JUDGMENT OF 18.2.64 — JOINED CASES 73 AND 74/63 HANDELSVERENIGING ROTTERDAM v MINISTER VAN LANDBOUW

In Joined Cases 73 and 74/63 Two references to the Court under Article 177 of the Treaty establishing the European Economic Community made by the College van Beroep voor het Bedrijfsleven for a preliminary ruling in the actions pending before that court between

THE COURT composed of: A. M. Donner (Rapporteur), President, Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux, R. Rossi, R. Lecourt and W. Strauß, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows:

(a) Case 743

On 27 July 1960, at the request of the Federal Republic of Germany, the EEC Commission took a Decision (notified to the Governments concerned, but not published in the Official Journal) based on Article 226 of the EEC Treaty, which authorized the Member States, initially until 31 December 1960, to impose on, inter alia, fondant paste (tariff position ex 17.04 C) a countervailing charge on imports of that product originating in the Netherlands at the rate of 18.25 Fl. per kg.; this levy was authorized save where the Netherlands applied this duty on the export of the product.

This Decision was extended by a Decision of 21 December 1960 (not published), renewed by Decision of the Commission of 28 June 1961 (Official Journal, p. 1230/61), again extended on 22 December 1961 (Official Journal, pp. 192/62 and 193/62) and on 27 February 1962 it was amended (Official Journal pp. 861/62 and 862/62).

Following the hrst of these Decisions of the Commission, the Netherlands Minister of Agriculture and Fisheries, by an order of 3 August 1960 (Staatscourant No 150 of 5 August 1960) imposed a duty on the export of fondant paste, relying on both Article 42 of the Landbouwwet (Agriculture Law) and the In — en Uitvoerbesluit Landbouwprodukten (Import and Export of Agricultural Products Order) 1958; the order was designated the ‘Heffingsbeschikking Fondantmassa 1960’ (Fondant Paste Duty Order).

On 27 April 1962, the Hoofdproduktschap voor Akkerbouwprodukten (Agricultural Products Authority) sent (in the name of the defendant) to the first plaintiff a notice of assessment to duty based on the Heffingsbeschikking Fondantmassa 1960 amounting to 4000 guilders for having exported to the Federal Republic of Germany, on 27 February 1962, 20 metric tons of fondant paste (produced by the second plaintiff). The plaintiffs brought an action before the College van Beroep voor het Bedrijfsleven against this notice, asking for its annulment.

In their action, the plaintiffs submitted inter alia a number of objections based on the EEC Treaty:

I)

a) The Heffingsbeschikking Fondantmassa 1960 conflicts with Article 12 of the EEC Treaty, for it was adopted after 1 January 1958 and creates a duty which did not exist before that date.

b) The Heffingsbeschikking also conflicts with Article 16 of the Treaty.

c) In view ot the regulations, decisions and orders of the Council of the EEC dated 4 April 1962 (Official Journal 1962, No 30), the duty on the export of fondant paste amounts to submitting the product in question to the EEC Treaty provisions relating to agriculture, contrary to Article 38 (3) of the Treaty.

II) The illegality ot the export duty on fondant paste, which becomes apparent when this duty is examined in the light of the Treaty, is not affected by the Decision of the EEC Commission of 27 July 1960, and the subsequent Decisions. In the light ot the wording of this Decision, it must be asked whether it effectively authorizes exporting Member States to impose an export duty. If it is considered to do so, the Commission in giving this authorization would have exceeded its own powers and infringed the Treaty:

a) Article 226 (2) does not give the Commission power, to authorize protective measures for the benefit of Member States which are not experiencing the difficulties referred to in paragraph (1) and which have not applied for authorization to take such measures. Consequently, the Commission has infringed Article 226.

b) The conditions required by Article 226 (1) for the grant of an authorization were in no way fulfilled in this case. If the German fondant paste industry was experiencing a critical situation, its difficulties were not those envisaged by Article 226 (1), which does not refer to difficulties due exclusively to the application of the mandatory rules of the Treaty.

c) The Commission relied on Article 226 in order to evade the procedure laid down in Article 235. This constitutes an abuse of procedure.

In its statement of defence the defendant put forward inter alia the following submissions:

1) 1 he claim that the Heffingsbeschikking Fondantmassa-I960 is not binding upon the parties concerned because it conflicts with Articles 12 and 16 of the EEC Treaty is misconceived, because Article 226 (3) of the Treaty provides expressly that the measures authorized under paragraph (2) may involve derogations from the rules of the Treaty. The fact that the Heffingsbeschikking does not refer to the Commission's Decision changes nothing; provided the power exists, a reference to it is not essential.

2) The opinion of the plaintiffs that the application of Article 226 to fondant paste (a product which does not appear in Annex II to the Treaty) in fact subject it to the special provisions relating to agriculture is mistaken; in view of the similarity between Articles 46 and 226 of the Treaty the same could be said of every application of Article 226 to any product whatsoever.

3) As for the plaintiffs argument that, by virtue of Article 226, the Commission could only authorize Germany (the importing country) to take protective measures and not the Netherlands (the exporting country) to impose an export duty, it must be emphasized that the Decision did not authorize the Netherlands to impose an export duty but subjected the authorization given to the Federal Republic to the condition: ‘in so far as the exporting Member State does not apply the said duty on export’. I his export duty constitutes therefore a condition on the authorization granted to Germany, a condition which Article 226 (2) expressly authorizes the Commission to impose. Article 226 (3) also applies without question to the conditions upon which, in accordance with paragraph (2), this measure is put into effect and which form part of it. Article 46 of the Treaty expressly mentions the condition which the Commission in this case attached to the authorization. The only difference which exists in this respect between Articles 46 and 226 is that Article 46 provides for this particular condition to the exclusion of all others while Article 226 is drafted more widely and confers on the Commission the power to determine the conditions by which it will limit the authorization. To interpret the wider drafting of Article 226 as the plaintiffs do would lead to the opposite result. This interpretation cannot therefore be correct.

4) As for the plaintiffs argument that the conditions imposed by226 (1) for the grant of an authorization were not fulfilled in this case, the defendant considers that the preamble to the Commission's Decision contains sufficient factual particulars to prove that it did in fact satisfy these conditions.

Decisions of the College van Beroep voor het Bedrijfsleven

In its Decisions of 10 July 1963, the College van Beroep voor het Bedrijfsleven made the following findings, amongst others:

The College finds provisionally that fondant paste is a product to which Article 12 of the Treaty applies; the export duty imposed by the Heffingsbeschikking on this product is of equivalent effect to a customs duty on export and was introduced only after the entry into force of the Treaty. In view of the above, it must also find provisionally that the Heffingsbeschikking is contrary to the provisions of Article 12 of the Treaty, which according to the judgment of the Court of Justice of the European Communities of 5 February 1963 (Case 26/62) produces direct effects and creates individual rights which the Dutch courts must protect.

This conflict cannot result in a declaration that the Heffingsbeschikking does not bind the parties concerned and so bring about the annulment of the said duty if it is true, as the defendant claims, that this conflict is resolved by the Commission's Decision of 27 July 1960. It is not necessary to examine whether the Heffingsbeschikking is contrary to Articles 16 or 38 of the Treaty.

It follows that the decision to be reached in the present action depends on the reply to the above mentioned question, whether the conflict between the Heffingsbeschikking and Article 12 and perhaps other rules of the Treaty is resolved by the Decision of the EEC Commission, taken together with Article 226 of the Treaty.

In order to be able to reply to this question, three questions raised before the College must be answered. These questions concern the interpretation of the EEC Treaty, and the interpretation and validity of a measure adopted by a Community institution. Consequently the College, the decisions of which are not subject to appeal under Netherlands law, must refer the questions to the Court of Justice of the European Communities under Article 177 of the Treaty. The proceedings were stayed by the College pending a ruling by the Court of Justice of the European Communities on the questions referred to it (in so far as, by reason of their interdependence, they must be so referred).

(b) Case 73/63

Case 73/63 concerns an action before the College van Beroep voor het Bedrijfsleven in which a question of admissibility has arisen with regard to the time-limit for bringing an action. The questions put by the College to the Court are the same as those put in Case 74/63.

II — Observations submitted u nder Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

The observations submitted under the second paragraph of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

The plaintiffs in the main action state that:

1) Apart from certain narrowly formulated questions, there is also raised the general question whether it can ‘be concluded on other grounds that the Decision is invalid because it contravenes the law of the European Communities’. According to the judgment of the Court of 14 December 1962 (Cases 2 and 3/62), this must be answered in the affirmative, since an unpublished authorization not made openly cannot constitute the ‘clearly stipulated exception’ required by the Court. The Decision granting the authorization cannot therefore be sufficient to vindicate provisions which conflict with Article 12, and on this ground alone is invalid. The Decision of 28 June 1961 is likewise invalid, since it merely extends the period of application of a Decision which is itself invalid.

2) The difficulties which are the subject of the unpublished Decision of the Commission reside chiefly in the fact (mentioned in the preamble to the Decision granting the authorization of 27 February 1962, Official Journal pp. 861 /62 and 862/62) that countries exporting fondant paste generally grant a drawback in order to reduce sugar prices to the level of the world market. However, Articles 10 and 92 to 94 were intended to apply in such cases, and therefore by applying Article 226 instead — or before — the Commission has infringed the Treaty.

3) The arguments used by the Commission in the preamble to support the existence of ‘serious difficulties liable to persist’ are inadequate. The Commission states that the German fondant paste manufacturing industry has been almost completely paralysed by the increase in imports (from 3000 metric tons in 1957 to 16000 metric tons in 1959). This is disputed by the plaintiffs, who say that in any case the Commission should have produced figures in support.

4) Decisions of the Commission may be judged according to the requirements normally applicable to the drafting of legislation. Any authorization granted to exporting Member States should therefore be clearly apparent from the wording of the decision. It is otherwise in the case of provisions of the Treaty which may not be altered, for example Article 46 of the EEC Treaty where some ‘attempts at interpretation’ may perhaps be made. The plaintiffs are of the opinion that Question 1 and Question 2 (a) should be answered in the negative, but that Question 2 (b) should be answered in the affirmative.

The EEC Commission points out that the College van Beroep makes no mention of the Decision of 22 December 1961 among the Decisions listed in the first question.

It remarks that it would be difficult not to be aware that the judgments given by the College contain statements regarding Article 12 of the Treaty, which are based on a particular interpretation of the Treaty (consistent with the judgment in Cases 26/62 and 28 to 30/62). It raises the question whether it would not be desirable — since the interpretation of Article 12 seems to have played a part in the actions on which the references are based — for the Court also to express an opinion on the interpretation of this Article, and also — in order to define the scope of subparagraph (a) of the first paragraph of Article 177 — on whether or not there is a duty, in a case such as this, to request the Court to give a preliminary ruling on this Article.

Question 1 :

The Decisions constitute specific instances of the application of Article 226 of the EEC Treaty, which confers on the Commission the power in certain circumstances to authorize Member States, on application by them, to take protective measures, and also the power to specify the circumstances and the manner in which the measures are to be put into effect.

The Commission made the authorization granted to the Federal Republic of Germany subject to the condition that this Member State was not to make use of the authorization if the duty imposed by the Decision was applied by the exporting Member State. Thus the task of applying the Decision is not left solely to the Member State whose industry was in difficulties, but may also be carried out by the exporting Member State which, in the context of the scheme laid down by the Decision, was given, so to speak, a right of first option.

The Decision must accordingly be read as also including an authorization for exporting Member States

Lastly, the Decisions in question are not only addressed to the Federal Republic of Germany but also in particular to the Kingdom of the Netherlands. This would not have been necessary if the answer to this question is in the negative.

Question 2 (a) :

This question refers to the divergence between paragraphs (1) and (2) of Article 226.

The Commission was also aware of this divergence, but after serious consideration had come to the conclusion that in exercising the powers conferred on it by Article 226 not only was it entitled to lay down the condition presently in dispute, but that very often it was wholly desirable and fully in accord with the meaning and purpose of this provision of the Treaty that it should act in this way. The Commission's reasons for this conclusion are as follows:

Article 226 was put into the Treaty in order to enable protective measures to be taken. By whom such measures are to be taken is of minor importance.

To give the financial advantage of such measures to the Member State making the application would be an inducement to Member States to apply for protective measures. This, however, must be avoided. Moreover, these advantages would amount to compensating for the ‘backwardness’ of the applicant Member State's industry.

The Treaty itself contains, in Article 46, a precedent for the scheme chosen by the Commission in its Decision. Question 2 (a) should theretore be answered in the affirmative.

Question 2 (b):

In view of the foregoing, this question can clearly only be answered in the negative.

Question 3 (a) :

Article 226 is what is called a saving or exemption clause, designed to permit a Member State in certain circumstances and for a limited time to avoid one or more of its normal obligations under the Treaty or their consequences. It would appear that the Article is to be applied precisely with regard to those difficulties which arise ‘from the application of the mandatory provisions of the Treaty’.

As to the words arising exclusively from, the Commission observes that such difficulties can but rarely be attributed exclusively to a single definite cause. Moreover, Article 226 includes no limitation as to the causes of the difficulties to which it refers. Question 3 (a) is therefore to be answered in the affirmative.

Question 3(b):

It is surely clear from the above that in the Commission's view the answer to the first part of this question can only be in the negative.

The second part of Question 3 (b):

As to the argument that in making its Decisions the Commission chose to employ the Article 226 procedure in order to avoid that of Article 235, the Commission remarks that the difficulties experienced by the German fondant paste industry are but one aspect of a more general problem which cannot be approached under Article 226. Yet that does not necessarily mean that these difficulties must be allowed to persist pending the finding of a solution for the more general problem, particularly since in this case the requirements of Article 226 were fulfilled.

The Commission disputes the plaintiffs statement that the conditions laid down by Article 226 for the grant of an authorization were ‘in no way fulfilled in the present case’.

With regard to the allegation that the Order made by the Dutch Government pursuant to the Commission's authorizing Decision created a body of rules whereby the product in question was in effect subjected to the Treaty provisions relating to agriculture, the Commission remarks that the product to which the Decisions apply do not come under the common agricultural policy, and that the Decisions merely serve to reduce the harmful effects which may arise from the different provisions applied to industrial and agricultural products respectively.

Thus in the Commission s opinion the second part of Question 3 (b) is also to be answered in the negative.

The Government of the Federal Republic of Germany observes inter alia:

A — Admissibility

According to the case law of the Court, and in particular the judgment in Case 26/62, in order to confer jurisdiction on the Court to give a preliminary ruling it is enough that the question raised should clearly be concerned with one of the matters specified in the first paragraph of Article 177.

The Court also ruled that the considerations which may have led to national court to its choice of questions as well as the relevance which it attributes to such questions in the context of a case before it are excluded from review by the Court when hearing an application for a preliminary ruling.

When the questions referred by the College are viewed in the light of this case law, a number of problems arise.

Question 1:

The admissibility of this question is not in doubt.

Question 2:

1) Part (a) of this question raises a problem concerning the interpretation of Article 226 of the Treaty and part (b) goes on to ask whether the Decision is ‘thereby’invalid. The word ‘thereby’ indicates that the two parts of the question are to be taken as a whole. It is evident that the College regards Question (b) as the crucial one since the purpose of this question is to ascertain whether the Decision granting the authorization is rendered invalid on the ground of an abuse of powers with the result that Article 12 remains fully applicable. However, Question 2 (a) can only be raised on the presumption that in examining a decision for validity, its legality can also be considered. Any view to the contrary would make Question 2 (a) meaningless, since the possible illegality of a decision cannot bring about its invalidity, and Question (b) would then have to be answered independently of Question (a). The College could dispense with Question (a) since so far as that court is concerned the dispute turns principally on the answer to Question (b). Consequently, the Court must decide whether it is bound to reply to any abstract question contained in a reference, or whether it must establish just what is really important for the court making the reference to know in order to arrive at its decision. Both the status and the function of the Court support the view that it must regard as inadmissible any questions which the court making the reference has considered necessary to include solely on the ground of their having some connexion with other questions, if a ruling on the main questions robs them of significance.

2) If the Court is of the opinion that the mere fact that Question 2 (a) has been made the subject of a reference is sufficient indication that the court making the reference considered a ruling on it to be ‘necessary’ within the meaning of the second paragraph of Article 177, then one might ask oneself whether this view, representative of the present case law, ought not to be qualified in some way. It should be pointed out that whether Question 2 (a) is ‘necessary’ depends in this instance, not on the interpretation of national (Netherlands) law, but of Community law, for the question is meaningless unless it is possible to arrive at the conclusion that the Decision is invalid (the point touched on in Question 2 (b)). This possibility depends on whether decisions addressed to Member States may be contested by individuals in proceedings under Article 177, and that is a matter of interpreting Article 177. It is doubtful whether the Court can be bound by the interpretation of an Article of the EEC Treaty by the court making the reference (in this case, the interpretation of Article 177 implied in the use by the College of the word ‘thereby’ as understood by that court), unless that court also submits its interpretation to the Court of Justice. The Court is thus faced with the problem whether it has itself to rule upon the ‘necessity’ and therefore upon the admissibility, of the question referred to it.

3) If one adheres to this view, the admissibility of Question 2 (a) will depend on whether the legality of a decision addressed to a Member State can be raised in the context of a reference for a preliminary ruling. One must begin with the wording of the Treaty when examining this problem, for while Article 177 uses the word ‘validity’, referring to the formal features of a legal act, Article 1 73 provides for a review of ‘legality’. it is necessary to consider whether an examination as to legality is admissible under the Article 177 procedure in cases where this is impossible under Article 173 not only because the time-limit has expired but on other grounds. I he examination of the merits expressly allowed under Article 184 is of course available in the context of references for a preliminary ruling, but that Article is confined to regulations and not to decisions addressed to Member States. 4. Should the Court come to the conclusion that ‘legality’ may also be taken into account during an examination as to the ‘validity’ of decisions addressed to Member States, then the questions referred to the Court are admissible; if it thinks otherwise, then Question 2 (a) is inadmissible. Even n the Court considered Question 2 (a) to be admissible, in spite of holding that an examination as to ‘legality’ is inadmissible, the end result would be the same, since Question 2 (b) would have to be answered first, so that Question 2 (a) would then become meaningless, as having no bearing on the validity of the Decision. Were the Court to consider Question 2 (a) first, it would incur the risk of having to decide that the Decision was illegal while being unable to draw any conclusions therefrom as to its validity.

Question 3

The same considerations as to admissibility apply here as in the case of Question 2.

B — The Answers to the Questions

The Federal Government's chief concern is to know to what extent decisions addressed to Member States may be examined in cases of references for preliminary rulings. It therefore expresses its opinion only briefly on the questions referred to the Court.

Question 1:

This should be answered in the affirmative, since it is clear from the wording of the Decision that it includes an authorization for the Netherlands to levy the duty in question.

Question 2:

If it is only the validity of the Decision which may be examined, the answer to this question may simply be limited to a declaration that the Decision is valid.

Question (a) does not then require an answer.

But if the legality of the Decision may also be examined, it should be noted that the authorization was granted to the Federal Government subject to the condition that the duty was not already imposed by the exporting Member State; it follows that the exporting Member State must also be authorized to impose this duty, since the condition would otherwise have no meaning. For this purpose no application for authorization by the exporting Member State is necessary, since its powers are no more than a necessary consequence of the authorization given to the Federal Republic. In these circumstances, it is enough that the state for the benefit of which the protective measures are designed should apply for an authorization.

Question 3:

This question too, needs no reply in so far as it concerns the legality of the Decision. However, the following observations are submitted, should they be required:

There is no reason why Article 226 should not apply to difficulties of the kind here in question.

There can be no question ot the procedure under Article 226 having been selected in order to avoid the procedure under Article 235. On the contrary, Article 235 was subsequently used in order to supplement the prior application of Article 226, since the latter Article was considered suitable only for a brief transitional period and not as an adequate legal basis for a longer period.

III — Procedure

The orders of the College van Beroep voor het Bedrijfsleven of 10 July 1963 were entered in the Registry of the Court of Justice on 11 July 1963.

On 26 July 1963 these orders were notified by the Registrar of the Court to the parties, to Member States and to the EEC Commission.

In accordance with Article 20 ot the Protocol on the Statute of the Court of Justice of the European Communities written observations were lodged in both cases by the plaintiffs in the main actions, the EEC Commission and the Government of the Federal Republic of Germany.

The cases were joined by Order ot the Court of 19 July 1963.

The plaintiffs in the main action, the EEC Commission and the Government of the Federal Republic of Germany presented their oral submissions at the hearing on 28 November 1963.

The Advocate-General delivered his opinion at the hearing on 16 December 1963.

Grounds of judgment

The Commission has raised the question whether the College van Beroep voor het Bedrijfsleven, a court of final appeal, has infringed the third paragraph of Article 177 of the Treaty in not bringing before the Court for a preliminary ruling the interpretation of Article 12 of the EEC Treaty on which the College based the questions actually referred for a preliminary ruling.

However, it appears from the grounds of the judgment of the College that it did not itself interpret Article 12 but limited itself to applying an interpretation drawn from the judgments previously delivered by the Court of Justice under Article 177 (in Cases 26/62 and 28 to 30/62).

There is thus no reason to examine the point raised by the Commission.

The first question put to the Court is whether the contested Decisions of the Commission authorizing the imposition by the Federal Republic of Germany of a special duty on the importation of fondant paste conferred equally on the Kingdom of the Netherlands the power to introduce a duty of the same amount on the exportation of this product to the Federal Republic of Germany.

The authorization given to the Federal Republic is subject to the condition that the exporting Member State does not itself impose the duty fixed by these Decisions. Moreover, the Decisions addressed, inter alia, to the Governments of the Federal Republic of Germany and of the Kingdom of the Netherlands, fixed the amount of the duty first in Dutch guilders and only secondly in Deutschmarks.

Although an explicit authorization, more in conformity with the requirements of legal certainty, was not formulated in the Decisions, the latter nonetheless by implication authorized the Netherlands Government to impose the duty in question.

By the terms of the second question the Court is asked to say whether Article 226 of the EEC Treaty enabled the Commission to authorize the Government of the Netherlands to introduce a duty, when no application to that end had been made by the said Government, and, if the answer is in the negative, whether the validity of the Decisions is thereby affected.

Protective measures can only be designed to protect temporarily a sector of economic activity which is in difficulty. While Article 226 (1) provides that the state concerned should apply for authorization to take protective measures itself, it is no less true that paragraph (2) of this provision confers upon the Commission, when such a request is before it, the power to fix ‘the protective measures which it considers necessary, specifying the circumstances and the manner in which they are to be put into effect’.

Article 226 constitutes an exceptional provision only as regards the nature and the extent of the derogations from the Treaty and not as regards the detailed rules laid down by the Commission for achieving the protection sought. In this respect, the Commission must use the means which are least likely to have an adverse effect on the State a sector of whose economic activity is affected by the measures authorized.

With this in view, the authorization granted to the State applying to take the protective measures may be made subject to the condition that the State, a sector of whose economic activity is affected by these measures, does not itself prefer to apply them.

Furthermore, the fact that the Commission has power to subject its authorization to such a condition is emphasized by Article 226 (3) which gives priority to the choice of such measures as will least disturb the functioning of the Common Market.

In this respect, therefore, the Decisions in dispute afford no grounds for criticism.

In the third question the College van Beroep asks first whether difficulties arising exclusively from the application of the mandatory provisions of the Treaty and in particular the elimination of internal tariffs can constitute difficulties within the meaning of Article 226.

It appears from the statements of reasons for the Decisions in question that the Commission thought that in this case the difficulties existed even before the entry into force of the Treaty and were only aggravated by the elimination of restrictions on trade within the Common Market. Since it has not been shown that the reasons are incorrect, this question does not appear to be relevant as regards the Decisions of the Commission which have been referred to the Court for review.

Moreover, Article 226 employs the term ‘difficulties’ without making any distinction on the basis of whether the difficulties were caused by the application of the Treaty or otherwise. On this point too, then, it appears that the validity of the disputed Decisions cannot be assailed.

Secondly, the Court is asked, in the third question, to say whether the validity of these Decisions is affected by the failure to state reasons or on the ground that the Commission had recourse to Article 226 of the Treaty in order to avoid the application of Article 235.

In this respect, it is enough for the Court to examine on the one hand whether the Commission, in having recourse to Article 226, contravened Article 235 and on the other hand whether the Decisions in question contain a defect which can be removed by action taken by the Commission of its own motion.

Article 235 offers a supplementary means of action and applies only in the cases for which the Treaty has not provided the necessary powers for the realization of the object in view. Consequently the lawful exercise of the powers conferred by the Treaty cannot constitute an infringement of this provision.

The plaintiffs in the main action invoke the judgment of the Court in Joined Cases 2 and 3/62, alleging that an unpublished authorization cannot be considered as the ‘clearly stipulated’ exception which that judgment states to be necessary.

Since the failure to provide the necessary publicity can be considered by the Court of its own motion, this allegation should be examined.

Although it appears to be desirable that a decision of this nature, affecting the rights and interests of nationals of several Member States, should be brought to the attention of the public, as has been the practice in similar cases, Article 191 lays down only that decisions should be notified to those to whom they are addressed, as was done in the present cases.

Moreover, the ‘clearly stipulated’ exception was in the circumstances constituted by Article 226 itself, in that it permits the taking of protective measures involving a departure from the provisions of Articles 12 and 16 of the Treaty.

Therefore, in the absence of any other defect which can be examined by the Court of its own motion, there appears to be no other factor capable of affecting the validity of the Decisions in question.

Costs

The costs incurred by the EEC Commission and the Government of the Federal Republic of Germany which have submitted observations to the Court are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the College van Beroep voor het Bedrijfsleven, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report ot the Judge-Rapporteur; Upon hearing the plaintiffs in the main action, the Commission of the European Economic Community and the Government of the Federal Republic of Germany; Upon hearing the opinion ol the Advocate-General; Having regard to the Treaty establishing the European Economic Com munity, especially Articles 12, 16, 177, 191, 226 and 235; Having regard to the Protocol on the statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to the judgments of the Court of Justice in Cases 26/62 and 28 to 30/62; THE COURT in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven by orders of that court of 10 July 1963, hereby rules:

1 The Decisions of the EEC Commission of 27 July 1960, 21 December 1960, 28 June 1961, 22 December 1961 and 27 February 1962, fixing the protective measures applicable to the importation into the Federal Republic of Germany of bread and fondant paste originating in other Member States confer upon the Government of the Kingdom of the Netherlands the power to introduce a duty of the same amount on the export of those products to the Federal Republic of Germany;

2 Examination of the questions referred to the Court reveals no factor capable of affecting the validity of the said Decisions;

3 The decision on the costs in these proceedings is a matter for the College van Beroep voor het Bedrijfsleven