4.

When Article 190 provides that a decision must be supported by a statement of reasons, it is stating a general rule which must be adapted to the widely differing natures of the measures of the Community's institutions; there are measures in the nature of Regulations, or those which affect only individuals; there are decisions relating to the status of an official, or those taken within the field of the economy; there are authorizations of all kinds granted to Member States within the framework of the Treaty. This obligation, as the Court stated clearly in Case 24/62 (Government of the Federal Republic of Germany v EEC Commission [1963] ECR ‘is not taking mere formal considerations into account but seeks to give an opportunity to the parties of defending their rights, to the Court of exercising its supervisory functions and to Member States and to all interested nationals of ascertaining the circumstances in which the Commission has applied the Treaty’. This means that the decision must contain an indication of the agreed essential facts and the legal considerations which influenced it in taking the action which it did. Working from these principles, Schwarze tells you that in order to conform to Article 190 of the Treaty the decision under which the free-at-frontier price was fixed must show what were the offers, for what quantities and categories of goods, and the sources of information on the basis of which the Commission made its decision. It is clear that the decision does not give the answers to these questions. It must not, of course, be considered in isolation but must be interpreted in the light of the decision of 21 December 1962 to which it expressly refers. This last decision, fixing the free-at-frontier prices for the same products and modified periodically to keep pace with the development of the market, can be regarded as the basic decision in this sphere. The statement of reasons is very much more extensive; it sets out all the provisions under which the Commission is entitled to fix free-at-frontier prices; it mentions all the criteria which this institution must take into account in so doing, and it is by applying these criteria to the prices known to it, declares the Commission, that it fixes the free-at-frontier prices mentioned in the decision. The same words, ‘the prices known to the Commission’ appear in the preamble to the decision which we are now discussing. It can be deduced from these two decisions read together, without too much difficulty, that the draftsmen intended that the criteria enumerated by the Regulations should be applied. The legal considerations on which the decision was based can thus be determined; on the other hand, the reference to prices known to the Commission is not accompanied by any precise indication of figures making it possible to check the basis upon which these calculations were fixed and why the Commission decided on these particular prices and not on any others. Can it nevertheless be admitted that the decision was supported by an adequate statement of reasons under Article 190 of the Treaty? In asserting this, the Commission is strongly supported by the three Member States which have submitted their observations: the arguments used are essentially practical. They refer, first, to the conditions necessary for the efficient functioning of the common organization of the markets: a very large number of prices has to be fixed in a very short space of time and it is not possible to support all these decisions with the calculations upon which they are based. On this point Schedules 3 and 4 to the Commission's observations are particularly significant. Above all, however, the system operates and can only operate by relying completely or partially on the information furnished by importers and exporters. These are trade secrets and are only revealed on condition that they will be treated as confidential by the recipients. Quite apart from Article 214 of the Treaty on professional secrets, to divulge this information would inevitably result in the source's drying up. This discretion must be very wide because, as the Commission says, to indicate specific facts on the basis of which the calculation is made makes no sense unless it is complete and proves that the prices fixed are correct. It would therefore be useless to mention the facts without showing who the informant was. The same reasoning applies in the similar field of freight costs which have to be taken into consideration for fixing the free-at-frontier price. A large part of the freight costs, of which the Commission has to have notice, is the object of agreements communicated as confidential information. Neveretheless the Commission considers that such a system is valid in the field of price-fixing provided that it allows the parties to whom the decision is directed, namely the Member States, to be informed of the reasons for the decisions which cannot be published elsewhere. The criteria of Regulation No 89 were adopted by the members of the Management Committee composed of representatives of the Member States; the facts on the basis of which the free-at-frontier prices are fixed are known to them because it is through them that the necessary data are communicated to the Commission. As tar as the importers are concerned, the system adopted makes it more difficult for them to regulate their price-fixing. However, the Commission declares that it is prepared to communicate, on their request, the specific facts upon which the calculations are based provided that there is no danger of revealing the identity of the informant. The secret would in any case be revealed before a court. This Court is obliged to choose between the two opposing viewpoints. Schwarze's view, which is supported by the Finanzgericht, conforms more strictly with the principles and the general case-law of this Court. I would hesitate, however, to adopt it because of the arguments put forward by the Commission and the Member States. If every price decision had to be supported by a statement of reasons setting out the facts which Schwarze demands and which we have just set out, the levy system would be paralysed in its first stage by simple material difficulties, and then in its second stage would be reduced to nothing when the sources of information dried up. One can envisage other forms of market organization in which levies would be fixed independently of daily or weekly price lists; this would make them less precise, even arbitrary, and they would consequently be less satisfactory for the economy and for those who play a part in it. This, however, is not our role; all we can do is place ourselves in the context of the system as it exists and agree that material and psychological reasons militate against the view that price-fixing decisions should in all cases be supported by statements of reasons more complete than those which they now contain. Is this enough to make them comply with Article 190? The Commission's argument that its only duty is to ensure that the parties to whom the decision is directed, the Member States, are fully informed cannot be accepted as it ignores the interests of the importers. More generally, I reel mat it must be admitted that practical considerations make it impossible to support such decisions with a statement of reasons more extensive than that which I have described. In view of this position I consider that the decision must be treated as valid from this point of view.