C-81/86

1. The Court is called upon to give 2. On 24 November 1984 the United States judgment in an action which the authorities imposed a total ban on the Netherlands company De Boer Buizen BV importation of steel tubes produced in the brought on 17 March 1986 against the Community. There followed complex nego­ Council and the Commission of the tiations, the outcome of which was that the European Communities under the second Community undertook to limit its exports to paragraph of Article 215 of the EEC Treaty. the United States, initially for the two-year The applicant, a distributor of steel tubes period 1985-86 and then until September which it exports chiefly to the United States 1989, by holding them below a ceiling set at of America, has since 1983 owned a 7.6% of apparent consumption in the stockyard in Huntsville, Texas, and operates United States (7 January 1985). through a United States subsidiary. In the autumn of 1984 it ordered 3 000 tonnes of tubes from German and French producers. However, by the time that the goods were delivered, in the following spring, a series of Pursuant to the Arrangement the Council measures had limited the exportation of adopted Regulation No 60/85 of 9 January tubes to the United States. De Boer was 1985 (Official Journal 1985, L 9, p. 13), therefore obliged to put them into stock. under which the Community's quota is to be allocated amongst the Member States in accordance with 'traditional trade patterns' (fifth recital) and the States are to distribute their respective quotas amongst under­ takings 'in accordance with objective The applicant claims that the Court should criteria' (third recital). In practice, under­ (a) declare that the Community is liable for takings wishing to market tubes in the the damage which the applicant has suffered United States must hold a licence which the on account of the measures which the competent authorities of each State issue Council and the Commission adopted in according to their traditional export pursuance of the Arrangement concluded on patterns and rates of exportation to the 7 January 1985 with the United States of United States as traditionally spread out America (Official Journal 1985, L 9, p. 1), over the year (see second and third indents which blocked its exports to that country of Article 5 (2)). Lastly, the ninth recital and with effect from 1 January 1985, and (b) Article 5 (4) allow licences to be transferred order the parties to come to an agreement not only between producer undertakings but on the extent of the compensation payable also between them and the distributor

undertakings, especially where the former under Article 215 of the EEC Treaty is sell their products to the latter. precluded where there is some other means of legal redress which ensures the effective protection of the individuals concerned (judgment of 12 April 1984 in Case 281/82 Further rules for the implementation of the Unifrex v Commission and Council [1984] Arrangement were laid down by the ECR 1969); the action brought by De Boer Commission in Regulation No 61/85 of 9 before the College van Beroep, which could January 1985 (Official Journal 1985, L 9, certainly request the Court of Justice to rule p. 19); the most important rule is contained on the validity of the contested provisions, in Article 3 (5), whereby 'each licence may will enable the applicant to obtain compen be transferred only once'. sation for the damage of which it complains. In the alternative, the Commission refers to the Krohn judgment, in particular the part

tubes. In order to obtain the desired of a national decision have been exhausted. remedy, De Boer must therefore turn to the It is, however, necessary that such means Netherlands courts, and in particular to the should afford effective protection and in the College van Beroep voor het Bedrijfsleven present case that condition is not satisfied. (Administrative Court of Last Instance in Indeed, even supposing that the College van matters of trade and industry) to which the Beroep refers the matter to the Court and applicant, on 26 November 1985, applied the Court declares both regulations invalid, for the annulment of the decision refusing the Netherlands authority would not be to grant it the licence. According to the compelled to amend its own decision in the case-law of the Court, it is the task of the absence of intervention by the Community national courts to review the administrative legislature (see Unifrex judgment).

The Commission's arguments follow the 4. I shall now turn to the substance of the same lines. It contends that an application case. As mentioned above, De Boer

OPINION OF MR MANCINI —CASE 81/86

maintains that Regulations Nos 60 and 5. These submissions must be assessed in 61/85, adopted by the Council and the the light of the principles which the Court Commission respectively to give effect to has laid down in interpreting Article 215. It the Arrangement of 7 January 1985, are will be recalled that the Court has primarily illegal and have caused it to incur damage. set out three conditions. In order for the It claims that, in dividing the burdens Community to be held liable there must be arising out of the Arrangement, the legis­ evidence of (a) unlawful acts by the lature acted arbitrarily, in particular: (a) by institutions, (b) unjustified damage, and (c) discriminating against distributors to the a causal link between the act and the benefit of producers, and (b) by allocating damage (see most recently, the judgment of the Community quota amongst the Member 17 December 1981 in Joined Cases 197 to States without taking account of traditional 200, 243, 245 and 247/80 Ludwigshafener trade patterns. Walzmühle and Others v Council and Commission [1981] ECR 3211).

DE BOER BUIZEN v COUNCIL AND COMMISSION

measure is arbitrary and, in particular, In the light of so unbalanced a situation, the discriminates against distributors. In that legislature had no option but to set up a regard the defendant institutions licensing scheme which favoured the note — correctly, in my view — that the producers. Nevertheless, it did not overlook 'traditional trade patterns' referred to do the distributors and, contrary to the not constitute a superior rule of law assertions of the applicant, use was certainly designed to protect the individual. It cannot made of the provision enabling licences to be said that Regulation No 60/85 enshrines be transferred to distributors. an obligation to share out the Community quota on the basis of those trade patterns; this is demonstrated by the wording 'take account of', used in the fifth recital to the regulation, which points to the existence of a margin of discretion in the appraisal of the interests at stake. It is indeed true that the two regulations give dissimilar treatment to The first head of criticism is therefore quite producers and distributors. However, those unfounded. Even more unsound, however, differences are in no way arbitrary or is the claim that the Community allocated discriminatory: as is shown by the aims of the total quota in a manner which favoured the Arrangement between the EEC and the certain Member States and in particular the United States of America, the differences Netherlands. Once again, it may validly be are objectively justified by the disparity argued that it is not legitimate to invoke between the situations of the two categories traditional trade patterns as a superior rule of undertaking. of law designed to protect the individual. Quite apart from that, however, it is unclear how the fact of which De Boer complains could have had an adverse affect on its export opportunities.

6. In view of the foregoing considerations I propose that the Court should dismiss the application lodged on 17 March 1986 by De Boer Buizen BV and, pursuant to Article 69 (2) of the Rules of Procedure, order the applicant to pay the costs.