C-106/63
ECLI:EU:C:1965:65
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JUDGMENT OF THE COURT 1 JULY 1965<apnote>1</apnote>
Alfred Toepfer and Getreide-Import Gesellschaft v Commission of the European Economic Community<apnote>2</apnote>
Joined Cases 106 and 107/63
Summary
1. Measures adopted by an institution—Applications by individuals against a decision addressed to another person—Decision of direct concern to them— Concept (EEC Treaty, Article 173)
2. Measures adopted by an institution—Applications by individuals against a decision addressed to another person—Decision of individual concern to them— Concept (EEC Treaty, Article 173)
3. Agriculture—Common organization of markets—Cereals—Protective measures taken by Member States—Powers of the Commission—Character—Exercise by way of decisions directly concerning the interested parties (EEC Treaty, Article 173, Regulation No 19 of the Council of the EEC of 4 April 1962, Article 22 (2), Official Journal of the European Communities of 20 April 1962, p. 942/62)
1. A decision which comes into force measures taken by Member States for immediately is of direct concern to the protection of the market in an interested party within the mean cereals are directly applicable and ing of the second paragraph of concern interested parties subject to Article 173 of the EEC Treaty. them as directly as the measures 2. Cf. para. 1 of summary in Case which they replace. Decisions re 40/64. taining protective measures have the 3. Since they come into force immedi same effect because they do not ately decisions of the Commission constitute a mere approval of these amending or abolishing protective measures but render them valid.
In Joined Cases 106/63
ALFRED TOEPFER, a limited partnership, whose registered office is at Hamburg, represented by Mr Auguste Schultz, its agent
and 107/63
1 — Language of the Case: German. 2 — CMLR.
JUDGMENT OF 1. 7. 1965 — JOINED CASES 106 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 (for both cases) and K. Redeker of the Bonn Bar (for Case 107/63 only), both with an address for service in Luxembourg at the Chambers of Georges Reuter, Advocate, 7 avenue de l'Arsenal,
applicants,
v
COMMISSION OF THE ECONOMIC COMMUNITY, assisted by Claus-Dieter Ehlermann, member of the Legal Department of the European Executives, with an address for service in Luxembourg at the offices of Mr Henri Manzanarès, secretary of the Legal Department of the European Executives, 2 place de Metz, defendant,
Application for annulment of the decision of the Commission of 3 October 1963 authorizing the Federal Republic of Germany to retain in force the pro tective measures concerning the importation of maize, millet and sorghum (63/553/EEC);
THE COURT
composed of: Ch. L. Hammes, President, A. M. Donner (Rapporteur) and R. Lecourt, Presidents of Chambers, L. Delvaux, A. Trabucchi, W. Strauß and R. Monaco, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts The business of the two applicant firms is to import and conduct wholesale The facts may be summarized as dealings in cereals of all sorts, including follows: maize, and they count amongst the
TOEPFER v COMMISSION
larger undertakings in this area of trade free-at-frontier price for maize imported in the Federal Republic. into the Federal Republic as from 2 The maize imported into the Federal October. Republic comes partly from France. The Furthermore the Official Journal of the trade between these two countries comes European Communities of 11 October under the provisions of Regulation No 1963 (p. 2479/63) published the Com 19 of the Council of the EEC on the mission's decision of 3 October by progressive establishment of a common which it retroactively authorized the organization of the market in cereals Federal Republic to maintain the pro (Official Journal, 1962, p. 933/62). tective measure taken by the Federal The Regulation makes the import of Government until 4 October inclusive. maize subject to the payment under On 20 December 1963 the two under certain circumstances of a levy result takings initiated proceedings for the ing from the difference between the annulment of the said decision of the threshold price and the free-at-frontier Commission. price fixed by the Commission for the exporting country. The levy is calculated and collected by II — Conclusions of the the national customs authorities, in this parties case by the 'Einfuhr- und Vorratsstelle fur Getreide und Futtermittel' (herein The applicants present the following after referred to as ‘the E.V.G.’), a conclusions in which they claim that body governed by German public law the Court should: which publishes the rates of levy by 1. declare the application admissible; posting notices in the building of its 2. annul the decision of the Com headquarters at Frankfurt and which mission of 3 October 1963 authoriz issues import licences on demand. These licences amount to an 'authority to ing the Federal Republic of Germany import'. to maintain the protective measures The E.V.G., in application of the concerning the importation of maize, abovementioned Regulation, posted a millet and sorghum (65/553/EEC) notice fixing a zero levy for 1 October published in the Official Journal of 1963, and on the same day the appli the European Communities, 6th cants asked for import licences for the year, No 146, of 11 October 1963, month of January with advance fixing p. 2479/63; of the levy at zero. alternatively annul the abovementioned decision The applicant in Case 106/63 asked in so far as it authorizes the Federal for licences for a total of 24 000 metric tons, and the applicant in Case 107/63 Republic of Germany to maintain in for a total of 21 200 metric tons. It force the protective measure which emerges from the file that the total of consists in refusing to grant the requests for import licences lodged on requests lodged by the applicants on 1 October 1963 with the Einfuhrstelle 1 October for the month of January came to 126 000 metric tons. at Frankfurt-am-Main for the de
The E.V.G. did not issue the licences livery of import licences for 21 200 requested, basing its decision on certain metric tons (24 000 metric tons protective measures taken by the respectively) of maize to be imported Federal Government as provided for into the Federal Republic from in Article 22 of Regulation No 19. France; By a decision taken on 1 October, the 3. order the defendant to bear the Commission of the EEC fixed a new costs.
JUDGMENT OF 1. 7. 1965 — JOINED CASES 106 AND 107/63
The defendant contends that the Court concerned as members of a definable should: group, and that they are not concerned — dismiss the application as inadmiss individually (Judgment in Case 25/62). ible or alternatively as unfounded, The applicants argue against the sub — order the applicants to bear the missions of the defendant, first with costs. the help of arguments founded on legal theory, but more particularly with argu ments as to the facts and circumstances III — Submissions of the of the case. They claim that the free-at- parties frontier price fixed by the Commission for 1 October was erroneous, and that A — Admissibility as soon as the E.V_G_ and the Com mission became aware of the con Since the contested decision is addressed sequences of the mistake which had to the Governments and in particular been made (the rapid increase in to the Government of the Federal requests for import licences for the Republic of Germany, the defendant month of January 1964) they held con points out that under the second para sultations together on the means of graph of Article 173 of the EEC Treaty rectifying it. After rejecting the possi the applications are only admissible in bility of amending the free-at-frontier so far as the said decision, although price retroactively, the Federal and addressed to another person, is of direct Community authorities agreed to fall and individual concern to tie appli
back on Article 22 of Regulation No cants. Relying on the case-law of the 19 so far as 1 October was concerned, Court and the opinions of the and that the Commission would fix a Advocates-General, it asserts that the higher free-at-frontier price for 2 decision does not so concern the appli October and the following days. cants in this case. It further asserts that In the light of these circumstances, the the contested decision only concerns the applicants maintain that the contested applicants through the effect of the decision affected their requests for a protective measure authorized, and thus licence in a direct and individual way.
indirectly. The initiative and the responsibility for this measure fall on B — Substance the Federal Government. The Com mission only gave authority under The applications are based on (a) Article 22 for the measures which the infringement of an essential procedural Federal Government considered requirement, (b) infringement of the necessary. EEC Treaty and any rule of law relating The defendant further argues that since to its application and (c) misuse of the protective measure is conceived in powers. general terms, it concerns all the importers in a position to apply for (a) Infringement of an essential pro import licences for the period from 1 cedural requirement
to 4 October. Thus neither this measure It is argued that insufficient reasons nor the decision which authorized it are given for the contested decision. concerned the applicants individually. First it fails to state at what time on 1 Even if the class of persons concerned be October the Federal Government decid limited to importers who asked for an ed to take protective measures and at import licence on 1 October, which what time on that same date it is sup means no less than 27 companies, it must posed to have informed the Commission be admitted that the applicants are only in accordance with Article 22 of Regula-
TOEPFER v COMMISSION
tion No 19. It is further argued that The question whether the protective in recopying Article 22 (5) word for measures comply with national law is word the decision failed to show why a matter exclusively for national the facts stated would create serious authorities and national courts. disturbances. Finally it is said that 2. The applicants deny that the grant moreover the mere statement that the of the licences requested on 1 October measure adopted 'appears the most 1963 would have ‘had as its result, in appropriate for rectifying' the situation January 1964, the importing of con which had arisen, did not comply siderable quantities of maize into the with the requirement that sufficient Federal Republic, at a price which reasons be given, since the Com would have been considerably below the mission may only entertain the least threshold price'.
They further argue restrictive measures. As regards this the that the quantities concerned would applicants assert that a quota system have been sold on the German market for the various requests would have at a normal price. Furthermore if prices been more appropriate and less burden had fallen, purchases at the intervention some for the parties concerned. prices would have been enough to main The defendant is of the opinion that tain a suitable level of prices. In any sufficient reasons were given for the event there could be no question of a
decision. It was not required to state catastrophe, which is a prerequisite for the time on 1 October when the events applying Article 22. took place, and the reasons given for The defendant denies the argument that the authorization are clear and un in speaking of 'serious disturbances' equivocal. The Commission had to Article 22 requires the existence of an consider whether the protective measures emergency situation. This expression is were of an appropriate character. It made more clear by the additional was not required to explain why it did words 'the resulting imports' and by not prefer other solutions, and any the qualifying words 'which might en how the solution suggested by the appli danger the objectives laid down in cants is an arbitrary one and difficult Article 39 of the Treaty'.
It is asserted to put into practice. that this case particularly involved sub paragraph (1) (b) of this Article, namely (b) Infringement of the Treaty ensuring a fair standard of living for 1. In putting forward the submission the agricultural community. of infringement of the Treaty or 'of The defendant adds that since maize any rule of law relating to its applica and barley-meal are products which are tion', the applicants use the words interchangeable, an excess of maize on quoted in order to complain that the the market would have influenced the contested decision disregards Federal price and the sales of barley-meal, and public law relating to the application there had already been an unusually big of Regulation No 19. The protective harvest of the latter in Germany in measures are, so they say, contrary to 1963. Furthermore intervention prices the requirements of Federal legislation; exist for maintaining the price levels therefore the Commission could not of national products. Intervention buy authorize them. ing because of imports would be The defendant considers this submission illogical. to be unfounded, because the Com The applicants deny that maize and mission only had to examine the pro barley-meal can be substituted for each tective measures submitted to it from other to a limitless extent, and offer the point of view of Community law proof of this by means of an expert's and the interests of the Community. report.
JUDGMENT OF 1. 7. 1965 — JOINED CASES 106 AND 107/63
In its rejoinder the defendant requests intended. Its purpose was to avoid me the Court to obtain an expert's report possible consequences of its own ill- if it is not convinced of the force of considered decision fixing the free-at- the arguments and submissions of the frontier price for 1 October. The appli Commission. cants point out that amongst these poss 3. The applicants allege that the refusal, ible consequences was the loss of several the effect of which was retroactive, to million DM by way of levies imposed grant the requests which they had made by the Federal Republic. constitutes an infringement of the law The defendant argues that it did not go applicable to the case. beyond the limits laid down in Article In so far as this complaint presupposes 22, and that it cannot have acted for an infringement of the customs legisla purposes other than that of the provision tion the defendant is of the opinion that in question, which simply requires the it is unfounded under Community law. Commission to consider whether the Regulation No 19 itself says that pro conditions laid down in it are fulfilled. tective measures must leave a period Since this power does not include any of three days' grace in favour of goods discretionary element, a misuse of in transit. From this it draws the con powers is ipso facto excluded. clusion that protective measures with retroactive effect are not contrary to Community law, and it thinks that this IV — Procedure conclusion is reinforced by experience concerning serious disturbances. The The procedure followed the normal defendant also says that the undeniable course.
interests of importers must come after By order dated 18 February 1964 the considerations of the common good. Court joined the two cases for pro cedural purposes. (c) Misuse of powers On 25 June 1964 the Court decided, It is said by the applicant that in con having heard the written and oral ob firming the total suspension of import servations of the parties and the opinion licences the Commission disregarded the of the Advocate-General, to reserve its interests of the companies concerned, decision on the objection of inadmissi and that its action exceeded the limits bility raised by the defendant for the on its powers imposed by Article 22 of final judgment. Regulation No 19, because a suspension The parties were heard at the hearing of of this sort is only permissible when 9 March 1965. At the hearing on 20 there is a catastrophic situation. May 1965 the Advocate-General gave Secondly the Commission, so it is said, his opinion to the effect that the appli acted for a purpose other than the one cations should be dismissed as inad for which the protective measures are missible.
Grounds of judgment
Admissibility of the applications
As the contested decision was not addressed to the applicants the defendant argues that it was not of direct and individual concern to them within the meaning of Article 173 of the Treaty; it only concerns the applicants through the effect of the protective measure in question, and thus indirectly.
TOEPFER v COMMISSION
The defendant further argues that, since the protective measure was drawn up in general terms applicable to all importers in a position to ask for an import licence during the period between 1 and 4 October 1963, neither this measure nor the decision which upheld it is of individual concern to the applicants.
The expression 'of direct … concern'
According to the terms of Article 22 of Regulation No 19, when a Member State has given notice of the protective measures provided for in paragraph (1) of the said Article, the Commission shall decide within four working days of the notification whether the measures are to be retained, amended or abolished.
The last sentence of the second paragraph of Article 22 provides that the Commission's decision shall come into force immediately. Therefore a decision of the Commission amending or abolishing protective measures is directly applicable and concerns interested parties subject to it as directly as the measures which it replaces.
It would be illogical to say that a decision to retain protective measures had a different effect, as the latter type of decision does not merely give approval to such measures, but renders them valid.
Therefore decisions made under the third and fourth subparagraphs of Article 22 (2) are of direct concern to the interested parties.
The expression ‘of ... . individual concern'
It is clear from the fact that on 1 October 1963 the Commission took a decision fixing new free-at-frontier prices for maize imported into the Federal Republic as from 2 October, that the danger which the protective measures retained by the Commission were to guard against no longer existed as from this latter date.
Therefore the only persons concerned by the said measures were importers who had applied for an import licence during the course of the day of 1 October 1963. The number and identity of these importers had already become fixed and ascertainable before 4 October, when the contested decision was made. The (Commission was in a position to know that its decision affected the interests and the position of the said importers alone.
JUDGMENT OF 1. 7. 1965 — JOINED CASES 106 AND 107/63
The factual situation thus created differentiates the said importers, including the applicants, from all other persons and distinguishes them individually just as in the case of the person addressed.
Therefore the objection of inadmissibility which has been raised is unfounded and the applications are admissible.
On the substance of the case
Apart from various submissions of infringement of essential procedural requirements and misuse of powers, the applicants base their cases upon the submission of infringement of the Treaty or of any rule of law relating to its application.
With regard to this the applicants allege in particular that in this case the conditions required by Article 22 of Regulation No 19 were not fulfilled.
The contested decision is based on the considerations ‘that applications for import licences with advance fixing of the levy in respect of very large quantities were made on 1 October 1963 to the appropriate departments in the Federal Republic of Germany; acceptance of these requests would have led to large quantities of maize being imported into that Member State in January at prices much below the threshold price. Therefore the German cereals market was threatened with serious disturbances likely to endanger the objectives defined in Article 39 of the Treaty'.
During the course of the procedure, both written and oral, the Commission explained its reasoning by arguing that a collapse of prices on the market in maize would have been caused by the offer of a quantity of maize such as would result from the application made on 1 October 1963 at prices—accord ing to its calculations—below DM 70 per ton, that is to say, 16 or 17 per cent below the threshold price. The Commission also argued that although maize is not widely produced in Germany, such a disturbance of the market in it might have jeopardized in particular the objectives of Article 39 of the Treaty which includes stabilizing markets and ensuring a fair standard of living for the agricultural community by means of reasonable prices for the producer.
The Commission further argued that in fact such a collapse of prices would have caused dangerous repercussions on the German market in barley, a national product, and, according to the Commission, easily interchangeable
TOEPFER v COMMISSION
with maize. In addition the defendant offered to prove by means of an expert's report that the danger of grave disturbances which might jeopardize the objectives laid down in Article 39 was a real one.
Information given by the Commission during the oral procedure makes it clear that at this moment there is no need to proceed to the measure of inquiry asked for. Applications for import licences lodged on 1 October with a view to importation during the month of January 1964 amounted to a total of about 125 000 metric tons. According to the statistics produced by the Commission, this quantity scarcely exceeds the monthly average of normal imports. Furthermore, given the accurate knowledge which existed of the state of the German market in maize, there was a reduced danger of other substantial imports' being added to the abovementioned quantity in respect of the same period. In fact since the news that import licences subject to such a favourable rate of levy had been issued would spread rapidly to all the importers interested, it was unlikely that an appreciable number of them would compete with the holders of the licences.
Therefore it does not seem that the quantity of imported maize which was in fact concerned could itself have been enough to bring about serious disturb ances of the market.
On the other hand the importing of a quantity of 125 000 metric tons at the reduced prices mentioned was not enough to bring about a collapse in prices of maize. In fact, while it cannot be ruled out that the offer of a quantity of 8 to 10 per cent of the annual needs of a certain product might bring about an excessive decline from normal prices, nevertheless such a consequence need only be feared when the amount offered is in the nature of a surplus and when it is not known how much is being offered at low prices. Such a possibility could not occur in this case because the quantities of imported maize in question were not in the nature of a surplus, and they were fixed and known as from 2 October 1963, which was three months before the critical period. Thus it was improbable that the German market could not have absorbed the said quantity without much disturbance, even if it were offered at low prices, which was certainly not the intention of the importers concerned.
In so far as it already appears extremely doubtful that acceptance of the applications in question would have threatened the German market in maize with disturbances of the seriousness required by Article 22 of Regulation No 19, it follows logically that no such disturbances could have had dangerous
JUDGMENT OF 1. 7. 1965 —JOINED CASES 106 AND 107/63
repercussions on the German market in barley. According to the defendant's own statements the two markets are interdependent mainly because of the respective amounts of maize and barley used for feeding stuffs. These amounts may vary in relation to the cost of these basic products.
Although it is true that an increased supply of maize at low prices might alter the said amounts used in the Federal Republic to the detriment of barley, such a change of practice presupposes that producers of feeding- stuffs would have confidence in the stability of prices and supply of the imported product. In the present case, however, even supposing that there were a transitory fall in prices of maize, such a situation would scarcely lead producers to change their practice.
It must be concluded from the foregoing that even if the disturbances con templated by the Commission did take place against all probability, they would have been of too temporary a nature to be capable of jeopardizing the stability of the market in maize and barley and thus of jeopardizing 'the fair standard of living for the agricultural community' mentioned in Article 39 of the Treaty.
Therefore, since the conditions laid down in Article 22 of Regulation No 19 were not fulfilled in this case, the contested decision must be annulled.
Costs
By Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. The defendant has failed in its submissions. There fore it must be ordered to pay the costs.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 39 and 173 of the Treaty establishing the Euro pean Economic Community; Having regard to Regulation No 19 of the Council of the European Economic Community, especially Article 22; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the Euro pean Communities, especially Article 69
TOEPFER v COMMISSION
THE COURT
hereby:
1. 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<apnote>1</apnote>
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.