2.

Let me now turn my attention to the question of whether the legal principle of equal treatment or the prohibition of arbitrary acts requires that the transitional rules concerning import licences for manioc from countries other than Thailand contained in Article 3 (6) of Regulation No 2655/82 be applied by analogy to import licences for manioc from Thailand. Let me first refer to two decisions in which the Court filled gaps in Community regulations by applying by analogy legal provisions contained in other regulations. In its judgment of 22 February 1975 ( 22 ) it applied by analogy a provision ( 23 ) which afforded relief from the consequences of failure to observe a time-limit provided for in a licence for the importation of goods from nonmember’ countries by reason of force majeure. Those provisions were applied by analogy to importations from other Member States in regard to which the applicable regulation ( 24 ) did not contain any special provisions for cases of force majeure. The Court's decision in its judgment of 11 July 1978 ( 25 );is similar. In that decision, the Court decided that where goods exported from one of the original Member States to a new Member State perished in transit as a result of force majeure, payment of accession compensatory amounts was justified even though such payment was not provided for in the applicable regulation. ( 26 ) To that end, it applied by analogy the rules dealing with export refunds. ( 27 ) In both decisions, the Court found that gaps existed in the applicable legal provisions and then decided that application by analogy of legal provisions which were not in fact applicable was unobjectionable because of the parallels it discerned both in the situations of fact and in the legal provisions. In my opinion, it cannot really be disputed that the situation of a person holding a previously issued licence for the import of manioc from Thailand is comparable to that of a person holding a previously issued licence for the importation from other nonmember countries when their licences cover goods not forming part of the quota in respect of which the tariff concession has been granted. Both groups of traders obtained their licences at a time when it was possible to import an unlimited quantity of the goods in question at the 6% rate of duty consolidated in GATT. Although they did not have as secure a legal position as the holders of import licences' in respect of which the levy had been fixed in advance, if the rate of duty consolidated in GATT was in fact maintained in existence, they had an almost identical expectation. The original ‘expectation’ was destroyed by the Community when it concluded the agreements restricting imports and adopted the measures implementing those agreements. Even after the adoption of import restrictions, both groups of traders were still in comparable situations : they held import licences which required them to import under penalty of forfeiting the security they had put up when applying for the licences. However, it was no longer possible for them to carry out the importations under economically rational conditions. It is only at that point that the treatment of the two groups of traders by the Commission begins to differ. In Regulation No 2092/82, the Commission laid down transitional provisions for the importation of manioc from Thailand only in respect of goods which had been exported from Thailand before 28 July 1982. It was only in that case, and even then only if further conditions were satisfied, that the importer qualified for the lower rate of levy, 6% ad valorem (Article 11 of the regulation). In all other cases, holders of previously issued licences for importation from Thailand had only two options, either to import at a rate of levy of 50 to 60% ad valorem, which did not make economic sense, and encumber the Community feedingstuffs market with undesirable imports, or not to use the licence and accept the forfeiture of the security lodged. On the other hand, the Commission adopted different transitional provisions for holders of previously issued licences for imports from nonmember countries other than Thailand in Regulation No 2655/82 of 1 October 1982. The first subparagraph of Article 3 (6) of that regulation provides as follows : ‘Licences issued prior to the date of application of this Regulation shall be cancelled and the security released, provided that the interested parties submit a request to that effect within 30 days following the date of application of this Regulation.’ Those rules were adopted one day after the adoption of Council Regulation No 2646/82 of 30 September 1982 on the import system applicable in 1982 to products falling within subheading 07.06 A of the Common Customs Tariff, which limited the application of the import levy at a maximum of 6% ad valorem to a certain quantity of goods. In the preamble to Regulation No 2655/82, the Commission expressly refers to the aforementioned Council regulation and to the situation of holders of previously issued import licences, stating inter alia: ‘in the light of the special situation of holders of import licences issued prior to the entry into force of Regulation (EEC) No 2646/82, such holders should be entitled to request the cancellation of the licences in question and the return of the security; whereas the status of goods afloat should be defined’. The difference between the rules governing the fate of previously issued licences is so striking, in my opinion, that it should once again be set out clearly. Three days after the Council decided on 19 July 1982 to conclude the agreement with Thailand, that is to say, on 22 July 1982, the Commission adopted Regulation No 2029/82 laying down detailed rules for implementing the import arrangements. That implementing regulation does not deal with the fate of previously issued licences in general but merely regulates the case of certain licences pursuant to which goods were exported from Thailand before 28 July 1982. The rules dealing with previously issued licences for imports from countries other than Thailand are completely different. Although the Council also decided on 19 July 1982 to conclude agreements with Indonesia and Brazil and also published on 28 July 1982 the quantities which could still be imported at a favourable rate of levy, it was not until 30 September and 1 October that the internal Community implementing measures were adopted and the conventional rates of duty in the Common Customs Tariff amended. In contrast to the rules applicable to Thailand, Article 3 (6) of Regulation No 2655/82 made it possible for licences that had been issued earlier but had not been used to be surrendered. I consider that difference of treatment all the more striking because the new rules for imports from Thailand came into force more or less immediately (agreement published in the Official Journal of 28 July 1982, special rules for exports applied only in respect of products exported from countries other than Thailand before 28 July 1982), whereas importers from countries other than Thailand had more than two months, that is to say until 30 September 1982, to adjust to the new rules and, notwithstanding that period, also had an opportunity under the rules laid down in Article 3 (6) of Regulation No 2655/82, to have their previously issued licences cancelled and the security returned. The contrary solution would have seemed to me to be more logical, that is to say, transitional measures for imports from Thailand in respect of which the new trading rules entered into effect immediately, rather than for imports from other nonmember countries in respect of which importers were allowed a longer period to adjust to the new rules. The Commission justifies these different sets of rules by reference to differences in the dates on which the respective rules came into force, in the way in which they are administered and in regard to the previously issued licences. I have already pointed out that the differences in regard to the entry into force of the different sets of rules suggest precisely the opposite solution to the one adopted. As regards the difference in the rules governing previously issued licences, I am obliged to agree with the plaintiff's statement that that argument is a classic case of circular reasoning. The Commission cannot justify differences in the treatment of various categories of previously issued licences on the basis of the different treatments themselves. It thus remains to be considered whether the reference to differences in the way in which the quota is administered is valid. In fact, the administration of the quota, that is to say, both the issuing of ‘export certificates’ giving a right to import into the Community at a favourable rate of duty and checking that the agreed quantities have not been exceeded, is, according to the agreement read in conjunction with the implementing regulation, in the hands of the Thai authorities. It may also be true that the Thai authorities issued such export certificates from the beginning of 1982 in anticipation of the conclusion of the agreement — as the Court is aware, that is disputed by the plaintiff. However, whether the plaintiff could, as the Commission claims, have obtained such a certificate is in my view irrelevant in the present case. The decisive factor for the plaintiff in relation to importation into the Community was the Community's import rules and they were amended only with effect from 28 July 1982. Moreover, the fact that Article 10 of Regulation No 2029/82 expressly provides that Article * 1 of the same regulation (the rules concerning the Thai export certificate) applies only to export certificates issued by the Thai authorities from 28 July until 31 December 1982 clearly runs counter to the Commission's argument. Thus, what the Thai authorities did before 28 July is not decisive in this case, nor is the question whether or not an importer complied with the Thai export rules, if they existed. All that thus remains of the Commission's argument is the following two points: First, the question of who checks that the quotas are not exceeded and, secondly, the Commission's supposition as to how many licences were still in existence when Regulation No 2655/82 came into effect. The question of who checks that the quota is not exceeded, or in simple terms, who counts the goods, can in my opinion provide no grounds for different treatment of previously issued licences. That is merely a technical process which is certainly important but not decisive in the legal evaluation of transitional measures, or the absence of such measures. The Commission has also argued that different treatment of previously issued licences for imports from nonmember countries other than Thailand was justified by the fact that on 1 October 1982, the day on which Regulation No 2655/82 came into effect, many ordinary licences, which had been applied for by importers in the expectation of carrying out imports at the 6% rate of levy consolidated in GATT, were still in existence. Although by virtue of those licences, according to Article 15 (1) of the basic regulation on cereals, importers only had a right to be charged the levy applicable on the day of importation, security had to be lodged, as for all licences, and was in danger of being forfeited if the licence was not used up. In view of the uncertainty as to the number of such licences, which were no longer economically attractive, the Commission considered it appropriate to provide in the first subparagraph of Article 3 (6) of Regulation No 2655/82 for the possibility of cancelling such licences and releasing the security. But in my opinion, exactly the same process of reasoning applies to imports from Thailand. The Commission has told the Court that when it adopted the new import rules for manioc from Thailand, it had no information as to how many previously issued licences were still in existence and had not been used. The possibility could thus not be ruled out that many ordinary licences were still in existence. If the Commission wanted to honour the expectation that the rate of duty consolidated in GATT would be maintained in existence, it had to do so for all holders of previously issued licences. It cannot make a distinction on the basis of whether the consolidated rate of levy was based directly on the arrangements made in the context of GATT or on a bilateral agreement to apply most favoured nation treatment as was agreed in Article 1 of the Cooperation Agreement between the European Economic Community and Indonesia, Malaysia, the Philippines, Singapore and Thailand — member countries of the Association of South-East Asian Nations. ( 28 ) I therefore come to the conclusion that holders of previously issued licences for the importation of manioc from Thailand are in a comparable situation to holders of previously issued licences for imports from other nonmember countries. Different treatment of the two groups of importers does not appear to me to be justified. Consequently, the general principle of equality requires that both groups of importers be treated in the same way and that therefore the transitional rules contained in Article 3 (6) of Regulation No 2655/82 be applied by analogy to importers still in possession of previously issued licences for imports from Thailand. I do not need to demonstrate further that the principle of equality is one of the general principles of Community law. In that connection, it is sufficient to refer to the fundamental judgments of 21 June 1958 ( 29 ) and 19 October 1977. ( 30 ) Finally, I would like to point out that I expressly leave open the question of whether the Community was obliged to adopt any transitional provisions at all in favour of holders of previously issued licences. The licences entitled and required holders to import goods at the rate of levy applying at the date of importation and, legally speaking, that was still possible. None the less, the Community would be acting somewhat inconsistently if, on the one hand, it limited imports of manioc and, on the other, it required such imports by threatening forfeiture of the security. None the less, I do not believe that this problem needs to be gone into in more detail here since in any event, when transitional provisions are adopted for a particular group of traders, they must apply to all traders who are in a comparable situation.