61965CJ0052_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN JOINED CASES 52 AND 55/65
FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY ULRICH EVERLING, SENIOR COUNSELLOR IN THE FEDERAL MINISTRY OF ECONOMIC AFFAIRS IN BONN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHANCERY OF THE EMBASSY OF THE FEDERAL REPUBLIC OF GERMANY, 3 BOULEVARD ROYAL,
APPLICANT,
V
COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY HUBERT EHRING, LEGAL ADVISER OF THE EUROPEAN EXECUTIVE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION
( A ) IN CASE 52/65
FOR THE ANNULMENT OF THE COMMISSION'S DIRECTIVE OF 16 JUNE 1965 RELATING TO THE DETERMINATION OF THE TIME-TABLE FOR THE ABOLITION OF THE CHARGE IMPOSED BY THE FEDERAL REPUBLIC OF GERMANY ON THE IMPORTATION OF SHEEP FOR SLAUGHTER AND MUTTON ORIGINATING IN OTHER MEMBER STATES;
( B ) IN CASE 55/65
FOR THE ANNULMENT OF THE COMMISSION'S DIRECTIVE OF 28 JULY 1965 RELATING TO THE DETERMINATION OF THE TIME-TABLE FOR THE ABOLITION OF THE CHARGE IMPOSED BY THE FEDERAL REPUBLIC OF GERMANY ON THE IMPORTATION OF ALL AGRICULTURAL PRODUCTS AND FOODSTUFFS SUBJECT TO IMPORT LICENCES ORIGINATING IN OTHER MEMBER STATES,
Grounds
P.168
APPLICATIONS 52/65 AND 55/65 ARE RELATED AND CAN THEREFORE BE DECIDED BY ONE AND THE SAME JUDGMENT .
ADMISSIBILITY
THE DEFENDANT HAS NOT CALLED IN QUESTION THE ADMISSIBILITY OF THE APPLICATIONS AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .
THE SUBSTANCE OF THE CASE
WITH REGARD TO THE SUBJECT-MATTER OF APPLICATION 55/65 DIRECTED AGAINST THE COMMISSION'S DIRECTIVE OF 28 JULY 1965, THE APPLICANT GOVERNMENT DOES NOT DENY THAT THE CHARGES LEVIED BY THE AUSSENHANDELSSTELLE FUER ERZEUGNISSE DER ERNAEHRUNG UND LANDWIRTSCHAFT CALLED, SINCE THE ENTRY INTO FORCE OF THE LAW OF 24 AUGUST 1965, ' BUNDESAMT FUER ERNAEHRUNG UND FORSTWIRTSCHAFT ', ON THE IMPORTATION OF CERTAIN ' LIBERALIZED ' PRODUCTS ARE CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES .
THE COURT TAKES NOTE OF THIS FACT .
THE FIRST SUBMISSION OF APPLICATION 55/65 IS DIRECTED AGAINST THE CONTESTED DIRECTIVE ONLY IN SO FAR AS IT RELATES TO THE CHARGES LEVIED ON THE IMPORTATION OF A LIMITED NUMBER OF PRODUCTS WHICH HAVE NOT BEEN ' LIBERALIZED ', ORIGINATING IN OTHER MEMBER STATES, NAMELY CERTAIN FEEDINGSTUFFS, SHEEP AND MUTTON, FISH, VEGETABLE OILS AND FATS, SUGAR, SEEDS, CUT FLOWERS, WINES, VARIOUS KINDS OF FRUIT AND VEGETABLES AS WELL AS PRESERVED FRUIT AND VEGETABLES .
THE FIRST SUBMISSION
THE FEDERAL REPUBLIC OF GERMANY CLAIMS THAT THE CHARGES LEVIED ON THE ONE HAND BY THE EINFUHR - UND VORRATSSTELLE FUER SCHLACHTVIEH, FLEISCH UND FLEISCHERZEUGNISSE AT THE TIME OF IMPORTATION OF SHEEP FOR SLAUGHTER AND MUTTON, AND ON THE OTHER HAND BY THE BUNDESAMT FUER ERNAEHRUNG UND FORSTWIRTSCHAFT ON THE IMPORTATION OF THE BEFOREMENTIONED PRODUCTS, WHICH HAVE NOT BEEN ' LIBERALIZED ', ARE NOT CHARGES HAVING AN EFFECT EQUIVALENT TO IMPORT DUTIES BUT ARE IN THIS CASE ADMINISTRATIVE CHARGES IN CONSIDERATION FOR TASKS UNDERTAKEN BY THE ADMINISTRATION IN THE INTEREST AND AT THE REQUEST OF AN INDIVIDUAL AND BY NO MEANS HAVE THE DISCRIMINATORY AND PROTECTIVE OR FISCAL EFFECTS OF CUSTOMS DUTIES .
P.169
FOR THIS REASON IT IS ALLEGED THAT THE COMMISSION DID NOT HAVE THE POWER TO ORDER THEIR ABOLITION AND TO DETERMINE BY MEANS OF A DIRECTIVE THE TIME-TABLE FOR SUCH ABOLITION .
UNDER THE TERMS OF ARTICLE 13(2 ) OF THE EEC TREATY CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES ON IMPORTS, IN FORCE BETWEEN MEMBER STATES, SHALL BE PROGRESSIVELY ABOLISHED BY THEM DURING THE TRANSITIONAL PERIOD AND THE COMMISSION SHALL DETERMINE BY MEANS OF DIRECTIVES THE TIME-TABLE FOR SUCH ABOLITION, BEING GUIDED BY THE RULES CONTAINED IN ARTICLE 14(2 ) AND ( 3 ) AND BY THE DIRECTIVES ISSUED BY THE COUNCIL PURSUANT TO ARTICLE 14(2 ).
THE OBLIGATION PLACED ON MEMBER STATES BY ARTICLE 13(2 ) TO ABOLISH PROGRESSIVELY CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES IS THE LOGICAL AND NECESSARY COMPLEMENT OF THE OBLIGATION TO ABOLISH PROGRESSIVELY CUSTOMS DUTIES ON IMPORTS LAID DOWN IN PARAGRAPH ( 1 ) OF THIS ARTICLE .
THE QUESTION WHETHER CERTAIN CHARGES HAVE AN EFFECT EQUIVALENT TO CUSTOMS DUTIES CANNOT BE DETERMINED ACCORDING TO THE CRITERIA AND DIFFERENCES, OFTEN UNCERTAIN AND SOMETIMES CONTRADICTORY, DERIVED FROM THE LAWS AND DOCTRINE RELATING TO THE FINANCES OF EACH MEMBER STATE .
THIS QUESTION MUST ON THE CONTRARY BE CONSIDERED IN THE LIGHT OF THE OBJECTIVES OF THE TREATY .
IT IS NECESSARY IN PARTICULAR TO CONSIDER WHETHER THE CHARGES IN QUESTION HAVE AN EFFECT EQUIVALENT TO CUSTOMS DUTIES AND WHETHER THEY THEREFORE HAVE THE CHARACTERISTICS WHICH LED THE AUTHORS OF THE TREATY TO ADOPT AS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE COMMON MARKET THE PROHIBITION OF CUSTOMS DUTIES .
THE OBJECT OF THE PROVISIONS OF ARTICLE 13 IN THEIR ENTIRETY IS TO PROHIBIT ALL MEASURES BY MEMBER STATES TAKEN BY A UNILATERAL DECISION AND NOT UNDER COMMUNITY PROCEDURES, WHICH, WHATEVER THEY ARE CALLED AND BY WHATEVER MEANS THEY HAVE BEEN INTRODUCED HAVE, AT THE TIME OF IMPORTATION, THE SAME DISCRIMINATORY AND PROTECTIVE EFFECTS AS CUSTOMS DUTIES .
SINCE ARTICLE 13 IS A FUNDAMENTAL PROVISION FOR ESTABLISHING THE FREE MOVEMENT OF GOODS, IT LAYS DOWN AN ESSENTIAL LEGAL PRINCIPLE AND CONSEQUENTLY THE ONLY POSSIBLE EXCEPTIONS ARE THOSE WHICH ON A STRICT CONSTRUCTION OF THE ARTICLE CAN CLEARLY BE ALLOWED .
P.170
IN THIS CASE THE DISPUTED CHARGES ARE CHARGES LEVIED BY THE FEDERAL REPUBLIC OF GERMANY ON THE ACTUAL IMPORTATION OF GOODS AND SPECIFICALLY ON CERTAIN PRODUCTS ORIGINATING IN THE OTHER MEMBER STATES .
THEY MAY THEREFORE HAVE THE EFFECT OF INCREASING TO SOME EXTENT THE PRICE OF THE IMPORTED PRODUCTS ON WHICH THEY ARE LEVIED .
THE APPLICANT GOVERNMENT SUBMITS HOWEVER THAT THEY DO NOT HAVE THE SAME EFFECT AS A CUSTOMS DUTY, BECAUSE, SINCE THEY REPRESENT THE CONSIDERATION FOR A SPECIFIC SERVICE PROVIDED BY THE ADMINISTRATION FOR THE BENEFIT OF AND AT THE REQUEST OF IMPORTERS, THEY DO NOT HAVE A DISCRIMINATORY EFFECT ON THE PRODUCTS IMPORTED .
THE SERVICE PROVIDED BY THE ADMINISTRATION CONSISTS OF THE VARIOUS INVESTIGATIONS AND TASKS NECESSARY TO ALLEVIATE THE EFFECTS OF THE QUANTITATIVE RESTRICTIONS WHICH THE FEDERAL REPUBLIC OF GERMANY, ACTING WITHIN ITS POWERS, HAS ESTABLISHED ON THE FREE IMPORTATION OF THE PRODUCTS IN QUESTION .
THE BENEFIT WHICH THE IMPORTER OBTAINS FROM THE OPERATIONS OF THE ADMINISTRATION IN RESPECT OF WHICH THE DISPUTED CHARGES ARE LEVIED IS THE PERMISSION TO MARKET THE PRODUCTS IN QUESTION IN THE FEDERAL REPUBLIC .
THE IMPORTED PRODUCTS THEMSELVES ENJOY NO DIRECT OR INDIRECT ADVANTAGE ON THE GERMAN MARKET .
FOR THIS REASON THE DISPUTED CHARGES HAVE A DISCRIMINATORY EFFECT ON THE IMPORTED PRODUCTS, WHICH, HOWEVER SMALL IT MAY BE, IS EQUIVALENT TO THAT OF A CUSTOMS DUTY .
THE COMMISSION WAS THEREFORE LEGALLY ENTITLED, IN APPLICATION OF ARTICLE 13(2 ), TO ORDER THE ABOLITION OF THESE CHARGES AND TO DETERMINE BY MEANS OF DIRECTIVES THE TIME-TABLE FOR SUCH ABOLITION .
THE FIRST SUBMISSION IS UNFOUNDED .
THE SECOND SUBMISSION
THE APPLICANT GOVERNMENT SUBMITS IN THE ALTERNATIVE, IN THE EVENT OF THE COURT'S HOLDING THAT THE DISPUTED CHARGES ARE CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES, THAT THE DISPUTED DIRECTIVES ARE DEFECTIVE BECAUSE THEY INFRINGE THE TREATY AND AMOUNT TO A MISUSE OF POWERS .
P.171
IT IS ALLEGED THAT WHEN THE COMMISSION ISSUED THE DIRECTIVES ADDRESSED TO THE FEDERAL REPUBLIC OF GERMANY IT ABUSED ITS POWERS AND INFRINGED ARTICLE 14 OF THE TREATY AND THE PRINCIPLE OF EQUALITY OF TREATMENT WHICH IS OF FUNDAMENTAL IMPORTANCE FOR THE ESTABLISHMENT OF A CUSTOMS UNION .
ARTICLE 14 WHICH LAYS DOWN THE RULES BY WHICH THE COMMISSION MUST BE GUIDED IN ORDER TO DETERMINE THE TIME-TABLE FOR THE ABOLITION OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES PLACES UPON IT THE OBLIGATION, ON THE ONE HAND, TO ADOPT FOR THIS PURPOSE A PROCEDURE ON CLOSELY SIMILAR LINES TO THE ONE FOR THE REDUCTION OF THE CUSTOMS DUTIES THEMSELVES AND, ON THE OTHER HAND, TO DEAL IN THE SAME WAY WITH COMPARABLE SITUATIONS IN ALL THE MEMBER STATES .
THE COMMISSION, HOWEVER, IN BREACH OF THIS PROVISION AND OF THE PRINCIPLE OF EQUALITY OF TREATMENT, MADE A LIMITED USE OF ITS POWERS, WITHOUT ATTEMPTING TO PREPARE A PLAN OR TO BE CONSISTENT, IN A NUMBER OF CASES SELECTED ARBITRARILY IN CERTAIN MEMBER STATES, AND FAILED TO DEAL WITH SIMILAR SITUATIONS ARISING IN OTHER MEMBER STATES .
UNDER THE TERMS OF ARTICLE 13(2 ) THE COMMISSION HAS THE POWER TO DETERMINE THE TIME-TABLE FOR THE ABOLITION OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES AND ' SHALL BE GUIDED ' FOR THIS PURPOSE BY THE RULES CONTAINED IN ARTICLE 14(2 ) AND ( 3 ).
IN ORDER TO DETERMINE THIS TIME-TABLE IT ISSUES DIRECTIVES, WHICH ARE BINDING ON THE MEMBER STATES TO WHICH THEY ARE ADDRESSED SO FAR AS THE OBJECTIVE WHICH THEY LAY DOWN IS CONCERNED, BUT WHICH LEAVE THE CHOICE OF THE MEANS AND FORMALITIES FOR ATTAINING THAT OBJECTIVE TO BE MADE BY THE NATIONAL AUTHORITIES .
ACCORDING TO ARTICLE 13(1 ) IMPORT DUTIES SHALL BE PROGRESSIVELY ABOLISHED BY MEMBER STATES ' IN ACCORDANCE WITH ARTICLES 14 AND 15 '.
THE RULES RELATING TO THE TIME-TABLE FOR THE ABOLITION OF CHARGES HAVING EQUIVALENT EFFECT IN ARTICLE 14(2 ) AND ( 3 ) ARE THUS LESS STRICT THAN THOSE FOR THE ABOLITION OF THE CUSTOMS DUTIES THEMSELVES .
ALTHOUGH IT IS TRUE THAT THE ABOLITION BY THE COMMISSION OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES AND OF CUSTOMS DUTIES SHOULD TO SOME EXTENT BE HARMONIZED, NEVERTHELESS THE PROCEDURE ADOPTED IN THIS CASE CANNOT BE REGARDED AS AMOUNTING TO AN INFRINGEMENT OF THE TREATY .
MOREOVER THE OBLIGATION PLACED UPON THE COMMISSION TO ABOLISH CHARGES HAVING EQUIVALENT EFFECT IN ACCORDANCE WITH A PARTICULAR TIME-TABLE DOES NOT PRECLUDE IT FROM DETERMINING ITSELF THE PROCEDURE FOR SUCH PROGRESSIVE ABOLITION .
P.172
WITH REGARD TO THE COMPLAINT OF MISUSE OF POWERS BY THE COMMISSION THE APPLICANT GOVERNMENT HAS NOT ESTABLISHED THAT THE COMMISSION HAS USED ITS POWERS FOR A PURPOSE OTHER THAN THAT FOR WHICH THEY WERE CONFERRED UPON IT .
MOREOVER THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY IMPOSES OBLIGATIONS UPON ALL THOSE PERSONS TO WHOM IT APPLIES, DETERMINES THE EXTENT OF THE POWERS, RIGHTS AND OBLIGATIONS OF THESE SUBJECTS AND FIXES THE PROCEDURES FOR IMPOSING SANCTIONS IN THE EVENT OF ANY INFRINGEMENT .
ANY POSSIBLE FAILURE BY THE COMMISSION TO FULFIL ITS OBLIGATIONS TOWARDS OTHER MEMBER STATES CANNOT EXEMPT ONE OF THEM FROM PERFORMING THE OBLIGATIONS WHICH ARE LEGIMATELY PLACED UPON IT BY MEASURES TAKEN IN APPLICATION OF THE TREATY .
IF, IN BREACH OF THE TREATY, THE COMMISSION WERE TO FAIL TO PERFORM ITS TASK IN CALLING ATTENTION BY MEANS OF DIRECTIVES TO OBLIGATIONS WHICH CERTAIN MEMBER STATES HAVE TO FULFIL, ANY OTHER MEMBER STATE COULD INVITE IT TO TAKE THE NECESSARY MEASURES AND, IF NECESSARY, APPLY TO THE COURT FOR A RULING THAT THERE HAD BEEN AN INFRINGEMENT .
THE COMPLAINTS PUT FORWARD BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AGAINST THE CONTESTED DECISIONS ARE NOT THEREFORE CAPABLE OF LEADING TO THE ANNULMENT OF THOSE DIRECTIVES .
THE SECOND SUBMISSION MUST THEREFORE BE REJECTED .
Decision on costs
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANT HAS FAILED IN ITS SUBMISSIONS AND MUST BE ORDERED TO BEAR THE COSTS .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 5, 9, 12, 13, 14, 15, 173, 175 AND 189;
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;
Operative part
THE COURT
HEREBY :
1 . DISMISSES APPLICATIONS 52 AND 55/65;
2 . ORDERS THE FEDERAL REPUBLIC OF GERMANY TO PAY THE COSTS .