C-51/71

JUDGMENT OF 15. 12. 1971 — JOINED CASES 51 TO 54/71

even as a pure formality, import or of Regulation No 2513/69 is not export licences or any other similar absolute. procedure. 5. The application of a body or rules 4. In trade with third countries the laid down by legislation and based on application of quantitative restrictions a general prohibition on imports with­ out a licence, in conjunction with a and of measures having equivalent effect forms part of the common com­ system of general exemptions, is thus in the present state of the law com­ mercial policy both under Article 113 patible with the general scheme of of the Treaty and the provisions on Regulation No 2513/69. the common agricultural policy, in The 'all licences granted' system is particular, Article 40 (3) which pro­ not incompatible with the general vides for the establishment of 'com­ scheme of this regulation if the licence mon machinery for stabilizing im­ is delivered automatically to every ap­ ports or exports'. plicant free of charge and without The prohibition based on Article 1 delay.

In Joined Cases 51 to 54/71

Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven for a prelirninary ruling in the action pending before that court between

International Fruit Company NV, Rotterdam, (Case 51/71) Kooy Rotterdam NV, Rotterdam, (Case 52 /71) Velleman en Tas NV, Rotterdam, (Case 53/71) Jan van den Brink's IM- en exporthandel NV, Rotterdam, (Case 54/71)

and

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure 2. In May 1970 the plaintiffs in the main action applied to the Produktschap The facts and procedure may be sum­ voor groenten en fruit (hereinafter re­ marized as follows: ferred to as 'the PGF') for import cer­ 1. In implementation of the principles tificates in respect of dessert apples from third countries. laid down in Regulation No 23 of 4 April 1962 (OJ, English Special Edition, On the basis in particular of Regulations 1959-1962, p. 97), on 9 December 1969 Nos 459/70, 565/70 and 686/70 the the Council issued Regulation No 2513/ PGF replied that 'the application must 69 (OJ 1969, L 318) 'on the coordina­ be rejected' or that 'it has been decided tion and standardization of the treat­ to reject the application'.

JUDGMENT OF 15. 12. 1971 — JOINED CASES 51 TO 54/71

5. By a judgment of 30 July 1971 the Imports and Exports, the Minister for College van Beroep voor het Bedrijfsle Agriculture and Fisheries delegated to ven decided to stay the proceedings and the PGF his powers of issuing licences to request the Court of Justice to give a under Article 2 of the 1963 decision. preliminary ruling under Article 177 of Under this delegation (Article 5 (3)), in the EEC Treaty on the following ques exercising its powers the PGF is obliged tions: to respect the provisions of regulations '1. Does the fact that the provisions of issued or to be issued by the Council the Treaty establishing the European within the sphere of the trade in pro Economic Community together with ducts corning under Regulations No 23 those of the regulations based there and No 159/66 together with the rules on conferring powers or imposing ob enacted or to be enacted in implementa ligations "upon the Member States" tion of those provisions including those with regard to the implementation of from the Minister for Agriculture and the Treaty or of regulations imply,

munity law. In this connexion the licence, but which in fact are not plaintiffs in the main action stated applied because exemptions are gran that the prohibition set out in the ted from the prohibition and, where 'decision of 1963' cannot be con they are not, /because the licence is tradicted by the first decision of always issued on request?'

6. Pursuant to Article 20 of the Pro sphere. This is why it was necessary, tocol on the Statute of the Court writ with regard to the powers conferred ten observations were lodged by the upon the Member States by Regulation plaintiffs in the main action, by the No 459/70, to enact a provision under Government of the Kingdom of the Netherlands law clarifying the EEC Netherlands and by the Commission of powers of the national authority entrus the Euronean Communities. ted with their exercise.

and Mr Jaques Bourgeois. sale, the problem to be resolved is Upon hearing the report of the Judge- whether the power and the obligations Rapporteur and the views of the arising under Community law may only Advocate-General the Court decided to be transferred by the State to such open the oral procedure without any authorities by means of legislation. The preparatory inquiries. plaintiffs to the main action note that The oral observations of tne Commission this question relates exclusively to in were heard on 25 November 1971. ternal law and conclude that: The Advocate-General delivered his 'The extent to which the Member opinion at the hearing on 1 April 1971. States may transfer powers or ob The Court decided to join the present ligations to their delegated authorities cases for the purposes of the judgment. other than by means of express pro visions must be appraised in accord II — Written observations ance with national law.'

1. With regard to the first question the plaintiffs in the main action observe ance to know how far the actual imple that the fact that national authority of mentation of such national provisions by the State, such as the Minister for Agri the Member State is compatible with culture, is empowered on the basis of the EEC system of trade. In this con national legislation to conduct national nexion it must not be forgotten that a policy with regard to Community trade Member State may at any time modify in agricultural products does not automa the actual effect which it gives to in tically 'imply' under Netherlands law ternal provisions with .the result that that such an authority is also empowered what was not incompatible with the to cooperate in the implementation of Community system could become so, the Community policy in the same and vice versa. The plaintiffs in the

main action observe that it is unim be interpreted as meaning that infringe portant in the present case to consider ment of the articles referred to in the the scope of the 'first decision of 1968' question asked can only follow from an since the temporary granting of exemp actual application of measures contrary tions from the prohibition on importing to this prohibition. or exporting without a licence, by means In tact it is internal Jaw, considered in of secondary national legislative provi relation to its legislative and administra sions or through the application of the tive provisions and the method of ap 'any licence granted' procedure would plying them and to the administrative in itself be incompatible with the said procedures followed, which determines system. whether or not Community law has been If it were therefore to appear that the infringed. 'decision of 1963' contains quantitative This principle is confirmed not only by restrictions on trade or measures having the case-law of the Court but by the equivalent effect within the meaning of wording of various agricultural regula Regulation No 2513/69 of the Council, tions which prohibit quantitative restric it would have to be concluded that in

mative. prohibition against importing which was B — Observations submitted by the in fact not applied but to a national pro Government of the Kingdom of vision which was not applicable in law the Netherlands since in the present case the competent national authority granted an exemption With regard to the first question the applicable ipso jure (cf. the 'Vrijstellings Government of the Kingdom of the beschikking Landbouwgoederen EEG Netherlands considers that since various 1968/I' which entered into force on 1 provisions of the Treaty and of the im

munities to specific institutions or national authorities, Member States may there With regard to the first question the fore decide themselves how to apply the Commission considers that since the provisions of the Treaty or of the im material provisions of Community law plementing regulations. (for example Article 1(2) of Regulation With regard to the second question the No 459/70) impose an obligation upon Netherlands considers that the prohibi the Member States, it is those States, tion on quantitative restrictions and considered as a whole, which are en measures having equivalent effect must visaged and not a particular authority,

service or administration. In other words where exemptions are granted to the it cannot be conceded, under Commun prohibition which they lay down. ity law, that the power of a Member (c) If no exemptions are granted must State to apply certain measures imple the said provisions still toe so de menting rules of Community law can scribed even if the import certificate only be transferred to one of its author or licence is invariably issued on ities by means of special provision of request? natural law. The question whether the

as follows: 'quantitative restrictions' refers to all 'The fact that the provisions of the national measures directly excluding, EEC Treaty or of the regulations totally or partially, the import or ex based thereon impose upon the "Mem port of a product on the basis of num ber States" obligations regarding the bers or quantities. With regard to the application of the Treaty or of the concept of 'measures having equivalent regulations does not imply that the effect', these are measures the prohibi Member States may only transfer such tion of which appears, within the sys powers or obligations to their author tem of the Treaty, as a necessary com ities by means of an express provision. plement to the prohibition of quantita This implies that the Member States tive restrictions. Their prohibition in are obliged to have available within dicates the intention to prohibit not only their legal systems all the means measures which take the usual form of necessary to meet this obligation, or quantitative restrictions but also those in the absence thereof to provide which, although introduced under dif themselves with these means' ferent names or by means of other pro With regard to the second question the cedures, would likewise result in affect Commission considers that in order to ing trade. However, whilst with regard answer it correctly, it must be divided to quantitative restrictions such an effect into three subquestions as follows: is direct, in the case of measures having equivalent effect it is indirect and arises (a) Do the provisions of the Member from the fact that imports or exports are States prohibiting imports and ex rendered more difficult or costly in com ports without a licence (the issue of parison with the marketing of the domes which depends solely on the decision

JUDGMENT OF 15. 12. 1971 — JOINED CASES 51 TO 54/71

place it is scarcely possible to speak any the former case it appears that the TLA longer of quantitative restrictions or system is henceforth justifiable only with measures having equivalent effect con­ regard to Article 36 and in the applica­ cerning products and countries with re­ tion of certain minimum prices which gard to which imports or exports may continue under Article 44 of the Treaty. be effected by means of exemptions. In the latter case appraisal of the prob­ lem is more delicate. Given the number Finally, in the third case a distinction must be drawn between a situation in and diversity of the provisions govern­ which it is provided that the licence shall ing relations with third countries, es­ always be granted and that in which the pecially in the commercial sphere, it is licence is in fact always issued. This impossible to deal with all the cases in second situation in no way detracts from which the application of the TLA sys­ the restrictive nature of the provisions tem is justified. In general, this is the in question since a quantitative restric­ case where Community legislation al­ tion remains such provided that it is lows Member States to take unilateral

capable of preventing imports or ex­ protective measures. Such a possibility ports, irrespective of the question of this nature exists in particular under whether it actually does so or not. On certain regulations of the Council (for the other hand in the first situation it example, Article 3 of Regulation No may be said that there is no real quan­ 2514/69) defining the conditions for

Grounds of judgment

1 By a judgment of 30 July 1971 which was received at the Court Registry on 2 August 1971, the 'College van Beroep voor het Bedrijfsleven' requested the Court to give a preliminary ruling on the interpretation of various provisions of the Treaty and of rules of secondary law together with tie content of various concepts adopted by the Treaty and those rules.

The first question

2 The Court is first of all asked whether the fact that various provisions of the Treaty and of regulations confer powers or impose obligations upon the Member States implies that the latter may only transfer those powers or obligations to national authorities by express provision.

3 Although under Article 5 of the Treaty the Member States are obliged to take all appropriate measures, whether general or particular, to ensure fulfil­ ment of the obligations arising out of the Treaty, it is for them to deterrnine which institutions within the national system shall be empowered to adopt the said measures.

JUDGMENT OF 15. 12. 1971 — JOINED CASES 51 TO 54/71

9 Consequently, apart from the exceptions for which provision is made by Community law itself those provisions preclude the application to intra- Community trade of a national provision which requires, even purely as a formality, import or export licences or any other similar procedure.

10 On the other hand in trade with third countries the application of quantita­ tive restrictions and of measures having equivalent effect forms part of the common commercial policy under Article 113 of the Treaty and the pro­ visions on the common agricultural policy, in particular Article 40(3), which provides for the establishment of 'common machinery for stabilizing imports or exports'.

11 It emerges from the file submitted to the Court that the dispute brought before the College van Beroep voor het Bedrijfsleven arose in the context not

INTERNATIONAL FRUIT COMPANY v PRODUKTSCHAP GROENTEN EN FRUIT

of intra-Community trade but of the application of Regulation No 2513/69 which is concerned solely with the systems of importing fruit and vegetables produced in third countries.

12 Consequently, the question put by the national court must be considered in relation to the system of external trade so defined.

18 In the present state of the law the 'all licences granted' system is not incom­ patible with the general scheme of this regulation if licences are automatically issued to every applicant free of charge and without delay.

Costs

19 The costs incurred by tne Government or the Kingdom or the Netherlands and by the Commission of the European Communities which submitted

JUDGMENT OF 15. 12. 1971 — JOINED CASES 51 TO 54/71

observations to the Court are not recoverable. As those proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court

On those grounds,

INTERNATIONAL FRUIT COMPANY v PRODUKTSCHAP GROENTEN EN FRUIT

eral scheme of the said regulation if such licences are automatically issued to every applicant free of charge and without delay.

Lecourt Mertens de Wilmars Kutscher

Donner Trabucchi Monaco Pescatore

Delivered in open court in Luxembourg on 15 December 1971.

A. Van Houtte R. Lecourt Registrar President

Mr President, Council of 9 December 1969 (OJ 1969, Members of the Court, L 318, p. 6) it effected a comprehensive harmonization of the rules governing The cases referred for a preliminary imports from third countries. Accord­ ruling to be dealt with today, which ingly, from 1 March 1970 a complete were submitted to you by the College liberalization was effected in principle van Beroep voor het Bedrijsleven, a with regard inter alia to dessert apples, Netherlands court of last instance hav­ that is to say, there was a prohibition ing jurisdiction in economic matters, on the application to imports of the and which were joined for the purposes relevant products from third countries of the oral procedure by a decision of of quantitative restrictions or measures the Court of 10 November 1971, have having equivalent effect. However, Regu­ their origin in events which were in lation No 2513 also introduced a safe­ part dealt with in Joined Cases 41 to guard clause relating to trade with third 44/70 ([1971] ECR 411). I can accord­ countries. The conditions for its appli­ ingly refer, so far as the essential mat­ cation and the details of the measures ters are concerned, to the account of the to be adopted are set out in Regulation facts given at the time in the opinion No 2514/69 of 9 December 1969 (OJ and in the judgment and at this point 1969 L 318, p. 8). At the request of I need only recall certain aspects or the French Government this safeguard elaborate upon them. clause was applied in the spring of 1970 the measures at issue in tne mam on the ground that at that time a diffi­ action were adopted under the common cult situation prevailed on the market organization of the market in fruit and in apples in the Community. Accordingly vegetables. As the Court is aware that a system of licences for the import of organization of the market was estab­ dessert apples from third countries was lished by Regulation No 23 of the established for the period from 1 April Council of 4 April 1962 (OJ, English to 30 June 1970 by Regulation No 549 Special Edition, 1959-1962, p. 97), as of the Commission of 11 March 1970 supplemented by Regulation No 159/ (which entered into force on 15 March 66 of 25 October 1966 (OJ No 192 of 27 1970 [OJ 1970, L 57, p. 20]). The de­ October 1966, p. 3285) and that by tails of its operation may be recalled means of Regulation No 2513/69 of the from Cases 41-44/70. At present I only 1 — Translated from the German.