(1)

In its case-law this Court recognizes that the authority entrusted with administering protective measures has a wide discretion. Thus, in its judgment of 7 February 1973 in Case 40/72 (Schroeder v Federal Republic of Germany, [1973] ECR 125) on the application in 1971 of protective measures with regard to imports of tomato concentrates from Greece, the Court stated at paragraph 14 of the decision (at p. 142) that: “Since in the present case it is a question of complex economic measures, which for the purpose of their efficacy necessarily require a wide discretion and moreover as regards their effects frequently present an uncertainty factor, the observation suffices that these measures do not appear on issue as obviously inappropriate for the realization of the desired object”. So far as the onus of proof is concerned, it follows that it is for Wünsche to draw attention to circumstances which would make it possible to conclude that the Commission clearly exceeded its discretion. Furthermore, it is clear that the application of protective measures cannot, as the Commission alleges, be initiated when only one of the relevant criteria is fulfilled. However, in view of the extent of the Commission's discretion, I do not consider it necessary for each of the four criteria clearly to be complied with. It is also necessary to take into account the fact that the German market in trade in preserved mushrooms within the Community is virtually identical to the Community market, of which it represents more than 95%. The relevant rules clearly earn the stamp of that state of affairs, and in particular the conflicts of interest between the German traders, who favour imports from the Far East, and French and Dutch producers, who seek to defend their share of the German market. Finally, in my opinion, it is impossible to make a valid assessment of the validity of Regulation Nos 1412 and 2284/76 and, through it, of the legitimacy of the Commission's attitude, without knowledge of circumstances which led to the adoption of the protective measures in 1974 and which, in the Commission's opinion, justified their maintenance until the beginning of 1977. Regulation No 2107/74 of August 1974 was adopted in order to combat massive imports at low prices of preserved mushrooms from the Far East which led to a serious crisis in Community production characterized by a collapse in its prices and a massive rise in its stocks. No one denies that the situation on the market in 1974 justified protective measures in order to avoid the disappearance of the Community industry. In the second half of 1976 those measures were still in force, but with more flexible detailed provisions, since the percentages of the reference quantity laid down in Article 3 of Regulation No 2107/74 rose from 55% in the second quarter (Regulation No 661/76 of 25 March 1976) to 70% in the third and 100% in the fourth quarter. Lastly, it should be pointed out that in relation to such complex economic measures it is impossible to carry out an exhaustive analysis of the conditions on the market in the framework of judicial proceedings. It will be sufficient to determine whether the error alleged to have been committed by the Commission was of a manifest nature.