refer the questions to the on this ground alone is invalid. The Court of Justice of the European Com­ Decision of 28 June 1961 is likewise munities under Article 177 of the Treaty. invalid, since it merely extends the

The proceedings were stayed by the period of application of a Decision College pending a ruling by the Court of which is itself invalid. Justice of the European Communities 2. The difficulties which are the subject on the questions referred to it (in so far of the unpublished Decision of the

as, by reason of their interdependence, Commission reside chiefly in the fact they must be so referred). (mentioned in the preamble to the

the

Case 74/63. Commission has infringed the Treaty. 5. Commis­ T he arguments used by the II —

Observations submitted sion in the preamble to support the

u nder Article 20 ofthe Proto­ existence of 'serious difficulties liable col on the Statute of the to persist' are inadequate. The Com­ Court of Justice ofthe EEC German fon­ mission states that the

dant paste manufacturing industry The observations submitted under the has been almost completely paralysed second paragraph of Article 20 of the by the increase in imports (from 3000 Protocol on the Statute of the Court of metric tons in 1957 to 16000 metric

Justice of the EEC may be summarized tons in 1959). This is disputed by the as follows: plaintiffs, who say that in any case

decision. It is otherwise in the case tion granted to the Federal Republic of of provisions of the Treaty which Germany subject to the condition that may not be altered, for example this Member State was not to make use Article 46 of the EEC Treaty where of the authorization if the duty imposed interpretation' some 'attempts at by the Decision was applied by the

may perhaps be made. exporting Member State. Thus the

1 he plaintiffs are of the opinion that task of Decision is left applying the not

Question 1 and Question 2 (a) solely to the Member State whose

should be answered in the negative, industry was in difficulties, but may but that Question 2 (b) should be also be carried out by the exporting answered in the affirmative. Member State which, in the context of The EEC Commission points out that the the scheme laid down by the Decision,

College van Beroep makes no mention was given, so to speak, a right of first of the Decision of 22 December 1961 option.

since the interpreta­ Question 2 (a) : tion of Article 12 seems to have played

a part in the actions on which the This question refers to the divergence references are based — for the Court between paragraphs (1) and (2) of

also to express an opinion on the inter­ Article 226. pretation of this Article, and also — in The Commission was also aware of this order to define the scope of subpara­ divergence, but after serious considera­

graph (a) of the first paragraph of tion had come to the conclusion that in Article 177 on whether or not there is exercising the powers conferred on it by —

a duty, in a case such as this, to request Article 226 not only was it entitled to the Court to give a preliminary ruling lay down the condition presently in on this Article. dispute, but that very often it was wholly desirable and fully in accord with the meaning and purpose of this provision Question 1 : of the Treaty that it should act in this way. The Commission's reasons for this The Decisions constitute specific in­ conclusion are as fol ws:

stances of the application of Article 226 —

apply for protective measures. This, employ the Article 226 procedure in More­ however, must be avoided. order to avoid that of Article 235, the

over, these advantages would amount Commission remarks that the difficulties 'backward­ German fondant to compensating for the experienced by the

ness' of the applicant Member State's paste industry are but one aspect of a industry. more general problem which cannot be — The T reaty itself contains, in Article approached under Article 226. Yet that 46, a precedent for the scheme chosen does not necessarily mean that these

by the Commission in its Decision. difficulties must be allowed to persist

Question 2 for the (a) should theretore be pending the finding of a solution nswered in the affirmative. more general problem, particularly since in this case the requirements of Article Question 2(b): 226 were fulfilled. The Commission disputes the plaintiffs In view of the foregoing, this question statement that the conditions laid down can clearly only be answered in the by Article 226 for the grant of an

negative. authorization were 'in no way fulfilled in the present case'.

which arise 'from the application of the the Decisions merely serve to reduce the mandatory provisions of the Treaty'. harmful effects which may arise from different to in­ As to the words arising exclusively from , the provisions applied

the Commission observes that such dustrial and agricultural products res­

difficulties can but rarely be attributed pectively.

exclusively to a single definite cause. Thus in the Commission s opinion the

Moreover, Article 226 includes no second part of Question 3 (b) is also to limitation as to the causes of the diffi­ be answered in the negative.

culties to which it refers. Question 3 (a) is therefore to be answered in the The Government of the Federal Republic of affirmative. Germany observes inter alia:

T he Court also ruled that the considera­ ence, or whether it must establish just tions which may have led to national what is really important for the court court to its choice of questions as well as making the reference to know in order to the relevance which it attributes to arrive at its decision.

such questions in the context of a case Both the status and the function of the before it are excluded from review by Court support the view that it must

the Court when hearing an application regard as inadmissible any questions

for a preliminary ruling. which the court making the reference

When the questions referred by the has considered necessary to include College are viewed in the light of this solely on the ground of their having some case law, a number of problems arise. connexion with other questions, if a

ruling on the main questions robs them Question 1: of significance.

purpose of this question is to ascertain Community law, for the question is whether Decision granting the the au­ meaningless unless it is possible to

thorization is rendered invalid on the arrive at the conclusion that the Decis­

ground of an abuse of powers with the ion is invalid (the point touched on in Article 12 Question 2 (b)). This de­ result that remains fully possibility applicable. pends on whether decisions addressed

However, Question 2 (a) can only be to Member States may be contested by raised on the presumption that in individuals in proceedings under Article

examining a decision for validity, its 177, and that is a matter of interpreting legality can also be considered. Any view Article 177. to the contrary would make Question 2 It is doubtful whether the Court can

(a) meaningless, since the possible ille­ be bound by the interpretation of an

3. If one adheres to this view, the Question 2.

admissibility of Question 2 (a) will

depend on whether the legality of a B —

The Answers to the Questions decision addressed to a Member State can be raised in the context of a reference The Federal Government's chief con­

for a preliminary ruling. One must begin cern is to know to what extent decisions with the wording of the Treaty when addressed to Member States may be

examining this problem, for while examined in cases of references for Article 177 the 'validity', preliminary rulings. It therefore ex­ uses word

If it is only the validity of the

decisions addressed to Member States. Decision which may be examined, 4. Should the Court come to the con­ the answer to this question may 'legality'

clusion that may also be taken simply be limited to a declaration into account during an examination as that the Decision is valid. 'validity'

to the of decisions addressed to Member States, then the questions Question (a) does not then require an

referred to the Court are admissible; if it answer.

thinks otherwise, then Question 2 (a) is inadmissible. —

HANDELSVERENIGING ROTTERDAM v MINISTER VAN LANDBOUW

sary, since its powers are no more basis for a longer period. than a necessary consequence of the

authorization given to the Federal III — Procedure Republic. In these circumstances, it is enough that the state for the benefit The orders of the College van Beroep of which the protective measures voor het Bedrijfsleven of 10 July 1963 are designed should apply for an were entered in the Registry of the

authorization. Court of Justice on 11 July 1963. On 26 July 1963 these orders were Question 3: notified by the Registrar of the Court to the parties, to Member States and to

This question too, needs no reply in so the EEC Commission. far as it concerns the legality of the In accordance with Article 20 ot the

Decision. However, the following obser­ Protocol on the Statute of the Court of vations are submitted, should they be Justice of the European Communities required: written observations were lodged in both cases by the plaintiffs in the main

prior application of Article 226, hearing on 28 November 1963. since the latter Article was considered The Advocate-General delivered his suitable only for a brief transitional opinion at the hearing on 16 December period and not as an adequate legal 1963.

Grounds of judgment

The Commission has raised the question whether the College van Beroep voor het Bedrijfsleven, a court of final appeal, has infringed the third para­

graph of Article 177 of the Treaty in not bringing before the Court for a preliminary ruling the interpretation of Article 12 of the EEC Treaty on which the College based the questions actually referred for a preliminary ruling.

However, it appears from the grounds of the judgment of the College that it did not itself interpret Article 12 but limited itself to applying an interpreta­ tion drawn from the judgments previously delivered by the Court of Justice under Article 177 (in Cases 26/62 and 28 to 30/62).

There is thus no reason to examine the point raised by the Commission.

ments of legal certainty, was not formulated in the Decisions, the latter

nonetheless by implication authorized the Netherlands Government to im­

pose the duty in question.

By the terms of the second question the Court is asked to say whether Article 226 of the EEC Treaty enabled the Commission to authorize the Govern­ ment of the Netherlands to introduce a duty, when no application to that end had been made by the said Government, and, if the answer is in the negative, whether the validity of the Decisions is thereby affected.

Protective measures can only be designed to protect temporarily a sector of economic activity which is in difficulty. While Article 226 (1) provides that the state concerned should apply for authorization to take protective

measures itself, it is no less true that paragraph (2) of this provision confers upon the Commission, when such a request is before it, the power to fix 'the protective measures which it considers necessary, specifying the circum­

HANDELSVERENIGING ROTTERDAM v MINISTER VAN LANDBOUW

Furthermore, the fact that the Commission has power to subject its authoriz­

ation to such a condition is emphasized by Article 226 (3) which gives priority to the choice of such measures as will least disturb the functioning of the Common Market.

In this respect, therefore, the Decisions in dispute afford no grounds for criticism.

In the third question the College van Beroep asks first whether difficulties

arising exclusively from the application of the mandatory provisions of the Treaty and in particular the elimination of internal tariffs can constitute difficulties within the meaning of Article 226.

Moreover, Article 226 employs the term without making any distinction on the basis of whether the difficulties were caused by the

application of the Treaty or otherwise. On this point too, then, it appears that the validity of the disputed Decisions cannot be assailed.

Secondly, the Court is asked, in the third question, to say whether the validity of these Decisions is affected by the failure to state reasons or on the ground that the Commission had recourse to Article 226 of the Treaty in order to avoid the application of Article 235.

In this respect, it is enough for the Court to examine on the one hand whether the Commission, in having recourse to Article 226, contravened Article 235 and on the other hand whether the Decisions in question contain a defect which can be removed by action taken by the Commission of its own motion.

Article 235 offers a supplementary means of action and applies only in the

cases for which Treaty has not provided the necessary powers for the the

considered as the 'clearly stipulated' exception which that judgment states to be necessary.

Since the failure to provide the necessary publicity can be considered by the Court of its own motion, this allegation should be examined.

Although it appears to be desirable that a decision of this nature, affecting

the rights and interests of nationals of several Member States, should be brought to the attention of the public, as has been the practice in similar

cases, Article 191 lays down only that decisions should be notified to those to whom they are addressed, as was done in the present cases.

Moreover, the 'clearly stipulated' exception was in the circumstances con­

parties to the main action are concerned, a step in the action pending before

the College van Beroep voor het Bedrijfsleven, the decision on costs is a matter for that court.

On those grounds,

Upon reading the pleadings; U pon hearing the report ot the J udge-Raporteu; Upon hearing the plaintiffs in the main action, the Commission of the

European Economic Community and the Government of the Federal

Republic of Germany; Upon hearing the opinion ol the Advocate-General; Having regard to the Treaty establishing the European Economic Com munity, especially Articles 12, 16, 177, 191, 226 and 235;

in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven by orders of that court of 10 July 1963, hereby rules:

1. The Decisions of the EEC Commission of 27 July 1960, 21 December 1960, 28 June 1961, 22 December 1961 and

27 February 1962, fixing the protective measures applicable to the importation into the Federal Republic of Germany of bread and fondant paste originating in other Member

States confer upon the Government of the Kingdom of the Netherlands the power to introduce a duty of the same

amount on the export of those products to the Federal Republic of Germany;

2. Examination of the questions referred to the Court reveals