Judgment of the Court of 17 December 1970. - Otto Scheer v Einfuhr- und Vorratsstelle für Getreide und Futtermittel. - Reference for a preliminary ruling: Hessischer Verwaltungsgerichtshof - Germany. - Case 30-70.



European Court reports 1970 Page 01197

Danish special edition Page 00275

Greek special edition Page 00637

Portuguese special edition Page 00679



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

1 . PRELIMINARY RULINGS - COMPATIBILITY OF A NATIONAL LAW WITH COMMUNITY LAW - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - IMPORT AND EXPORT LICENCES - APPLICABILITY OF THAT SYSTEM FROM THE ENTRY INTO FORCE OF REGULATION NO 19

( REGULATION NO 19 OF THE COUNCIL, ARTICLE 16 )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - IMPORT AND EXPORT LICENCES - APPLICATION - DUTIES DEVOLVING ON MEMBER STATES IN THE INTERESTS OF THE COMMUNITY - COOPERATION OF THE MEMBER STATES

( EEC TREATY, ARTICLE 5; REGULATION NO 19 OF THE COUNCIL, ARTICLE 16 ( 3 ))

4 . AGRICULTURE - COMMON AGRICULTURAL POLICY - COMMUNITY REGULATIONS - PROCEDURE FOR ADOPTION - DISTINCTION BETWEEN THE BASIC RULES AND THE IMPLEMENTING PROVISIONS

( EEC TREATY, ARTICLE 43 )

5 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - MANAGEMENT COMMITTEE - LEGALITY

( REGULATION NO 19 OF THE COUNCIL, ARTICLES 25 AND 26 )

Summary

1 . IN THE CONTEXT OF PROCEEDINGS UNDER ARTICLE 177, IT IS NOT FOR THE COURT TO RULE ON THE COMPATIBILITY OF THE PROVISIONS OF A NATIONAL LAW WITH COMMUNITY LAW . ON THE OTHER HAND, THE COURT HAS JURISDICTION TO PROVIDE THE NATIONAL COURT WITH ALL THE CRITERIA OF INTERPRETATION RELATING TO COMMUNITY LAW WHICH MAY ENABLE IT TO JUDGE THE COMPATIBILITY WITH COMMUNITY LAW OF THE PROVISIONS OF THE NATIONAL LAW .

2 . THE PROVISIONS OF ARTICLE 16 ( 2 ) OF REGULATION NO 19, RELATING TO THE EFFECT OF IMPORT LICENCES FOR CEREALS AND TO THE LODGING OF DEPOSITS, WERE APPLICABLE FROM THE ENTRY INTO FORCE OF THAT REGULATION .

3 . ARTICLE 16 OF REGULATION NO 16 MUST BE INTERPRETED IN THE SENSE THAT, BEFORE THE ENTRY INTO FORCE OF THE IMPLEMENTING PROVISIONS PROVIDED FOR IN PARAGRAPH ( 3 ) OF THAT ARTICLE, THE MEMBER STATES WERE EMPOWERED TO TAKE, ON A TRANSITIONAL BASIS AND WITHOUT PREJUDICE TO THE FUTURE ACTION OF THE COMMON INSTITUTIONS, ANY IMPLEMENTING MEASURES COMPATIBLE WITH THE PRINCIPLES OF THE REGULATION, AND THAT THEY WERE ENTITLED TO PREPARE LEGISLATIVE OR OTHER MEASURES FOR THE PURPOSE OF ENABLING THEM TO ASSUME FULLY, ON THE ENTRY INTO FORCE OF REGULATION NO 87, THE FUNCTIONS DEVOLVING ON THEM IN THE INTEREST OF THE COMMUNITY UNDER THE SECOND PARAGRAPH OF ARTICLE 7 OF THAT REGULATION .

4 . THE THIRD SUBPARAGRAPH OF ARTICLE 43 ( 2 ) IS COMPLIED WITH WHEN THE BASIC ELEMENTS OF THE REGULATIONS CONCERNING THE COMMON AGRICULTURAL POLICY ARE ADOPTED BY THE COUNCIL IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY ARTICLE 43 . ON THE OTHER HAND, THE PROVISIONS IMPLEMENTING THE BASIC REGULATIONS MAY BE ADOPTED ACCORDING TO A PROCEDURE DIFFERENT FROM THAT IN ARTICLE 43, EITHER BY THE COUNCIL ITSELF OR BY THE COMMISSION BY VIRTUE OF AN AUTHORIZATION COMPLYING WITH ARTICLE 155 .

5 . WITHOUT DISTORTING THE COMMUNITY STRUCTURE AND THE INSTITUTIONAL BALANCE, THE MANAGEMENT COMMITTEE MACHINERY ENABLES THE COUNCIL TO DELEGATE TO THE COMMISSION AN IMPLEMENTING POWER OF APPRECIABLE SCOPE, SUBJECT TO ITS POWER TO TAKE THE DECISION ITSELF IF NECESSARY . THE LEGALITY OF THE MANAGEMENT COMMITTEE PROCEDURE, AS ESTABLISHED BY ARTICLES 25 AND 26 OF REGULATION NO 19, CANNOT THEREFORE BE DISPUTED IN THE CONTEXT OF THE INSTITUTIONAL STRUCTURE OF THE COMMUNITY .

Parties

IN CASE 30/70

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHER VERWALTUNGSGERICHTSHOF ( HIGHER ADMINISTRATIVE COURT OF THE LAND OF HESSE ) KASSEL, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

OTTO SCHEER, HAVING ITS OFFICES IN HANNOVER,

AND

EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT-AM-MAIN,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 16 ( 2 ) AND ( 3 ) OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962, ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS, IN RELATION TO THE SECOND PARAGRAPH OF ARTICLE 7 OF REGULATION NO 87 OF THE COMMISSION OF 25 JULY 1962, ON THE ESTABLISHMENT OF DETAILED RULES OF APPLICATION IN RESPECT OF IMPORT AND EXPORT LICENCES FOR CEREALS AND CEREAL PRODUCTS, AND TO PARAGRAPH 7 OF THE GERMAN LAW OF 26 JULY 1972 IMPLEMENTING REGULATION NO 19 .

Grounds

1 BY ORDER OF 15 MAY 1970, RECEIVED AT THE COURT ON 15 JUNE 1970, THE HESSISCHER VERWALTUNGSGERICHTSHOF UNDER ARTICLE 177 OF THE EEC TREATY HAS REQUESTED A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLE 16 ( 2 ) AND ( 3 ) OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ 1962, P . 933 ) AND, IN PARTICULAR, TO RULE WHETHER THE SECOND PARAGRAPH OF ARTICLE 7 OF REGULATION NO 87 OF THE COMMISSION OF 25 JULY 1962 ON THE ESTABLISHMENT OF DETAILED RULES OF APPLICATION IN RESPECT OF IMPORT AND EXPORT LICENCES FOR CEREALS AND CEREAL PRODUCTS ( OJ 1962, P . 1895 ) AND PARAGRAPH 7 OF THE GERMAN LAW OF 26 JULY 1962 IMPLEMENTING REGULATION NO 19 OF THE COUNCIL ( BGBI . I, P . 455 ) ARE COMPATIBLE WITH ARTICLE 16 ( 3 ) OF REGULATION NO 19 .

2 IT APPEARS FROM THE FILE SENT TO THE COURT THAT THIS QUESTION WAS RAISED IN THE CONTEXT OF AN APPEAL AGAINST A JUDGMENT OF THE VERWALTUNGSGERICHT FRANKFURT-AM-MAIN WHICH HAD DISMISSED AN APPLICATION FOR ANNULMENT DIRECTED AGAINST A DECISION OF THE EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL DECLARING A DEPOSIT FORFEITED AS THE PLAINTIFF IN THE MAIN ACTION HAD NOT EFFECTED WITHIN THE PRESCRIBED PERIOD AN IMPORTATION COVERED BY A LICENCE ISSUED UNDER PARAGRAPH 7 OF THE GERMAN LAW OF 26 JULY 1962, IN ACCORDANCE WITH THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 7 OF REGULATION NO 87 OF THE COMMISSION . IN VIEW OF THE GROUNDS OF THE JUDGEMENT AT FIRST INSTANCE AND THE SUBMISSIONS MADE BY THE PLAINTIFF IN THE MAIN ACTION AN APPEAL CONCERNING THE LEGALITY OF THE SYSTEM OF DEPOSITS ESTABLISHED BY VIRTUE OF THE ABOVEMENTIONED COMMUNITY AND NATIONAL PROVISIONS, THE HESSISCHER VERWALTUNGSGERICHTSHOF HAS FORMULATED ITS QUESTION BY MEANS OF FOUR SUBORDINATE QUESTIONS . THE FIRST THREE QUESTIONS REFER TO DIFFERENT ASPECTS OF THE SAME PROBLEM, NAMELY THE DIVISION OF POWERS BETWEEN THE COMMUNITY AND THE MEMBER STATES DURING THE FIRST STAGE IN THE APPLICATION OF THE IMPORT AND EXPORT SYSTEM PROVIDED FOR BY ARTICLE 16 OF REGULATION NO 19, BEFORE THE ENTRY INTO FORCE OF REGULATION NO 87 OF THE COMMISSION, ADOPTED IN IMPLEMENTATION OF PARAGRAPH ( 3 ) OF THAT ARTICLE, AND UNDER THAT IMPLEMENTING REGULATION . BY REASON OF THE CONNEXION BETWEEN THESE THREE QUESTIONS, THEY MAY BE JOINED FOR THE PURPOSES OF THE ANSWER .

THE QUESTIONS RELATING TO THE SYSTEM OF THE FIRST PERIOD OF APPLICATION OF REGULATION NO 19

3 QUESTIONS 1, 2 AND 3 ARE WORDED AS FOLLOWS :

1 ( A ) MUST THE COMBINED PROVISIONS OF ARTICLE 16 ( 2 ) AND ( 3 ) OF REGULATION NO 19 BE UNDERSTOOD TO MEAN THAT FROM THE ENTRY INTO FORCE OF THAT REGULATION THE GRANT OF AN IMPORT LICENCE COULD BE CONDITIONAL ON THE LODGING OF A DEPOSIT AND THAT A DEPOSIT COULD BE FORFEITED IF IMPORTATION WAS NOT AFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE?

( B ) OR COULD SUCH PROVISIONS CONCERNING THE LODGING AND FORFEITURE OF A DEPOSIT IN RESPECT OF AN IMPORT LICENCE ONLY BE ADOPTED AFTER THE ENTRY INTO FORCE OF THE DETAILED RULES OF APPLICATION REFERRED TO IN ARTICLE 16 ( 3 ) OF REGULATION NO 19?

2 ( A ) MUST ARTICLE 16 ( 3 ) OF REGULATION NO 18 BE UNDERSTOOD TO MEAN THAT FROM THE DATE OF THE ENTRY INTO FORCE OF THAT REGULATION ONLY THE COMMISSION HAD THE POWER TO LAY DOWN RULES AS TO THE LODGING, FORFEITURE AND AMOUNT OF DEPOSITS IN RESPECT OF IMPORT LICENCES?

( B ) OR WERE THE MEMBER STATES AUTHORIZED, UNTIL THE ENTRY INTO FORCE OF THE DETAILED RULES OF APPLICATION TO BE ADOPTED UNDER ARTICLE 16 ( 3 ) OF REGULATION NO 19, TO LAY DOWN RULES AS TO THE LODGING, FORFEITURE AND AMOUNT OF THE DEPOSITS IN RESPECT OF IMPORT LICENCES, WITH THE RESULT THAT THE FEDERAL REPUBLIC OF GERMANY WAS ENTITLED TO ADOPT IN PARAGRAPH 7 OF THE LAW IMPLEMENTING REGULATION NO 19 RULES RELATING TO DEPOSITS IN RESPECT OF IMPORT LICENCES?

3 ( A ) IN ADOPTING THE DETAILED RULES OF APPLICATION REFERRED TO IN ARTICLE 16 ( 3 ) OF REGULATION NO 19, SHOULD THE COMMISSION HAVE ITSELF LAID DOWN ALL THE REQUIREMENTS RELATING TO THE LODGING, FORFEITURE AND AMOUNT OF THE DEPOSITS IN RESPECT OF IMPORT LICENCES?

( B ) OR WAS THE COMMISSION ENTITLED, AS IT DID BY THE SECOND PARAGRAPH OF ARTICLE 7 OF REGULATION NO 87, TO LEAVE TO THE MEMBER STATES THE TASK OF LAYING DOWN THOSE REQUIREMENTS RELATING TO THE LODGING, FORFEITURE AND AMOUNT OF THE DEPOSITS IN RESPECT OF IMPORT LICENCES UNTIL THEIR HARMONIZATION IN ACCORDANCE WITH ARTICLE 26 OF REGULATION NO 19 AND MERELY TO REQUIRE THE MEMBER STATES TO NOTIFY IT OF THE MEASURES TAKEN?

4 IN THE CONTEXT OF PROCEEDINGS UNDER ARTICLE 177, IT IS NOT FOR THE COURT TO RULE AS IT IS REQUESTED TO DO, ON THE COMPATIBILITY OF THE PROVISIONS OF A NATIONAL LAW WITH REGULATION NO 19 OF THE COUNCIL . ON THE OTHER HAND, THE COURT HAS JURISDICTION TO PROVIDE THE NATIONAL COURT WITH ALL THE CRITERIA OF INTERPRETATION RELATING TO COMMUNITY LAW WHICH MAY ENABLE IT TO JUDGE THE COMPATIBILITY WITH COMMUNITY LAW OF THE PROVISIONS OF THE NATIONAL LAW IN THE LIGHT OF THE LEGAL SITUATION CREATED BY THE ENTRY INTO FORCE SUCCESSIVELY OF REGULATION NO 19 OF THE COUNCIL AND REGULATION NO 87 OF THE COMMISSION .

5 EVALUATION OF THE LEGAL SITUATION THUS CREATED REQUIRES THAT THE DATES OF ENTRY INTO FORCE OF THE VARIOUS LEGISLATIVE MEASURES INVOKED SHOULD BE ESTABLISHED WITH PRECISION . REGULATION NO 19 ENTERED INTO FORCE, UNDER THE TERMS OF ARTICLE 29 THEREOF, ON 21 APRIL 1962 . IMPLEMENTING REGULATION NO 87 OF THE COMMISSION - ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 16 ( 3 ) OF REGULATION NO 19 - ENTERED INTO FORCE, UNDER THE TERMS OF ARTICLE 10 THEREOF, ON 30 JULY 1962 . THE ENTRY INTO FORCE OF THAT LAW THUS COINCIDES WITH THAT OF REGULATION NO 87 OF THE COMMISSION . IT FOLLOWS THAT THE EFFECT OF THAT LAW DOES NOT HAVE TO BE EXAMINED IN THE CONTEXT OF THE LEGAL SITUATION PRIOR TO THE ENTRY INTO FORCE OF REGULATION NO 87 .

( A ) THE PERIOD SUBSEQUENT TO THE ENTRY INTO FORCE OF REGULATION NO 87

6 ARTICLE 16 ( 3 ) OF REGULATION NO 19 PROVIDES THAT " THE DETAILED RULES FOR THE APPLICATION OF THIS ARTICLE ... SHALL BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 26 " . FOR ITS PART, REGULATION NO 87, ADOPTED IN IMPLEMENTATION OF THE SAID ARTICLE 16, PROVIDES IN THE SECOND PARAGRAPH OF ARTICLE 7 THEREOF THAT UNTIL SUBSEQUENT PROVISIONS ARE ADOPTED " THE DETAILED RULES RELATING TO THE LODGING AND FORFEITURE OF THE DEPOSIT, AS WELL AS TO ITS AMOUNT, SHALL BE LAID DOWN BY MEMBER STATES AND NOTIFIED WITHOUT DELAY TO THE COMMISSION AND THE OTHER MEMBER STATES " . THIS PROVISION IS CRITICIZED BY THE PLAINTIFF IN THE MAIN ACTION ON THE GROUND THAT THE TREATY DOES NOT PERMIT THE INSTITUTIONS OF THE COMMUNITY TO " DELEGATE TO THE MEMBER STATES THE TASK OF TAKING THE LEGISLATIVE MEASURES WHICH THEY SHOULD THEMSELVES ADOPT IN THE FRAMEWORK OF THE COMMON ORGANIZATION . "

7 ARTICLE 16 ( 3 ) OF REGULATION NO 19 MUST BE INTERPRETED IN RELATION TO THE LEGAL CONTEXT IN WHICH IT IS INSERTED AND TO THE TIME AT WHICH IT CAME INTO BEING . IN ITSELF, THIS ENABLING PROVISION DOES NOT HAVE THE EFFECT OF DETERMINING THE NATURE OF THE FUTURE DETAILED RULES OF APPLICATION WITH REGARD TO THE DELIMINATION OF FUNCTIONS BETWEEN THE COMMUNITY AND THE MEMBER STATES . THE OBJECT OF REGULATION NO 19, WHICH FORMS ITS LEGAL CONTEXT, IS THE " PROGRESSIVE " ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET, AS IS INDICATED BOTH IN THE PREAMBLE AND, IN PARTICULAR, IN ARTICLE 1 OF THE REGULATION ITSELF . THIS CONCEPT IS FULLY IN CONFORMITY WITH THE SYSTEM OF THE TREATY AS IT APPEARS FROM THE GENERAL PROVISIONS OF ARTICLE 8 AND, IN THE PARTICULAR SPHERE OF AGRICULTURE, FROM ARTICLES 39 ( 2 ) ( B ) AND 40 ( 1 ).

8 IN VIEW OF THE EXPERIMENTAL NATURE OF THE FIRST SYSTEM OF THE ORGANIZATION OF THE MARKETS, CRYSTALLIZED IN REGULATION NO 19, AND OF THE SHORTNESS OF THE TIME WHICH ELAPSED BETWEEN THE ENTRY INTO FORCE OF THE BASIC REGULATION AND THAT OF IMPLEMENTING REGULATION NO 87, IT WAS LEGITIMATE, IN THE INTERESTS OF A RAPID IMPLEMENTATION OF THE ORGANIZATION OF THE MARKETS, TO CONFER TEMPORARILY ON THE MEMBER STATES FUNCTIONS WHICH, AT A MORE ADVANCED STAGE OF DEVELOPMENT, HAVE BEEN TAKEN OVER BY THE COMMON INSTITUTIONS . IT THEREFORE APPEARS THAT, FAR FROM PRESENTING AN ANOMALY AT THE STAGE OF DEVELOPMENT CONSIDERED, THE INTERVENTION OF THE MEMBER STATES CONSTITUTED NO MORE THAN THE IMPLEMENTATION OF THE GENERAL OBLIGATION EXPRESSED IN ARTICLE 5 OF THE TREATY, WHEREBY MEMBER STATES ARE REQUIRED TO TAKE ALL APPROPRIATE MEASURES TO ENSURE FULFILMENT OF THE OBLIGATIONS RESULTING FROM ACTION TAKEN BY THE INSTITUTIONS OF THE COMMUNITY AND, IN GENERAL, TO FACILITATE THE ACHIEVEMENT OF THE COMMUNITY' S TASKS .

9 CONSEQUENTLY, ARTICLE 16 ( 3 ) CANNOT BE INTERPRETED IN SUCH A WAY AS TO PROHIBIT THE MEMBER STATES - PREVIOUSLY INFORMED, PARTICULARLY THROUGH THE MANAGEMENT COMMITTEE, OF THE INTENTIONS OF THE COMMISSION AS REGARDS THE FIRST IMPLEMENTATION OF THE SYSTEM OF IMPORTS AND EXPORTS LAID DOWN IN REGULATION NO 19 - FROM PREPARING LEGISLATIVE OR OTHER MEASURES FOR THE PURPOSE OF ENABLING THEM TO ASSUME FULLY, ON THE ENTRY INTO FORCE OF REGULATION NO 87, THE FUNCTIONS DEVOLVING ON THEM IN THE INTEREST OF THE COMMUNITY UNDER THE SECOND PARAGRAPH OF ARTICLE 7 OF THAT REGULATION .

( B ) THE INTERMEDIATE PERIOD BETWEEN THE ENTRY INTO FORCE OF REGULATION NO 19 AND THAT OF REGULATION NO 87 .

10 THE PROVISIONS OF ARTICLE 16 ( 2 ) OF REGULATION NO 19, RELATING TO THE EFFECT OF IMPORT LICENCES FOR CEREALS AND TO THE LODGING OF DEPOSITS, WERE APPLICABLE FROM THE ENTRY INTO FORCE OF THAT REGULATION . IN SO FAR AS THE DETAILED RULES OF APPLICATION INDISPENSABLE TO THE FUNCTIONING OF THE IMPORT AND EXPORT SYSTEM LAID DOWN IN THAT SAME ARTICLE 16 HAD NOT YET BEEN DETERMINED BY THE COMMUNITY, THE MEMBER STATES WERE ENTITLED AND, BY VIRTUE OF THE GENERAL PROVISIONS OF ARTICLE 5 OF THE TREATY, OBLIGED TO DO EVERYTHING IN THEIR POWER TO ENSURE THE EFFECTIVENESS OF ALL THE PROVISIONS OF THE REGULATION .

11 CONSEQUENTLY, ARTICLE 16 OF REGULATION NO 19 MUST BE INTERPRETED IN THE SENSE THAT, BEFORE THE ENTRY INTO FORCE OF THE IMPLEMENTING PROVISIONS PROVIDED FOR IN PARAGRAPH ( 3 ) OF THAT ARTICLE, THE MEMBER STATES WERE ABLE TO TAKE, ON A TRANSITIONAL BASIS AND WITHOUT PREJUDICE TO ANY FUTURE ACTION ON THE PART OF THE COMMON INSTITUTIONS, ANY IMPLEMENTING MEASURES COMPATIBLE WITH THE PRINCIPLES OF THE REGULATION .

THE QUESTION RELATING TO THE COMPATIBILITY OF THE MANAGEMENT COMMITTEE PROCEDURE WITH COMMUNITY LAW OF A HIGHER RANK

12 THE COURT IS ASKED BY QUESTION 4 WHETHER THE PROCEDURE OF ARTICLE 26 OF REGULATION NO 19 OF THE COUNCIL, IN ACCORDANCE WITH WHICH REGULATION NO 87 OF THE COMMISSION WAS ADOPTED, IS COMPATIBLE WITH COMMUNITY LAW OF A HIGHER RANK .

13 THIS QUESTION CONCERNS THE LEGALITY OF THE SO-CALLED MANAGEMENT COMMITTEE PROCEDURE INTRODUCED BY ARTICLES 25 AND 26 OF REGULATION NO 19 AND RE-ENACTED BY NUMEROUS OTHER AGRICULTURAL REGULATIONS .

IT APPEARS FROM THE FILE OF THE CASE AND THE OBSERVATIONS SUBMITTED TO THE COURT THAT THE QUESTION PUT CONCERNS MORE PARTICULARLY THE COMPATIBILITY OF THE MANAGEMENT COMMITTEE PROCEDURE WITH THE COMMUNITY STRUCTURE AND THE INSTITUTIONAL BALANCE AS REGARDS BOTH THE RELATIONSHIP BETWEEN INSTITUTIONS AND THE EXERCISE OF THEIR RESPECTIVE POWERS .

14 IT IS ALLEGED IN THE FIRST PLACE THAT THE POWER TO ADOPT THE SYSTEM IN DISPUTE BELONGS TO THE COUNCIL WHICH, UNDER THE TERMS OF THE THIRD SUBPARAGRAPH OF ARTICLE 43 ( 2 ) OF THE TREATY, SHOULD HAVE ACTED ON A PROPOSAL FROM THE COMMISSION AND AFTER CONSULTING THE ASSEMBLY AND THAT THEREFORE THE PROCEDURE FOLLOWED DEROGATED FROM THE PROCEDURES AND POWERS FIXED BY THIS PROVISION OF THE TREATY .

15 BOTH THE LEGISLATIVE SCHEME OF THE TREATY, REFLECTED IN PARTICULAR BY THE LAST INDENT OF ARTICLE 155, AND THE CONSISTENT PRACTICE OF THE COMMUNITY INSTITUTIONS ESTABLISH A DISTINCTION, ACCORDING TO THE LEGAL CONCEPTS RECOGNIZED IN ALL THE MEMBER STATES, BETWEEN THE MEASURES DIRECTLY BASED ON THE TREATY ITSELF AND DERIVED LAW INTENDED TO ENSURE THEIR IMPLEMENTATION . IT CANNOT THEREFORE BE A REQUIREMENT THAT ALL THE DETAILS OF THE REGULATIONS CONCERNING THE COMMON AGRICULTURAL POLICY BE DRAWN UP BY THE COUNCIL ACCORDING TO THE PROCEDURE IN ARTICLE 43 . IT IS SUFFICIENT FOR THE PURPOSES OF THAT PROVISION THAT THE BASIC ELEMENTS OF THE MATTER TO BE DEALT WITH HAVE BEEN ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY THAT PROVISION . ON THE OTHER HAND, THE PROVISIONS IMPLEMENTING THE BASIC REGULATIONS MAY BE ADOPTED ACCORDING TO A PROCEDURE DIFFERENT FROM THAT IN ARTICLE 43, EITHER BY THE COUNCIL ITSELF OR BY THE COMMISSION BY VIRTUE OF AN AUTHORIZATION COMPLYING WITH ARTICLE 155 .

16 THE MEASURES DEALT WITH BY IMPLEMENTING REGULATION NO 87 OF THE COMMISSION DO NOT GO BEYOND THE LIMITS OF THE IMPLEMENTATION OF THE PRINCIPLES OF BASIC REGULATION NO 19 . THE COMMISSION WAS THUS VALIDLY AUTHORIZED BY REGULATION NO 19 TO ADOPT THE IMPLEMENTING MEASURES IN QUESTION, THE VALIDITY OF WHICH CANNOT THEREFORE BE DISPUTED WITHIN THE CONTEXT OF THE REQUIREMENTS OF ARTICLE 43 ( 2 ) OF THE TREATY .

17 SECONDLY, THE PLAINTIFF IN THE MAIN ACTION CRITICIZES THE MANAGEMENT COMMITTEE PROCEDURE IN THAT IT CONSTITUTES AN INTERFERENCE IN THE COMMISSION' S RIGHT OF DECISION, TO SUCH AN EXTENT AS TO PUT IN ISSUE THE INDEPENDENCE OF THAT INSTITUTION . FURTHER, THE INTERPOSITION BETWEEN THE COUNCIL AND THE COMMISSION OF A BODY WHICH IS NOT PROVIDED FOR BY THE TREATY IS ALLEGED TO HAVE THE EFFECT OF DISTORTING THE RELATIONSHIPS BETWEEN THE INSTITUTIONS AND THE EXERCISE OF THE RIGHT OF DECISION .

18 ARTICLE 155 PROVIDES THAT THE COMMISSION SHALL EXERCISE THE POWERS CONFERRED ON IT BY THE COUNCIL FOR THE IMPLEMENTATION OF THE RULES LAID DOWN BY THE LATTER . THIS PROVISION, THE USE OF WHICH IS OPTIONAL, ENABLES THE COUNCIL TO DETERMINE ANY DETAILED RULES TO WHICH THE COMMISSION IS SUBJECT IN EXERCISING THE POWER CONFERRED ON IT . THE SO-CALLED MANAGEMENT COMMITTEE PROCEDURE FORMS PART OF THE DETAILED RULES TO WHICH THE COUNCIL MAY LEGITIMATELY SUBJECT A DELEGATION OF POWER TO THE COMMISSION . IT FOLLOWS FROM AN ANALYSIS OF THE MACHINERY SET UP BY ARTICLES 25 AND 26 OF REGULATION NO 19 THAT THE TASK OF THE MANAGEMENT COMMITTEE IS TO GIVE OPINIONS ON DRAFT MEASURES PROPOSED BY THE COMMISSION, WHICH MAY ADOPT IMMEDIATELY APPLICABLE MEASURES WHATEVER THE OPINION OF THE MANAGEMENT COMMITTEE . WHERE THE COMMITTEE ISSUES A CONTRARY OPINION, THE ONLY OBLIGATION ON THE COMMISSION IS TO COMMUNICATE TO THE COUNCIL THE MEASURES TAKEN . THE FUNCTION OF THE MANAGEMENT COMMITTEE IS TO ENSURE PERMANENT CONSULTATION IN ORDER TO GUIDE THE COMMISSION IN THE EXERCISE OF THE POWERS CONFERRED ON IT BY THE COUNCIL AND TO ENABLE THE LATTER TO SUBSTITUTE ITS OWN ACTION FOR THAT OF THE COMMISSION . THE MANAGEMENT COMMITTEE DOES NOT THEREFORE HAVE THE POWER TO TAKE A DECISION IN PLACE OF THE COMMISSION OR THE COUNCIL . CONSEQUENTLY, WITHOUT DISTORTING THE COMMUNITY STRUCTURE AND THE INSTITUTIONAL BALANCE, THE MANAGEMENT COMMITTEE MACHINERY ENABLES THE COUNCIL TO DELEGATE TO THE COMMISSION AN IMPLEMENTING POWER OF APPRECIABLE SCOPE, SUBJECT TO ITS POWER TO TAKE THE DECISION ITSELF IF NECESSARY .

19 THE LEGALITY OF THE SO-CALLED MANAGEMENT COMMITTEE PROCEDURE, AS ESTABLISHED BY ARTICLES 25 AND 26 OF REGULATION NO 19, CANNOT THEREFORE BE DISPUTED IN THE CONTEXT OF THE INSTITUTIONAL STRUCTURE OF THE COMMUNITY .

20 THE PLAINTIFF IN THE MAIN ACTION HAS ALSO CRITICIZED THE MANAGEMENT COMMITTEE PROCEDURE INASMUCH AS THAT MACHINERY HAS DEPRIVED THE COURT OF JUSTICE OF CERTAIN OF ITS FUNCTIONS BY INSTITUTING " A RIGHT OF ANNULMENT " RESERVED TO THE COUNCIL FOR MEASURES TAKEN BY THE COMMISSION .

21 THAT OBJECTION IS BASED ON A FALSE ANALYSIS OF THE COUNCIL' S RIGHT TO TAKE OVER THE DECISION . THE PROCEDURE LAID DOWN BY ARTICLE 26 OF REGULATION NO 19 HAS THE EFFECT OF ENABLING THE COUNCIL TO SUBSTITUTE ITS OWN ACTION FOR THAT OF THE COMMISSION WHERE THE MANAGEMENT COMMITTEE GIVES A NEGATIVE OPINION . THE SYSTEM IS THEREFORE ARRANGED IN SUCH A WAY THAT THE IMPLEMENTING DECISIONS ADOPTED BY VIRTUE OF THE BASIC REGULATION ARE IN ALL CASES TAKEN EITHER BY THE COMMISSION OR, EXCEPTIONALLY, BY THE COUNCIL . THESE MEASURES, WHATEVER THEIR AUTHOR, ARE CAPABLE OF GIVING RISE IN IDENTICAL CIRCUMSTANCES EITHER TO AN APPLICATION FOR ANNULMENT UNDER ARTICLE 173 OR TO A REFERENCE FOR A PRELIMINARY RULING UNDER ARTICLE 173 OF THE TREATY . IT THEREFORE APPEARS THAT THE EXERCISE BY THE COUNCIL OF ITS RIGHT TO TAKE OVER THE DECISION IN NO WAY LIMITS THE JURISDICTION OF THE COURT OF JUSTICE .

Decision on costs

22 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, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE HESSISCHER VERWALTUNGSGERICHTSHOF, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHER VERWALTUNGSGERICHTSHOF BY ORDER OF THAT COURT OF 15 MAY 1970, HEREBY RULES :

( 1 ) ARTICLE 16 OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS IS TO BE INTERPRETED IN THE SENSE THAT :

( A ) THE PROVISIONS OF PARAGRAPH ( 2 ), RELATING TO THE EFFECT OF IMPORT LICENCES AND TO THE LODGING OF DEPOSITS, WERE APPLICABLE FROM THE ENTRY INTO FORCE OF THAT REGULATION;

( B ) BEFORE THE ENTRY INTO FORCE OF THE IMPLEMENTING PROVISIONS PROVIDED FOR BY PARAGRAPH ( 3 ), THE MEMBER STATES WERE EMPOWERED TO TAKE, ON A TRANSITIONAL BASIS AND WITHOUT PREJUDICE TO ANY FUTURE ACTION OF THE COMMON INSTITUTIONS, ANY IMPLEMENTING MEASURE COMPATIBLE WITH THE PRINCIPLES OF THE REGULATION;

( 2 ) EXAMINATION OF THE QUESTION PUT HAS NOT REVEALED ANY FACTOR CAPABLE OF AFFECTING THE VALIDITY OF THE SECOND PARAGRAPH OF ARTICLE 7 OF REGULATION NO 87 OF THE COMMISSION, ADOPTED IN APPLICATION OF ARTICLE 16 ( 3 ) OF REGULATION NO 91;

( 3 ) ARTICLE 16 ( 3 ) OF REGULATION NO 19 DID NOT PROHIBIT THE MEMBER STATES FROM PREPARING LEGISLATIVE OR OTHER MEASURES FOR THE PURPOSE OF ENABLING THEM TO ASSUME FULLY, ON THE ENTRY INTO FORCE OF REGULATION NO 87, THE FUNCTIONS DEVOLVING ON THEM IN THE INTEREST OF THE COMMUNITY UNDER THE SECOND PARAGRAPH OF ARTICLE 7 OF THAT REGULATION .