1.

Powers of the Council on the basis of Title II of Part Two of the EEC Treaty First, the plaintiff in the main action disputes the validity of Regulation No 22 by referring to Article 38 (2) of the EEC Treaty according to which ‘Save as otherwise provided in Articles 39 to 46, the rules laid down for the establishment of the Common Market shall apply to agricultural products’. It follows that the provisions of Article 18 et seq. concerning the establishment of a Common Customs Tariff also apply to agricultural products. Derogations from general rules must foe expressly laid down. This is not the case with regard to the system of levies of Regulation No 22 established by the Council. Particular reference cannot be made to Article 43 of the Treaty because it only contains procedural rules for establishing the common agricultural policy. Similarly Article 40, which defines the scope of the Council's powers, does not allow any of the derogations laid down in Regulation No 22 as the levies cannot be regarded as ‘regulation of prices’ or ‘carry-over arrangements’ within the meaning of Article 40 (3). Those grounds impel me to make the following remarks, which accord with the views of the Commission, of the Council and of the Federal Minister of Finance (to the extent to which his opinion is known to me through the order referring the matter). It is certainly true that in principle the provisions relating to the establishment of the Common Market and therefore those relating to the common external tariff also apply to agricultural products, as Article 38 clearly shows. Nevertheless, the basis of the plaintiff's arguments may be criticized to the extent to which it requires derogations from general rules to be expressly laid down in Articles 39 to 46. As the Commission rightly emphasizes by referring to the decision in Joined Cases 90 and 91/63, less rigorous conditions are sufficient here or in other words, it is sufficient that the derogations from the general rules may be deduced clearly and unequivocally from the provisions in question. This is so, for example, when derogations from the general rules of the Treaty necessarily follow from the nature of the organization of the agricultural market on which the content of the articles in question partially turns. Consequently, we have only to consider whether this holds good for the system of levies in dispute, that is to say, whether it emerges in any fashion from the provisions of Tide II concerning agriculture that the establishment of this system was legal. First of all, it is interesting to find that other passages of the Treaty also contain definite indications in support of the idea that the customs provisions provided for in Article 18 et seq. could in fact fee established by the measures referring to the setting up of the common agricultural policy. The Commission showed this when it referred to footnote 1 concerning heading 07.01 in List F of Annex I to the Treaty: ‘The rate is normally fixed at the level of the arithmetical average. This may be adjusted, as necessary, by fixing seasonal rates within the framework of the agricultural policy of the Community’. It further clarifies this idea by referring to footnote 2 (b) concerning tariff headings 10.07 and ex 11.01 also in List F of Annex I to the Treaty: ‘Until the treatment to be applied within the framework of the measures provided for in Article 40 (2) has been determined, Member States may, by way of derogation from Article 23, suspend the collection of duties on these products’. However I shall not dwell further on this point; I shall instead consider the conclusions which may be drawn from the provisions of Articles 40 and 43 with which we are particularly concerned here. Whatever may be said of Article 43 it is undoubtedly incorrect to describe it as a purely procedural provision. This clearly contradicts paragraph (2) thereof, whereby the Commission is to submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organizations by one of the forms of common organization provided for in Article 40 (2), and for implementing the measures specified in this Title. Since we are concerned with the content of the common agricultural policy, reference must therefore also be made to Article 43. Article 40, to which Article 43 refers, is, it is true, much more helpful in solving our problems. It states that in order to attain the objectives set out in Article 39 (that is to say, the objectives of the common agricultural policy) a common organization of agricultural markets is to be established. This organization may also take the form of a European market organization which (see Article 40 (3)) may include all measures required to attain the objectives set out in Article 39, in particular regulation of prices and common machinery for stabilizing imports or exports. In accordance with a proper interpretation of those terms there can be no difficulty, in my opinion, in describing the system of levies as ‘common machinery for stabilizing imports’: its objective is in effect to offset the differences in price in relation to the world market, that is to say, to keep import prices at a stable level and therefore have the effect of stabilizing the market, which is one of the objectives of the common agricultural policy prescribed in Article 39 (1) (c). Furthermore, it appears equally defensible to consider the levy as a means of regulating prices in accordance with Article 40 (3), whose objective is to guarantee a minimum price to producers. For this purpose the levy must also be immediately and fully — not gradually — effective and must be variable, that is to say, that the authority entrusted with its application must be able to fix its amount in each case in terms of the position of prices on the market in order to assure complete compensation. Consequently the interpretation ox the provisions which have just been considered already allows me to conclude that a system of levies within the framework of Title II concerning agriculture is in principle lawful. This finding is confirmed by other considerations. Thus it is necessary to take as the point of departure the idea that in replacing the national market organizations, provided for in Article 40, the duties of those organizations must be carried out within the framework of the common organization. This means that the common organization of the markets may also prescribe the regulation of prices, having regard to the faot that this mode of procedure was always an integral part of the national market organizations, even though this was perhaps not the case in the Federal Republic. Finally, in view of the fact that under Article 43 (3) a common organization of the markets which is substituted for national organizations must ensure conditions for trade within the community similar to those existing in a national market, it must be admitted that uniform regulation of imports, that is to say, a uniform system of levies, is indispensable. Without the necessity for a detailed examination of the argument raised in the course of the oral procedure on the subject of GATT, I am in short able to agree with this first finding: it is impossible to base on Article 38 of the Treaty any argument adversely affecting the validity of the system of levies provided for in Regulation No 22; on the contrary this derogation from the provisions of Article 18 et seq., is justified on the basis of Articles 39, 40 and 43 of the Treaty.