C-40/72

and

THE FEDERAL REPUBLIC OF GERMANY, represented by the Federal Office for Food and Forests, Frankfurt on Main,

defendant,

on the validity of Regulation (EEC) No 1643/71 of the Commission dated 28 July 1971 (OJ L 171, 13. 7. 1971, p. 2) establishing a system of minimum prices in connection with the import of tomato concentrates from Greece and as ancilliary thereto on the interpretation of Article 2 (1) of Regulation (EEC) No 1428/71 of the Council, 2 July 1971 (OJ L 151, 7. 7. 1971, p. 6) defining the conditions for applying the protective measures in the sector of products processed from fruit and vegetables,

THE COURT

composed of: R. Lecourt, President, R. Monaco, President of Chambers, A. M. Donner, J. Mertens de Wilmars (Rapporteur), H. Kutscher, Judges,

I — Facts and procedure and taking into account the principles laid down in Regulation No 1428/71, the The facts in the course of the Commission has laid down two proceedings can be summarized as protective measures which make the follows: import of tomato concentrate subject to the obtaining of an import licence. The common organization of the market in products processed from fruit The first, enacted by Regulation No and vegetables was established by 1558/71 (OJ L 164, 22. 7. 1971, p. 14), is Regulation (EEC) No 865/68 of the applicable to third countries with the Council of 28 June 1968 (OJ L 151, 1. 7. exception of Greece and establishes a 1968, p. 8). system of quantitative restrictions; the In the absence of coordination and second, which is contained in Regulation standardization of import systems No 1643/71 is applicable to Greece and applied by each of the Member States provides for a system of minimum prices. with regard to third countries, the Council was led to enact Regulation No Under Article 2 of this latter, the 1427/71 of 2 July 1971 (OJ L 151, 7. 7. obtaining of the import licence is subject 1971, p. 5) of which the object is to to the written undertaking by the permit the Community 'to take without importer to ensure: delay such necessary measures as will 'aa) ... enable the Community to cope with situations of serious disturbance to which bb) that import is pursuant to a the market in the relevant products contract providing for the sale and can be exposed because of the imports delivery free-at-frontier of the made under conditions particularly as Community or at a place situated outside it at a price above that regards price which jeopardise the objec­ contained in the Annex to the tives fixed in Article 39 of the Treaty'. present Regulation for the quality in The conditions for applying Regulation question and No 1427/71 were laid down by the Council in a second regulation No cc) that this price will in fact be paid'. 1428/71 also dated 2 July 1971 (OJ L The company Schroeder, plaintiff in the 151, 7. 7. 1971, p. 6). main action, requested 10 September The protective measures which can be 1971, the Federal Office for Food and taken by the Commission are Forests, the defendant in the main enumerated in Article 2 (1) of this Regu­ action, for an import licence for tinned lation: tomato concentrate from Greece (Tariff No 20.02). This request was refused by '(a) The total or partial suspension of Decision of 15 September 1971 because imports or exports; the party concerned refused to sign (b) a system of minimum prices below undertakings which Article 2 of which imports may be subject to the Regulation No 1643/71 required for the condition that they may be at a delivery of an import licence. The appeal price higher than the minimum against this decision, having been price for the product in question'. refused, the plaintiff issued a summons On the basis of Regulation No 1427/71 in the Verwaltungsgericht, (administra­

1. (a) Does Article 2 of Regulation No Advocate-General presented his opinion 1643/71 infringe the joint at the hearing on 10 January 1973. provisions of Article 40 (3) and Article 39 (1c) of the EEC Treaty? II — Observations submit­ (b) Does Article 2 of Regulation No ted under Article 20 of 1643/71 moreover, infringe the the Statute authority on which it is based, in particular Article 1 (1), first The observations submitted under sentence of Regulation No Article 20 of the Statute can be 1427/71 of the Council of 2 July summarized as follows: 1971? Reviewing the whole of the Community 2. In addition: does Article 2 of Regulations concerning the import of Regulation No 1643/71 violate tomato concentrate, the Company fundamental principles of law in Schroeder, the plaintiff in the main particular the priciple of proportion­ action, observes that the Commission ality and the principle of protection has made the import of tomato of good faith, concentrate from third countries subject 3. In addition: is Article 2 of the to an import licence from the importing Regulation invalid because the state, and introduced quantitative minimum prices fixed in the Annex to restrictions on imports, (Regulation No this provision are higher than the 1558/71 and No 1785/71 of the prices obtaining in the Member States Commission, OJ L 164, 22. 7. 1971, p. and have a prohibitive effect, 14, and OJ L 184, 14. 8. 1971, p. 55.

SCHROEDER v GERMANY

The measures have been taken on the Commission asserts, in this respect, that initiative of Italy and France, that there the governments of these countries have is nowhere established in this report that declared themselves ready to guarantee, disturbances in the market have on the import into the Community of appeared in other Member States and products from their territory, that the that they result per se from imports from price would not be below a certain third countries. Neither has the report minimum level and that any diversion of investigated the existence of disturbances traffic would be avoided.

Basing itself protective measures. on the Year Book for 1971 of the Office According to the Company Schroeder, for Statistics of the European Economic the Federal Republic of Germany was Community, the plaintiff estimates the opposed to the protective measures total production for 1968 as 396 000 taken on the initiative of the Italian tons, for 1969 as 581 000 tons and for Republic on the ground that there were 1970 as 686 000 tons; these figures no reliable figures as to the cost-price of include tomato concentrate in pots the Italian tomato industry and that the (Statistics al Nomenclature No 07.03). difficulties of that industry were not due to the import from third countries at low The plaintiff asks that the Commission cost-price but were of a structural be ordered to provide figures of the total production in the Community and the

Thus could be applied whereby imports which the level of Greek imports into Italy undercut them would either be after the coming into force of the temporarily halted or limited or made protective measures has remained subject to the condition that they be basically the same taking into account transacted at prices above the fixed fraud practised as to the origin of minimum prices. products.

Further, the plaintiff notes that the measures dependent upon there being, or Commission's report to the Council being threatened, serious disturbances as contains no figures or calculations as to a result of import or export. The the cost-price to the manufacturer of grounds of Regulations No 1428/71 of tomato concentrate in the individual the Council and 1643/71 of the Member States. In fixing the minimum Commission (this latter refers to the said prices, the Commission has based itself criteria in Article 44 (2) and (3) of the solely on a communication from the Treaty) spring from the same principle. Italian Government in which the The protective measures are in the factory price of tomato puree and plaintiff's view legal and valid only on moreover the leading product with a the following conditions: content of 28 to 30 % dry matter is 36 units of account per 100 kg. Such a price 1. Serious market disturbances must leaves for the importer from Greece exist or threaten.

4. If it is necessary as a protective minimum fixed prices but have remained measure to establish minimum prices well below. As regards this it refers to these must be based on principles the prices free-at-German frontier for the Italian tomato concentrate which which take into account in particular correspond moreover to the offers of the average national cost prices in a Member State having regard to a two German import companies at this reasonable price paid for the raw period. material to the agricultural producer; The plaintiff bases its case in law on the principle of proportionality: 'the 5. The minimum prices must not have a freedom of the subject must be limited by prohibitive effect; measures only to the extent and only 6. It is necessary to enquire as to the with such means as are necessary to give measure — complete or partial effect to a particular object in the suspension of imports or a system of interests of the general good. The minimum prices — which would interference must be necessary as such; it mean the least interference in the must not exceed the necessary measure freedom of the subject. and from among the means which are available to realise this object the one Proceeding from these points the which must be employed is that which plaintiff has the following objections on the one hand is of a nature such as to against the protective measures in permit the object determined upon to be question: attained in the general interest and 1. The existence or threat of serious which on the other hand burdens the market disturbances has not been subject the least. investigated by the Commission.

SCHROEDER v GERMANY

6. Of the two measures foreseen in not cause the serious disturbances which Article 2 (1) of Regulation No 1428/71 were attributed to them. of the Council, the complete or partial 2. The plaintiff maintains that the suspension of imports limits the freedom protective measures were not necessary. of the importer to a lesser extent than Even if one were to admit that at least in does the minimum-price regulation. This Italy and France there had been serious order of priority appears not only from market disturbances caused by imports the said Article 2 of Regulation No from third countries it would have been 1428/71, but also from Article 44 (1) of sufficient to limit the protective measures the EEC Treaty.

4. The Commission's report to the method for Greece. Council shows that the minimum prices Even restricting the imports to 50 % as are not related to the cost prices of the had been done for the other third manufacturers in the Community but to countries in Regulation No 1785/71 of a 'list price' which the Italian 13 August 1971 would have had in the Government wanted and proposed and which the Italian manufacturers would plaintiff's view a greater effect on the obtain as a result of the institution of the volume of imports but would have been less of a burden to the importers. protective measures. In the premises the plaintiff seeks a

JUDGMENT OF 7. 2. 1973 — CASE 40/72

Article 39 of the Treaty'. It observes The Commission then alleges that the further that in consequence paragraph 1 import of tomato concentrates from (b) of this last provision, which seeks to Greece had substantially diminished secure a proper living standard for the after the introduction of the protective agricultural population, must be taken measures. into account. Finally, the Commission joins issue with As far as concerns the doubts that have plaintiff's allegation that the regulation been expressed as to the 'appropriate­ in question is quite unusual within the ness' of the disputed measures on framework of the common regulation of account of the possibilities for fraud the EEC Market. If it is true that the and evasion it observes that in so far as disputed measure constitutes the first this criticism is of general application a instance in which the system of similar system is provided in Article 44 minimum prices had been applied as a of the Treaty. protective measure, there are however in In its Decision of 4 April 1962, re other fields regulations which make the minimum prices under Article 44 (OJ applicable system of imports dependant No 30, 20. 4. 1962, p. 995/62) the upon the observation of certain Council of Ministers has preferred the minimum prices.

SCHROEDER v GERMANY

. . required; be taken only to the extent and for the 2. that the principle of legal certainty is period which are absolutely necessary'. If infringed since the import trade can and in so far as the regulation of the no longer rely on the fact that 'it can Commission does not respect this conclude and conduct its affairs limitation in the regulation of the; under normal conditions of competi Council it is or will be defective. In view tion'; of this provision a formal limitation on the period as is customary for protective 3. that there is a further infringement measures would have been neither of the principle of proportionality necessary nor appropriate. since the regulation is not limited in time; In so far as concerns the argument based on the limitation of duration — this 4. finally, there is an infringement of the limitation is provided for in the principle of proportionality since minimum-price Decision of the Council there was 'possible' neither a serious market disturbance nor the threat of of 4 April 1962 (OJ No 30, 20. 4. 1962, p. 995/62) pursuant to Article 44 (3) of

The second objection is inappropri 4. The objection that no serious ate. The fact that certain imports from market disturbance existed or was Greece could be effected circumventing threatened is not very convincing. the minimum price does not deprive the importer of the possibility of concluding First not only the imports from Greece and transacting his business 'under nor but those from all third countries must mal conditions of competition' (which be considered. If one does this it will be means: in the confidence that the system seen that the total imports from 1967 to of minimum prices functions on the 1970 had increased from 18 000 tons to whole). 70 000 tons, that it an increase of almost

has taken on serious proprotions. assertion that the minimum price has Dozens of tomato processors had to been set at too high a level and had cease their activities in the trade year therefore represented an excessive 1970, since they were no longer in the obstacle to imports from Greece. position to meet the pressure of To establish the relationship of the competition from the producers from Greek prices of offer free-at-frontier third countries. vis-à-vis the cost prices of the The decisive factor for the necessity of Community (the Greek prices represent the protective measures lay above all in some 60 to 70 % of the aforesaid cost the diminished capacity on the part of prices of the Community) the the Community industry to take up any Commission has based itself on the more and its effects on the agricultural official returns of the Italian Ministry of producer. There would have been Agriculture, since Italy is the main considerable surpluses had these producing country in the Community. measures not been introduced (200 000 The officials of the Commission have tons of fresh tomatoes according to the examined these facts and found no fifth recital in Regulation No 1643/71. reason to doubt their correctness. Costs Such surpluses would have led to a fall moreover of the French tomato in price in the market for fresh tomatoes concentrates were even higher. and thus the object of stabilizing the The Commission rejects the plaintiff's market would have been seriously argument that the prohibitive effect of threatened. Possible intervention meas­ the disputed measure is seen from the ures would have been without effect for recession of the Greek imports of the intervention price level would have concentrates from 12 947 tons in 1970 to been so low as to present the producer 6 448 tons in 1971 and observes that this with no inducement to produce and argument conflicts with the allegation

that the disputed measures have had no the Council (Article 2 (1)) and in Article effect. 41 of the Agreement with Greece. Under In the Commission's view the level of Regulation No 1428/71 the two possible imports for the last five months of 1971 measures are, on the one hand, a shows a return to a normal volume of complete or partial suspension of imports (such as in 1968) after an imports or exports and, on the other excessive increase which is evidence that hand, a minimum price.

With Commission could not with certainty similar justification one could argue that give an explanation as to the reasons for the legislature has named the most this development. Several hypotheses are drastic measure first. possible. Considerable quantities of tomatoes could have been imported With regard to the question, which of the two measures is most in accord with from Greece and could have influenced the market prices after the protective the principle of proportionality, one cannot generally say that the measure was taken. They could possibly have been the produce of Greek origin minimum-price system is more drastic in mixed with that of Italian. It was also its effect than the reduction of imports. possible even that Italian producers had With regard to the actual facts various been compelled to offer the produce at reasons have justified the choice which uneconomic prices to be able to compete was made. The more flexible minimum

JUDGMENT OF 7. 2. 1973 — CASE 40/72

Agreement. prices, Article 41 of the Agreement of Since moreover the execution of Athens provides simply for the Regulation No 1427 had in any case to introduction of a system of minimum be contained within the limits of the prices which could lead to the Association Agreement, in the Commis application of quota restrictions or the sion's view a quantitative restriction of condition that minimum import prices imports could have been introduced only were maintained. in the context of a system of minimum The Council takes the view that Article prices below which imports could 2 of Regulation No 1428/71 fixes no temporarily be suspended or reduced. priority between the two protective This would not have been practical to

measure. The Commission draws from fact each of the two systems has its this the conclusion that its choosing the advantages and appears according to the second alternative under Article 2 of circumstances more or less appropriate. Regulation No 1428/71 accorded not The Council queries whether perhaps only with the nature of the matter but the second system is not the only one having regard to the international compatible with Article 41 (1) of the obligations of the Community, vis-à-vis Agreement of Athens.

SCHROEDER v GERMANY

Since this system has not were used in the tomato concentrate been literally incorporated in Article 2 of industry itself and in industry processing Regulation No 1428/71 of the Council, it further. Since there was no important doubts could arise on the basis of the concentrate industry in Germany and the applicable Community Regulation as to Benelux countries, all imports into these its applicability with regard to Greece. countries were used exclusively for direct To summarize, the Council is of the consumption and further processing.

Athens. 07.03-75) the Commission explained that The Council draws the Court's attention the protective measure related exclusive to the fact that it is not clear from the ly to tomato concentrates for direct order of reference whether the answer to consumption or further processing the question put would suffice to decide (Tariff No 20.02 Statistical Nomencla the question of interpretation raised by ture No 20.02-30) that is neither tomato the plaintiff before the administrative conserves which contained peeled

anticipate the attitude which the Commission could or should have To the question whether the protective adopted if it had not issued the alleged measure could not be limited to a region unlawful regulation. On the contrary: if the Commission replied that such a the illegality arose from the fact that limitation would have two disadvan instead of the system of minimum prices tageous effects since it would have imports ought to have been suspended prejudiced the competitiveness of the then no licence could have been issued. Italian products in the other Member At the sitting held 22 November 1972 States in which the goods from third the plaintiff and the Commission countries could have penetrated without answered questions put by the Court. limitation and further would have forced

2 Regulation No 1427/71 of the Council of 2 July 1971 (OJ L 151, 7. 7. 1971, p. 5) provides for the introduction of protective measures for products processed from fruit and vegetables and permits in trade with third countries the application of appropriate measures, when the market in these products is subject to or threatened with serious disturbances by reason of imports, which could jeopardize the objects of the common agricultural policy set out in Article 39 of the Treaty. Regulation of the Council No 1428/71 (OJ L 151, p. 6) issued on the same day sets out in Article 1 the criteria for judging whether there is, or there is a threat of, a serious disturbance, and empowers the Commission in Article 2 either completely or partly to suspend imports

SCHROEDER v GERMANY

or to introduce a system of minimum prices, which make imports dependent on their being above a fixed minimum price.

5 As a justification of its measure the Commission referred to the continued increase of imports of tomato concentrate from Greece — in the course of the economic years 1968-1970 from 4 000 to 22 000 tons — at prices which represented from 60 to 70 % of the cost prices of the Community industry. The Commission observes that this difference in price has led to the closing of a great number of tomato processing concerns in Italy, which in turn has

JUDGMENT OF 7. 2. 1973 — CASE 40/72

diminished the possible outlets for fresh tomatoes produced in this part of the Common Market. Having regard to the fact that this position as far as could be seen would continue, the Commission came to the conclusion that serious disturbances threatened the market of the Community 'by imports originating from Greece' both for the processing industry as for the outlet of basic producers which could lead to prices on the internal market detrimental to the objects of Article 39 of the Treaty.

6 The administrative court observes that the figures mentioned in the recitals of the Regulation account for less than 10 % of the tomato concentrate production in the Community and it therefore queries whether such a volume of imports could disturb the internal market.

7 The necessity of the protective measures as the 7th and 8th recitals of the disputed Regulation made clear was to be judged not only by reason of the imports from Greece but also from those from other third countries since the effects on the internal market of the Community arose above all from the total volume. Moreover this was the object of the protective measures provided on the one hand in Regulation No 1558/71 and on the other in the disputed Regulation. The necessity of a regulation with special provisions for Greek imports arose only out of — confirmed by Article 3 of Regulation No 1423/71 — the obligation of the Commission to apply the measures provided for 'with due regard to the obligations arising out of agreements which bind the Community on an international level', here the Agreement of Association between the Community and Greece.

the maintenance of a proper living standard for the agricultural population, and judged the question whether a disturbance threatened according to the possible effects of these imports on the outlet possibilities for the basic produce and on the processing industry. The 70 000 tons imported during the year represented a production of 420 000 tons of fresh tomatoes, whereas in Italy, the main producing country, only 1 000 000 tons were intended for proces­ sing: the Commission could therefore rightly deduce that these imports represented a serious threat for the outlet for the production of fresh tomatoes. It has had regard to the criteria upon which, according to Article 1 of Regu­ lation No 1428/71, judgment of the question must be based, whether the market is subject to a serious disturbance or is threatened with such — namely (a) the extent of the imports effected or foreseen, (b) the disposable amounts of the produce on the market, (c) the prices of the domestic produce and (d) those of the imported produce — that is the criteria which enable the effects of the imports on the internal market of the Community to be measured.

10 The claim of the plaintiff in the main action that the disturbances in the Italian market for tomato concentrate are not due to imports but arise principally from structural difficulties inherent in the Italian economic system does not call in question the disputed protective measure.

According to the recitals in Regulation No 1428/71 the necessity of protective measures can arise by reason of special features of the internal market such as structural difficulties having as a result of imports developed so unfavour­ ably that the recuperation of the market is made more difficult.

14 With regard to the possibility of there existing opportunities of circumvention, it must be observed that the legality of a Community act cannot depend on retrospective considerations of its efficacy. Since in the present case it is a question of complex economic measures, which for the purpose of their efficacy necessarily require a wide discretion and moreover as regards their effects frequently present an uncertainty factor, the observation suffices that these measures do not appear on issue as obviously inappropriate for the realization of the desired object. This observation needed to be made both with regard to the costs of the alleged circumvention possibilities and the uncertain duration of the protective measure. Moreover the considerable recession in imports after the disputed measure came into force showed that it was not as ineffective as alleged.

C — Infringement of general legal principles (first and second paragraph of the observations of the Court making the reference on the second question)

15 The Court is further asked whether the validity of the disputed provision can be affected by reason of it infringing general legal principles in particular the principle of legal certainty and proportionality because it impedes import trade otiosely, contains no limitation on its duration and extends to the whole common market.

SCHROEDER v GERMANY

16 Each of these criticisms is to be examined severally with regard to the question of compatibility of the disputed provision of Community law.

17 The national court raises doubts whether there is not a ground of invalidity 'by reason of the possibilities of circumvention... the danger (exists) that import trade is made difficult for law-abiding importers but on the other hand it does not have the desired effect of stabilizing the market'.

JUDGMENT OF 7. 2. 1973 — CASE 40/72

principles referred to in this provision of the Treaty. If the Council in other circumstances has provided such a limitation in an implementation provision that does not mean that this provision was required by Article 44 nor in consequence thereto by Article 41 of the Association Agreement.

21 In the view of the plaintiff in the main action, the protective measure ought to have been limited to imports intended for Italy and France since the disturbances were mainly in these two markets.

22 Such a limitation however would have jeopardized the effectiveness of the measure by reason of the free trade existing under the Treaty. A large part of the Italian production of tomato concentrate is namely intended to be sold in the other countries of the Common Market where it would have met the competition of the cheap imports from third countries. This criticism is thus not pertinent.

D — The prohibitive effect of the disputed measure (third question)

23 The third question is whether the validity of the disputed provision is not affected by reason that it has a prohibitive effect.

26 The Commission has rightly taken as a basis the Italian costs since Italy is by far the most important producer in the Community. Having regard on the one hand to the cost price and on the other to the offer price on the world market in the region of 25 u.a. per 100 kg it has fixed the minimum prices in respect of Greece at 34 u.a. and in respect of the other third countries at 30 u.a., which including customs duties corresponds to a price of 35.4 u.a. Thus it has assured for the benefit of Greece a preference foreseen in the Association Agreement. No conclusion as to the invalidity of the minimum price provision may be drawn only from the fact that the offer prices for tomato concentrate after the disputed measure was issued have apparently lain continually under the minimum price of 34 u.a. which has been reached only in June 1970. It is true that at internal market prices lay during the second half of 1971 with slight fluctuations at 30 u.a., nevertheless they showed subsequently a constant tendency to approach the minimum price.

27 In this connection the special condition of the relevant market has to be considered on which the imports aggravated the structural difficulties which already existed there.

28 If one takes into account the complex character of the economic forecast necessary for the issue of the disputed measure, it is not a apparent that the Commission on ascertaining the prices to be taken into consideration has gone farther than could be regarded as necessary for attaining the objects of stabilizing the market and assuring an appropriate standard of living for the agricultural producers.

31 Under Article 2 of Regulation No 1428/71 there come into consideration as protective measures either the suspension of imports or a system of minimum prices whereby when they are not reached imports can be made dependent on the fact that they are conducted at a higher price than the fixed minimum price. Article 41 of the Association Agreement provides on the other hand as a protective measure, a system of minimum prices in two forms, whereby in the one when the minimum prices are not reached a temporary suspension or limitation of imports is possible whereas in the other imports can be made dependent on the fact that they are transacted at a higher price than the minimum price. Since the Commission was obliged on applying protective measures to respect the Treaty obligations which are internationally binding on the Community, it had with regard to Greece to have recourse to one of the two forms of minimum price systems.

32 Neither Article 2 of Regulation No 1428/71 nor Article 41 of the Association Agreement on enumerating the measures provided for there, establish an order of priority between them. It is in accordance with the object aimed at by these measures that the administration can decide according to the circum­ stances the measures which appear to it most suitable. Thus as regards Greece it had the choice between the two forms of the system of minimum prices provided in the Association Agreement, and the system which it ultimately chose appears less restrictive than the quota system likewise provided for in this Agreement on prices falling below the minimum. Moreover this latter system as already mentioned presupposed quotations on the internal market, which were not available for the products in question at the time when these measures had to be taken.

Upon reading the pleadings, Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral arguments of the plaintiff in the main action, the Council and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community especially Articles 39, 40, 44 and 177; Having regard to Regulations Nos 1427/71 and 1428/71 of the Council of 2 July 1971; Having regard to Regulations Nos 1558/71 of 20 July 1971 and 1643/71 of 28 July 1971 of the Commission; Having regard to the Decision of the Council of 4 April 1962; Having regard to the Agreement establishing an association between the European Economic Community and Greece of 9 July 1961; Having regard to the protocol on the Statute of the Court of Justice of the European Economic Community and especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

in reply to the questions referred to it by the Verwaltungsgericht Frankfurt- on-Main by its order of 19 June 1972 hereby rules:

1. The examination of the questions which have been put have shown nothing which could cast doubt on the validity of Article 2 of Regu­ lation (EEC) No 1643/71 of 28 July 1971.

2. Neither Article 2 (1) of Regulation (EEC) No 1428/71 of the Council of 2 July 1971 nor Article 41 of the Agreement establishing an

OPINION OF MR ROEMER — CASE 40/72

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 10 JANUARY 1973 1

Mr President, provided the application of the common customs tariff in relation to third Members of the Court, countries only, it did not however contain a protective clause, since it did not yet In this reference for a preliminary ruling effect the 'coordination and unification by the Verwaltungsgericht (Administra­ of import regulations' which individual tive Court) Frankfurt which I deal with Member States applied towards third today, we are concerned with the countries. This gap was filled by Council validity of the Commission's Regulation Regulation No 1427/71 of 2 July 1971 No 1643/71 of 28 July 1971 having as its introducing protective measures for prod­ purpose 'introducing a system of ucts processed from fruit and vegetables minimum prices for imports of tomato (OJ L 151, 7. 7. 1971). Article 1 provides concentrates from Greece' (OJ L 171, 30. inter alia: 'If by reason of imports the 7. 1971). Community market in one or more of the products listed in Article 1 of Regulation In this connection, one might first of all (EEC) No 865/68 experiences or is mention the following. threatened with serious disturbances Tomato concentrate under Tariff No which may endanger the objectives of 20.02 is within the ambit of the common Article 39 of the Treaty, appropriate organization of the market in products measures may be applied in trade with processed from fruit and vegetables, third countries until such disturbances or created by Council Regulation No threat of disturbance has ceased. In this 865/68 of 28 June 1968 (OJ L 154, 1. 7. respect, there was promulgated on the 1968). This organization of the market same day the Council Regulation No