JOINED OPINIONS OF MR ADVOCATE GENERAL JACOBS DELIVERED ON 11 JULY 1991. - HAUPTZOLLAMT HAMBURG-JONAS V WERNER FAUST OFFENE HANDELSGESELLSCHAFT KG AND WUENSCHE HANDELSGESELLSCHAFT KG. - REFERENCES FOR A PRELIMINARY RULING: BUNDESFINANZHOF - GERMANY. - CASES C-24/90, C25/90 AND C-26/90. - PRESERVED MUSHROOMS - PROTECTIVE MEASURES.



European Court reports 1991 Page I-04905



Opinion of the Advocate-General

++++

My Lords,

1. In these cases the Court is asked by the Bundesfinanzhof to rule on the interpretation and validity of three Commission regulations adopting protective measures applicable to imports of preserved mushrooms.

The background to the cases

2. The transactions in question in all the cases go back some ten years. In Case C-24/90 the plaintiff, Werner Faust OHG (hereafter "Faust"), applied between 20 and 25 March 1981 for the release into free circulation of a large quantity of goods declared as wild mushrooms in cans. It produced an import licence for wild mushrooms in cans. The Hauptzollamt Hamburg-Jonas charged duty accordingly at a rate of 23%. It subsequently levied an additional amount of DM 4 310 612.10, calculated on a total weight of 895 135 kg. It did so on the ground that the goods imported were not in fact wild mushrooms but cultivated mushrooms and so were not covered by a valid import licence. It cited as the legal basis of its decision Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (Official Journal 1979 L 197, p. 1) and 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).

3. In Case C-25/90 the plaintiff, Wuensche Handelsgesellschaft kg (hereafter "Wuensche"), purchased 3 300 tonnes of preserved mushrooms from a Chinese trading organization in October 1980. In the same month it sold the goods on to a Greek undertaking. The Greek undertaking sold them back to the plaintiff, with a sales confirmation note and invoice dated 2 January 1981 (i.e. one day after Greece' s accession to the Community). The sales invoice contained the statement: "Duty paid/free customs cleared in Greece". According to Wuensche, the goods were released into free circulation in Greece, but that point is contested by the customs authorities.

4. The goods were imported in part-consignments through various customs posts in Hamburg, between 27 January and 25 March 1981. Wuensche presented a transit document issued by the customs office in Piraeus on 2 January 1981. The authenticity of that customs document is in dispute between the parties. No import licence was submitted by Wuensche. Initially the customs authorities charged duty at the preferential rate for Greece, namely 20.7% of the value. They subsequently decided to levy duty at the rate applicable to non-member countries namely 23%, and demanded an additional amount of DM 15 827 239.90 pursuant to Regulation No 3429/80.

5. In Case C-26/90 the plaintiff is again Wuensche. Between 26 June and 3 July 1981 it applied for the release into free circulation of a total of 90 000 cartons of goods described as wild mushrooms in cans, weighing 896 400 kg. The collective customs declarations were submitted on 6 July and 6 August 1981 to the Hauptzollamt Hamburg-Jonas. On both occasions Wuensche produced import licences for wild mushrooms, from which the Hauptzollamt deducted the quantities imported. The Hauptzollamt charged import duty at the rate of 23%, subject to a subsequent inspection.

6. When Wuensche was informed that a consultant had reached the conclusion that the imported goods were cultivated mushrooms, it forwarded to the Hauptzollamt two import licences covering the importation of cultivated mushrooms. The Hauptzollamt initially deducted from those licences the full amount imported by Wuensche. It subsequently issued notices charging Wuensche an additional amount at a rate of DM 464.91 per 100 kg for the imports in June 1981 and an additional amount at a rate of DM 425.06 per 100 kg for the imports in July 1981. The additional amounts demanded totalled over DM 4 000 000. As its legal basis it cited Regulation No 1697/79 and also (with regard to the imports in June 1981) Commission Regulation (EEC) No 796/81 of 27 March 1981 (Official Journal 1981 L 82, p. 8) and (in respect of the imports in July 1981) Commission Regulation (EEC) No 1755/81 of 30 June 1981 (Official Journal 1981 L 175, p. 23). The last two regulations were both concerned with the adoption of protective measures applicable to imports of preserved mushrooms. Regulation No 796/81 was valid until 30 June 1981 and was then superseded by Regulation No 1755/81.

7. In its statement of reasons the Hauptzollamt maintained that the goods concerned were cultivated mushrooms in cans for which no valid licence had been produced on importation. They could not properly be deducted from the import licences produced subsequently, because production of an import licence was part of the customs application and its retrospective presentation was therefore not permitted.

8. Thus, in all three cases, the Hauptzollamt levied an additional amount because, for one reason or another, it considered that the goods in question were not covered by a valid import licence. It took that view in Case C-24/90 because the licence produced referred to wild mushrooms, whereas the goods imported were - so it is alleged - cultivated mushrooms. In Case C-25/90 the Hauptzollamt maintains that the goods, which originated in China, were not released into free circulation in Greece and so required an import licence when they cleared customs in Hamburg. No such licence was produced. In Case C-26/90, as in Case C-24/90, the licence originally produced was for wild mushrooms whereas the goods imported turned out to be cultivated mushrooms. Although a licence for cultivated mushrooms was produced later, the Hauptzollamt declined to accept it on the ground that it should have been produced at the time of the customs application.

9. Faust and Wuensche contested the decisions requiring them to pay additional amounts. The Finanzgericht quashed the decisions and the Hauptzollamt appealed to the Bundesfinanzhof. In Cases C-24/90 and C-25/90 the Bundesfinanzhof has referred the following questions to the Court:

"1. Is an additional amount under Article 1 of Commission Regulation No 3429/80 also to be levied in the case of preserved mushrooms which have been released into free circulation without a valid import licence?

2. If Question 1 is answered in the affirmative, is Regulation No 3429/80 valid, in particular as regards the level at which the additional amount is fixed?"

10. In Case C-26/90 the questions are as follows:

"1. Is an additional amount under Article 1 of Commission Regulation No 796/81 or Article 1 of Commission Regulation No 1755/81 also to be levied in the case of preserved mushrooms which have been released into free circulation without a valid import licence?

2. If Question 1 is answered in the affirmative, are Regulations No 796/81 and No 1755/81 valid, in particular as regards the level at which the additional amount is fixed?"

The relevant legislation

11. The reason why three different regulations are in issue is simply that the imports in question took place at different times. In Cases C-24/90 and C-25/90 the relevant measure is Regulation No 3429/80, which covered the period from 1 January to 31 March 1981. In Case C-26/90 the imports took place in June and July 1981 and were subject to two different measures: Regulation No 796/81 covered the period from 1 April to 30 June 1981, whereas Regulation No 1755/81 covered the period from 1 July to 30 September 1981.

12. The content of the three regulations is very similar. The purpose of all three was to adopt protective measures applicable to imports of preserved mushrooms, as is clear from their titles. There is some confusion about whether the regulations were concerned solely with cultivated mushrooms or whether they also applied to wild mushrooms. On that point there are discrepancies between the various language versions. Some versions give the impression that the first two regulations applied both to wild and to cultivated mushrooms, whereas the third regulation applied only to cultivated mushrooms. Other versions suggest that wild mushrooms lay outside the scope of all three regulations. Since, however, the national court has asked no question on that point and since in my view nothing turns on it I shall not deal with it further.

13. Article 1 of Regulation No 3429/80 provides so far as material:

"Release into free circulation in the Community of preserved mushrooms within subheading 20.02 A of the Common Customs Tariff ... 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."

14. Article 1 of Regulation No 796/81 provides so far as material:

"Release into free circulation in the Community of preserved mushrooms falling within subheading 20.02 A of the Common Customs Tariff ... in excess of the quantities set out in Article 2(1) and (3), shall, during the period 1 April to 30 June 1981, be subject to the levying of an additional amount of 175 ECU per 100 kilograms net."

15. Article 1 of Regulation No 1755/81 provides so far as material:

"Release into free circulation in the Community of preserved cultivated mushrooms falling within subheading 20.02 A of the Common Customs Tariff ... in excess of the quantities set out in Article 2(1) and (3), shall, during the period 1 July to 30 September 1981, be subject to the levying of an additional amount of 160 ECU per 100 kilograms net."

16. Article 2 of each of the three regulations provides that applications for import licences for preserved mushrooms are to be accepted within certain quantitative limits.

17. Article 3 of Regulation No 3429/80 (and Article 4 of the other two regulations) provides that import licences issued for quantities in excess of those given in Article 2 are to be endorsed "Additional amount to be levied".

18. All three of the contested regulations cite as their legal basis Article 14(2) of 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 1977 L 73, p. 1). Article 14 of that regulation 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 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.

..."

19. Article 2 of Council 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 1977 L 73, p. 28) provides:

"1. Should the situation referred to in Article 14(1) of Regulation (EEC) No 516/77 arise, the measures which may be taken under paragraphs 2 and 3 of that Article shall be:

(a) for products subject to the system of import certificates:

- 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;

(b) for products not subject to the system of import certificates: total and partial suspension of imports;

(c) for all products:

- the introduction of arrangements under which, if the price for an imported products 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 total or partial suspension of exports.

2. The measures referred to in paragraph 1 may be taken only to such extent and for such length of time as is strictly necessary. They shall take account of the special situation of products which are already on their way to the Community. They may not extend to products other than those imported from or intended for third countries. They 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. They may be restricted to imports intended for particular regions of the Community or to exports from such regions."

20. It may be noted that after the expiry of Commission Regulation No 1755/81 a Council regulation came into force, namely Council Regulation (EEC) No 1796/81 of 30 June 1981 on measures applicable to imports of preserved cultivated mushrooms (Official Journal 1981 L 183, p. 1). That regulation was purportedly based on Regulation No 516/77 and in particular on Article 13(2). It retained the system adopted by the three Commission regulations and fixed the additional amount at the same rate as Regulation No 1755/81, namely ECU 160 per 100 kg. It is still in force to this day.

21. Finally, mention must be made of Council Regulation No 1697/79, Article 2(1) of which provides:

"Where the competent authorities find that all or part of the amount of import duties or export duties legally due on goods entered for a customs procedure involving the obligation to pay such duties has not been required of the person liable for payment, they shall take action to recover the duties not collected."

The expression "import duties" is defined by Article 1(2)(a) of that regulation as meaning "customs duties and charges having equivalent effect as well as agricultural levies and other import charges laid down within the framework of the common agricultural policy".

Question 1

22. Question 1 is in substance the same in all three cases. It asks whether, under the respective regulations, the additional amount is also to be levied in the event of release of the goods into free circulation without a valid import licence. The question arises because, in all three cases, the Finanzgericht considered that the regulation did not apply to unlawful imports. In other words, the Finanzgericht appears to have taken the view that Article 1 of the regulations required the levying of an additional amount when the quantity of preserved mushrooms imported exceeded the quantity stated in the import licence, but did not require such an amount to be levied when preserved mushrooms were imported without a valid licence.

23. I agree with the Bundesfinanzhof that the view of the law taken by the Finanzgericht cannot be sustained. It appears to disregard the scheme and purpose of the regulations, which proceed on the assumption that, beyond certain quantitative limits, preserved mushrooms may only be imported subject to the levying of an additional amount. Obviously, the aim of the regulations would be frustrated if the additional amount were levied only when the holder of a valid licence imported a quantity greater than the amount stated on the licence and if no additional amount were levied when mushrooms were imported without a valid licence.

24. In its judgment quashing the contested decisions the Finanzgericht took the view that in the event of the unlawful release of goods into free circulation it was unnecessary to levy the additional amount, because to do so could serve no further purpose in protecting Community producers, the release of the goods being irreversible. On this point I can do no better than quote from the Bundesfinanzhof' s orders for reference:

"If that argument were correct, it would be applicable to all import duties and taxes used to protect the Community economy, including customs duties for example. Community law, however, proceeds on the principle of the post-clearance recovery of import duties for which payment has - improperly - not been required (see Article 1 of Regulation No 1697/79). That principle is, indeed, dictated in the interests of equality; import duties must as a matter of principle be imposed equally, irrespective of the moment at which the correct level of those import duties is established. Such post-clearance recovery cannot therefore be considered an illegitimate penalty, as the Finanzgericht assumes. Without the fundamental obligation to pay retrospectively any import duties not collected, it would be possible to circumvent the protective measures."

25. The view expounded in that passage is clearly correct and it follows that in each of the three cases the reply to question 1 must be that Article 1 of the relevant regulation is to be interpreted as meaning that an additional amount is also to be levied in the case of preserved mushrooms which have been released into free circulation without a valid import licence.

Question 2

26. The Bundesfinanzhof inclines towards the view that the regulations are invalid inasmuch as they fix the additional amount at a higher level than is necessary in order to make the protective measures effective. It cites the judgment in Case 77/86 The Queen v Customs and Excise, ex parte National Dried Fruit Trade Association [1988] ECR 757. It points out that the additional amount was apparently intended to correspond approximately to the production costs for preserved mushrooms in the Community: see the fifth recital in the preamble to Council Regulation No 1796/81 which was, as I have already mentioned, the successor to Regulation No 1755/81. It suggests that an additional amount equal to the difference between the cost price in the Community and the price of imports from non-member countries would have been sufficient to achieve the aim of protecting Community producers.

27. The Commission argues that the additional amount levied pursuant to the contested regulations was not contrary to the principle of proportionality because it was a less severe measure than a total prohibition of imports, which it could have opted for if it had seen fit. On that point it cites the judgment in Case 345/82 Wuensche v Germany [1984] ECR 1995.

28. Neither of the cases cited above is decisive of the issues raised by the present cases. In the National Dried Fruit Trade Association case the Court declared invalid a regulation imposing a countervailing charge at a fixed rate equal to the difference between the lowest price on the world market and the minimum price fixed by the Community legislation. The Court stated that:

"... the aim of the countervailing charge is to enforce the minimum price so as to ensure Community preference in the market for dried grapes other than currants; the aim is not to inflict an economic penalty on the trader who has imported them below the minimum price. However, the introduction of a single, fixed-rate countervailing charge, imposed even where the difference between the import price and the minimum price is very small, amounts to an economic penalty and the Commission has not established that such a system is necessary for attaining the aim of Regulation No 521/77."

29. As the Commission points out, there is a difference between that case and the present one. In that case the aim was to ensure that imported goods did not undercut the Community' s minimum price and the countervailing charge was levied on all goods imported at a lower price. In the regulations now at issue a decision was taken to admit certain quantities without levying any additional amount and to deter imports in excess of those quantities.

30. Case 345/82, on which the Commission relies, concerned the validity of one of the regulations in issue in the present proceedings. In that case the Verwaltungsgericht Frankfurt am Main sought a preliminary ruling on the question whether Regulation No 3429/80 was valid. In its order for reference the national court expressed doubts about the validity of the regulation because (a) the requirements for the adoption of protective measures were not fulfilled, there being no disturbance, or threatened disturbance, of the Community market and (b) the Commission was not empowered to provide for the levying of an additional amount since such a measure did not figure among the protective measures that the Commission was expressly authorized to adopt by Article 2(1) of Council Regulation No 521/77.

31. The Court ruled that consideration of the question referred had disclosed no factor of such a kind as to affect the validity of Regulation No 3429/80. As regards the first alleged ground of invalidity, the Court held that the Commission had not committed a manifest error in concluding that the market was likely to suffer a serious disturbance. As regards the second alleged ground of invalidity, the Court held that, since the Commission was expressly authorized to take protective measures leading to a complete suspension of imports, it was a fortiori entitled to adopt less restrictive measures, such as the levying of an additional amount.

32. Wuensche did in fact plead further grounds of invalidity in Case 345/82; in particular, it argued that Regulation No 3429/80 breached the principle of proportionality by fixing the additional amount at a higher level than was necessary in order to achieve the aim of protecting the Community market against serious disturbances or the threat thereof (see p. 2001 of the report).

33. However, the Court did not deal with the issue of proportionality in its judgment, perhaps taking the view that it would be inappropriate to review the validity of the regulation on grounds that had not been drawn to its attention by the national court. Instead it confined itself to examining the two grounds of invalidity referred to in the order for reference. Consequently the judgment in Case 345/82 does not establish that Regulation No 3429/80 was necessarily consistent with the principle of proportionality. Although the issue of proportionality was raised in those proceedings, the Court did not pronounce on it. Nor, it may be noted, was the issue dealt with by Advocate General Rozès, who took the view that the regulation was invalid on the ground that the Commission had no power to provide for the levying of an additional amount.

34. In any event, there cannot be any doubt that the Court is free to consider again the question of the validity of Regulation No 3429/80 since a ground of challenge not dealt with in the previous judgment has been raised. That is confirmed by the order in Case 69/85 Wuensche v Germany [1986] ECR 947 in which the Court refused to entertain a further reference from the Verwaltungsgericht Frankfurt am Main which called in question the validity of the Court' s judgment in Case 345/82. In paragraph 15 of that order the Court expressly observed that the authority of a preliminary ruling does not preclude the national court to which it is addressed from making a further reference to the Court of Justice in the same proceedings, in particular "when it submits new considerations which might lead the Court to give a different answer to a question submitted earlier". A fortiori a further reference may be submitted by a different court in different proceedings, especially if that court raises "new considerations".

35. In order to determine whether the additional amount was fixed at such a level as to infringe the principle of proportionality it is necessary to consider whether the levying of such a charge was an appropriate means of pursuing the aim in question and whether that aim could have been pursued just as effectively by means less burdensome to traders.

36. The aim of the regulations in issue was to protect the Community mushroom industry, which was threatened with a serious disturbance on account of imports from non-member countries at prices well below the Community industry' s cost price (see the first and second recitals in the preamble to Regulation No 3429/80). Such an aim was in principle consistent with Article 39 of the Treaty. The levying of an additional amount on mushrooms imported from non-member countries was in principle an appropriate means of accomplishing that aim, since it would have the effect of cancelling out the price advantage enjoyed by imported mushrooms, thus striking at the cause of the threatened disturbance. In determining whether the aim could have been pursued just as effectively by other means less burdensome to traders, it must be remembered that the contested regulations are subject not merely to the general principle of proportionality, but also to a particularly stringent proportionality test laid down in Article 2(2) of Regulation No 521/77. According to that provision, measures may be adopted under Article 14(2) of Regulation No 516/77 "only to such extent and for such length of time as is strictly necessary". The question that arises then is whether it was strictly necessary to levy an additional amount of ECU 175 per 100 kg from 1 January 1981 to 30 June 1981 and ECU 160 per 100 kg from 1 July 1981 to 30 September 1981.

37. The preambles to the contested regulations do not indicate on what basis the additional amount was calculated. In its observations the Commission states that the figure of 175 ECU per 100 kg corresponded to the production cost of grade 1 preserved mushrooms produced in France and delivered to Germany. Grade 1 mushrooms were chosen because they were the category most frequently encountered in the trade. The production cost in France was chosen because that was the most important producer country in the Community. The cost of delivering the goods to the German market was taken into account because Germany was the most important consumer of preserved mushrooms. It may also be noted that the fifth recital in the preamble to Council Regulation No 1796/81 (which, like its predecessor, Commission Regulation No 1755/81, fixed the additional amount at ECU 160 per 100 kg) stated that that amount corresponded approximately to the production cost in the Community.

38. Faust and Wuensche contend that an additional amount corresponding to the production cost in the Community was excessive and that the Community industry could have been protected just as effectively by levying an additional amount equal to the difference between production costs in the Community and the price of goods imported from non-member countries.

39. The Commission argues that it complied with the principle of proportionality by imposing a levy when it could in fact have opted for a more severe measure, namely an outright prohibition of imports. It states that it did not wish to impose a strict quota system in view of pending negotiations with the most important exporting countries. Additional imports were to remain possible for special purposes, although the effect of the levy would be to keep such imports to a minimum. The Commission states openly that the protective measures were intended to have a prohibitive effect; imports above certain quantities were to be rendered economically unattractive. According to the Commission that aim could not be achieved by means of an additional amount corresponding to the difference between production costs in the Community and prices on the world market.

40. Notwithstanding that argument, I cannot see how the Commission can have been justified in charging an additional amount equal to the full cost of producing mushrooms in the Community. In the absence of some very compelling justification, to require an importer to pay a levy amounting to the full cost of the domestic product seems manifestly exorbitant. Moreover, it must be borne in mind that imported mushrooms were already subject to a customs duty of 23%.

41. The above conclusion is confirmed by information which the Commission annexed to its observations. That information, which was first submitted to the Court in the context of Case 345/82, contains figures concerning production costs in the Community, the price of imported produce and the effect of the additional amount on such produce. It appears that a 425 g tin of grade 1 preserved mushrooms of French origin cost DM 2.02 to produce at the material time. A similar product of Chinese origin had a cost price DM 1.43 at the Community frontier. Customs duty at a rate of 23% added DM 0.32 to the price. The additional amount levied under Regulation No 3429/80 came to DM 2.05 (marginally different, for reasons which have not been explained, from the production cost stated above), thus bringing the total cost of the imported Chinese product to DM 3.80. The cost of Chinese mushrooms would in fact have exceeded the cost of French mushrooms by a margin of 88%. The effect of the additional amount was even more dramatic in relation to grade 3 mushrooms, since the amount was based on the production cost of grade 1 mushrooms. The production cost in France for such goods was DM 1.00 per 315 g jar. For Chinese produce the corresponding figure was DM 0.81, to which must be added DM 0.19 (customs duty) and DM 1.51 (additional amount), making a total of DM 2.51. The cost of Chinese mushrooms would have exceeded the cost of French mushrooms by a margin of 151%.

42. If the Community market in preserved mushrooms was threatened with a serious disturbance as a result of cheap imports from non-member countries, I do not see how it can have been "strictly necessary", in order to counter that threat, to impose a levy that would result in the cost of imported produce exceeding the cost of Community produce by such a large margin. The threatened disturbance could have been countered by imposing a much lower levy.

43. I would not necessarily agree with Faust and Wuensche' s contention that the levy should not have exceeded the difference between the cost price in the Community and the price of imported mushrooms. It was, in my view, open to the Commission to impose a levy that would have the effect of making imported produce appreciably more expensive than Community produce, especially if it is borne in mind that certain quantities reflecting "traditional trade patterns" were to be admitted free of the levy. But it was not, in my view, open to the Commission to levy an additional amount that would result in the price of imported produce exceeding the price of Community produce by a margin as great as that stated above.

44. Although the calculations effected above (in paragraph 41) relate to the additional amount of 175 ECU per 100 kg imposed by Regulations Nos 3429/80 and 796/81, there cannot be any doubt in my opinion that the conclusions reached are equally valid with respect to Regulation No 1755/81, which provided for the levying of an additional amount of ECU 160 per 100 kg. That amount also greatly exceeded what was strictly necessary in order to counter the threatened disturbance.

45. Moreover, the Commission has made no serious attempt to justify the size of the additional amount. Given that the measures had to be "strictly necessary", one would expect some justification for the size of the amount to be stated in the contested regulations. However, the preambles to the regulations contain no indication whatever of the basis on which the additional amount was calculated or of the reasons why such an amount was necessary. Nor has any such justification been advanced in the present proceedings. Instead the Commission has sought to rely essentially on the argument that it was entitled to impose such a high levy because it could have taken the more severe step of prohibiting imports altogether. As regards that argument, the following points should be noted.

46. First, the principle of proportionality is not satisfied simply because the administration refrains from using the most drastic weapon in its arsenal; that principle requires the administration to select, from the measures available that are capable of achieving the aim in question, the one that is least burdensome to the individuals concerned. The use of a cannonball to kill a fly cannot be defended on the ground that a nuclear missile might have been used instead.

47. Secondly, it is in any event questionable whether the levying of an additional amount in the present cases was less severe than an outright prohibition on imports, since the Commission openly admits that the effect of the additional amount was intended to be prohibitive. Moreover, it is possible that the additional amounts levied on Faust and Wuensche exceeded whatever penalty might have been imposed on them if they had imported mushrooms in breach of a prohibition.

48. Finally, the Commission appeared to take the view, at the oral hearing, that the precise figure chosen for the additional amount is not material, within certain limits, to the issue of proportionality. That view, however, seems to presuppose that the additional amount, since it is tantamount in its purpose and effect to a prohibition, will never be levied. It may well be true that, if no importations subject to the additional amount had been effected, then the precise figure would not have mattered. But, as the present cases illustrate very clearly, where importations subject to the additional amount were, for whatever reason, effected, the issue of proportionality does arise, and the sums demanded in the present cases, amounting in total to over DM 24 000 000, themselves go far to demonstrate the lack of proportionality. The additional amount cannot be fixed on the hypothesis that it will never be payable; it must be fixed on the basis that traders may, for whatever reason, be held liable to pay it.

49. I therefore reach the conclusion that the contested regulations are invalid insofar as they provide for the levying of the additional amount. That conclusion is limited to the Commission regulations in issue in these proceedings; no finding is necessary as to the validity of Council Regulation No 1796/81, which is not in issue and which, as I have pointed out (at paragraph 20), was not based on Article 14(2) of Regulation No 516/77 and did not therefore have to satisfy the requirement that the measures should be adopted "only to such extent ... as is strictly necessary."

Conclusion

50. In view of the conclusion which I have reached in relation to the second question, no answer to the first question need be included in the ruling to be given by the Court.

51. Accordingly, I am of the opinion that the questions referred to the Court by the Bundesfinanzhof should be answered as follows:

In Cases C-24/90 and C-25/90

Article 1 of Regulation No 3429/80 is invalid inasmuch as it provides for the levying of an additional amount of ECU 175 per 100 kg.

In Case C-26/90

Article 1 of Regulation No 796/81 and Article 1 of Regulation No 1755/81 are invalid inasmuch as they provide respectively for the levying of additional amounts of ECU 175 and ECU 160 per 100 kg.

(*) Original language: English.