C-109/80

JUDGMENT OF THE COURT (THIRD CHAMBER) OF 25 MARCH 1981 1

C. Toneman BV v Minister for Economic Affairs (preliminary ruling requested by the College van Beroep voor het Bedrijfsleven) "Quotas on imports from State-trading countries"

Case 109/80

Common commercial policy — Community quantitative quotas — Requirement of publi- cation prescribed by Article 4 of Regulation No 1023/70 — Not applicable to quotas to be opened by Member States in regard to State-trading countries (Regulation No 1023/70 of the Council, Art. 4; Council Decision 75/210, first paragraph ofArt. 1, as amended by Art. 3 of Decision 79/252)

The requirement of publication Community quotas, does not apply to contained in Article 4 of Regulation No the first paragraph of Article 1 of 1023/70 establishing a common Decision 75/210 on unilateral import procedure for administering quantitative arrangements in respect of State-trading import quotas, whose provisions, countries, as amended by Article 3 of pursuant to Article 1 thereof, govern Decision 79/252.

In Case 109/80

T H E C O U R T (Third Chamber)

composed of: J. Mertens de Wilmars, President, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

products from Czechoslovakia of which (b) Council Decision 75/210 of 27 a share of 2 733 000 items was allocated March 1975 on unilateral import arrange- to the Netherlands. The competent ments in respect of State-trading Netherlands Minister decided to countries (Official Journal 1975, L 99, distribute that quota between the p. 7), provides, in regard to the State- applicants for licences in proportion to trading countries listed in the annex to their imports of handkerchiefs from that decision, which include Czechoslovakia during 1977. Czechoslovakia, for the opening by Member States of the import quotas indicated in respect of each Member State and each country in question in a list appended to that decision. Decision 75/210 contains a number of rules Since Grotex had not imported hand- concerning the procedures to be kerchiefs from Czechoslovakia during followed by Member States when the relevant period the competent amending their unilateral import Netherlands authority refused to grant it import licences. arrangements in regard to the countries in question. The second paragraph of Article 1 of that decision also states that the decision providing for the opening of quotas by the Member States "shall not affect Member States' rules governing For products whose importation has not the opening and administration of been liberalized there are two distinct quotas". Under Article 8 of the decision sets of quota arrangements adopted by the Council is to adopt each year any the Council under Article 113 of the amendments which it appears necessary EEC Treaty: to make for the following year to those quotas. As regards 1979, the list of quotas was adopted by Decision 79/252/ EEC.

Taking the view that the dispute raised problems concerning the interpretation of On hearing the report of the Judge- Community law, by order of 25 March Rapporteur and the views of the 1980 the College van Beroep voor het Advocate General the Court decided to Bedrijfsleven asked the Court of Justice open the oral procedure without any to give a preliminary ruling on the preparatory inquiry. following questions : By order of 1 October 1980 made " 1 . Must Regulation (EEC) No 1023/70 pursuant to Article 95 of the Rules of of the Council be interpreted to Procedure the Court assigned the case to mean that the provision concerning the Third Chamber. publication contained in Article 4 of the regulation applies to the import quotas to be opened by the Member States pursuant to Article 3 of the II — W r i t t e n o b s e r v a t i o n s s u b - Council Decision of 21 December m i t t e d u n d e r A r t i c l e 20 of 1978 (79/252/EEC)? the P r o t o c o l on the S t a t u t e of t h e C o u r t of J u s t i c e of the E E C 2. If the answer to Question 1 is in the affirmative, must it then be held that upon a true construction of Article 4 A — Observations of the Netherlands of Regulation No 1023/70 — on its Government own or taking account also of the date on which the publication as meant by Article 3 of the regulation According to the Netherlands Govern- took place — a scheme adopted by a ment there is a fundamental difference Member State for the issue of import between national and Community licences in regard to an import quota quotas. In the first place that is because opened pursuant to Article 3 of the of the use of different legal instruments Council Decision of 21 December for the two types of arrangements, 1978 is not binding if the Member namely Regulation No 1023/70 (cited State concerned has disregarded the above) in the case of the arrangements provision concerning publication in for Community import quotas and the Article 4 of Regulation N o 1023/ allocation thereof into national shares, 70?" and the decisions, for example Decisions 75/210 and 79/252 addressed to the Member States, in the case of the The order for reference was registered at arrangements for national quotas which, the Court of Justice on 8 April 1980. in the absence of or pending Community

B — Observations of the Commission In the second place the sphere of application of the two types of The Commission observes that the arrangements and the schemes which present state of the special arrangements they set up are different. Regulations applied to State-trading countries is establish Community quotas unilaterally mainly attributable to two factors. First or by agreement and apportion them into of all foreign trade is the monopoly of national quotas whereas decisions the State and forms an integral part of empower and require Member States to the planned economy. Secondly both at establish national quotas which then, the time when the Community was set moreover, remain subject to the national up and on the accession of the new rules on quotas. Member States, the situation regarding the liberalization of trade with respect to Furthermore, any amendment of the those countries varied considerably from quotas is regulated in a different way: by one Member State to another. Article 2 (2) of Regulation No 1023/70 where Community quotas are concerned, Since the solution of fixing Community and by Articles 3 to 7 of Decision quotas could be applied only gradually 75/210 where "national" quotas are the Community thought it possible to concerned. maintain national quotas in being provided the Community procedures were observed. In view of those differences the Netherlands Government is of the opinion that Regulation No 1023/70 and First question particularly Articles 3 and 4 thereof apply only to Community quotas to the In order to reply to this question the exclusion of national quotas. If the case Commission compares the arrangements were otherwise two different procedures set up by Decision 75/210 with those would be applicable to the amendment of under Regulation No 1023/70. The first those quotas. Furthermore, two different paragraph of Article 1 of Decision systems would at the same time govern 75/210 provides that the Member States Community publication of the national shall open for 1975 the import quotas quotas: on the one hand Article 3 of shown in the annexes. The decisions Regulation No 1023/70 and, on the subsequently adopted each year then fix other, Article 5 (5) of Decision 75/210. the import quotas on each occasion for the relevant year and amend that paragraph of the article and the annexes. The Netherlands Government accord- The second paragraph of Article 1 of ingly believes that the provisions of that decision, however, remains Regulation No 1023/70 do not apply to unchanged and consequently applies to the national import quotas referred to in the quotas referred to by Decision Decision 79/252. 79/252. The second paragraph provides that the first paragraph "shall not affect Member States' rules governing the The first question from the College van opening and administration of quotas". Beroep voor het Bedrijfsleven should Thus the Council clearly wished to leave therefore be answered in the negative, it to the Member States to decide upon

Second question Since Regulation N o 1023/70 applies to Community quotas "fixed for the Community as a whole", either on a Since in the Commission's opinion the unilateral basis or pursuant to answer to the first question is in the agreements with non-member countries, negative it only briefly sets out its views the Community character of those on the second question. quotas must, notwithstanding the allocation of national shares, be taken The Commission believes that the into account as far as possible, whence question whether national rules are "not the need to enact common rules, binding" as a consequence of a failure to especially as regards the duty to effect observe the provisions of Article 4 of certain publications (Article 4), the Regulation N o 1023/70 should be procedure for apportioning shares resolved pursuant to national provisions between exporters and importers (Article with the qualification that in all cases the 5), and the periods of time provided for interests of individuals injured by the those operations. failure to observe that provision must be protected. If there has been a breach of the duty to effect publication, the existence of the unpublished rules may Decision 75/210 and the subsequent not be relied upon as against an importer decisions, on the contrary, concern not unless it appears that he was informed of the shares in Community quotas but the them in another way. quotas which Member States open under their import arrangements whose application is in large part governed by rules in force in the various Member States. Together with that difference of Ill — Oral procedure form there is a substantive difference: whilst the importation of the products The Commission of the European referred to in Regulation No 1023/70 is Communities, represented by its Agent, subject to quota restrictions imposed J. H. J. Bourgeois, presented oral argu- comprehensively for the whole ment at the sitting held on 15 January Community, the products referred to in 1981. Decision 75/210 and in the subsequent decisions adopted each year may be subjected to quotas in one Member The Advocate General delivered his State, liberalized in another Member opinion at the sitting on 26 February State and restricted quantitatively in a 1981.

3 In 1979 the importation of handkerchiefs into the Netherlands from Czechoslovakia, which already required the issue of import licences, became subject to a quota system. The quota in question had been adopted on the basis of Council Decision 79/252/EEC of 21 December 1978 amending the unilateral import arrangements in respect of State-trading countries (Official Journal 1979, L 60, p. 1). In Article 3 thereof that decision provided that Member States were to open import quotas and, in Annex IX thereto, that the quota for the import of handkerchiefs from Czechoslovakia into the Benelux countries was to be 3 393 000 items. According to the order making the reference for a preliminary ruling, the Netherlands Minister for Economic Affairs decided to distribute that part of the Benelux countries' quota allocated to the Netherlands on the basis of imports of handkerchiefs from Czechoslovakia during 1977. Since the importer concerned in this case had not imported handkerchiefs from Czechoslovakia during the reference period the import licences for 1979 for which the importer applied were refused.

4 Toneman appealed to the College van Beroep voor het Bedrijfsleven against that refusal on the ground that the decision of 21 December 1978 on the opening of the quota in question, which entered into force on 1 January 1979, had not been published in the Official Journal of the European Communities until 12 March 1979, that the Netherlands authorities had

JUDGMENT OF 25. 3. 1981 — CASE 109/80

never given any general notification of the imposition of the quotas in question, and that the traders concerned had not been informed of that measure in good time.

10 When a common commercial policy was introduced after the expiry of the transitional period, Regulation No 1023/70 of the Council laid down, in the case of products whose import was not liberalized, Community provisions on quantitative import quotas and in particular it specified the procedures by which those quotas are to be fixed and allocated by the Council and

TONEMAN v MINISTER FOR ECONOMIC AFFAIRS

administered by the Member States. However, since it did not appear possible to establish a Community system in all cases, Council decisions allowed Member States to retain the right to maintain national quota arrangements in certain cases. That was so in particular in the case of Council Decision 75/210 of 27 March 1975 on unilateral import arrangements in respect of State-trading countries (Official Journal 1975, L 99, p. 7), as amended by Council Decision 79/252 of 21 December 1978, pursuant to which the quota in issue was imposed in the Netherlands. According to the recitals in the preamble to Decision 75/210, those arrangements are to apply pending the conclusion of trade agreements between the Community and the various State-trading countries covering inter alia the arrangements to be applied to imports into the Community from those countries and common import arrangements are to be gradually introduced.

1 1 It is in keeping with the existence of two kinds of quota arrangements that by virtue of Article 1 thereof the provisions of Regulation No 1023/70 apply "to the administration of all quantitative import quotas . . ., whether auto- nomous or conventional, established by the Community" and therefore, as is stated in the second recital in its preamble, to "Community quotas", whereas the first paragraph of Article 1 of Decision 75/210, as amended by Article 3 of Decision 79/252, provides that the quotas involved in the case of measures taken pursuant to that provision are quotas which "the Member States shall open" and therefore national quotas.

On those grounds,

THE COURT (Third Chamber),

in answer to the questions submitted to it by the College van Beroep voor het Bedrijfsleven (The Netherlands) by order of 25 March 1980 lodged at the Court on 8 April 1980, hereby rules:

Article 4 of Regulation No 1023/70 of the Council of 25 May 1970 does not apply to import quotas to be opened by Member States in regard to State-trading countries under Article 3 of Council Decision 79/252/EEC of 21 December 1978.

Mertens de Wilmars Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 25 March 1981.