61985CJ0333_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 333/85
MANNESMANN-ROEHRENWERKE AG, A COMPANY INCORPORATED UNDER GERMAN LAW, HAVING ITS REGISTERED OFFICE IN DUESSELDORF,
AND
PADERWERK GEBRUEDER BENTELER GMBH & CO ., A COMPANY INCORPORATED UNDER GERMAN LAW, HAVING ITS REGISTERED OFFICE IN PADERBORN-SCHLOSS NEUHAUS,
REPRESENTED BY J . SIEGER, OF THE COLOGNE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH,
APPLICANTS,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENTS, R . FORNASIER, DIRECTOR, AND B . SCHLOH, LEGAL ADVISER, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK,
DEFENDANT,
APPLICATION FOR A DECLARATION THAT COUNCIL REGULATION ( EEC ) NO 2355/85 OF 6 AUGUST 1985 SUPPLEMENTING REGULATION ( EEC ) NO 60/85 ON THE RESTRICTION OF EXPORTS OF STEEL PIPES AND TUBES TO THE UNITED STATES OF AMERICA ( OFFICIAL JOURNAL 1985, L*222, P . 1 ) IS VOID,
THE COURT ( SIXTH CHAMBER )
COMPOSED OF : C . KAKOURIS, PRESIDENT OF CHAMBER, T . KOOPMANS, O . DUE, K . BAHLMANN AND G . C . RODRIGUEZ IGLESIAS, JUDGES,
ADVOCATE GENERAL : J . L . DA CRUZ VILACA
REGISTRAR : J . A . POMPE, DEPUTY REGISTRAR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 21 OCTOBER 1986,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 21 JANUARY 1987,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 11 NOVEMBER 1985, MANNESMANN ROEHRENWERKE AG AND PADERWERK GEBRUEDER BENTELER GMBH & CO ., HAVING THEIR REGISTERED OFFICES IN DUESSELDORF AND PADERBORN-SCHLOSS NEUHAUS RESPECTIVELY, BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COUNCIL REGULATION ( EEC ) NO 2355/85 OF 6 AUGUST 1985 SUPPLEMENTING REGULATION ( EEC ) NO 60/85 ON THE RESTRICTION OF EXPORTS OF STEEL PIPES AND TUBES TO THE UNITED STATES OF AMERICA IS VOID .
2 THE COUNCIL, THE DEFENDANT, HAS CONTESTED THE ADMISSIBILITY OF THE APPLICATION IN THE LIGHT OF CERTAIN CONSIDERATIONS WHICH IT IS APPROPRIATE TO CONSIDER FIRST .
3 WITH REGARD TO THE LEGAL BACKGROUND TO THE DISPUTE REFERENCE IS MADE TO THE REPORT FOR THE HEARING AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
4 THE COUNCIL STATES IN THE FIRST PLACE THAT THE CONTESTED REGULATION SUPPLEMENTS COUNCIL REGULATION ( EEC ) NO 60/85 OF 9 JANUARY 1985 ON THE RESTRICTION OF EXPORTS OF STEEL PIPES AND TUBES TO THE UNITED STATES OF AMERICA ( OFFICIAL JOURNAL 1985, L*9, P . 13 ) AND THAT THE TWO REGULATIONS CONSTITUTE AN INDIVISIBLE WHOLE . REGULATION NO 60/85 PRODUCES LEGAL EFFECTS WITH REGARD TO CATEGORIES OF PERSONS DESCRIBED IN A GENERALIZED AND ABSTRACT MANNER, NAMELY PRESENT AND FUTURE PRODUCERS AND EXPORTERS OF PIPES AND TUBES . REGULATION NO 2355/85, WHICH MERELY INSERTS A TABLE CONCERNING TUBES OF A CERTAIN TYPE IN ANNEX III TO REGULATION NO 60/85, SHOULD THEREFORE BE REGARDED AS A TRUE REGULATION AGAINST WHICH INDIVIDUALS HAVE NO RIGHT OF ACTION .
5 MOREOVER, THE COUNCIL POINTS OUT THAT IF THE AMENDMENT OF ANNEX III IS TREATED AS AN AUTONOMOUS PROVISION, THE ALLOCATION OF THE COMMUNITY QUOTA AMONG THE MEMBER STATES UNDER THAT PROVISION SHOULD BE REGARDED AS A DECISION ADDRESSED TO THE MEMBER STATES . THAT DECISION IS NOT OF DIRECT CONCERN TO THE APPLICANTS SINCE THE APPORTIONMENT AMONG UNDERTAKINGS OF THE SUB-QUOTA ALLOCATED BY THE COUNCIL TO A MEMBER STATE IS TO BE CARRIED OUT BY THE AUTHORITIES OF THAT STATE . THE CONTESTED MEASURE IS NOT OF INDIVIDUAL CONCERN TO THE APPLICANTS BECAUSE THE ALLOCATION OF THE COMMUNITY QUOTA AMONG THE MEMBER STATES UNDER THAT MEASURE AFFECTS THE INTERESTS OF COMMUNITY EXPORTERS AS A WHOLE, INCLUDING ANY NEW UNDERTAKINGS SPECIALIZING IN TRADE IN PIPES AND TUBES WHICH MAY BE SET UP .
6 THE APPLICANTS CONSIDER THAT THE CONTESTED MEASURE IS OF DIRECT AND INDIVIDUAL CONCERN TO THEM . THE MEMBER STATES MAY NOT FREELY SHARE OUT AMONG UNDERTAKINGS THE SUB-QUOTAS ALLOCATED TO THEM BUT SHOULD APPLY THE OBJECTIVE CRITERIA LAID DOWN BY REGULATION NO 60/85 . ACCORDINGLY, IF THE SHARE OF THE QUOTA ALLOCATED TO THE FEDERAL REPUBLIC OF GERMANY IS OBJECTIVELY TOO SMALL, AS THE APPLICANTS MAINTAIN, THE SIX GERMAN UNDERTAKINGS ENGAGED IN MANUFACTURING THE PRODUCTS REFERRED TO IN REGULATION NO 2355/85 WILL BE OBLIGED TO MAKE A FURTHER REDUCTION IN THEIR DELIVERIES OVER AND ABOVE THAT RESULTING FROM THE ARRANGEMENT WITH THE UNITED STATES OF AMERICA .
7 NEXT, THE APPLICANTS EMPHASIZE THAT IN THE FEDERAL REPUBLIC OF GERMANY THERE ARE ONLY SIX UNDERTAKINGS WHICH PRODUCE STEEL PIPES AND TUBES AND THAT NO OTHER UNDERTAKING COULD JOIN THAT GROUP AND PENETRATE THE EXPORT MARKET UNTIL IT HAD MADE EXTREMELY LENGTHY PREPARATIONS . THOSE SIX UNDERTAKINGS ARE INDIVIDUALLY DISTINGUISHED BY THE FACT THAT, AT THE TIME OF THE ADOPTION OF REGULATION NO 2355/85, THEY HELD PROVISIONAL EXPORT LICENCES COVERING THE PERIOD BETWEEN 1 JANUARY 1985 AND THE ENTRY INTO FORCE OF THAT REGULATION . SINCE THAT REGULATION HAS RETROACTIVE EFFECT FROM 1 JANUARY 1985, THE CIRCLE OF UNDERTAKINGS CONCERNED IS DEFINITIVELY CIRCUMSCRIBED .
8 IN CONSIDERING THOSE ARGUMENTS, IT MUST IN THE FIRST PLACE BE BORNE IN MIND THAT, ACCORDING TO THE TERMS OF THE ARRANGEMENT WITH THE UNITED STATES OF AMERICA CONCERNING TRADE IN STEEL PIPES AND TUBES, APPROVED BY COUNCIL REGULATION ( EEC ) NO 59/85 OF 9 JANUARY 1985 ( OFFICIAL JOURNAL 1985, L*9, P . 1 ), THE LEVEL OF COMMUNITY EXPORTS OF STEEL PIPES AND TUBES ORIGINATING IN THE COMMUNITY IS FIXED AT 7.6% OF UNITED STATES APPARENT CONSUMPTION FOR THE CALENDAR YEARS 1985 AND 1986 . HOWEVER, IN THE CASE OF PIPES AND TUBES DESCRIBED AS "OIL COUNTRY TUBULAR GOODS", OR OCTG TUBES, THAT LEVEL IS FIXED AT 10% OF UNITED STATES APPARENT CONSUMPTION, WITHIN THE OVERALL LIMIT OF 7.6 %.
9 THE PURPOSE OF REGULATION NO 60/85 IS TO INTRODUCE IN THE COMMUNITY, IN ORDER TO ENSURE THE APPLICATION OF THAT ARRANGEMENT, CERTAIN RESTRICTIONS ON THE AMOUNT OF THE PRODUCTS IN QUESTION EXPORTED TO THE UNITED STATES . ACCORDING TO THE PREAMBLE TO THAT REGULATION, FOR PRACTICAL AND MANAGEMENT REASONS, THE QUANTITATIVE EXPORT LIMITS AGREED BY THE COMMUNITY MUST BE ALLOCATED AMONG THE MEMBER STATES AND, IN ORDER TO DO SO, AN ALLOCATION METHOD MUST BE ESTABLISHED WHICH TAKES ACCOUNT OF TRADITIONAL PATTERNS OF TRADE . THEREAFTER, THE MEMBER STATES MUST "SHARE OUT THE AMOUNTS ALLOCATED TO THEM AMONG UNDERTAKINGS IN ACCORDANCE WITH OBJECTIVE CRITERIA ".
10 ACCORDING TO ARTICLE 2 OF REGULATION NO 60/85, THE COMMUNITY EXPORT LIMIT FOR STEEL TUBES AND PIPES AND FOR OCTG TUBES IS TO BE CALCULATED BY THE COMMISSION ON THE BASIS OF THE LEVEL OF APPARENT CONSUMPTION OF THOSE PRODUCTS IN THE UNITED STATES, AS LAID DOWN IN THE ARRANGEMENT . THE LIMITS THUS CALCULATED ARE TO BE ADJUSTED BY THE COMMISSION SO AS TO TAKE ACCOUNT OF REVISIONS OF UNITED STATES APPARENT CONSUMPTION . ARTICLE 3 PROVIDES THAT THE COMMISSION IS TO ALLOCATE AMONG THE MEMBER STATES THE QUANTITATIVE EXPORT LIMITS ESTABLISHED AND CALCULATED PURSUANT TO THE METHOD SET OUT IN ARTICLE 2 IN ACCORDANCE WITH ANNEX III . THAT ALLOCATION MAY BE ADJUSTED BY THE COMMISSION, SUBJECT TO THE CONDITIONS LAID DOWN IN ARTICLE 4, SO AS TO ENSURE THE BEST USE OF THE QUANTITATIVE EXPORT LIMITS .
11 ANNEX III TO REGULATION NO 60/85 SHOWS THE QUANTITY OF PIPES AND TUBES ALLOCATED TO THE MEMBER STATES, EACH STATE BEING ALLOTTED A FIGURE INDICATING ITS SHARE OF UNITED STATES CONSUMPTION ( IN THE CASE OF GERMANY : 2.82 %). AS REGARDS OCTG TUBES, THE ANNEX CONTAINED, IN THE REGULATION AS ORIGINALLY ENACTED, A SEPARATE ENTRY TO THE EFFECT THAT THE ALLOCATION AMONG THE MEMBER STATES WOULD BE DECIDED ON BY THE COUNCIL BEFORE 31 JANUARY 1985 . THE COUNCIL DID NOT ADOPT REGULATION NO 2355/85 SUPPLEMENTING ANNEX III WITH REGARD TO OCTG TUBES UNTIL 6 AUGUST 1985 . THAT REGULATION REPLACES THE OCTG ENTRY IN ANNEX III WITH A TABLE SHOWING THE PROPORTION OF UNITED STATES CONSUMPTION FOR EACH MEMBER STATE ( IN THE CASE OF GERMANY : 4.38 %).
12 ARTICLE 5 OF REGULATION NO 60/85 PROVIDES THAT EXPORT LICENCES ARE TO BE ISSUED BY THE COMPETENT AUTHORITIES OF EACH MEMBER STATE WITHIN THE LIMITS OF THE AMOUNTS ALLOCATED TO IT PURSUANT TO ARTICLE 3 . THE LICENCES ARE TO BE ISSUED IN ACCORDANCE WITH THE FOLLOWING CRITERIA SET OUT IN ARTICLE 5 ( 2 ):
( I ) COMPLIANCE WITH THE RULES PRESCRIBED BY THE REGULATION, IN PARTICULAR THOSE CONCERNING THE QUOTA ALLOCATED BY THE COMMISSION PURSUANT TO ARTICLE 3;
( II ) COMPLIANCE WITH THE TRADITIONAL EXPORT PATTERNS OF UNDERTAKINGS TAKING ACCOUNT OF THE REDUCTION PRINCIPLES ESTABLISHED BY THE REGULATION AND POSSIBLY THE SITUATION OF NEW PRODUCERS OF PIPES AND TUBES;
( III ) COMPLIANCE WITH THE RATES OF EXPORTS TO THE UNITED STATES AS TRADITIONALLY SPREAD OUT OVER THE YEAR;
( IV ) OPTIMUM USE AND ADMINISTRATION OF THE EXPORT POSSIBILITIES AFFORDED BY THE REGULATION;
( V ) BEST USE BEING MADE OF ANY NEW POSSIBILITIES PROVIDED FOR, WHERE APPROPRIATE, BY THE REGULATION .
13 THAT SURVEY OF THE APPLICABLE RULES SHOWS THAT THE OPPORTUNITIES FOR UNDERTAKINGS TO EXPORT OCTG TUBES ORIGINATING IN THE COMMUNITY TO THE UNITED STATES ARE DETERMINED NOT BY A SINGLE ACT ON THE PART OF A COMMUNITY OR NATIONAL INSTITUTION BUT BY A SERIES OF MEASURES AND DECISIONS CONCERNING THE RESTRICTION OF EXPORTS BY THE COMMUNITY, THE MEMBER STATES AND THE UNDERTAKINGS, SUCCESSIVELY . THE QUANTITY OF OCTG TUBES WHICH MAY BE SOLD ON THE UNITED STATES MARKET IS LIMITED BY THE ARRANGEMENT, FOR THE COMMUNITY AS A WHOLE, TO A PERCENTAGE OF UNITED STATES APPARENT CONSUMPTION . THE COMMUNITY FIXES THE COMMUNITY EXPORT LIMIT ON THE BASIS OF THAT PERCENTAGE AND ADJUSTS IT IF NECESSARY . THEREAFTER, EXPORTS OF OCTG TUBES ORIGINATING IN A GIVEN MEMBER STATE MAY NOT EXCEED THE PERCENTAGE OF UNITED STATES CONSUMPTION FIXED FOR THAT MEMBER STATE IN ANNEX III . THE COMMISSION ALLOCATES THE COMMUNITY EXPORT LIMIT AMONG THE MEMBER STATES ON THE BASIS OF THAT PERCENTAGE AND ADJUSTS IT WHERE APPROPRIATE . FINALLY, THE AUTHORITIES OF THOSE STATES ISSUE EXPORT LICENCES WITHIN THE LIMITS THUS LAID DOWN . IN SO DOING, THEY MUST TAKE DUE ACCOUNT OF CERTAIN CRITERIA WHICH MAY BE OBJECTIVE BUT WHOSE IMPLEMENTATION INVOLVES THE EXERCISE OF A DISCRETION AND WHOSE SIGNIFICANCE MUST BE DETERMINED HAVING REGARD TO THE COMBINATION OF DIFFERENT CRITERIA .
14 IT FOLLOWS THAT THE FIXING OF THE PERCENTAGE OF THE SUB-QUOTA FOR THE FEDERAL REPUBLIC OF GERMANY BY REGULATION NO 2355/85 DOES NOT DIRECTLY AFFECT THE LEGAL POSITION OF THE UNDERTAKINGS PRODUCING OCTG TUBES IN THAT COUNTRY, SINCE THE ISSUE OF EXPORT LICENCES TO THOSE UNDERTAKINGS IS NOT BASED DIRECTLY ON THAT PERCENTAGE BUT DEPENDS IN THE FIRST PLACE ON THE MANNER IN WHICH THE COMMISSION HAS CALCULATED AND ADJUSTED THE COMMUNITY EXPORT LIMIT AND FIXED GERMANY' S SUB-QUOTA ON THE BASIS OF THAT PERCENTAGE, AND SECONDLY ON THE APPORTIONMENT OF THAT SUB-QUOTA BY THE NATIONAL AUTHORITIES AMONG THE UNDERTAKINGS CONCERNED, WHICH IS IN NO WAY AN AUTOMATIC PROCESS BUT IS BASED ON A NUMBER OF CRITERIA .
15 ACCORDINGLY, ANNEX III TO REGULATION NO 60/85, AS SUPPLEMENTED BY REGULATION NO 2355/85, IS NOT OF DIRECT CONCERN TO THE APPLICANTS .
16 THE APPLICANTS CLAIM IN THE ALTERNATIVE THAT REGULATION NO 2355/85 SHOULD BE DECLARED VOID ONLY FOR THE PERIOD FROM 1 JANUARY 1985 TO 20 AUGUST 1985, THE DATE ON WHICH IT ENTERED INTO FORCE, ON THE GROUND THAT, IN ANY EVENT, THE FACT THAT THE REGULATION HAD RETROACTIVE EFFECT WAS OF INDIVIDUAL CONCERN TO THEM . SINCE THE COURT HAS ESTABLISHED THAT THE REGULATION WAS NOT OF DIRECT CONCERN TO THE APPLICANTS, THE ALTERNATIVE SUBMISSION CANNOT LEAD TO A DIFFERENT OUTCOME .
17 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION IS INADMISSIBLE .
Decision on costs
COSTS
18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS, THEY MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SIXTH CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE;
( 2 ) DECLARES THAT THE APPLICANTS ARE JOINTLY AND SEVERALLY LIABLE FOR THE COSTS .