Opinion of Mr Advocate General Lenz delivered on 29 January 1987. - Commission of the European Communities v Council of the European Communities. - Generalized tariff preferences - Action for annulment - Legal basis - Obligation to state reasons for Community measures. - Case 45/86.



European Court reports 1987 Page 01493

Swedish special edition Page 00055

Finnish special edition Page 00055



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - The facts

1 . The central issue in the proceedings on which I am called to give my opinion today is on the basis of which provisions of the EEC Treaty the Council of the European Communities was entitled to adopt the regulations applying generalized tariff preferences for 1986 in respect of certain industrial or textile products originating in developing countries, and whether, when it adopted those regulations, the Council was under a duty to specify in the preambles thereto the provisions of the Treaty on which it was relying .

2 . On 17 December 1985 the Council of the European Communities, acting on a proposal of the Commission and having regard to the opinions of the European Parliament and of the Economic and Social Committee, adopted the following three regulations :

Regulation ( EEC ) No 3599/85 applying generalized tariff preferences for 1986 in respect of certain industrial products originating in developing countries; ( 1 )

Regulation ( EEC ) No 3600/85 applying generalized tariff preferences for 1986 to textile products originating in developing countries; ( 2 )

Regulation ( EEC ) No 3601/85 applying generalized tariff preferences for 1986 in respect of certain agricultural products originating in developing countries . ( 3 )

3 . Those regulations - whose predecessors date back to 1971 - enable customs duties on a number of products from developing countries to be suspended, either completely or subject to Community quotas or Community ceilings .

4 . When the quotas have been used up the Common Customs Tariff is automatically reapplied . As soon as individual ceilings are reached at Community level, customs duties may again be applied to imports of the products concerned . Likewise, a decision can be taken to reintroduce customs duties if an increase in preferential imports not subject to a quota or a ceiling causes economic difficulties to arise in the Community or in a region of the Community . However, customs duties may not be reintroduced on goods from the least developed of the developing countries .

5 . Preferences in respect of certain products from the most competitive countries subject to the customs quota system, on the other hand, are reduced by 50 %.

6 . The tariff quotas are allocated among the Member States by reference to a flat-rate system, which, in general, involves the apportionment of initial quotas and the right to receive additional quotas from a Community reserve .

7 . In general, the regulations take account of the degree of development and competitiveness of the beneficiary countries and of the "sensitivity" of the products concerned .

8 . Essentially, the system of generalized tariff preferences consists of the suspension, without legal obligation on the part of the Community and without any requirement of reciprocity, of Common Customs Tariff duties with a view to facilitating the importation of certain products from certain developing countries .

9 . Internationally, the system of generalized preferences owes its existence to a proposal made at the United Nations Conference on Trade and Development ( Unctad ), convened in 1964, the 1948 Havana Charter, which also made provision for regional preferences, never having taken effect . It reflects demands for a new concept of international trade relations between developed and developing countries designed to give more weight to development-policy objectives in the context of trade relations .

10 . In a declaration made on 7 December 1961 the contracting parties to the General Agreement on Tariffs and Trade ( GATT ) had emphasized the interrelationship between development aid and trade . ( 4 ) Later the granting of tariff preferences was given legal recognition, too; in view of the conflict between the system of generalized preferences and the basic principles of the GATT, and especially the most-favoured-nation clause, an exemption was first granted in 1971 for a limited period . In 1979 a decision was taken in the context of the GATT recognizing that preferences in favour of developing countries were permanently compatible with the GATT .

11 . In the preamble to Regulation No 3601/85 applying generalized tariff preferences for 1986 in respect of certain agricultural products originating in developing countries, which is not contested in these proceedings, the Council stated that the regulation was based on "the Treaty establishing the European Economic Community, and in particular Article 43 thereof"; in contrast, the preambles to Regulations Nos 3599/85 and 3600/85 contain only the phrase "Having regard to the Treaty establishing the European Economic Community ".

12 . Ever since the introduction for the first time of generalized tariff preferences in 1971 the Commission has proposed that the relevant regulations ( 5 ) should be based on Article 113 of the EEC Treaty . However, the Council has not followed that proposal but merely refers to "the Treaty" as the legal basis .

13 . In addition, since there were differences of substance between the regulations proposed by the Commission and the Council, the latter based its decision-taking procedure on Article 149 of the EEC Treaty, which also requires unanimity .

14 . The Commission recorded in a statement in the Council minutes that its view differed from that of the Council as to the substance of the system of generalized preferences, referring to its opinion that the system should be more strongly differentiated and to the administration of the quotas and ceilings .

15 . The applicant considers the procedure adopted by the defendant to be unlawful . In its opinion the Council infringed the requirement set out in Article 190 of the EEC Treaty to state reasons for measures and, at the same time, Article 113 of the EEC Treaty which was the only possible legal basis .

16 . In May 1986 the Commission waived its right to submit a reply in response to the defence and asked that the case be given priority pursuant to Article 55 of the Rules of Procedure .

17 . The Commission claims that the Court should :

( 1 ) Primarily :

Declare void Council Regulations Nos 3599/85 and 3600/85 of 17 December 1985;

Declare that those regulations should continue to apply until regulations are adopted pursuant to the judgment in these proceedings;

Alternatively :

Declare void the Council' s decision of 17 December 1985 by which the Council rejected the Commission' s proposal that the regulations should be based on Article 113 and substituted the words "Having regard to the Treaty";

( 2 ) Order the Council to pay the costs .

18 . The Council claims that the Court should :

( 1 ) Dismiss the Commission' s application as regards both its principal and alternative claims;

( 2 ) Order the Commission to pay the costs .

19 . Albeit not formally contesting the admissibility of the application, the Council first expresses doubts as to the existence of an actual dispute . It contends that in fact the Commission is asking for an opinion on the interpretation of Article 113 of the EEC Treaty .

20 . The Council also questions the Commission' s interest in bringing the action, since in the event that the regulations were to be declared void on the grounds of infringement of an essential procedural requirement substantively identical provisions would be adopted again .

21 . The Council does regret that it was not possible to specify more precisely the legal basis for the contested regulations but it considers that that does not constitute a breach of an essential procedural requirement . In view of the development-policy aim pursued by the adoption of the relevant regulations, Article 113 of the EEC Treaty was not acceptable as the sole legal basis . Accordingly, recourse also had to be made to Article 235 of the EEC Treaty .

22 . In reply to a question put by the Court, the Council stated that when it adopted the contested regulations and chose the wording "Having regard to the Treaty" it had actually had in mind the provisions of Articles 113 and 235 of the EEC Treaty .

23 . Where necessary I shall consider details of the parties' submissions in the course of my Opinion; for the rest, I would refer to the Report for the Hearing .

B - Opinion

I - Admissibility

24 . ( a ) The Council has expressed a number of reservations with regard to the admissibility of the application . It argues that as the Commission does not object to the substance of the regulations at issue but only to the procedure whereby they were adopted and to the legal basis cited, no real legal dispute is involved . What the Commission is in fact seeking is an opinion on the interpretation of Article 113 of the EEC Treaty, which cannot be sought in this way . Furthermore, the applicant lacks an interest in bringing the action, since even if the two regulations were to be declared void the defendant could again proceed to adopt in the correct way provisions with the same content .

25 . The Commission for its part argues that in adopting the contested regulations the defendant diverged from the substance of the Commission' s proposals as well . Moreover, there is no requirement for Community institutions, any more than Member States, to show that they have a special legal interest or the capacity to bring proceedings in the case of an action for a declaration of nullity .

26 . ( b ) The first paragraph of Article 173 of the EEC Treaty, which governs the Court' s jurisdiction to review the legality of acts of the Council and the Commission, in fact contains nothing to suggest that the Member States or the Council or the Commission must prove that they have a special legal interest when bringing proceedings . According to the wording of Article 173, under the second paragraph of which natural or legal persons must show legal interest, the privileged applicants referred to in the first paragraph cannot therefore be required to prove that they have a legal interest .

27 . The Court has confirmed this with regard to Article 33 of the ECSC Treaty, which is similar to Article 173 of the EEC Treaty, in its judgment of 12 February 1983 in Case 230/81 . ( 6 ) The Court stated as follows in its judgment :

28 . "In contrast to the provisions giving undertakings and associations legal remedies such as the second paragraph of Article 33 of the ECSC Treaty, the exercise of the right of action by a Member State or the High Authority is not subject to any additional condition involving proof of an interest or capacity to bring proceedings ."

29 . I have no hesitation in extending that finding to the EEC Treaty, not only because Case 230/81 was concerned with an application relating to the legal relations between a Member State and the European Parliament on the basis of the three Community Treaties, but also on the following grounds .

30 . Article 155 of the EEC Treaty gives the Commission the task, inter alia, of ensuring that the provisions of that Treaty and the measures taken by the institutions pursuant thereto are applied . In order to fulfil that duty the Commission must at least have access to all means provided for in the EEC Treaty with a view to ensuring compliance with the law, and in particular the right of action provided for in Article 173 of the EEC Treaty . Precisely because of the duty placed upon the Commission by Article 155 of the EEC Treaty, the Commission' s right of action cannot be interpreted restrictively in a manner going beyond the wording of Article 173 and the Commission cannot be required to show a special interest or capacity to bring proceedings .

31 . Moreover, a restrictive interpretation of Article 173 of the EEC Treaty is not consonant with the Court' s case-law, according to which the Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the Treaty . ( 7 ) Since from that, and from the further finding that the general scheme of the Treaty makes a direct action available against all measures adopted by the institutions which are intended to have legal effects, the Court has gone as far as to draw the conclusion that actions will lie even against institutions not named in Article 173 of the EEC Treaty, ( 8 ) an application lodged by the Commission seeking merely the review of the formal validity of an act of the Council must also be admissible .

32 . It must also be observed that if, nevertheless, the requirement of a legal interest in the action were assumed, it would not be possible seriously to deny the Commission' s interest in the action . As a result of the differing procedural rules laid down in Article 113 - Council to act by a qualified majority - and Article 235 - unanimity - the Commission has a different weight in the legislative process under the two provisions . In the procedure under Article 235 the Commission must submit a proposal to the Council which must meet with the agreement of all the Member States ( at the material time 10, but now 12 ) if it is to become law . In the procedure under Article 113 it is sufficient if the Commission' s proposal receives the assent of a qualified majority, that is to say, not necessarily of all the Member States . The Commission' s room for manoeuvre in order to gain acceptance for its own ideas based on its view of what is good for the Community is therefore greater under Article 113 and hence its role in the legislative process is also greater, especially when it is considered that the Commission can alter its proposals for legislation at any time, adapting them in the light of the development of discussions in the Council; accordingly, it can shape them into a version which will be acceptable to a qualified majority of Council members .

33 . Since the question whether Article 113 or Article 235 of the EEC Treaty was the proper legal basis for the contested regulations consequently also affects the exercise of the Commission' s powers, its interest in the action cannot be disputed .

34 . For that reason, it is also not possible to accept the Council' s argument that there is in fact no real dispute . Although the Commission has not also attacked the contested regulations on substantive grounds, the proceedings still seek to establish the respective roles and powers of the various Community institutions in connection with the adoption of regulations over whose substantive organization differences of opinion arose . This basically sets this application apart from the situation underlying the judgment of 11 March 1980 in Case 104/79 and that of 16 December 1981 in Case 244/80 . ( 9 ) Here there is a genuine dispute and it is not possible to speak of an "expedient" of an "artificial nature ". It is not a question of delivering an advisory opinion on general or hypothetical questions but of determining the actual powers of two Community institutions in the legislative process .

35 . Comparison with the legal systems of the Member States which have constitutional courts confirms that conflicts of competence between institutions are legal disputes . Proceedings before constitutional courts concerning the extent of the rights and duties of State institutions - although in somewhat different forms - are met with in the legal orders of the Federal Republic of Germany, Spain, France and Italy . Such conflicts are thus not regarded as being merely political but also as legal disputes .

36 . Lastly, there remains to be considered an aspect which emerged in the oral procedure . The question was raised as to what effect a judgment of the Court annulling the contested measures would have . It has been submitted that as regards the past there would be no effects since the Commission itself has claimed under the second paragraph of Article 174 that when the regulations are declared void, they should continue to apply until substitute regulations are adopted; there can also be no effect as regards the future since the regulations were intended to be valid only until 31 December 1986 and therefore have in the meantime ceased to apply .

37 . It cannot be concluded that the application is inadmissible merely on the basis of the Commission' s claim that the substantive effects of the contested regulations should be allowed to continue to apply, since it is certainly not within the applicant' s power to decide how the second paragraph of Article 174 is to be applied by the Court . It is therefore still a completely open question how the Court will decide and also whether the judgment of the Court will have retroactive effect .

38 . Two remarks are called for as regards the future effect of any judgment : in the first place, it is plain that the applicant is seeking to have declared void regulations which have already expired; but, in the second place, the Community' s rules with regard to the powers of the institutions are also at issue . Since the EEC Treaty does not provide for a special procedure for settling jurisdictional conflicts between Community institutions, such disputes have to be decided in the context of actions for annulment or for failure to act, even where jurisdictional conflicts arise in connection with measures which are valid for a limited time only, for whether it is possible to resolve a jurisdictional conflict must not depend on the duration of the proceedings before the Court .

39 . Moreover, in May 1986 the Commission stated that it would forgo its right to submit a reply in order to speed up the proceedings, and asked that the case be given priority pursuant to Article 55 of the Rules of Procedure . That the President of the Court refused that request cannot be held against the applicant .

40 . Consequently, it is permissible for a regulation which has already expired to be subsequently declared void . Substantively, there is little difference between declaring an expired regulation void and annulling an individual decision which has already been implemented . In any event, in its judgment of 24 June 1986 in Case 53/85 ( 10 ) the Court held an application for the annulment of a decision which had already been implemented to be admissible . The Court pointed out that the annulment of such a decision is of itself capable of having legal consequences, in particular by preventing a future repetition by the defendant of the practice complained of .

41 . Indeed, it is the preventive effect - that is to say the effects of a possible judgment of the Court on the annually recurring legislative procedure - that the applicant is seeking in these proceedings .

42 . The application is therefore admissible .

II - Substance

43 . In support of its action the Commission raises two submissions, which, however, cannot be clearly separated from one another substantively : infringement of an essential procedural requirement, namely the duty under Article 190 of the Treaty to state reasons, and infringement of the EEC Treaty itself, since the Council took as its basis not Article 113 alone, but at least in part Article 235 of the EEC Treaty .

44 . In other words, the Commission accuses the Council of failing, in any event, to state and refer to the correct legal basis for the contested regulations and, at the same time, of having taken its decision in accordance with the substantively inappropriate and more onerous procedure - of a unanimous vote - under Article 235 of the Treaty .

45 . I shall first examine on which provisions of the EEC Treaty the contested regulations could have been based before considering whether the fact that the Council did not state the precise legal basis in the preambles to the two regulations is also to be regarded as unlawful .

III - The legal basis

46 . For the purpose of ascertaining on which legal basis the contested regulations could have been adopted it is appropriate once again to outline the principal areas covered by those regulations, to wit tariff reductions, tariff suspensions, the granting of tariff quotas and tariff ceilings, the reintroduction of customs duties once a ceiling is reached or economic difficulties arise in the Community, and the distribution and administration of Community tariff quotas and ceilings . In each case there is provision for differentiation according to the level of development of the beneficiary exporting countries and according to the various products, and both the development of imports from developing countries and the absorption capacity of the Community market are taken into account .

47 . The regulations could conceivably be based on the following provisions of the EEC Treaty : Articles 28, 113 and 235 . It must be borne in mind in that regard that recourse can be made to Article 235 only when no other provision of the EEC Treaty is appropriate .

Article 28 of the EEC Treaty

48 . Article 28 of the EEC Treaty provides that any autonomous alteration or suspension of duties in the Common Customs Tariff is to be decided unanimously by the Council .

49 . According to its wording, Article 28 certainly covers the reduction or suspension of customs duties and the granting of quotas and ceilings . However, the question whether Article 28 can be used as the basis for the contested regulations can be left undecided, since there is no need to consider it definitively given that both parties agree that Article 28 was not relied on in connection with the adoption of the contested regulations .

50 . In addition, the Commission, without being challenged by the Council, stated, in distinguishing Article 28 from Article 113 of the EEC Treaty, which is also concerned with the alteration of customs duties but entails a different, less onerous procedure, that only a restrictive interpretation of Article 28 would be compatible with international trade practice . It maintains that Article 28 is applicable only where customs duties are changed for reasons which are purely internal to the Community and are unconnected with commercial policy, such as, for instance, where the need for particular products cannot be supplied from within the Community .

Article 113 of the EEC Treaty

51 . Article 113 ( 1 ) of the EEC Treaty reads as follows :

"After the transitional period has ended, the common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalization, export policy and measures to protect trade such as those to be taken in case of dumping or subsidies ."

52 . Article 113 ( 4 ) provides that, in exercising the powers conferred upon it by Article 113, the Council is to act by a qualified majority .

53 . ( a ) There is no disputing that the granting of tariff preferences is covered by the expression "changes in tariff rates ". The only aspect in dispute between the parties is whether changes in tariff rates cease to fall within the area of the common commercial policy where the tariff changes are intended to achieve additional objectives, for instance in the field of development policy .

54 . That is the view taken by the Council, which maintains that the scope of Article 113 is limited to such action, whether autonomous or resulting from agreement, which has the aim of altering the volume or pattern of trade . In all other cases in which this aim is not pursued or is pursued only in addition to one or more other aims, Article 113 is not applicable .

55 . The Commission disagrees, arguing that any measure which is objectively appropriate for promoting the regulation of international trade, irrespective of any other aims it may have as well, falls within the area of the common commercial policy .

56 . ( b ) In actually considering whether the contested regulations can be based on Article 113 I shall not spend overmuch time in considering the theories developed by the two parties .

57 . According to the subjective approach put forward by the Council, commercial policy covers any measure which aims - exclusively and not only in conjunction with one or more other aims - to influence and, at the same time, to alter the volume or flow of trade ( subjective or purposive approach ).

58 . In contrast, the Commission considers that a trade-policy measure is involved whenever trade is objectively influenced ( objective/instrumental approach ).

59 . The parties have already expounded those two approaches at length in their observations in Opinion 1/78 . ( 11 ) It is not my intention to embark on a discussion of the different views, which would not be appropriate here . As the parties conceded in the oral proceedings, they deploy the different theories according to where their interests lie . Thus the plaintiff adopted an "objective/instrumental" approach in interpreting Article 113 so as to support its arguments but a "subjective/purposive" argument in order to differentiate Article 113 and Article 28 of the EEC Treaty . Conversely, the defendant uses a "subjective/purposive" approach in order to support its view of the interpretation of Article 113 but had to employ the "objective/instrumental" approach when adopting trade sanctions . ( 12 )

60 . In the first place, although it is true that the EEC Treaty itself does not specify what is meant by "commercial policy", a definition of the expression has evolved from the judgments and opinions of the Court . As long ago as its judgments of 12 July 1973 in Case 8/73 ( 13 ) and 15 December 1976 in Case 41/76 ( 14 ) the Court held that powers had been conferred on the Community thoroughly to control external trade by measures taken both independently and by agreement . Furthermore, the Court stated in Opinion 1/75 of 11 November 1975 ( 15 that the concept of commercial policy has the same content whether it is applied in the context of the international action of a State or to that of the Community .

61 . However, the result has not been to freeze the concept of commercial policy, for instance, in the meaning which it may have had when the European Economic Community was founded . The Court recognized that in Opinion 1/78 of 4 October 1979 when it stated that Article 113 of the EEC Treaty must not be interpreted in such a way as to restrict the common commercial policy to the use of instruments intended to have an effect only on the traditional aspects of external trade . A "commercial policy" understood in that sense would be destined to become nugatory in the course of time . ( 16 )

62 . That being established, it is difficult to hold that subjective factors alone should be regarded as the decisive criteria, as the Council proposes in requiring exclusively commercial-policy objectives as the sole condition for the applicability of Article 113 . Both autonomous commercial-policy measures and trade agreements are consistently used to serve the ends of other policies . Commercial-policy measures such as trade agreements or even trade embargoes are frequently determined by the interests of the common external policy, including also security interests . There is therefore no apparent reason why an exception should be made in the very case of commercial-policy measures which also serve development-policy ends .

63 . It should be pointed out in this connection that as long ago as 1979 in Opinion 1/78, which has already been cited, the Court stated that, following the impulse given by Unctad it would no longer be possible to carry on any worthwhile common commercial policy if the Community were not in a position to avail itself also of more elaborate means devised with a view to furthering the development of international trade . The Court thereby confirmed that the concept of trade policy may evolve and can be interpreted in the light of international trade practice . This allows the principles of a "new world economic order" advocated by many of the developing countries to percolate into the sphere of the Community' s commercial policy .

64 . Those principles and objectives certainly also include the establishment of Unctad by Resolution 1995 ( XIX ) of the General Assembly of the United Nations of 30 December 1964, one of whose aims is defined as follows : "To promote international trade, especially with a view to accelerating economic development, particularly trade between countries at different stages of development, between developing countries and between countries with different systems of economic and social organization ". It is clear from that instrument that trade with developing countries is regarded as a part of "international trade ". Similar expressions, namely "world trade" and "international trade", are also to be found in one of the provisions of the EEC Treaty dealing with commercial policy, namely the first paragraph of Article 110 .

65 . It follows from the foregoing that trade arrangements with developing countries may still fall under Article 113 of the EEC Treaty where they are justified, inter alia, on development-policy grounds .

66 . Consequently, the possibility that development-policy objectives underlay the contested regulations cannot be regarded as precluding the use of Article 113 of the EEC Treaty as their legal basis .

67 . However, yet another consideration must be taken into account . Analysis of the contested regulations reveals that it was by no means exclusively development-policy grounds that led to their being adopted in their present form . In the actual preambles thereto it is stated that in particular the Community markets' absorption possibilities for certain products were taken into account . Moreover, the Commission has stated, without being contradicted by the Council, that the "sensitivity" of certain products as far as the Community market was concerned was also a factor in determining the precise extent of the tariff preferences .

68 . Finally, a very general observation : while it is possible that through the introduction of general tariff preferences in respect of certain products from certain developing countries those States were for a time granted a unilateral advantage, that advantage also served the trading interests of the Community . As a result of the trading advantages derived by the countries concerned from the system of preferences, those countries were put in a position to earn the necessary foreign exchange in order to re-emerge on the world market as purchasers . Since in all probability the beneficiary countries' demand also extends to goods and services from the Community - which accounts for the largest share of world trade ( 17 ) - the system of preferences also indirectly assists exports from the Community and hence also the Community' s classic trade relations .

69 . In sum, it must therefore be held that such a close connection exists between the system of generalized preferences and even classic commercial policy that it does not appear appropriate to exclude that system from the scope of Article 113 of the EEC Treaty contrary to the wording of that article .

70 . To conclude my analysis of Article 113 I would further point out that the concept of the "new world economic order" which was postulated at Unctad and has since been accepted also by the GATT, despite the abandonment of the most-favoured-nation clause, is in reality by no means such a new concept .

71 . The preamble to the EEC Treaty itself refers to the solidarity which binds Europe and the overseas countries and expresses the desire to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations . Those ideas took concrete shape in Part Four of the EEC Treaty headed "Association of the overseas countries and territories ".

72 . I do not overlook the fact that Part Four of the EEC Treaty is not relevant to the present proceedings and has since lost much of its importance owing to the grant of independence to most of the countries concerned . Despite that, I would refer to that part of the EEC Treaty because it implicitly recognizes the close connection between the promotion of the economic and social development of those countries and the creation of close economic relationships between them and the Community as a whole . In particular, Article 133 of the EEC Treaty also refers to the abolition of customs duties not necessarily on the basis of reciprocity, and therefore to tariff preferences .

73 . The fact, then, that the EEC Treaty itself contemplated and even enshrined the link between trade and development strengthens the finding that, in the commercial-policy context, measures whose implementation is provided for in Article 113 must be covered by that article even if at the same time they serve development-policy objectives . Consequently, the view put forward herein with regard to the interpretation of Article 113 largely corresponds to the "objective/instrumental" approach put forward by the Commission, which should be limited by the "subjective/purposive" approach only in the event of a manifest misuse of powers (" détournement de pouvoir "). But of that there is no evidence in this case .

Article 235 of the EEC Treaty

74 . Article 235 of the EEC Treaty reads as follows :

"If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures ."

75 . It is clear from the very wording of Article 235 of the EEC Treaty that the system of generalized tariff preferences cannot be based on that provision since it presupposes that the necessary powers are not provided for in the Treaty . Since tariff preferences can be based on Article 113, Article 235 is therefore not applicable .

76 . It therefore remains to be considered, only on a subsidiary basis in case the Court should not share my opinion with regard to Article 113, whether Article 235 could be used at all as the legal basis for the introduction of the generalized tariff preferences .

77 . In order for Article 235 to apply, assistance of developing countries would have to be acknowledged as an objective of the Treaty . It is possible to invoke for that purpose the seventh recital in the preamble and Article 3 ( k ), if they are given a wide interpretation going beyond their wording and covering not only the overseas countries and territories formerly dependent on certain Member States but all developing countries, including those which were never in any way dependent on any of the Member States . That would be an instance of an extensive interpretation of the Treaty .

78 . A further condition is that the necessary powers must not be provided for in the Treaty . In order for that to be so, Article 113 would have to be interpreted as not covering the whole of international trade or, in any event, not trade with developing countries on the basis of tariff preferences in the area with which we are concerned in this case . That would be an instance of a restrictive interpretation of the Treaty . I have grave doubts whether such a method of interpretation - extensive interpretation of the objectives and hence of the jurisdiction of the Community and restrictive interpretation of its means of action and thus hindering those means - can be reconciled with the system of the Community treaties, which are designed to attain limited objectives using effective means . In any case, this would be to achieve in an exceptionally complicated manner an aim which could be achieved much more simply by means of an appropriate interpretation of Article 113 in accordance with the past decisions of the Court .

79 . In any event, in the final analysis Article 235 of the EEC Treaty does not seem to me to afford a certain legal basis for the adoption of the contested regulations . All that reference to Article 235 entails is that the Council has to decide by a unanimous vote, in other words a more ponderous procedure, and one which by no means affords any additional legal certainty .

80 . In that respect the present proceedings differ from Case 8/73, where the Court stated in its judgment of 12 July 1973 that recourse to the Article 235 procedure was justified in the interests of legal certainty . ( 18 ) One of the questions considered in that judgment was whether Regulation ( EEC ) No 803/68 of the Council of 27 June 1968 on the valuation of goods for customs purposes ( 19 ) could be validly based on Article 235 of the EEC Treaty . The Court stated that the proper functioning of the customs union justifies a wide interpretation of Articles 9, 27, 28, 111 and 113 of the Treaty and of the powers which these provisions confer on the institutions to allow them thoroughly to control external trade inter alia by means of unilateral measures; nevertheless the Council, as has already been mentioned, was entitled to consider that recourse to the Article 235 procedure was justified in the interests of legal certainty, especially since the regulation in question was adopted during the transitional period whereas the common commercial policy was not due to be adopted on the basis of uniform principles until after the transitional period had ended, that is to say after 31 December 1969 . ( 20 )

81 . It is precisely the last-mentioned factor that affords the actual explanation for that part of the decision, since the regulation on the value of goods for customs purposes was adopted at a time when the Common Customs Tariff was not yet in existence, the transitional period was still in progress and, inter alia, Article 113 of the EEC Treaty was not yet applicable, but the other provisions did not authorize the Community to adopt the relevant rules in the form of a regulation . It was for that reason that recourse to Article 235 was necessary . Furthermore, it should be pointed out that the successor to the 1968 regulation, ( 21 ) which replaced it after the expiry of the transitional period, was indeed based on Article 113 of the EEC Treaty .

Infringement of an essential procedural requirement - Breach of Article 190 of the EEC Treaty

82 . From the foregoing it is clear that although the Council did not mention any specific legal basis in the preambles to the contested regulations, it was Articles 113 and 235 of the EEC Treaty that it had in mind at the time . It therefore adopted the regulations by a unanimous vote in accordance with Article 235 of the EEC Treaty and, since it had departed from the Commission' s proposals, also pursuant to Article 149 of the EEC Treaty .

83 . The blanket reference to the whole of the EEC Treaty could constitute an infringement of Article 190 of the EEC Treaty, according to which regulations of the Council are to state the reasons on which they are based, and also possibly an infringement of an essential procedural requirement .

84 . According to the case-law of the Court, Article 190 of the EEC Treaty requires measures to state the reasons which led the institution to adopt them "so as to make possible a review by the Court and so that the Member States and the nationals concerned may have knowledge of the conditions under which the Community institutions have applied the Treaty ". ( 22 )

85 . However, the extent of the duty to state reasons prescribed in Article 190 depends on the nature of the measure in question . With regard to measures having general application the requirements of Article 190 are satisfied if the statement of reasons explains in essence the measures laid down . ( 23 )

86 . Although it is not expressly mentioned in the case-law, the conclusion must be drawn from the fact that the Court checks the legal basis stated in each case that it must be possible to ascertain from the preamble to a regulation at least the legal basis on which it rests . In that regard the two parties' positions are in fact not very far apart : whereas the Commission argues that the legal basis must be explicitly stated, the Council contends that it is sufficient if the legal basis was implicitly indicated, if not by means of reference to a specific article .

87 . It must further be pointed out that Article 11 of the Council' s Rules of Procedure provides that Council regulations are to contain a reference to the provisions under which the regulation is adopted . ( 24 )

88 . Having regard to the Court' s judgment of 5 May 1981 in Case 112/80, ( 25 ) I consider that the duty to state reasons is fulfilled if the legal basis is at least identifiable from the preamble to a regulation .

89 . However, the preambles to the two contested regulations do not fulfil those requirements . It is true that they show very clearly what the generalized tariff preferences are intended to achieve and how that system is to be administered . However, they are silent about the very question at issue in these proceedings, namely the legal basis . In that connection it should be observed that the legal basis must be apparent from the wording of the preamble itself and it is not enough for it to be known only to the Community institutions involved in the legislative process . Finally, as the Court has held, any Community national concerned must be able to ascertain how the Community institutions have applied the Treaty . But individual citizens are not privy to the proceedings of the Council of Ministers, since they are not public and the minutes are not generally accessible .

90 . Does this defect in the statement of reasons of the two regulations suffice to render them void on account of the infringement of an essential procedural requirement even though the Commission has not contested their substance and they could be re-adopted by the Council, in due form, with the same content?

91 . In principle, an infringement of the duty to state reasons causes the whole measure to be defective : it is a ground for annulment under the first paragraph of Article 173 of the EEC Treaty for infringement of an essential procedural requirement . However, in my view "infringement of an essential procedural requirement" cannot be understood as meaning that any inaccuracy or incompleteness constitutes a failure to state reasons which will result in the nullity of the whole measure . The Council' s statement in the oral proceedings that it was prepared to acknowledge that it had infringed a procedural requirement but not an essential procedural requirement is probably to be construed in that sense .

92 . I suggest that in a case like the present one, in which the substance of the measure has not been contested and the statement of reasons - apart from the indication of the correct legal basis - is otherwise sufficient, the following distinctions should be drawn .

93 . If a reference to the proper legal basis is absent and that flaw might affect the adoption of the decision, that constitutes an infringement of an essential procedural requirement . That will be the case in particular if, as a result of citation of the wrong provision or of failure to cite the correct provision, a procedure for adopting a measure is applied other than that prescribed by the Treaty, for it is precisely for the application of the correct decision-making procedure that it is necessary to refer to the correct legal basis .

94 . As has already been observed in paragraph 32, it is very important for the course of discussions in the Council whether a measure may be adopted by unanimous decision or by a qualified majority . In that connection to proceed in accordance with the rules of Article 113 obviously does not signify that unanimity is precluded, simply that no single Member State can prevent the decision from being adopted .

95 . The Commission stated that its views regarding the substance of the contested regulations differed from those of the Council . If the correct form of decision had been chosen the Commission would have had a greater chance of having those ideas prevail . As a result, the form of the decision had a decisive influence on its content . Accordingly, the Council had infringed an essential procedural requirement as well as the EEC Treaty .

96 . Admittedly, the reference to Article 235 of the EEC Treaty was not the only reason for which the Council took its decision by a unanimous vote . In addition, it had departed from the Commission' s proposals for regulations, not only as regards the legal basis, but also with regard to the substance, and hence, by virtue of the first paragraph of Article 149 of the EEC Treaty, could take its decision only by a unanimous vote . However, if Article 113 had been chosen as the legal basis the Commission would have been able to frame its proposals for regulations in a way which would have been acceptable to a qualified majority of the Council . And, in that event, there would have been no reason to take the decision under the first paragraph of Article 149 of the Treaty .

97 . Hence, since it cannot be ruled out that the contested regulations might finally have been substantively different if the correct legal basis had been cited and used, the insufficiently precise citation of the legal basis and the incorrect reference to Article 235 of the EEC Treaty in connection with the adoption of the regulations must be regarded as an infringement of an essential procedural requirement and, at the same time, as a substantive infringement of the EEC Treaty .

IV - The application for an order that the regulations should continue to apply in substance

98 . Since it is not in dispute between the parties that the substantive content of the contested regulations should not be called into question, and since the principle of legal certainty requires that the effects of regulations should not be called into question, in particular in the interests of traders and of the beneficiary developing countries, I propose that the Court should declare, pursuant to the second paragraph of Article 174 of the EEC Treaty, that the contested regulations should continue to apply in substance until such time as the competent institutions have taken the measures resulting from the judgment in this case .

99 . In the oral proceedings there was some discussion as to whether the second paragraph of Article 174 was restricted to individual legal effects . It should be observed that the second paragraph of Article 174 contains nothing to prevent the Court from preserving any effects which it considers to be necessary; in other words, if the Court considers it necessary that all the effects of the measure which has been declared void should continue, it has the necessary powers to achieve that under the second paragraph of Article 174 and there is nothing to prevent it from so doing, as is clear from the Court' s case-law, in particular the judgment of 5 June 1973 in Case 81/72 and the judgment of 20 March 1985 in Case 264/82 . ( 26 )

C - Conclusion

100 . In the light of all of the foregoing I suggest that the Court should uphold the application and order the defendant to pay the costs .

(*) Translated from the German .

( 1 ) Official Journal L 352 of 30 December 1985, p . 1 .

( 2 ) Official Journal L 352 of 30 December 1985, p . 107 .

( 3 ) Official Journal L 352 of 30 December 1985, p . 192 .

( 4 ) "Aid can be no substitute for trade ".

( 5 ) Regulations Nos 1308/71 to 1314/71, Journal Officiel L 142 of 21 June 1971, p . 1 et seq .

( 6 ) Judgment of the Court of 10 February 1983 in Case 230/81 Grand Duchy of Luxembourg v European Parliament (( 1983 )) ECR 255 at p . 284 .

( 7 ) See the judgment of 23 April 1986 in Case 294/83 Parti écologiste "Les Verts" v European Parliament (( 1986 )) ECR 1339, paragraph 23 .

( 8 ) Judgment of 23 April 1986, loc . cit ., paragraph 24; judgment of 31 March 1971 in Case 22/70 Commission v Council (( 1971 )) ECR 263 at p . 277 .

( 9 ) Judgment of 11 March 1980 in Case 104/79 Foglia v Novello (( 1980 )) ECR 745; judgment of 16 November 1981 in Case 244/80 Foglia v Novello (( 1981 )) ECR 3045 .

( 10 ) Judgment of the Court of 24 June 1986 in Case 53/85 AKZO Chemie BV v Commission (( 1986 )) ECR 1965 at p . 1990, paragraph 21 .

( 11 ) Opinion of the Court of 4 October 1979 given pursuant to the second subparagraph of Article 228 ( 1 ) of the EEC Treaty (( 1979 )) ECR 2871 .

( 12 ) See Council Regulation ( EEC ) No 596/82 of 15 March 1982 amending the import arrangements for certain products originating in the USSR, Official Journal 1982, L 72, p . 15; Council Regulation ( EEC ) No 877/82 of 16 April 1982 suspending imports of all products originating in Argentina, Official Journal 1972, L 102, p . 1 .

( 13 ) Judgment of the Court of 12 July 1973 in Case 8/73 Hauptzollamt Bremerhaven v Massey-Ferguson GmbH (( 1973 )) ECR 897 .

( 14 ) Judgment of 15 December 1976 in Case 41/76 Criel ( née Donckerwolcke ) and Henri Schou v Procureur de la République (( 1976 )) ECR 1921 .

( 15 ) Opinion of the Court given pursuant to Article 228 of the EEC Treaty of 11 November 1975 (( 1975 )) ECR 1355 .

( 16 ) Loc . cit . paragraphs 43 and 44 .

( 17 ) See Eurostat, Basic statistics of the Community, 23rd edition, p . 35 .

( 18 ) Loc . cit ., paragraph 4 at p . 908 .

( 19 ) Official Journal, English Special Edition, 1968 ( I ), p . 170 .

( 20 ) Article 113 ( 1 ) of the EEC Treaty .

( 21 ) Council Regulation ( EEC ) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes, Official Journal L 134 of 31 May 1980, p . 1 .

( 22 ) Judgment in Case 158/80 Rewe-Handelsgesellschaft Nord mbH and Others v Hauptzollamt Kiel (( 1981 )) ECR 1805, paragraph 25 at p . 1833 .

( 23 ) Judgment of 29 February 1984 in Case 37/83 Rewe-Zentrale AG v Landwirtschaftskammer Rheinland (( 1984 )) ECR 1229 .

( 24 ) Official Journal L 268 of 25 October 1979, p . 1 .

( 25 ) Judgment of 5 May 1981 in Case 112/80 Firma Anton Duerbeck v Hauptzollamt Frankfurt am Main-Flughafen (( 1981 )) ECR 1095, at p . 1113 .

( 26 ) Judgment of 5 June 1973 in Case 81/72 Commission v Council (( 1973 )) ECR 575; judgment of 20 March 1985 in Case 264/82 Timex and Others v Council and Commission (( 1985 )) ECR 851 .