JUDGMENT OF 12. 4. 1984 — CASE 345/82 WÜNSCHE / GERMANY
In Case 345/82 REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht [Administrative Court] Frankfurt am Main, for a preliminary ruling in the action pending before that court between
THE COURT (First Chamber) composed of: Lord Mackenzie Stuart, President, T. Koopmans, President of Chamber, and G. Bosco, Judge, Advocate General: Mrs S. Rozès Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
I — Legislative background
Preserved mushrooms, which fall under subheading 20.02 of the Common Customs Tariff, are subject to a customs duty of 23% on importation into the Community. They are included amongst the products governed by Council Regulation (EEC) No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruit and vegetables (Official Journal, L 73, p. 1), being “vegetables prepared or preserved otherwise than by vinegar or acetic acid”. Under the combined provisions of Articles 10 and 11 of that regulation and Annex IV thereto, they are governed by a system of import certificates, which entails the lodging of a security to guarantee that importation will be effected during the period of validity of the certificate. The security is, except in cases of force majeure, forfeit in whole or in part if importation is not effected, or is effected only in part, within that period.
Article 13 (2) of the abovementioned regulation provides as follows :
“Save as otherwise provided in this regulation or where derogation therefrom is decided by the Council, acting by a qualified majority on a proposal from the Commission, the levying of any charge having equivalent effect to a customs duty, and the application of any quantitative restriction or measure having equivalent effect, shall be prohibited in trade with non-member countries”.
Article 14, however, provides as follows:
“1. If, by reason of imports or exports, the Community market in one or more of the products specified in Article 1 is or is likely to be exposed to serious disturbances which might endanger the objectives set out in Article 39 of the Treaty, appropriate measures may be applied in trade with non-member countries until such disturbances or the threat thereof has [sic] ceased. The Council, acting by a qualified majority on a proposal from the Commission, shall adopt rules for the application of this paragraph and shall define the cases and the limits within which Member States may take protective measures. 2. Should the situation envisaged in paragraph (1) arise, the Commission, acting either at the request of a Member State or on its own initiative, shall decide what measures are necessary and communicate them to the Member States; such measures shall be immediately applicable. ...”
Pursuant to the second subparagraph of Article 14 (1), the Council adopted Regulation (EEC) No 521/77 of 14 March 1977 laying down detailed rules for applying protective measures in the market in products processed from fruit and vegetables (Official Journal, L 73, p. 28). Article 1 thereof provides that, in order to assess whether the Community market is experiencing or threatened with serious disturbances, “particular account shall be taken of:
a) the volume of imports or exports effected or foreseen;
b) the quantities of products available on the Community market;
c) the prices for Community products on the Community market or the foreseeable trend of these prices and in particular any excessive upward or downward trend thereof in relation to prices in the years immediately preceding;
d) where the abovementioned situation arises as a result of imports, the prices obtaining on the Community market, at a comparable stage, for products from third countries, and in particular any excessive downward trend in these prices.”
Article 2 contains a list of the protective measures “which may be taken under paragraphs (2) and (3) of” Article 14 of Regulation No 516/77. As far as the products at issue here are concerned, the measures are the following:
the total or partial discontinuation of the issue of certificates, as a result of which new applications will not be accepted ;
the rejection of all or some of the applications for the issue of certificates which are being examined;
the introduction of arrangements under which, if the price for an imported product falls below a certain minimum, a condition may be imposed whereby that product may be imported only at a price which is at least equal to such minimum.
The measures may be taken “only to such extent and for such length of time as is strictly necessary”; they must take account of the special situation of products which are already on their way to the Community and may be restricted to products imported from or originating in particular countries, to exports to particular countries or to particular qualities or types of presentation, or to imports intended for particular regions of the Community. In any event (Article 3), the application of the regulation in question “shall respect the Community's obligations under international agreements”.
Similar provisions had appeared in previous regulations, namely Regulations Nos 865/68 (Official Journal, English Special Edition 1968 (I), p. 225), 1927/75 (Official Journal, L 196 of 29. 7. 1975, p. 7) and 1928/75 (L 198 of 29. 7. 1975, p. 11). From 1975, the Commission resorted to the protective clause on several occasions and, since May 1978, has made constant use of it, adopting, over a period of two and a half years, 18 regulations which set limits on the importation of preserved mushrooms from non-member countries. The measures taken until 28 December 1980 always dealt with the restriction or suspension of the issue of import certificates and varied according to the country exporting the goods to which the measures applied, account being taken of the fact that some producer countries had signed undertakings of voluntary restraint with regard to their exports to the Community. Furthermore, the protective measures applied in some cases to preserved cultivated mushrooms generally and in others to preserved cultivated button mushrooms. The legality of those measures, in particular as regards the difference in the treatment of supplier countries outside the Community, was the subject of three cases brought before this Court, in which the Commission's actions were held to be lawful (see the judgments of 6. 5. 1982, Case 126/81 Wünsche [1982] ECR 1479, of 15. 7. 1982, Case 254/81 Edeka [1982] ECR 2745, and of 28. 10. 1982, Case 52/81 Faust [1982] ECR 3745).
Commission Regulation (EEC) No 3429/80 of 29 December 1980, which is at issue in this case, introduced for the first time the following protective measures :
i) Article 2 (1) provides that applications for import licences are to be accepted for preserved mushrooms for up to 26% of the quantities for which import licences were issued during the first 11 months of 1980 for products from each supplier country in the Member State in which the licence application is made;
ii) Article 2 (2) allocates the total quantity resulting from the application of Article 2 (1) between the main supplier countries outside the Community;
iii) Article 1 provides that the release into free circulation in the Community of goods exceeding the stated quantities is to be subject, during the first quarter of 1981, to the levy of an “additional amount” of 175 European currency units per 100 kg net. For that purpose, licences issued for quantities in excess of the limit are required to bear the wording “additional amount to be levied” (Article 3).
The new legislation on protective measures was kept in force by the Commission for the second and third quarters of 1981 (see Regulations Nos 796/81 of 27. 3. 1981, Official Journal, L 82, p. 8, and 1756/81 of 30. 6. 1981, Official Journal, L 175, p. 23). The Council then adopted definitive rules on the matter in the form of Regulation No 1796/81 of 30 June 1981 (Official Journal, L 183, p. 1), whereby the additional amount, reduced to 160 ECU per 100 kg net, was adopted not as a protective measure under Article 14 of Regulation No 516/77 but as a market-management measure under Article 13 (2) thereof.
II — Facts and written procedure
On 23 February 1981, Wünsche Handelsgesellschaft GmbH & Co., a German import firm based in Hamburg (hereinafter referred to as “Wünsche”), requested the Bundesamt für Ernährung und Forstwirtschaft [Federal Office for Nutrition and Forestry Management, hereinafter referred to as the “Bundesamt”] to grant it an import certificate in respect of 3500 tonnes of preserved cultivated mushrooms from the People's Republic of China, but “containing no reference to an additional amount of 175 ECU”. On 26 February 1981 the Bundesamt rejected that application and on 13 May 1981 also dismissed Wünsche's appeal, citing in support of its decisions the provisions of Regulation No 3429/80, mentioned above.
Wünsche therefore brought an action before the Verwaltungsgericht Frankfurt, in which it repeated its request and challenged the legality of the regulation.
By an order of 25 November 1982, the Verwaltungsgericht stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:
“Is Article 1 of Commission Regulation (EEC) No 3429/80 of 29 December 1980 adopting protective measures applicable to imports of preserved mushrooms (Official Journal, L 358 of 31. 12. 1980, p. 66) valid?”
In the grounds of its decision, the national court observes that the legality of the provision at issue is doubtful, first because Wünsche, during the main proceedings, demonstrated by means of official statistics that the requirements laid down by Article 1 of Council Regulation No 521/77 and by Article 14 of Council Regulation No 516/77 for the adoption of protective measures had not been fulfilled in this instance, there being no disturbance or threat thereof to the Community market. In that regard the national court takes the view that it is a matter for the Court of Justice to determine whether those requirements were fulfilled, or at least to provide the national court with guidance on that question. Secondly, the national court is of the opinion that the Commission was not empowered to adopt any protective measures other than those envisaged by Regulation No 521/77, which listed them exhaustively.
The order for reference was lodged at the Court Registry on 29 December 1982.
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Wünsche, the plaintiff in the main proceedings, represented by Dietrich Ehle, a Rechtsanwalt in Cologne, and Klaus Landry, a Rechtsanwalt in Hamburg, and also by the Commission of the European Communities, represented by Jörn Sack and Bernhard Jansen, members of its Legal Department, acting as Agents.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. However, the parties were requested to reply to several questions prior to the hearing and to supply further details of the statistical data on which they based their arguments.
The Court further decided, pursuant to Article 95 (1) and (2) of the Rules of Procedure, to assign the case to the First Chamber.
III — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
In a very long and detailed set of observations, Wünsche contests the legality of the provision which introduced the disputed additional amount and accordingly proposes that a negative reply be given to the question submitted by the national court. In its opinion, the Commission was not, in the first place, empowered to introduce a new protective measure which was not envisaged by Regulation No 521/77 and, in the second place, the state of the market at the time when Regulation No 3429/80 was adopted in no way warranted the imposition of protective measures in relation to preserved mushrooms.
Wünsche claims that, whilst the Commission is authorized to adopt protective measures, even on its own initiative, it is not empowered to determine the nature and content of such measures, since only the Council is competent to do so. The Council had exercised its powers in the sphere by drawing up an exhaustive list of applicable measures in Regulation No 521/77. The Commission therefore had the power to select the most appropriate of those measures, but not to create new ones. The Court had indeed already given judgment to that effect, by stating, in its judgments of 5 May 1981 (Case 112/80 Dürbeck [1981] ECR 1095) and 15 July 1982 (Case 254/81 Edeka cited above), that in Article 2 (1) of Regulation No 521/77 the Council had laid down the list of possible protective measures. By adopting Regulation No 1796/81, the Council further established, clearly and directly, that the Commission had no power whatever to introduce, on its own initiative, an additional amount by way of a protective measure.
Moreover, the measure adopted in this particular instance was no less restrictive than a suspension of imports; the Commission could not therefore rely upon the decisions in which the Court held that, whenever the Commission was entitled to take protective measures leading to a complete suspension of imports from non-member countries, it was a fortiori entitled to adopt less restrictive measures (judgment of 13. 5. 1971, Joined Cases 41 to 44/70 International Fruit Company [1971] ECR 411, at p. 427). Indeed, the contested amount was fixed at so high a level that, even on its own, it far exceeded both the value of the goods and the selling price of the home-grown product. Furthermore, the quantity of goods which might be imported free of the additional amount scarcely corresponded to the traditional volume of imports from non-member countries, but was much lower. In fact, it was only ostensibly that the Commission allowed additional quantities to be imported; the disputed amount concealed a total ban on imports in excess of the permitted quota inasmuch as it made the sale of such products on the Community market completely impossible. The consequences of introducing the additional amount were even more serious than those of restricting or suspending the issue of import certificates. The reason for this is that an importer who has imported goods which are not covered by a valid certificate may not be fined unless it is proved that he acted wilfully or negligently, and the amount of the fine is proportionate to the nature of the fault; the additional amount, on the other hand, has to be levied even if the importer is guilty of no fault, and irrespective of whether or not he has derived any economic benefit from the transaction.
Since, moreover, the disputed amount is in the nature of a charge having equivalent effect to a customs duty, the Commission further infringed the prohibition on the levying of such charges contained in Article 13 of Regulation No 516/77 — a prohibition which must apply not only to the Member States but also to the Commission —, because the conditions laid down therein permitting derogation from the general rule were not satisfied. Moreover, the same prohibition arises from the Common Customs Tariff, which was illegally amended.
In addition, the Commission contravened the principle of proportionality, which is expressly mentioned in the fourth recital in the preamble to Regulation No 521/77, since the protective measure adopted is manifestly excessive in terms of its declared aim, namely to protect the Community market against serious disturbances or the threat thereof. An additional amount cannot be regarded as proportionate to such an aim unless it represents, at most, the difference between the final price of the foreign product and the cost price to Community industry of the same product. However, the Commission adopted the contested measure without taking the trouble to acquaint itself with the cost prices to Community industries, and that explained its total failure to refer to that essential point in the preamble to the contested regulation. That failure also entailed an infringement of Article 190 of the EEC Treaty and thus afforded a further reason for the illegality of the provision at issue. It was only subsequently that the Commission carried out a calculation of the cost price, probably at the time of the preparation of Council Regulation No 1796/81, but the calculation was incorrect and contradictory, and therefore unreliable; in any event, Wünsche rejects it completely.
That belated calculation did not, in any case, take account of the differences in cost price and selling price between goods of different quality; hence it overlooked the fact that second- and third-grade preserves were inevitably and unfairly penalized by the fact that the additional amount was fixed at a flat rate, with the result that its effect was greater in the case of lower-priced goods.
In that regard Wünsche takes the view that it is necessary to ascertain the cost prices of the Community products, either by means of an inquiry conducted directly by the Court, in particular by seeking expert opinion, or by assigning the task to the national court.
As regards the more general problem of whether the conditions for the adoption of protective measures were fulfilled, Wünsche observes first of all that, since the procedure laid down for preliminary rulings makes no allowance for a statement in reply, the parties are not in a position to give full and proper consideration to this question. In any event, Wünsche stresses that, according to existing case-law, it is a matter for the national court to establish the facts, whereas the Court's sole task is to settle problems of law. It therefore claims that any ruling on the preliminary question must be deferred until the national court has established the facts, that is to say whether or not a disturbance, or the risk thereof, was in evidence on the Community market at the time when the contested measure was adopted. In the alternative, Wünsche requests the Court to order a preliminary inquiry and to give the parties concerned the opportunity to submit written comments on the findings. It further takes the view that, whilst in principle it is required to prove the alleged illegality of the contested regulation, the Commission must none the less bear the burden of proving that the conditions for the application of the protective measure which it adopted were satisfied.
Furthermore, Wünsche relies on numerous statistics in an effort to demonstrate that, at the time when the “additional amount” was introduced, the Community market showed no sign either of actual or of threatened disturbances. To that end, Wünsche argues that:
i) The production and sale of Community products had greatly increased in the course of previous years;
ii) The prices of Community products had also increased, although remaining below the prices of preserves originating in non-member countries;
iii) No problem had arisen in the disposal of Community products; stock levels were below average and difficulties in obtaining supplies had even been experienced during certain periods;
iv) Imports from non-member countries over the same period had declined steadily, owing not only to the protective measures adopted by the Commission but also to an increase in the prices of such products (taking account of the costs of transportation, financing, storage and customs dues).
It follows that the constant adoption of protective measures since 1978, in the face of the perfectly normal development of the market, was in no way designed to forestall disturbances, which were not in prospect, but rather to achieve a massive protection of Community producers — especially French and Netherlands producers — who were therefore able to gain a firm hold on virtually the whole of the largest consumer market, namely the German market. In those circumstances, the action taken by the Commission constituted a misuse of its powers. Those considerations apply particularly to goods which, like preserved mushrooms, are subject to the system of import certificates, since the Commission is always able to forecast the volume of imports by examining the statistics on applications for such certificates. Evidence of the real attitude taken by the Commission in the matter was afforded by the fact that protective measures were adopted for the second quarter of 1981, even though in the previous quarter it had not even been possible to import the quantities exempted from the additional amount.
In its written observations the Commission, after setting out the factors of which particular account must be taken pursuant to Article 1 of Council Regulation No 521/77 in assessing whether the market is experiencing or is threatened by serious disturbances, contends that it is not necessary for all those factors to be in evidence, but that any one of them is sufficient, and that it is at liberty to take account, for that purpose, of factors other than those laid down by the aforesaid provision. In that connection it claims to be endowed with a wide-ranging discretionary power and to be under an obligation to appraise the market situation at the time when the adoption of the protective measures is under consideration.
On that basis, any claim that Regulation No 3429/80 is invalid is, in the Commission's view, quite unfounded. Apart from the fact that the order for reference failed to specify the official statistics to which Wünsche was referring, the national court seems to have considered the situation as it was during the first quarter of 1981, and not the situation obtaining at the time when the disputed protective measures were adopted, together with developments foreseeable at that stage. At the time the regulation at issue was adopted, the situation on the Community market for preserved mushrooms was as follows:
i) Despite the conclusion of voluntary-restraint agreements with the principal producer countries outside the Community, imports from such countries had increased in 1980 as compared with 1979, and the quantities laid down in those agreements had been greatly exceeded.
ii) On the German market — that is to say, the main consumer market — the price of preserved mushrooms originating within the Community had declined to a level below the cost price to the Community industries.
iii) Stocks of the product originating within the Community, especially French and Netherlands stocks, had increased sharply.
iv) In the absence of voluntary-restraint agreements for 1981, new disturbances on the Community market were readily foreseeable.
The above situation is demonstrated by statistical tables which the Commission annexes to its observations. It follows that the conditions governing the adoption of protective measures were fulfilled.
Turning the doubts expressed by the national court as to the legality, in this particular case, of adopting a protective measure for which the Council regulation made no express provision, the Commission observes that it was obliged, both under Article 14 of Regulation No 516/77 and under Article 2 (2) of Regulation No 521/77, to limit the protective measures to a strict minimum. That was precisely the case with the measure adopted, which made it possible to remedy the disruption of the market without causing a complete interruption of the patterns of trade involved, and to do so pending the conclusion of new voluntary-restraint agreements. In other words, the Commission preferred not to resort to an expedient as radical as the withholding of certificates, since a less coercive measure was seen to be adequate. Moreover, the Court had already held in comparable circumstances that, whenever the Commission was entitled to take protective measures leading to a complete suspension of imports from non-member countries, it was, “a fortiori, entitled to adopt less restrictive measures” (judgment of 13 May 1971, Joined Cases 41 to 44/70 International Fruit Company cited above). In that sense, the charging of an additional amount of 175 ECU, with the effect of aligning imported goods with the cost price of the French product free at the German frontier, was legitimate.
The Commission therefore proposes that the following answer be given to the question submitted by the Verwaltungsgericht Frankfurt:
“Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Commission Regulation (EEC) No 3429/80.”
IV — Replies to the questions put by the Court
By letter of 3 August 1983 the Court put a number of questions to the Commission and to Wünsche and also requested the French Government and the Council to furnish documents and the Bundesamt to supply certain information. The parties concerned complied with the requests within the prescribed period.
In reply to the first question put to it, the Commission presented an analysis of the cost prices of preserved mushrooms produced in France and the Netherlands, based on information which it claimed to have obtained from the States concerned. The analysis coincides more or less with the information already supplied and used by the Commission; however, no reply was given to the criticisms put forward by Wünsche on this point in its written observations.
The Commission replies to the Court's request to be informed of the average selling prices on the Community market, in late 1980, of preserves originating in non-member countries by indicating the wholesale prices charged on the German market for first-grade and third-grade preserves. As far as the effect of the disputed additional amount of each tin was concerned, the Commission quoted figures of DM 2.05 (added to the price of DM 1.75, inclusive of customs duties) for the eight-ounce, first-grade tin and of DM 1.51 (on a price of DM 1.00) for the six-ounce, third-grade tin. The Commission stated that there was no trade in second-grade preserves.
In reply to the question whether applications for import certificates were lodged in respect of quantities subject to the additional charge, the Commission admitted that such applications related to extremely small quantities (8 tonnes in 1981, 19 tonnes in 1982).
In response to the request to give its views on some of Wünsche's arguments, the Commission:
i) Admitted that it was correct to say that the system of import certificates in itself enabled imports to be monitored, but contended that the system established by the disputed regulation none the less conferred advantages on importers by enabling them to plan more effectively;
ii) Challenged the relevance of the argument that the market shares held by the Community producers and by the importers had been reversed between 1964 and 1981, since no protective measures were taken in this sector prior to the period from 1974 to 1976. In any event, the Commission denied, on the strength of information from the Federal Statistical Office, that such a reversal had occurred on the German market between 1976 and 1981;
iii) Admitted that the maximum set on authorized imports for 1981 was not fully used, but contends that this was due to the failure to exhaust the quotas allocated to imports from Korea and Spain; however, if account were taken of the efforts to re-route consignments bound for Germany via Greece for the purpose of avoiding the additional amount, the actual level of imports was equal to the authorized level.
As regards the figures given by Wünsche, which it contests, the Commission submitted:
a) that the percentage of wastage in processing, set at 40% by Wünsche in its calculation of the French cost price, was actually 57%, since the French raw material consisted of unstalked mushrooms;
b) that the comparison drawn by Wünsche with the processing of peas and carrots, with regard to the proportion of the French cost price accounted for by labour costs, was not correct since the processing of mushrooms was not automated;
c) that normal stock levels were no higher than 5000 tonnes in the Netherlands and 16500 tonnes in France;
d) that Wünsche's calculation converting the additional amount of 1.75 ECU per kg into German marks was incorrect because it employed the normal exchange rates and not the “green” rates.
Finally, the Commission claimed that “net weight” must be understood to mean the entire undrained contents of a tin.
In a long and detailed statement containing numerous annexes, Wünsche used its reply to the Court's questions primarily as an opportunity to put forward further arguments in support of its claim.
In particular, Wünsche:
i) Indicated in great detail the statistical sources which it had used;
ii) Converted all its figures into standard units of measure and currency and endeavoured to demonstrate that the Commission's figures for the cost prices to Community producers were neither plausible nor reliable;
iii) Specified which information supplied by the Commission it challenged, namely:
a) The statement concerning the increase in imports into the Community in 1980, which overlooked both the fact that such imports were subject to the procurement of import certificates and were thus authorized by the Commission and the fact that the increase was quite unrelated to imports from China. Furthermore, the Commission had omitted to add that preserves imported from France and the Netherlands into the Federal Republic of Germany over the same period had increased more steeply than those from non-member countries. The information supplied by the Commission was therefore incomplete and misleading;
b) The alleged deflection of trade by the importation via Scandinavia of goods originating in China, which supposedly occurred in 1980;
c) The claim that the quotas fixed for the People's Republic of China had been exceeded in 1980, which was refuted by the official statistics on import certificates;
d) The figures on the movement of prices during 1980, which were similarly erroneous, misleading and incomplete. Prices had in fact moved uniformly and had even increased towards the end of the year.
e) Figures on the cost prices of French produce, which were absurd and unreliable. In that connection, Wünsche refers to the arguments set forth in its written observations and maintains that it is inconceivable that industries forced to sell at a loss should continue year after year to increase those sales and those supposed losses;
f) The figures relating to stock levels, which were again inaccurate and approximate. Moreover, no mention was made of the true cause of the increases in stock levels, namely the increase in French and Netherlands output; nor did the figures take account of the fact that normal stock levels necessarily represented a given percentage of output, with the result that, if production increased, stocks were bound to increase as well.
Turning tö the term “net weight”, Wünsche agreed with the opinion expressed by the Commission.
V — Oral procedure
At the sitting on 20 October 1983 the plaintiff in the main proceedings, represented by Dietrich Ehle, Rechtsanwalt of Cologne, and by Klaus Landry, Rechtsanwalt of Hamburg, and the Commission of the European Communities, represented by Bernhard Jansen, a member of its Legal Department, acting as Agent, presented oral argument.
The Advocate General delivered her opinion at the sitting on 24 November 1983.
Decision
1. By order of 25 November 1982, received at the Court on 29 December 1982, the Verwaltungsgericht [Administrative Court] Frankfurt referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question relating to the validity of Article 1 of Commission Regulation (EEC) No 3429/80 of 29 December 1980 adopting protective measures applicable to imports of preserved mushrooms (Official Journal 1980, L 358 p. 66).
2. The question was raised in the context of legal proceedings brought by Wunsche Handelsgesellschaft, of Hamburg, against the Bundesamt für Ernährung und Forstwirtschaft [Federal Office for Nutrition and Forestry Management, hereinafter referred to as the “Bundesamt”], of Frankfurt am Main, after the Bundesamt, basing its decision on the protective measures adopted by the Commission in the aforesaid regulation, had rejected the application lodged by Wünsche on 23 February 1981 for the issue of an import certificate “containing no reference to an additional amount of 175 ECU” in respect of 3500 tonnes of preserved mushrooms from the People s Republic of China.
3. The additional amount referred to in Wünsche's application was provided for by Article 1 of Regulation No 3429/80, under which:
“Release into free circulation in the Community of preserved mushrooms within subheading 20.02 A of the Common Customs Tariff, other than those referred to in Article 4 and exceeding the quantities laid down pursuant to Article 2 (1) and (3), shall be subject, during the period 1 January to 31 March 1981, to levy of an additional amount of 175 ECU per 100 kilograms net.”
4. The plaintiff in the main proceedings argued in its observations that the above provision should be considered invalid on two grounds, namely: First, because at the time when the Commission adopted Regulation No 3429/80 the conditions to which Community legislation subjects the adoption of protective measures were not satisfied; Secondly, because the Commission was not empowered to adopt a protective measure, such as the levying of an additional amount, which did not appear in the exhaustive list of protective measures drawn up by the Council in Article 2 (1) of its regulation, Regulation No 521/77 of 14 March 1977 laying down detailed rules for applying protective measures in the market in products processed from fruit and vegetables (Official Journal 1977, L 73, p. 28).
5. In its observations, the Commission contests both those arguments.
6. As far as the first argument is concerned, it should be recalled that, under Regulation No 521/77, in order to judge whether the Community market in a product processed from fruit or vegetables is, by reason of imports or exports, experiencing or threatened with serious disturbances which might endanger the objectives set out in Article 39 of the EEC Treaty, particular account must be taken of: (a) The volume of imports or exports effected or foreseen; (b) The quantities of products available on the Community market; (c) The prices for Community products on the Community market or the foreseeable trend of those prices and in particular any excessive upward or downward trend thereof in relation to prices in the years immediately preceding; (d) Where the abovementioned situation arises as a result of imports, the prices obtaining on the Community market, at a comparable stage, for products from non-member countries and in particular any excessive downward trend in those prices.
7. The first factor to be taken into consideration under Article 1 of Regulation No 521/77 is therefore the volume of imports, effected or foreseen, into the Community.
8. In that regard the plaintiff in the main proceedings argued that, when Regulation No 3429/80 was adopted, the imports for 1981 had not yet been effected and the import forecasts for the first quarter of 1981 were still unknown. The plaintiff added that applications for import certificates lodged prior to 29 December 1980, the date on which the regulation was adopted, gave no cause to fear any disturbances on the market for preserved mushrooms.
9. In reply, the Commission stated that the volume of imports from non-member countries was higher in 1980 (35700 tonnes) than in 1979 (29741 tonnes) and that the difficulties encountered by the Commission in renewing voluntary-restraint agreements with certain non-member countries, particularly the People's Republic of China, which was by far the leading supplier to the Community, offered the prospect that the growth of imports would continue in 1981.
10. Having regard to the fact that, by the end of 1980, no voluntary-restraint agreement had yet been signed in respect of 1981 with the non-member countries which supplied preserved mushrooms and that those countries included the People's Republic of China, which accounted for more than 70% of imports, the conclusion must be drawn that the Commission had good reason to take the view that, unless protective measures were taken, imports would increase to an extent liable seriously to disturb the Community market.
11. As far as the quantities of products available on the Community market are concerned, the plaintiff in the main proceedings maintains that the stocks recorded in December 1980 in France and the Netherlands — the two main producers within the Community — were no higher than average.
12. For its part, the Commission contends that the average French and Netherlands stock levels during 1980 were higher than in 1979, that they rose particularly towards the end of 1980 as a result of the disturbance caused on the market by the growth in imports and that they did not decline until 1981, when they did so as a result of the protective measures adopted in Regulation No 3429/80.
13. In that regard it should be observed that the statistics relating to the movement in stock levels of preserved mushrooms during 1979 and 1980 show, at 1 December 1980, totals of 16500 tonnes for France and 12000 for the Netherlands.
14. For both countries, those figures represent an increase in stocks by-comparison with the figures recorded during 1979 and 1980. The fact that stock levels fell again in 1981 contradicts Wünsche's claim that the increase in stock levels was due to an increase in Community output and that stock levels recorded in the last three months of 1980 did not go beyond what is normal for guaranteeing the continuity of supplies. In fact, Community output in 1981 continued to rise, without causing any increase in stock levels. It must therefore be concluded that stock levels in December 1980 were abnormally high.
15. That fact becomes particularly evident if regard is had to the movement in stock levels in the Netherlands, where total stocks stood at about 3000 tonnes throughout 1979 and at about 5000 tonnes during the greater part of 1980, but soared to 12000 tonnes during the last quarter of 1980 and only gradually returned to the level of 5000 tonnes in the course of 1981.
16. Although Wünsche disputed those figures, it must nevertheless be said that the Commission was justified in basing itself on statistics which, as it stated, came directly from the Netherlands Ministry of Agriculture and which, moreover, were confirmed by that Ministry in reply to telex messages in which the Commission had expressly requested such confirmation.
17. The third factor to be taken into consideration in judging whether conditions existed which warranted the adoption of a protective measure is the trend in the prices of Community products.
18. Whereas, according to Wünsche, the prices of Community products actually increased during 1980, the Commission for its part maintains that the prices fell.
19. In that regard it should be observed that the documents laid before the Court disclose that Community prices during 1980 displayed a definite downward trend and did so in spite of inflation.
20. As regards the fourth factor to be taken into consideration, namely the prices of mushrooms imported from non-member countries, it is apparent from the documents before the Court that, although those prices had risen in relative terms during 1980, they were still competitive by comparison with the prices of mushrooms produced in the Community.
21. In the ligth of all those factors, the conclusion must therefore be drawn that it does not appear that the Commission, in assessing the state of the market, committed any serious and manifest error such as might invalidate Regulation No 3429/80.
22. The second argument put forward by Wünsche is based on the claim that the list of potential protective measures set forth in Article 2 (1) of Council Regulation no 521/77 is exhaustive and that the Commission is empowered, in the circumstances envisaged by Article 14 (1) of Council Regulation No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruit and vegetables (Official Journal 1977, L 73, p. 1), to do no more that adopt one of the protective measures appearing in that list. By introducing an additional amount of 175 ECU per 100 kg net as a protective measure, when the only measures contained in the above-mentioned list are, on the one hand, the total or partial discontinuation of the issue of certificates or the rejection of all or some of the applications for certificates and, on the other, a system of minimum prices, the Commission is said to have exceeded its powers.
23. It should be recalled in that regard that, as the Commission has pointed out, the Court, in its judgment of 13 May 1971 in a case concerning protective measures on the importation of dessert apples (Joined Cases 41 to 44/70 International Fruit Company NV and Others v Commission [1971] ECR 411, at p. 427), held as follows: “Since the Commission was entitled to take protective measures leading to a complete suspension of imports from third countries, it was, a fortiori, entitled to adopt less restrictive measures”.
24. Article 2 (1) of Regulation No 3429/80 provides: “Applications for import licences shall be accepted for preserved mushrooms for up to 26% of the quantities for which import licences were issued during the first 11 months of 1980 for products from each supplier countiy in the Member State in which the licence application is made.” It is clear therefore that the Commission selected in this particular case a protective measure which in substance amounted to a “partial discontinuation of the issue of certificates”.
25. The measure in question is formulated in a manner very similar to the measure envisaged by the first indent of Article 2 (1) of Regulation No 521/77, except that the possibility remains of issuing import certificates against payment of an additional amount. That possibility, even though it has very limited practical importance owing to the level at which the additional amount is fixed, entails a lesser degree of restriction than the absence of any possibility of issuing certificates.
26. Wünsche has argued that the additional amount is, in any event, incompatible with Article 13 (2) of Regulation No 516/77, which provides: shall be prohibited in trade with non-member countries”. In its opinion, Article 14 (1) of the same regulation does not provide “otherwise”, since it merely refers to the possibility of applying “appropriate measures” should the market become disturbed.
“Save as otherwise provided in this regulation or where derogation therefrom is decided by the Council, acting by a qualified majority on a proposal from the Commission.
the levying of any charge having equivalent effect to a customs duty, and
the application of any quantitative restriction or measure having equivalent effect,
27. Article 2 of Regulation No 521/77 makes provision for the total or partial suspension of imports, which is tantamount to a quantitative restriction. It must therefore be concluded that Article 14 of Regulation No 516/77 does provide “otherwise” as regards measures which may consist of quantitative restrictions. Consequently, the same must hold good for the levying of a charge having equivalent effect to a customs duty, whenever such a charge may validly be adopted by the Commission as part of a protective measure.
28. It follows from the foregoing considerations, taken as a whole, that the Commission was empowered to provide for an additional amount as a protective measure within the meaning of Regulation No 521/77.
29. It must therefore be concluded that consideration of the question referred to the Court has disclosed no factor of such a kind as to affect the validity of Commission Regulation No 3429/80.
Costs
30. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, n the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds, THE COURT (First Chamber), in answer to the question referred to it by the Verwaltungsgericht Frankfurt by order of 25 November 1982, hereby rules: