C-32/87
ECLI:EU:C:1988:108
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OPINION OF MR LENZ — JOINED CASES 32, 52 AND 57/87
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 2 March 1988 *
Mr President, that decision that the Commission intended Members of the Court, to obtain, before the end of 1986, the Council's assent to the exclusion of further product groups from the system of quotas with effect from 1 January 1987 (Article A — The facts of the case 19).
1. The case which comes before the Court 3. Accordingly, the Commission proposed, today was brought by an Italian association in a communication to the Council dated 2 of steel-producing undertakings and by October 1986, also to liberalize, with effect three Italian steel producers (of which two from 1 January 1987, product groups IV, are concentrated within the meaning of Ic, VI, as well as pre-products from Article 66 of the ECSC Treaty). It concerns, category Ic and a part of category III. But once again, the system of steel quotas that proposal was also unsuccessful. As we introduced under Article 58 of the ECSC know, the Commission did not rely on Treaty which, in the various forms which paragraph (3) of Article 58, which is that system has taken since 1980, has expressly quoted in Article 18 of Decision already been subjected to scrutiny in a No 3485/85 and provides that: number of cases.
'The system of quotas shall be ended on a proposal made to the Council by the High 2. Before the expiry of the system 1 Authority after consulting the Consultative implemented by Decision No 234/84 (valid Committee, or by the Government of a under Article 18 thereof until 31 December Member State, unless the Council decides 1985), the Commission conducted an otherwise, acting unanimously if the assessment of the situation in the autumn of proposal emanates from the High Authority 1985. As is apparent from a communication or by a simple majority if the proposal to the Council dated 25 September 1985, it emanates from a government'. came to the conclusion that, after 31 December 1985, categories IV, V, Ic and Id could be excluded from the continuing quota system. Owing to the fact that the Council did not give the assent required by 4. Rather, as is explained in Article 19 of Article 58 (1) of the ECSC Treaty, Decision No 3485/85, it was concerned to Commission Decision No 3485/85, 2which obtain the Council's assent under paragraph extended the system of quotas until 31 (1) of Article 58 of the ECSC Treaty, which December 1987, only liberalized categories provides : Id and V. However, it was further stated in
* Translated from the German. 1 — OJ 1984, L 29, p. 1 et seq. 'In the event of a decline in demand, if the 2 — OJ 1985, L 340, p. 5 et seq. High Authority considers that the
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Community is confronted with a period of 7. On the basis of Decision No 3485/85, as manifest crisis and that the means of action amended by Decision No 3746/86, and in provided for in Article 57 are not sufficient accordance with Decision No 3673/86, to deal with this, it shall, after consulting which contains the rates of abatement the Consultative Committee and with the applicable for the first quarter of 1987, the assent of the Council, establish a system of quotas for the other undertakings production quotas, accompanied to the mentioned above (which only manufacture necessary extent by the measures provided products of category IV, that is the for in Article 74.' applicant in Case 52/87, or heavy profiles falling within category III, that is the applicants in Case 57/87), were fixed in communications of 23 December 1986 for the first quarter of 1987. Since they also take the view that the legal basis of these communications is open to challenge, in so 5. As this was not forthcoming (at the far as it is apparent from Decision No meeting of the Council of 20 October 1986, 3746/86, they likewise brought proceedings the representatives of Belgium, Germany before the Court on 20 and 25 February and Luxembourg declared themselves 1987 seeking a declaration that the opposed to a liberalization of categories III, communications addressed to them by the IV and VI and maintained their opposition Commission on 23 December 1986 were at the meeting of 18 November 1986), invalid. Decision No 3746/86, amending Decision No 3485/85, 3only excluded product group Ic, together with its pre-products, from the system of quotas. The position remained unchanged even after further discussion of the question at the meetings of 19 March 8. On the basis of all the written and oral 1987, at which the Luxembourg and Greek submissions I feel it appropriate to make the delegations spoke against any further following analysis of these three cases. liberalization, and 1 June 1987. Only by way of Decision No 194/88 of 6 January 1988 4were categories IV and VI removed from the system of quotas.
B — Assessment
6. On 3 February 1987, the association mentioned above (whose 74 members essen tially manufacture categories IV and VI I— Admissibility products — one member is also active in the field of category III — unhappy with the framing of Decision No 3746/86, brought an action before the Court for a declaration 9. As the Commission expressed reser that Decision No 3746/86, which in its view vations as to the admissibility of the had been improperly adopted, was void. application in Case 32/87, these should be examined first. 3 — OJ 1986, L 348, p. 1. 4 — OJ 1988, L 25, p. 1 et seq. 5 —OJ 1986, L 339, p. 20.
OPINION OF MR LENZ — JOINED CASES 32, 52 AND 57/87
10. 1. This can be dealt with briefly, as far (a) In this respect, the Commission is as the Commission's observation is referring principally to the Court's case-law, concerned to the effect that Decision No according to which a misuse of powers must 3746/86, which only liberalized category Ic, be expressly alleged and reasons given for does not affect the applicant because none such an allegation (judgment in Case 3 / of its members manufactures such products. 54 6); and as was held in the judgment in It therefore is not an act adversely affecting Joined Cases 55 to 59 and 61 to 63/63, 7the them. applicants must allege a misuse of powers affecting them and, as was held in the judgment in Cases 3 and 4/64, 8 the applicants must convincingly point to facts and circumstances indicating the probability of a misuse of powers.
11. It seems to me that the Commission did not really maintain that point of view after the applicant made clear that the decision in question was not contested because it liberalized category Ic but on the ground that it did not also exclude other categories from the system of quotas (which would have been possible under Article 58 (3) of the ECSC Treaty). The applicant and its members do in fact feel aggrieved by the fact that the contested decision did not go far enough (Article 4 of Decision No 13. In my view, however, it cannot be said 3485/85 did not also delete categories III, that the applicant's application does not do IV and VI) and, from this point of view, no justice to this point. Central to its reservations subsist as regards the submissions is indeed the argument that the applicant's interest in bringing the action. Commission, in issuing the contested decision, committed a misuse of procedure, that is to say, instead of applying Article 58 (3), it had recourse to Article 58 (1). This is a category of misuse of powers, as is 9 made clear by the judgments in Cases 2/57 and in Joined Cases 140, 146, 221 and 10 12. 2. A further objection to the admissi 226/82 (which deal with the circum bility of the application is related to the fact vention of a special procedure). Moreover, that the contested decision is genuinely a it cannot be called in doubt — and I need general decision. As we know, such give no further proof of this — that the decisions may only be directly challenged by application contains detailed arguments in undertakings or associations of undertakings if they claim that they constitute a misuse of 6 — Judgment of 11 February 1955 in Case 3/54 Assider vHigh Authority [1955] ECR 63. powers affecting them. The Commission 7 — Judgment of 9 June 1964 in Joined Cases 55 to 59 and 61 fails to see any argument of this kind in the to 63/63 Modena v High Authority [1964] ECR 211. application. In its view the originating 8 — Judgment of 8 July 1965 in Joined Cases 3 and 4/64 Sidé- rurgie française v High Authority [1965] ECR 443. application actually only contains arguments 9 — Judgment of 13 June 1958 in Case 2/57 Hauts-fourneaux de relating to substantive legality but no Chasse vHigh Authority [1958] ECR 199. assertion of a misuse of powers with regard 10 — Judgment of 21 February 1984 in Joined Cases 140, 146, 221 and 226/82 Walzstahl-Vereinigung and Thyssen v to the applicant or cogent reasons therefor. Commission [1984] ECR 951.
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this respect which substantiate the prob such a narrow view is no longer justified. I ability that they are well founded. would recall the judgment in Joined Cases 140, 146, 221 and 226/82, in which there was held to be admissible an application by an association some of whose members were excluded from the increase in quotas 14. As far as the making of an allegation of provided for in the contested general a misuse of powers is concerned (whether it decision. I would also point out that in Case is proven is however a question of 250/83 the Court held an action against a substance), there can be no reservations general decision to be admissible, although about this. in my Opinion I considered that the applicant could not be regarded as a specific victim on the ground that it, like most of the large steel undertakings, had been 15. (b) It might at the most be otherwise as excluded from the rules on adjustment regards the requirement that there must because it had received subsidies. have been a misuse of powers affecting the applicant. The relevant case-law, which I set out in my Opinion in Case 250/83 11enables such a supposition to be made. It may be concluded from that case-law that the 18. If accordingly one applies a liberal test, purpose of the expression quoted above is to it may well be regarded as sufficient, as far limit the right of action to factual situations as the admissibility conditions of Article in which individual aspects predominate. In 33 (2) of the ECSC Treaty are concerned, accordance with Article 33 (2) of the ECSC for the applicant to argue that its members Treaty, the precondition, as was held in the were particularly affected by the contested judgment in Joined Cases 55 to 59 and 61 decision because they manufacture products to 63/63, is that the applicant's interests which should have been excluded and that must be directly prejudiced, which cannot, they were thereby discriminated against in however, be so if several undertakings are relation to manufacturers whose products affected in the same way by a general were in fact liberalized. decision.
16. In the present case, it is nevertheless 19. 3. Doubt was also cast on the clear that not only the 74 members of the applicant's interest in bringing the action. applicant association are affected by the contested limited liberalization, but all manufacturers of products which, in spite of the Commission's proposal for liberaliz ation, were not excluded. 20. On this point the Commission, in its pleadings, argued that it was on the one hand not certain that, had Article 58 (3) been applied, a more far-reaching liberal 17. It is permissible to believe however that, ization would in fact have come about following recent decisions of the Court, (because it could be prevented by a unanimous vote of the Council); on the 11 — Opinion of 27 November 1984 in Case 250/83 Finsider v Commission [1985] ECR 132. other hand, should the contested decision be
OPINION OF MR LENZ —JOINED CASES 32, 52 AND 57/87
declared unlawful, owing to the failure to force by more far-reaching liberalization. In apply Article 58 (3), it could not be view of the actual production quantities in excluded that the Commission, which would 1987, this may be of real interest to the then have to take up the case again, would applicant and is quite a different interest to in its assessment of the situation, arrive at the one satisfied by the decision of 6 different conclusions and thus also at less January 1988. Therefore, with regard to far-reaching proposals for amendment than both categories of products, an interest in those adopted in 1986. bringing the action can certainly not be denied on account of the change in the legal situation on 1 January 1988.
21. At the hearing, the Commission moreover pointed out that it was in fact no longer considering for the foreseeable future 23. (b) As to the Commission's argument (that is to say beyond 1 July 1988), a partial that, had Article 58 (3) been applied in liberalization of category III (regard being Autumn 1986, it was not certain that a had to the reference quantities which have different result would have been achieved since been transferred to this category and (namely a liberalization as contemplated by to the difficulty in distinguishing the various the Commission), the applicant, referring to products which make up this category). In the relevant case-law of the Court, perti addition, it seems to have cast doubt, in its nently observed that it is not a question of oral submissions, on the applicant's interest whether it may be said with certainty that in bringing the action by pointing out that by applying Article 58 (3) a result different in the mean time (by the decision of 6 from that contained in the contested January 1988) the liberalization of decision would have come about. In the categories IV and VI deemed correct by the context of the examination of admissibility, applicant has actually come about. it is sufficient that it may be regarded as conceivable and also likely that the application of Article 58 (3) would have led to a different result. The latter point may certainly be conceded, that is to say it may be assumed that at least one Member State (which is sufficient for Article 58 (3)) 22. (a) As far as these considerations are would have gone along with the concerned the last-mentioned argument may Commission proposals. On this point I refer in my view at once be regarded as without to a reservation made by the Italian dele merit. The applicant is, after all, of the gation in the Council meeting of 18 opinion that the decision challenged by it, November 1986 as regards the sole which was issued on 5 December 1986 and exclusion of category Ic and to the entered into force on 1 January 1987, was statments contained in the minutes of the improper because it failed to effect at the Council meeting of 18 March 1987 that the same time a liberalization of categories IV Italian delegation was in favour, as a matter and VI as well as parts of category III. of priority, of the liberalization of category Therefore the applicant is concerned to VI , and I recall, moreover, the applicant's obtain a declaration of its unlawfulness, a claiming that the Netherlands also favoured fresh assessment of the situation as at 1 a more far-reaching liberalization. This January 1987 and the replacement of the cannot be countered by saying that neither decision as from the date of its entry into of these States contested the Commission's
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decision, thereby demonstrating its 26. It is otherwise however, with regard to insistence on a more far-reaching liberaliz small heavy profiles in category III. That is ation. It is, of course, one thing, in the because the Commission firmly stated that it application of Article 58 (3), simply to has had to revise its judgment, for the 12 adhere to the Commission's viewpoint in a reasons which I have stated, and therefore Council meeting and thereby to prevent a no liberalization may be contemplated even unanimous veto; it is quite another to for the period after 1 July 1988. It may contest a decision before the Court. therefore be assumed with certainty that, were the contested decision to be declared void and subsequently newly formulated in accordance with Article 58 (3), category III would be left within the quota system, and the legal situation would to that extent 24. (c) As to the question, moreover, of remain unchanged. what inferences may be expected to be drawn by the Commission if the contested decision were declared void, and whether it may be assumed that an assessment of the situation would yield the same result as prior to the adoption of the contested decision or whether a change is becoming 27. It follows that there is no interest in apparent, a distinction must be drawn on bringing an action on the basis of the the basis of the product categories in non-application of the correct procedure question. under Article 58 (3) of the ECSC Treaty, as regards the failure to liberalize category III (small heavy profiles).
25. As regards categories IV and VI, it must be acknowledged at once that, even at the time when the action was brought, there was no reason to expect a different 28. 4. In conclusion, at the end of this first assessment (the Commission gave clearly to part of my examination, it should be stated understand in March 1987 that it is in that the admissibility of the application in favour of liberalization on the ground that Case 32/87, which alone has been called in the crisis is over and that on no account will question, cannot basically be denied and it lend its support to a prolongation of the that the contrary is true only in so far as the system beyond 1987). This applies a fortiori treatment in the contested decision of at the present time since we now know that, category III is concerned. Moreover, it also by a decision of 6 January 1988, adopted follows, let it be pointed out at this with the Council's assent, those two juncture, that in Case 57/87, which has categories have been definitively excluded been brought by undertakings manufac from the system of quotas. Therefore, were turing solely products of category III, the the contested decision to be declared void action must be deemed to be inadmissible in with the result that the Commission had to so far as the general Decision No 3746/86 set about regulating these categories under is contested for applying Article 58 (1) of Article 58 (3) of the ECSC Treaty in the ECSC Treaty and for failing to respect of the period from 1 January 1987, liberalize category III. there is every reason to assume that it would proceed in exactly the same way. 12 — See paragraph 21 above.
OPINION OF MR LENZ—JOINED CASES 32, 52 AND 57/87
II — The substance of the case something to be tolerated only excep tionally, as Articles 5 and 57 make clear.
31. As we have seen and heard, the Commission shares the view, which is also 29. 1. In all three cases the main represented in academic writing, that an complaint — in Case 32/87 the only easier procedure was laid down for the one — is that Decision No 3746/86, which abolition of the system of quotas in view of amended Decision No 3485/85, was the fact that, in itself, it represents a foreign improperly adopted. If the correct body in the system of the Treaty. It is also procedure had been adopted, the decision of the view that Article 58 (3), even if its would have been issued under paragraph (3) wording is not clear, also comes into play of Article 58 of the ECSC Treaty, pursuant even where the system of quotas for one or to which a proposal for liberalization made several product groups is to be abolished, as by the Commission, in the belief that the clearly, to that extent, the legal basis for the conditions laid down in Article 58 (1) are application of Article 58 (3) is established. no longer met, can only be rejected by the Council by unanimity; that is to say, in other words, such a proposal made by the Commission will be successful if it is supported by at least one Member State. On 32. However, the Commission maintains the other hand, the Article 58 (1) firmly that Article 58 (3) may on no procedure, which was actually applied, account be regarded as a lex specialis as requires the assent of the Council, that is to opposed to paragraph (1) of that article. It say a positive vote with the majority has the right to choose and is quite entitled, provided for in Article 28. in abolishing the system of quotas, to have recourse to the actus contrarius of its implementation (which alone is mentioned in Article 58 (1)) on the basis of Article 58 (1). In this connection, the assessment of whether the economic situation is marked by the existence or disappearance of a crisis 30. On this point it was argued that Article is a delicate operation as the situation in the 58 (3) should be applied, not only when the different Member States, or indeed even system of quotas as a whole is abolished, within a Member State, may vary but also when certain products are to be considerably. In this assessment it is excluded from the system with the result therefore right to have regard to objections that unrestricted production will be possible. by Member States, particularly those whose It was also stressed that, as opposed to undertakings are behind in their restruc paragraph (1) of Article 58, paragraph (3) turing measures. It should also be thereof should be regarded as a lex specialis remembered that the Commission, when a whose less stringent requirements for the system of quotas is only partially abolished, abolition of the system of quotas may be is dependent on trustful collaboration with explained by the fact that quota the Council in its majority in overcoming arrangements are basically out of harmony the crisis in the other areas of production. It with Treaty principles, above all with the is appropriate to bear that in mind even prohibition on the sharing of markets when measures restricting a system of (Article 4 (d)) and should be regarded as quotas are being taken.
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33. On this subject, it should be emphasized intervention are the exception, the at the outset in the judgment that the ECSC Commission's view that it is entitled to Treaty proceeds from the premiss that choose between the procedures of 3 undertakings have freedom to develop 1 paragraph (1) and (3), cannot be accepted. and that the High Authority ought first to If a situation of manifest crisis no longer 14 employ indirect means of action. If the exists, it must abolish the system of quotas High Authority wishes to take direct action, and thereby employ all means of action at that is to say, in this context, the intro its disposal. It must therefore apply duction of production quotas, thereby paragraph (3), according to which consul restricting undertakings' possibilities of free tation of the Consultative Committee and development, then it is bound by the prin the absence of a unanimous decision to the 5 ciples of the rule of law 1 to apply the contrary by the Council are sufficient for criterion of whether 'the Community is the ending of the exceptional situation, that confronted with a period of manifest is to say the High Authority needs the 16 crisis'. It may not from its own plenitude support of only one Member State for this of powers introduce production quotas but purpose. is bound to observe a procedure laid down by law, namely hearing the views of the Consultative Committee and obtaining the 16 assent of the Council.
36. Under Article 58 (3) the High Authority, that is the Commission, makes its proposal only after consulting the Consul tative Committee. If, as a result, there are 34. In accordance with the basic orientation no indications of a continuation of the of the Treaty in favour of the free devel manifest crisis, it is required to employ all opment of undertakings and the use of means of action to restore the normal indirect means of action by the High situation, that is to say it must make the Authority, it is apparent from the structure proposal to end the system of quotas in so of Article 58 that a less stringent procedure far as a manifest crisis no longer exists. is laid down for the abolition of the system of quotas. This is clearly based on a recog nition that interferences with the conditions of production, as permitted by Article 58, should be regarded as exceptions which, when their underlying causes disappear, are 37. It should also be pointed out that the no longer justified. less stringent procedure of Article 58 (3) also applies to a partial ending of the system of quotas, that is its reduction. It is true that the wording of Article 58 (3) — 'the system of quotas shall be ended ... '; 'le régime des quotas prend fin ... ' — could be construed 35. In the light of that system of the Treaty, as meaning that only the abolition of the in which the freedom of undertakings is the whole system of quotas is contemplated. If rule and the High Authority's powers of that were so, it would have to be acknowledged that there is a gap in the 13 — Articles 2 and 4 of the ECSC Treaty. provisions, as Article 58 (1) deals only with 14 — Article 57 of the ECSC Treaty. 15 — Article 31 of the ECSC Treaty. the introduction of the system of quotas and 16 — Article 58 of the ECSC Treaty. not with the partial amendment thereof. In
OPINION OF MR LENZ — JOINED CASES 32, 52 AND 57/87
filling the gap the nearest provision would for. That fact does indeed lead to the have to be applied by way of analogy, conclusion that in lifting such measures which in the case of a restriction of a system recourse must also be had, as an actus of quotas is clearly Article 58 (3), contrarius, to this provision. Article 58 is concerned with the ending of the system, clearly different in so far as it expressly and not paragraph (1) of that provision provides for two different procedures for which deals with the introduction thereof. the implementation and the ending of a This was rightly pointed out at the hearing. system of quotas.
40. Also lacking in validity is, in my view, 38. On that basis, that is if Article 58 (3) is the reference to the difficulties involved in regarded as relevant also to a partial ending the assessment of a crisis situation and the of the system of quotas, it may then seem to extent of its continuation. Those difficulties be only good sense to deem this procedure may doubtless cause the Commission, if it alone to be applicable, although no express complies with its obligations under Article mention of such exclusivity is made in 58 (3), to undertake particularly thorough Article 58. It is nevertheless significant that enquiries with the help of the Member Article 58 (3) states: 'the system of quotas States, the necessary consultation of the 17 shall be ended ... ' ('le régime des quotas Consultative Committee and the most prend fin ... ') and not 'may' be ended, appropriate form of consultation of the which would imply a discretion. Moreover it European Parliament. They cannot, was also rightly pointed out in this however, lead the Commission simply to connection that a right to choose, which the shirk its responsibility and to leave it to the Commission deems to be correct, would not majority of these institutions to make the only be something quite unusual as it would necessary determination under Article 58. lead to confusion and would jeopardize legal certainty. More particularly, it could not be reconciled with the recognized fact that, when the crisis triggering a system of quotas is over, that system must be uncondi 41. Nor, finally, will it be possible to see tionally ended because it is in itself not any compelling force in the reference to the compatible with the principles of the Treaty; endeavour to maintain relations based on that, however, could be rendered difficult or mutual trust with the Member States, in prevented by the majority participation of order to overcome the crisis remaining in the Member States (which under Article 38 other areas (which is important, for of the Treaty is subject only to limited example, in the organization of external judicial review). protection, the financing of new employment opportunities under Article 56 of the ECSC Treaty or the promotion of the restructuring of whole regions). Even if a certain degree of understanding may doubtless be shown for these considerations, they cannot justify a failure to take account 39. As against that no argument can be of clear attributions of responsibility which derived, as the Commission has tried to do , should be seen in the context of the institu- from Article 61 of the ECSC Treaty in which only the fixing of prices is provided 17 — Article 58 (3).
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tional equilibrium which the Treaty seeks to communication constituted the starting achieve. Furthermore, it would also seem point for negotiations in order to reach a questionable whether, in fact, in the case of compromise and recorded the corre a proper application of Article 58 (3), such sponding positions. Nor must it be forgotten a degree of disgruntlement need be feared that this document should be seen in the on the part of some Member States, that it light of the submissions of the Commission's would, as a result, not be possible to adopt representative at the hearing. There it was objectively required measures such as a said that the Commission chose the Article necessary reduction in capacity, with which 58 (1) procedure because the assessment of Member States would have to cooperate. the continuation of a crisis is a very delicate task in which the Commission, being obliged in principle to take an overall view, has to have regard to objections made by the Member States concerning their respective situations. Therefore the Commission, conscious of its responsibility 42. Therefore, it may now be affirmed that under Article 58 (3), must now obtain a the Commission, in adopting the contested new and complete picture of the economic decision, based itself on an incorrect under situation and accordingly set about standing of Article 58 and, consequently, re-ordering the legal situation and, if appro did not assume its responsibility under priate, address a new quota communication Article 58 (3) in order to reduce the system to the applicant in Case 52/87. of quotas. That reduction might possibly have gone further than the extent achieved in the contested decision. Since Decision No 3746/86 did not provide for a liberalization of categories IV and VI, it is to be regarded as unlawful and therefore the actions in 44. 2. On Case 32/87 which is, as I have Cases 32/87 and 52/87 are well founded, already said, based on the submission just the latter of which concerns a quota dealt with, there is nothing further to add, communication concerning category IV in the same way as, now that the unlaw which was based on Decision No 3485/85, fulness of Decision No 3746/86 has been as amended by Decision No 3746/86. established, it would appear superfluous to examine in Case 52/87 any other submissions than that already dealt with, as those submissions are so closely connected with the issues under discussion as seemingly to preclude any other assessment. 43. Allow me to say further that this means that the procedure for amending Decision No 3485/85 with effect from 1 January 1987 will have to be taken up again by the Commission on the basis of Article 58 (3). It will clearly not be possible simply to fall 45. Other submissions are, however, of back on the communication of 2 October importance to the applicants in Case 57/87 1986. For it cannot be excluded that the which, as I have already mentioned, only evaluations appearing therein were arrived manufacture category III products. For it at with a view to a quite specific concer has been demonstrated that the submission tation procedure, decisively influenced by hitherto examined, namely that of failure to the Council, in the context of which the apply Article 58 (3), will not come into play
OPINION OF MR LENZ — JOINED CASES 32, 52 AND 57/87
because it may be assumed that, even had that, in respect of small heavy profiles, there the correct procedure been adhered to, no has since 1 January 1987 been no manifest liberalization of category III would have crisis, it must be held against them that their occurred. submission of an infringement of Article 58 on the ground that a manifest crisis no longer exists, is lacking any foundation.
46. In regard to Case 57/87, consideration must yet be given to the allegation that 48. (b) The same clearly applies to the Article 58 was infringed because the system second-mentioned submission in so far as it of quotas was kept on foot for products in relies on a discrimination against category respect of which no manifest crisis subsisted. III products. Since the Commission has now And it must also be examined whether the distanced itself from the premiss that it is Commission may justifiably be accused of not appropriate to speak of a crisis in regard discriminating against category III products to any of the three categories III, IV and VI as opposed to certain category Ic products (in respect of category III its thinking is on the ground that, in the contested now different) and since the applicant has decision, it excluded the latter from the not shown that the crisis as regards category system of quotas although it had formed the III products has come to an end, as it has in view that no crisis subsisted in respect of the case of category Ic products, it is only either of these products. possible to conclude that any difference in treatment in this respect cannot be described as discriminatory, as the situations are not comparable.
47. (a) On this point, as regards the first- mentioned submission, it should be said that 49. (c) For the applicants in Case 57/87 the a different picture now emerges that at the outcome therefore is that the application is time the procedure leading to the adopting not successful because, in relation to the of the contested decision was instituted (in first submission relied on by them (failure to the Commission's communication of 2 apply Article 58 (3)), they do not have an October 1986 a liberalization of certain of interest in bringing the action and because the category III products was suggested). the other submissions advanced do not To this extent the Commission, for certain appear to be well founded. reasons mentioned above, radically revised its opinion and now takes the view that, even after 1 July 1988, no liberalization of category III may be contemplated. This means that the applicants in Case 57/87 50. But, as the Commission put forward a may no longer simply rely on the different view as to category III only at the Commission's own statement to support hearing and because, following the their argument that a manifest crisis no Commission's communication of 2 October longer subsists in respect of category III 1986, a cause of action arose from the products. Moreover since they did not failure to liberalize category III, I would contradict the Commission's account indeed be inclined to think that the costs presented at the hearing and also submitted incurred in Case 57/87 should also be borne no evidence to substantiate their opinion by the Commission.
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C — Conclusion
51. On the basis of the foregoing, I propose that the Court in its judgment should hold as follows:
'The applications in Cases 32 and 52/87 should be allowed as Decision No 3746/86 was adopted under Article 58 (1) of the ECSC Treaty and did not liberalize categories IV and VI.
The application in Case 57/87 should be dismissed as unfounded.
In all three cases the Commission should be ordered to pay the costs of the proceedings.'