C-70/87

Part I : The question of judicial review in the context of Regulation No 2641/84 1802

A — The case-law of the Court with regard to imports from non-member countries involving dumping or subsidization 1802

B — Regulation No 2641/84 on illicit commercial practices compared with the regu­ lations on dumping and subsidization 1803

The reference to international law 1804

The reference to the interests of the Community 1809

C — Conclusion with regard to Part I of the Opinion 1813

B — The alleged infringement of ArticleXXIII of the GATT on procedure 1819

Alleged infringement of Article XVI in conjunction with Article XX and of the preamble in conjunction with Article XXIII of the GATT 1821

* Original language: Dutch

OPINION OF MR VAN GERVEN —CASE 70/87

Alleged infringement of legitimate expectations in conjunction with Article XXIII of the GATT 1821 Alleged infringement of Article XXXVI setting out the general objectives of the GATT 1822 C — Conclusion with regard to Part II of the Opinion 1823 Costs 1823 General conclusion 1823

FEDIOL v COMMISSION

commercial practices may lodge a complaint investigation, then the complainant shall be with the Commission requesting it to initiate so informed' (Article 3(5)), an investigation procedure (Article 3(1) of Regulation No 2641/84). 1

or

In order to be effective, a complaint lodged 'Where, after consultation, it is apparent to with the Commission must contain the Commission that there is sufficient 'sufficient evidence' first of the existence of evidence to justify initiating an examination illicit commercial practices and secondly of procedure and that it is necessary in the the injury resulting therefrom (Article 3(2) interest of the Community [it shall initiate of Regulation No 2641/84). It is plain, as such a procedure]' (Article 6(1)). far as the first element is concerned, that the evidence must relate both to the factual existence of the practices complained of and to the illicit nature of those practices. It can be seen from those provisions that in the course of that preliminary investigation of the complaint the Commission must first assess the evidence produced from, as has already been mentioned, three points of view: the existence of the practice As far as the evidence to be produced is complained of, the illicit nature thereof, the concerned, the Commission must then existence of injury resulting therefrom, and consult an advisory committee consisting of subsequently — if it considers that the representatives of the Member States, with a evidence produced justifies closer investi­ representative of the Commission as gation — it must also judge whether initiating an examination procedure is chairman (see Article 5 of Regulation No necessary in the interests of the Community. 2641/84). After this consultation, Regu­ lation No 2641/84 provides for two possible procedures; I shall quote the relevant two provisions:

latter assessment the Commission plainly has the Commission's view the complaint a large latitude in making its judgment or, disclosed insufficient evidence of the better, a discretion. Where it is a question of existence or the illicit nature of the practices assessing evidence the amount of objected to by Fediol in order to justify latitude — certainly no discretion is involved investigation under Regulation No 2641/84. in such a case — is patently more limited. 2 The question of the existence of injury was not entered into. Neither did the Commission dilate upon the necessity to initiate an investigation in the interests of the Community. In other words, the But two different situations may emerge Commission decision related solely to two also in connection with the assessment of of the four elements of assessment evidence, namely the situation where the mentioned above (section 3), namely the evidence to be adduced consists of factual existence of the practices complained of and elements (the existence of the practices the illegality thereof. complained of, the existence of injury resulting therefrom) and the situation where the evidence to be adduced relates to matters of law (the assessment in the light of stated rules of law of the illicit nature of practices which have been established as a fact). In the first case what is involved is a power to assess whether the facts adduced In addition, as far as the two points actually whose existence is to be proved in the initial covered by the Commission's decision are phase of the procedure with which we are concerned it must be observed that the now concerned, do exist. In the second Commission adopts a different stance with case, a power of assessment of another kind regard to the two practices complained of. is involved. It relates to the characterization In the matter of the first practice of facts in the light of the rules of law which complained of, the Commission accepts that are presumed to be applicable, and to the the operative element of the system (the interpretation of the rules of law having scheme of differential charges) exists in fact regard to the facts adduced. The power of but not that it is unlawful. As far as the assessment is in the nature of a power of practice consisting in the quantitative characterization and interpretation. As will restriction on exports is concerned, the become clear later, this case is concerned Commission holds in its decision that no chiefly with the latter power, which I shall such restriction exists in fact. But even if it refer to hereinafter for short as the power had (for a time) existed — the Commission of interpretation. states in its defence — it would not have been unlawful (see the Report for the Hearing, section 26 and sections 48 and 49).

The Commission does not dispute the the — in its opinion — limited legal applicant's capacity to bring an action under protection devolving upon the applicant Regulation No 2641/84, nor does it deny under Regulation No 2641/84 constitutes a that its contested decision is of direct and reason for holding the action inadmissible 3 individual concern to Fediol or that its does not convince me . In order to assess decision is subject to judicial review by the the admissibility of the applicant's action for Court 'within the limits laid down in Regu­ annulment pending before the Court, lation No 2641/84'. However, it does reference must be made to the second consider that the grounds adduced by the paragraph of Article 173 of the EEC Treaty. applicant are not covered by the legal Since it is not in dispute between the parties protection which it enjoys under Regulation (and neither could it reasonably be No 2641/84 and the EEC Treaty and that disputed) that the contested decision is of the application is therefore inadmissible. direct and individual concern to the Nevertheless the Commission does not ask applicant (the contested decision is expressly the Court to rule first on the question of addressed to Fediol), the admissibility of the admissibility, and it sets out its arguments application for annulment cannot in my on the merits of the case in the alternative. view be subjected to incidental restrictions. To accept incidental restrictions would conflict with the whole corpus of the case-law of the Court, which, on the basis of Article 164 of the EEC Treaty, puts the broadest possible construction on legal protection under the Treaty. My Opinion is in two parts. In Part I I shall consider how far the applicant's legal protection extends, or in other words to what extent a Commission decision taken under Article 3(5) of Regulation No 2641/84 notifying its refusal to initiate an investigation is subject to judicial review by the Court. In Part II of my Opinion I shall then discuss the practical repercussions to which that judicial review — which in my Article 3(1) of Regulation No 2641/84 view is applicable — must give rise with provides additional legal protection as regard to the actual subject-matter of the regards capacity to bring proceedings: since contested decision. it also gives trade associations without legal personality the right to lodge a complaint with the Commission, it should be accepted, as Fediol argues in its application, that such associations may also challenge before the

Court a Commission decision rejecting their under Regulation No 2641/84 is more complaints (see in this sense the Opinion of limited than the protection afforded under Mrs Advocate General Rozès in Case Regulation No 2176/84. 4 The applicant 191/82 Fediol [1983] ECR 2913, at pp. contests this: in its view the legal protection 2939 and 2940, and by implication the afforded under both regulations is the same Court's judgment of 4 October 1983 in that (see section 19 of the Report for the case, to which I shall be returning shortly). Hearing). Regulation No 2176/84 also confers a right to lodge a complaint on producers and trade associations in the Community in order to request the Commission to initiate an investigation into imports from non-member countries which have allegedly been 'dumped' or 'sub­ sidized'. A comparison of the two regu­ Consequently, the Commission's defence lations from this point of view is therefore refers not to the admissibility of the appropriate. application for annulment but to the substance of the case, that is to say it raises a question as to how far the Commission's power under Article 3(5) and Article 6(1) of Regulation No 2641/84 extends and as to under what circumstances a Commission decision must be declared void on the ground that the Commission has exceeded or abused its powers.

I would mention in passing that Regulation No 2176/84 has since been repealed and replaced by Regulation No 2423/88; 5the provisions cited in this Opinion from Regu­ lation No 2176/84 are to be found with the same wording and the same numbering in Part I: The question of judicial review in the Regulation No 2423/88. All the references context of Regulation No 2641/84 in the Report for the Hearing and in the parties' conclusions are to Regulation No 2176/84. Consequently, in order to avoid any confusion I shall also refer to that regu­ lation hereinafter.

8. It is precisely in connection with this inter alia, of the 'very wide discretion' right of complaint with regard to dumping which the Commission had in order to or subsidization that the Court had to deal decide, in terms of the interests of the with in its judgment of 4 October 1983 in Community, on any measures needed to Case 191/82 Fediol [\9S3] ECR 2913. That deal with the situation which it established judgment is concerned with Regulation No (paragraph 26). However, this did not 3017/79, the predecessor of Regulation No preclude the Court from considering the 2176/84. In that case, too, Fediol following aspects at the applicant's request: complained that the Commission had whether the procedural guarantees granted wrongly rejected its complaint. The to plaintiffs were observed, whether Commission argued that its communication manifest errors were made in the assessment relating to the fact that the Commission was of the facts, whether essential matters were not initiating an investigation procedure — omitted to be taken into consideration or having regard to the extent of its discretion whether the reasons were based on a misuse under Regulation No 3017/79 — of powers. By means of those assessment constituted a mere transmission of infor­ criteria the Court exercises supervision over mation and was therefore not open to the discretionary power of a public challenge under Article 173 of the EEC authority without encroaching upon the Treaty. discretion reserved to that authority (paragraph 30 of the judgment).

argument on two levels. It first considers, on parties but simply to consider two important the level which it terms legal protection, the differences between the anti-dumping and role played by the interests of the anti-subsidization regulation (Regulation Community in the two types of regulation No 2176/84) and Regulation No 2641/84 and also the differences as regards the on illicit commercial practices which is at measures which the Commission can take issue in this case. There is in the first place under the two categories of instrument. the differently cast reference in the two Subsequently, it discusses, on the level of regulations to the rules of international law the scope of judicial review, the differences and, secondly, the importance assumed in between the two categories of regulation as the two regulations by the assessment of the regards the interpretation of the applicable interests of the Community. As far as the provisions of international law, in particular latter aspect is concerned, the Commission the rules of the GATT. has not made an assessment in the present case of the interests of the Community. Nevertheless it introduces the idea into the discussion because, in its view, it enables the overall legal position of the applicant to be situated with regard to Regulation No 2641/84. All the observations expressed by the Commission with regard to one or the other level have the same aim: (1) they purport to show that the applicant's legal protection under Regulation No 2641/84 is very limited, that is to say that it is confined to calling on the Commission to investigate the complaint and in so doing to fulfil the procedural guarantees, and does not extend to a review (or having a review carried out) The reference to international law of the result of the Commission's decision (see the Report for the Hearing, section 17); and (2) that the power of judicial review by the Court is limited commen- surately to extreme cases of manifest misuse of powers (see the Report for the Hearing, section 18). The Commission considers that if that were not so the result would be that applicants would be enabled indirectly by means of an action before the Court to 10. The Commission maintains that an influence the Commission's decisions with incorrect application of international law is regard to commercial policy. Naturally, the subject to review by the Court in connection applicant profoundly disagrees. For a with Regulation No 2641/84 only if it summary of the arguments for and against I results in an infringement of provisions of would refer to the Report for the Hearing. Community law directly and individually conferring rights on individuals. The GATT rules, to which Regulation No 2641/84 refers, are insufficiently precise to cause such rights to arise. The applicant contests those arguments (see for further details the From this point onwards I intend not to Report for the Hearing, sections 18 and 19 adhere closely to the arguments of the and also sections 31 to 33). The

It is clear that such a general reference in a Community regulation cannot at a stroke confer direct effect within the Community on GATT provisions which, according to the case-law of the Court, on the basis of their spirit, general scheme and terms do not have direct effect, that is to say they Although the legal basis for action on the confer no rights on individuals which they part of the Community is the same, there can invoke before the courts (judgment of are nevertheless clear differences between 12 December 1972 in Joined Cases 21 to the two regulations. As far as dumping and 24/72 International Fruit Co. [1972] ECR subsidization are concerned, the relevant 1219, paragraphs 20 and 27; judgment of 24 GATT provisions — in pursuance of a October 1973 in Case 9/73 Schlüter [1983] commitment entered into by the signatories ECR 1135, paragraphs 28 and 30). They 6 of the GATT — are substantially incor­ become capable of being invoked by indi­ viduals within the Community solely to the 6 — Anicie 16(1) and (6) of the Agreement on the Implemen- tation of Article VI of the GATT (revised Anti-Dumping extent that, explicitly or implicitly, that Code) and Article 1 and Article 19(1) and (5) of the effect can be inferred from the Community Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the GATT (relating to subsidies and rule referring to those provisions, which in countervailing duties) put the signatories to the agreements under a duty to adjust their domestic legislative and admin- istrative procedures to suit the provisions of the 7 — For more details of the background see, inter alia, M. agreements. See the preamble to Regulation No 2176/84 Bronckers, Selective safeguard measures in multilateral trade (OJ 1984, L 201, p. 1). relations. The Hague, 1985, pp. 211 to 219.

this case ís Regulation No 2641/84. 8The less precisely circumscribed than they are rights that individuals therefore can derive under Regulation No 2176/84. from the GATT provisions on the basis of the reference in Regulation No 2641/84 are limited, in the first phase, to the possibility of asking the Commission — by means of a right to lodge a complaint — to interpret and apply the GATT provisions in the sense asked by the complainant. In so far as the

provisions. A provision is directly applicable where it forms a part of the domestic legal order directly without the need regarded as illicit commercial practices in for transposition (an example is those GATT provisions the light of international law (that is to say, which, according to the Court, bind the Community and form an integral part of the Community legal order); a the GATT in this case)? Of course not. provision is indirectly applicable where it must be declared to be applicable by means of a provision of one's own legal order (an example is a provision of foreign law which is declared to be applicable in a limited way by a rule of private international law, in particular to govern an element of a particular legal relationship: see also section 12).

In this connection the legal concept of renvoi in

That jurisdiction of the Court to interpret GATT provisions is of general application, both where (as in this case) the validity of Community measures is to be assessed and where the compatibility of national legis­ lative provisions with GATT provisions must be assessed (paragraph 15 of the judgment in Joined Cases 267 to 269/81, 13. Since provisions of foreign law — which cited above). It applies both where the inter­ are introduced in a limited way into a pretation takes place as a result of conduct particular legal order by a rule of private within the Community and where it occurs international law and are declared to be with a view to appraising conduct, in this applicable — are amenable to interpretation case of a third country, in connection with by the courts of that legal order, how much the external trade of the Community. more must this apply to international Moreover, it is precisely with regard to provisions, such as the GATT provisions, external trade that the Court stated that the which are binding on the Community and fact that the GATT provisions invoked hence directly form part of and are applied cannot be relied on directly by individuals within one's own legal order? As directly 'in no way affects the Community's obli­ applicable provisions they must be applied gation to ensure that the provisions of by the courts as a yardstick for interpre­ GATT are observed in its relations with

OPINION OF MR VAN GERVEN — CASE 70/87

non-member States which are parties to parties. This is because such an interpre­ GATT' (judgment of 16 March 1983 in tation is not consonant with that which was Case 266/81 SIOT vMinistero delle Finanze agreed between the parties to the treaty. [1983] ECR 731, paragraph 28, at p. 780).

9 the parties regarding its interpretation. further than what has just been stated) That means that each party to a treaty must where complainant undertakings ask it to be guided, not merely by its own interpret GATT provisions under Regu perceptions and interpretations, but also by lation No 2641/84. Consequently, the those of the other parties to the treaty. A broad interpretation based on usual meaning 10 -— This applies in particular to the GATT in view of the and context which exceeds the confines of a generally accepted tradition in connection with that agreement of the settlement of disputes by means of normal teleological interpretation having consensus between the parties. (See in that regard Article regard to the object and purpose of the 10 of Regulation No 2641/84, considered in section 15,

FEDIOL v COMMISSION

Commission's power to interpret GATT (Community) intervention' (Regulation No provisions is indeed subject to judicial 2 2176/84, Article 11(1) and Article 12(1)). ' review by the Court.

16. Consequently, the discretion of the The reference to the interests of the Commission (or the Council as the case may Community be) comes into effect more rapidly in the case of Regulation No 2641/84 than in the case of Regulation No 2176/84 since account may be taken of the interests of the Community at an earlier stage of the procedure. Even if the Commission reaches 15. The role of the requirement of the the decision that an adequate case has been Community interests is different in Regu­ made out for the existence of illicit lation No 2641/84 than in Regulation No commercial practices and injury so as to 2176/84. The Commission explores that justify initiating the investigation procedure, difference at length in view of its general it may, on the basis of the interests of the implications for the applicant's legal Community, decide not to initiate an inves­ position. tigation.

OPINION OF MR VAN GERVEN — CASE 70/87

the Commission to initiate an investigation, 1974, as amended by Public Law 93-618 even if the complaint contains 'sufficient (1975), Public Law 98-573 (1984) and evidence' (see the Report for the Hearing, Public Law 100-418 (1988). sections 16 and 17). The Commission argues that if the complainant could require the Commission to initiate an investigation it would be able to influence the Community authorities' commercial policy and tie the hands of the Council and the Commission. This cannot and may not be so: the reference to the interests of the Community therefore signifies that the Commission — at least under Regulation No 2641/84 — has a discretionary power of a political nature Section 301 authorizes the United States which is not (sometimes the Commission Trade Representative (USTR), 14 on a seems to be saying, scarcely) amenable to petition or of its own motion, to initiate 1 judicial review. 3 investigations into, and where appropriate impose retaliatory measures against, practices of foreign countries which in violation of the 'international legal rights' of the United States deny that country 'national' treatment or 'most-favored-nation treatment', or are 'unreasonable'. Section 301(d)(3) defines 'unreasonableness' in terms of practices which, while not neces­ The question is, does it follow from the fact sarily in violation of the international legal that the Commission can decide at an early rights of the United States, are otherwise stage in the interests of the Community not 'unfair and inequitable'. It is further to proceed any further — a power which it specified that those terms refer inter alia to undoubtedly has — that that decision is not denial to US firms of fair and equitable amenable to judicial review, as the opportunities to accede to and compete on Commission argues in this case? foreign markets. It is plain from the wording of Section 301 that action by the USTR does not necessarily have to be a reaction to 'unlawful' or 'unjustifiable' practices of foreign countries, as a result of which the USTR clearly may take action in the sphere of commercial policy and even in 5 the outright political sphere. 1

FEDIOL v COMMISSION

Until 1988 it was generally assumed that the of legal definition. As far as Section 301 is President's authority to take action under concerned the USTR is free (subject to the Section 301, whether or not in response to a 1988 amendment) to take action against petition, was an absolute discretion and not practices which, albeit lawful, are in his lć subject to judicial review. The 1988 view nevertheless unreasonable, unfair or statute transferred the authority to the inequitable. According to the examples set USTR and in so doing made a very limited out in Section 301(d)(3)(B) the latter inroad into its discretionary character, expressions have a political content (or, at namely by making an investigation by the least, no legal content) and are therefore 7 USTR mandatory in some cases. ' As a rule, not amenable to judicial review. The however, the USTR is even now completely operation thereof is assigned to a free to initiate an investigation in a given pre-eminently political authority (until 1988, case — albeit, in some instances as far as the President, thereafter the USTR, who is certain procedures are concerned, 'subject answerable to the President and to 18 to the direction of the President' (see Congress). Section 301(a)(1)) — and therefore it continues to be the case that his discretion is not amenable to judicial review.

OPINION OF MR VAN GERVEN — CASE 70/87

Such open Indeed, it appears to me to be a requirement concepts with normative content are of sound administrative practice that the regularly employed in private law, such as Commission should give a minimum number the interests of the child or the family or the of reasons why it is of that opinion, given interests of the company. That does not that there is, ex hypothesi, prima-facie mean that the courts must refrain from evidence of the existence of illicit exercising review, since they must in fact commercial practices and of injury arising ensure that the power is not abused.

20 general principles of law, in particular procedural guarantees were met, whether principles of sound administration such as the factual circumstances are established and the principle of equality, the principle of were correctly assessed and whether the proportionality and the duty to state actual exercise of the discretion took place reasons. in accordance with the principles of sound administration, in particular in accordance with the principle of equality and by means 20 — 'The case-law of the Court of Justice in relation to the review of the legality of economic policy in mixed- of correctly weighing the interests at stake. economy systems', Legal issues of European integration, 1982/1, p. 5 et seq. Although judicial review is limited by the

C — Conclusion with regard to Part I of the In the first place, Fediol's complaint was Opinion directed at a 'margin-guarantee' system which is designed to secure the Argentine soya processing industry a supply of quan­ tities of soya beans at a price below the world market price. The effective (and 20. The comparison of Regulation No essential) component of this system is the 2641/84 with the (former and present) anti­ so-called 'scheme of differential charges' dumping and anti-subsidization regulations which is applied to the exportation of soya has produced no arguments to suggest that products (soya beans, soya oil and soya the attitude adopted by the Court in the cake). Under that system higher duties are previous Fediol case in connection with the charged on the exportation of soya beans latter regulations (see section 8 above) (from which soya oil and soya cake are should not likewise apply to Regulation No made) than on the exportation of soya oil 2641/84. In neither of the two cases does and soya cake. According to Fediol's the Commission have a discretionary power complaint the relevant charges were of a political nature which is not amenable calculated on the basis of artificial reference to judicial review. Under Regulation No prices for those products, laid down by the 2641/84 the Commission has a considerable Argentine authorities. The higher taxation power to interpret international law and, at of soya beans is claimed to have had the an early stage in the procedure, an extensive effect of increasing the supply of such discretionary power to assess the interests of products on the Argentine market and the Community, but judicial review is hence of lowering the selling price to the possible of both powers. Argentine oil processing industry (which in fact enjoys a 'margin guarantee'). As a result, the Argentine oil-processing industry can undercut normal prices on the world market. Part II: The exercise of judicial review in practice

The contested Commission decision rejected the applicant's complaint under both heads. The decision did not deny the existence of the 'scheme of differential charges' but 22. Article III(1 ) provides inter alia that stated that it was not contrary to any of the 22 'internal' taxes or charges affecting provisions of the GATT which I shall be 'internal' transactions such as sale, purchase, considering subsequently. As regards the etc. should not be applied to 'imported or alleged quantitative restrictions on exports, domestic' products so as to afford the decision states that Fediol's complaint protection to domestic production. fails to disclose any evidence for the existence of such restrictions (see also the closing part of section 5 above). Accordingly, the Commission confined itself to assessing the factual existence and the legal justification for the practices complained of (without basing its decision The applicant maintains that the Argentine on the interests of the Community). differential charges can indeed be regarded as internal taxes because although they are levied exclusively on exported products, the differences in the applicable rates have effects on the internal market in particular by protecting the domestic soya processing industry. In addition, the applicant argues that Article III(1) does not aim solely at protecting imported products from discrimi­ I shall subsequently review the various natory taxes, but also at preventing the points of the Commission decision and protection of domestic products from examine whether with regard to each point causing the exportation of processed products to harm industrial sectors in other the Commission remained within its countries. In support of its view the discretion, that is to say, in this case applicant refers inter alia to the 'travaux primarily the power to interpret GATT préparatoires' for Article III of the GATT provisions on the basis of which it must be and to the Court's case-law on Article 95 of decided whether or not the practices 23 21 the EEC Treaty. complained of were illicit.

The Commission rejects the applicant's Article 95 cannot simply be transposed by arguments on the ground that Article 111(1 ) analogy to the GATT. The object and of the GATT covers only the levying of purpose of the EEC Treaty are different internal taxes and, above all, discriminatory from those of the GATT : whilst the GATT treatment of imported, as compared with sets out to liberalize world trade, the EEC domestic, products. The Commission takes Treaty seeks to create a single market the view that since the Argentine taxes at reproducing as closely as possible the 25 issue are not 'internal taxes' but export conditions of a domestic market. This levies, they cannot be caught by Article does not prevent the same interpretation III(l); accordingly, the applicant's from being given to provisions in both complaint with regard to that point does not agreements where this is called for by the contain sufficient evidence of an wording and the purpose of the relevant infringement of that article. provisions. However, the applicant fails to show why that should be the case here.

OPINION OF MR VAN GERVEN — CASE 70/87

FEDIOL v COMMISSION

charges, since it determines the basis for evidence of that claim reference is made to levying the charges; it therefore does not a press article (in English). fall within the prohibition of Article XI(1).

The contested decision states with regard to that claim that the complaint contains no evidence of it, and also refers to statistics In view of the foregoing there is no need to (mentioned above) showing a rise in exports consider the study of a GATT working of soya beans to the European Community. party of 1950, which manifestly refers to According to the Commission, those stat­ quantitative restrictions on exports (and not istics imply that the applicant's complaint to measures having an effect equivalent does not contain sufficient evidence that thereto), nor the argument based on the suspension of export licences actually took Court's case-law on Articles 30 and 34 of place. 27 In its defence it adds that, 26 the EEC Treaty. As far as the statistics according to the wording of the press article cited by the parties are concerned, they in question, the (alleged) suspensions were provide no indication to suggest that quanti­ based on the need to carry out adjustments tative restrictions on exports were estab­ following changes in reference prices in the lished (see also the next section). The context of the system of charges at issue. argument with regard to the suspension of The Commission considers that in that case export licences will be discussed below. the suspensions are justified under Article XI(2)(b) of the GATT.

Did the complaint provide sufficient Alleged infringement of Article XX of the evidence with regard to that point? It must GATT be observed that the press article did not emanate from an official or even from an Argentine source but probably from a specialized European or US publication; its origin is not clear either from the complaint or from the application. The press article announces at the end of a report on an increase in the differential charges following 28. Article XX contains an enumeration of an 18% devaluation of the Argentine peso a number of practices which, despite their that the temporary suspension of export being in the nature of restraints of trade, are registration was effected in order to carry expressly allowed under the GATT, subject out the 'necessary adjustments'. Accordingly to the (general) condition that they do not it appears from the actual wording of the constitute a means of arbitrary or unjusti­ press article that the restriction in question, fiable discrimination or a disguised if it existed, was introduced temporarily in restriction on international trade. The connection with a change being carried out applicant argues that the Argentine practices in the scheme of differential charges, which complained of constitute an infringement of as such is not caught by Article XI(1) Article XX , indent (i) (cited in extenso in according to the wording of that article. the Report for the Hearing, section 50). The applicant argues that that article, which authorizes a conditional exception in respect of restrictions on exports of domestic materials, constitutes an autonomous prohibition where the conditions set out therein are not fulfilled. Should the Court Since the only evidence adduced is a more not uphold that argument, it maintains that or less unidentified press article to the effect the practices at issue should be prohibited that even if the restriction was temporarily under Article XX, read in conjunction with in existence it was part of the scheme of Articles III, XI(1) and XXIII. The alleged charges not covered by Article XI(1), I infringement of Article XX was raised by consider that in those circumstances the Fediol in a supplementary complaint of 9 Commission was entitled to decide that May 1986. The Commission rejects the Fediol's complaint did not contain sufficient argument that Article XX, which in its view evidence of the existence of unlawful does not contain sufficiently concrete obli­ gations, embodies an autonomous pro­ 28 — Sec inter alia the Panel Report on the EEC programme of hibition. It argues that since indent (i) of minimum import prices, licences and surety deposits, adopted on 18 October 1978. Sec the Analytical index Article XX sets out an exception to Article (loose-leafed GATT edition, Geneva) under Article XI, XI, it can apply only in the event of an point 4.

29. In my view, the Commission's position must be accepted. The wording of Article B — The alleged infringement of Article XX and the practice adopted with regard to XXIII of the GATT on procedure t 29 i show that it is not regarded as imposing independent obligations or prohibitions. Moreover, to formulate a general rule from the exception to the general rule appears to me to be a questionable method of interpre­ tation. As a result, the Commission was right to decide that Fediol's complaint did 30. Article XXIII is designed to safeguard not contain sufficient evidence with regard the concessions and benefits granted under to that point. the GATT. It enables contracting parties to the GATT to take action in certain cases in the event that they should find that one of the concessions or benefits accruing to them under the GATT is being nullified as the result of the failure of another contracting party to carry out its obligations under the Whilst it is true, as the applicant maintains, Agreement (indent (a)) or of the application that the contested Commission decision by another contracting party of any does not examine the alleged infringement measure, whether or not it conflicts with the of Article XX, the Commission rightly provisions of the GATT (indent (b)), or of observes with regard to that point that its the existence of any other situation (indent decision does not have to go into all the (c)). The applicant claims that benefits details of the argument set out in a granted to the Community are being complaint. The rule laid down in the nullified either by the application by judgment in the first Fediol case is that the Argentina of measures conflicting with the applicant must be informed of the GATT or by unlawful measures by Commission's decision and 'that infor­ Argentina which, however, do not conflict mation must comprise at least a statement of with the GATT. The applicant maintains the Commission's basic conclusions and a that the alleged nullification of benefits summary of the reasons therefor as is involved in the first limb of the alternative required ... in the event of the termination does not have to be proved, given that there of formal investigations' (Case 191/82 is a prima-facie case that the conflict with Fediol v Commission [1983] ECR 2913, 30 the GATT impaired a benefit, and that it consists, in the case of the second limb, of 29 — The applicant has not cited any precedent or academic the breach of at least three legitimate expec­ writings in support of its argument 1 would refer, inasmuch as it is necessary, to the notes, decisions and tations. declarations connected with Article XX of the GATT which arc set out in the Analytical Index, cued earlier Nowhere therein is there any support to be found for the 30 — See on this subject the Analytical Index. Article XXIII, applicant's argument point I 11(a)

In fact, the applicant is fastening upon Article XXIII in order to invoke the infringement of a variety of articles of the GATT and a number of general legal prin­ ciples, several of which were scarcely mentioned, if at all, in its complaint. Although I would be entitled to ignore those articles for the general reasons which I mentioned earlier, I shall nevertheless briefly consider those articles and principles on which reliance is made on a subsidiary basis, as it were through the medium of Article XXIII. In so doing I shall leave out This power ascribed to the contracting of account those articles of the GATT parties plainly implies an extensive which I have discussed earlier in this discretion which, as far as the Community is Opinion (namely Articles III, XI and XX of concerned as a contracting party, is the GATT) which the applicant is invoking exercised according to Regulation No yet again — but this time in conjunction 2641/84 only in the last stage, that is to say with each other. However, if each of those at the end of the actual investigation articles has not been infringed individually I procedure, where it is a question of deciding cannot see how they could be infringed what measures should be taken against an together. illicit practice which has been definitively established. Article 10(2) of Regulation No 2641/84 provides that at that time any 31 — I shall not dwell here on the thorny question to which extent such a Commission decision, with involvement (in applicable international procedure for fact a right of veto) of the Council, is subject to judicial review. What is actually involved is an 'acte de gouver­ consultation or the settlement of disputes, as nement' in the full sense of the expression, in the interna­ provided for in Article XXIII of the GATT, tional sphere in relation (not to the interpretation but) to the implementation of machinery set up by an international must have been discharged in accordance treaty.

In addition, the applicant also claims there to have been an infringement of rules set out in the preamble to the GATT (general prohibition of discriminatory measures) read together with the GATT articles containing specific rules against discrimination. The Commission argues against that view that 31. In connection with Article XXIII of the the preamble to the GATT does not contain GATT, the applicant claims in the first place any specific obligations the non-fulfilment that (in addition to Articles III, XI and XX, of which could as such give rise to an which have already been discussed) the infringement of the GATT. I agree with the

32. The applicant rightly asserts that the procedure set out in Article XXIII of the GATT may also be set in train (but see section 30) where the loss of an advantage accruing to a contracting party to the GATT is caused, not by a failure to fulfil a specific GATT obligation, but by some It must be stated in that regard that Fediol other measure taken by another contracting cannot base any argument in connection party to the GATT (or even, according to with this action for annulment on a GATT indent (c) of Article XXIII(1), by the provision which it did not invoke in its existence of any other situation). According complaint or at least before the Commission to the complaint and the application, which

OPINION OF MR VAN GERVEN —CASE 70/87

The Community benefit which is alleged to present stage of the procedure (section 30, have been impaired as a result of such supra). Secondly, 'breach of legitimate infringement consists in the breach of at expectations' cannot, in my view, be least three legitimate expectations of the described as the impairment of a benefit Community (for more particulars see within the meaning of Article XXIII of the section 60 of the Report for the Hearing). GATT, certainly not where such general expectations are involved as those referred to by the applicant. In connection with the most specific of the expectations (the consolidation at zero of the customs duty on soya cake) the comments made by the Commission raise serious doubts as to the legitimacy of that expectation. Lastly, it is Against that, the Commission decision extremely doubtful whether there is in this argues that the applicant does not specify case an infringement of the principle of the benefit which is allegedly nullified by good faith. As already mentioned (section the Argentine practices complained of. The 14, supra) that principle refers with regard decision refers to the fact that the consoli­ to the interpretation of treaty provisions to dation at zero of the customs duty on soya the need when exercising measures against a cake — cited by the applicant as a lost GATT contracting State not to proceed benefit — contained no benefit for the solely on the basis of one's own opinion but Community (the applicant stated in reply also to take account of those of the other that there is an indirect benefit incurred as contracting parties. the Community can thereby lay claim to concessions in return), that negotiations were not held with Argentina thereon, and that the benefits under the GATT must be assessed, not on a sectoral, but on a global, basis. In its defence the Commission adds that the 'nullification of an benefit' within the meaning of Article XXIII of the GATT Alleged infringement of Article XXXVI is not based on general benefits such as setting out the general objectives of the GATT non-disturbance of international compe­ tition or not impairing one's own industry, but on clearly specified benefits which were negotiated by the State concerned.

C — Conclusion with regard to Part II of the Opinion Nevertheless, I propose that the rule set out in the first subparagraph of Article 69(3) 35. It does not appear from the foregoing should be applied, under which the Court that the Commission exercised its power may order that the parties bear their own wrongly in the contested decision. costs where each party succeeds on some and fails on other heads. I consider that in this case the Commission was unsuccessful with regard to its reliance on its so-called Costs discretionary power which was described as a ground for the inadmissibility of the application for a declaration of nullity. I 36. The applicant asks the Court to order therefore consider that each of the parties the Commission to pay the costs even if the should bear its own costs (see inter alia the latter is successful. It relies in this regard on judgment of 9 March 1978 in Case 54/77 the second subparagraph of Article 69(3) of Herpels [1978] ECR 585, the judgment of the Rules of Procedure under which the 18 March 1980 in Joined Cases 154, 205, Court may order even a successful party to 206, 226 to 228, 263 and 264/78, 39, 31, 83 pay costs where the Court considers that and 85/79 Valsabbia [1980] ECR 907, and that party unreasonably caused the opposite the judgment of 27 February 1985 in Case party to incur them. I consider that there is 56/83 Italy v Commission [1985] ECR 705).

General conclusion

37. In the light of the foregoing appraisal I take the view that :

(1) the objection of inadmissibility raised by the Commission in respect of the applicant's application for a declaration that the Commission's decision of 22 December 1986 is void should be rejected;