Judgment of the Court of 8 April 1976. - Kaufhof AG v Commission of the European Communities. - Case 29-75.



European Court reports 1976 Page 00431

Greek special edition Page 00173

Portuguese special edition Page 00189



Summary

Parties

Subject of the case

Grounds

Operative part



Keywords

COMMERCIAL POLICY - DEROGATIONS WITHIN THE MEANING OF ARTICLE 115 OF THE EEC TREATY - STRICT INTERPRETATION - DUTIES OF THE COMMISSION

Summary

BECAUSE THEY CONSTITUTE NOT ONLY AN EXCEPTION TO ARTICLES 9 AND 30 OF THE EEC TREATY , WHICH ARE FUNDAMENTAL TO THE OPERATION OF THE COMMON MARKET , BUT ALSO AN OBSTACLE TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY PROVIDED FOR BY ARTICLE 113 , THE DEROGATIONS ALLOWED UNDER ARTICLE 115 MUST BE STRICTLY INTERPRETED AND APPLIED .

WHEN AUTHORIZING A MEMBER STATE TO ADOPT PROTECTIVE MEASURES WITHIN THE SPHERE OF COMMERCIAL POLICY , THE COMMISSION MUST REVIEW THE REASONS PUT FORWARD BY THE STATE CONCERNED IN ORDER TO JUSTIFY THOSE MEASURES AND EXAMINE WHETHER THEY ARE NECESSARY AND IN ACCORDANCE WITH THE TREATY .

Parties

IN CASE 29/75

KAUFHOF AG , 1 , LEONHARD-TIETZ-STRASSE , 5000 COLOGNE 1 , REPRESENTED BY ITS BOARD OF MANAGEMENT ( VORSTAND ), ASSISTED BY DIETRICH EHLE , ULRICH FELDMANN AND ULRICH WIEMANN , ADVOCATES OF THE COLOGNE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FELICIEN JANSEN , HUISSIER DE JUSTICE , 21 , RUE ALDRINGEN ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , FRIEDRICH-WILHELM ALBRECHT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN 1 - LANGUAGE OF THE CASE : GERMAN .

LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , PIERRE LAMOUREUX , 4 BOULEVARD ROYAL ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 20 JANUARY 1975 ( 75/71/EEC ),

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 17 MARCH 1975 , THE PROCEEDINGS RELATING TO WHICH WERE STAYED TEMPORARILY AT THE REQUEST OF THE PARTIES , THE APPLICANT SOUGHT THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 20 JANUARY 1975 ( 75/71/EEC ) AUTHORIZING THE FEDERAL REPUBLIC OF GERMANY NOT TO APPLY COMMUNITY TREATMENT TO PREPARATIONS AND PRESERVES OF BEANS IN POD COMING UNDER SUBHEADING 20.02 EX G OF THE COMMON CUSTOMS TARIFF , ORIGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA AND PUT INTO FREE CIRCULATION IN THE OTHER MEMBER STATES , IN RESPECT OF WHICH APPLICATIONS FOR IMPORT AUTHORIZATIONS WERE MADE AFTER 1 JANUARY 1975 .

2 ON 2 JANUARY 1975 THE APPLICANT MADE A REQUEST TO THE BUNDESAMT FUR ERNAHRUNG UND FORSTWIRTSCHAFT ( FEDERAL OFFICE FOR FOOD AND FORESTRY ) FOR AN IMPORT AUTHORIZATION IN RESPECT OF 5 000 BOXES OF THE SAID PRESERVES , WHICH HAD BEEN PUT INTO FREE CIRCULATION IN THE NETHERLANDS .

THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , WHICH HAD RECEIVED TWO OTHER APPLICATIONS FOR IMPORT AUTHORIZATIONS , ONE OF 2 JANUARY 1975 , CONCERNING DM 39 803 OF PRESERVES IN FREE CIRCULATION IN THE NETHERLANDS , AND THE OTHER OF 7 JANUARY 1975 CONCERNING DM 36 349 OF PRESERVES IN FREE CIRCULATION IN BELGIUM , RELIED ON ARTICLE 115 OF THE TREATY IN ASKING THE DEFENDANT BY A TELEX MESSAGE OF 14 JANUARY 1975 TO AUTHORIZE IT ' NOT TO APPLY COMMUNITY TREATMENT TO PREPARATIONS AND PRESERVES OF BEANS IN POD COMING UNDER SUBHEADING 20.02 EX G II OF THE COMMON CUSTOMS TARIFF , NO 2002-65 OF THE NOMENCLATURE OF GOODS FOR EXTERNAL TRADE STATISTICS , NIMEXE NO 2002-95 , ORIGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA AND PUT INTO FREE CIRCULATION IN THE OTHER MEMBER STATES , IN SO FAR AS THE APPLICATIONS ARE LATER THAN 1 JANUARY 1974 ( SIC ) ' .

THE FEDERAL REPUBLIC OF GERMANY GAVE REASONS FOR ITS REQUEST , POINTING OUT THAT THESE THREE APPLICATIONS HAD ALREADY BEEN MADE TO THE BUNDESAMT AND THAT FURTHER IMPORT APPLICATIONS WERE TO BE EXPECTED .

3 ON THE BASIS OF THAT REQUEST , THE DEFENDANT , BY A DECISION OF 20 JANUARY 1975 , AUTHORIZED THE FEDERAL REPUBLIC OF GERMANY NOT TO APPLY COMMUNITY TREATMENT TO THE PRODUCTS IN QUESTION .

RELYING UPON THAT AUTHORIZATION , THE BUNDESAMT REJECTED THE APPLICANT ' S APPLICATION FOR AN IMPORT LICENCE ON THE SAME DAY .

4 THE LATTER COMPLAINS THAT THE DEFENDANT HAS EXCEEDED ITS POWERS UNDER ARTICLE 115 OF THE EEC TREATY AND THUS VIOLATED THE PRINCIPLE OF THE PROPORTIONALITY OF ADMINISTRATIVE MEASURES .

IN VIEW OF THE INSIGNIFICANCE OF THE QUANTITIES OF PRESERVED BEANS IN POD WHICH THE APPLICANT APPLIED TO IMPORT , IT WAS NOT , ACCORDING TO THE APPLICANT , NECESSARY TO EXTEND THE AUTHORIZATION IN QUESTION TO LICENCE APPLICATIONS PENDING WHEN THE MATTER WAS REFERRED TO THE COMMISSION .

5 AS FROM 1 JULY 1968 , THE DATE OF THE ENTRY INTO FORCE OF REGULATION ( EEC ) NO 865/68 OF THE COUNCIL ( OJ ENGLISH SPECIAL EDITION 1968 ( I ), P . 225 ), ANY QUANTITATIVE RESTRICTION OR MEASURE HAVING EQUIVALENT EFFECT RELATING TO THE PRODUCTS IN QUESTION IS PROHIBITED IN THE INTERNAL TRADE OF THE COMMUNITY .

UNDER THE FIRST PARAGRAPH OF ARTICLE 115 OF THE TREATY : ' IN ORDER TO ENSURE THAT THE EXECUTION OF MEASURES OF COMMERCIAL POLICY TAKEN . . . BY ANY MEMBER STATE IS NOT OBSTRUCTED BY DEFLECTION OF TRADE , OR WHERE DIFFERENCES BETWEEN SUCH MEASURES LEAD TO ECONOMIC DIFFICULTIES IN ONE OR MORE OF THE MEMBER STATES ' , THE COMMISSION MAY , INTER ALIA , ' AUTHORIZE MEMBER STATES TO TAKE THE NECESSARY PROTECTIVE MEASURES , THE CONDITIONS AND DETAILS OF WHICH IT SHALL DETERMINE ' , IT BEING NEVERTHELESS UNDERSTOOD THAT UNDER THE THIRD PARAGRAPH OF THE SAME ARTICLE : ' IN THE SELECTION OF SUCH MEASURES , PRIORITY SHALL BE GIVEN TO THOSE WHICH CAUSE THE LEAST DISTURBANCE TO THE FUNCTIONING OF THE COMMON MARKET ' .

SUCH AUTHORIZATION MAY IN PARTICULAR CONSTITUTE AN EXCEPTION TO THE PROVISIONS OF ARTICLE 9 OF THE TREATY IN CONJUNCTION WITH THOSE OF ARTICLE 30 , AS A RESULT OF WHICH THE PROHIBITION ON QUANTITATIVE RESTRICTIONS ON IMPORTS AND ALL MEASURES HAVING EQUIVALENT EFFECT APPLIES NOT ONLY TO GOODS ORIGINATING IN MEMBER STATES BUT ALSO TO GOODS IN FREE CIRCULATION IN MEMBER STATES WHICH ORIGINATED IN THIRD COUNTRIES .

BECAUSE THEY CONSTITUTE NOT ONLY AN EXCEPTION TO THE BEFOREMENTIONED PROVISIONS , WHICH ARE FUNDAMENTAL TO THE OPERATION OF THE COMMON MARKET , BUT ALSO AN OBSTACLE TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY PROVIDED FOR BY ARTICLE 113 , THE DEROGATIONS ALLOWED UNDER ARTICLE 115 MUST BE STRICTLY INTERPRETED AND APPLIED .

6 IT APPEARS FROM THE STATEMENTS MADE BY THE DEFENDANT ' S AGENT DURING THE ORAL PROCEEDINGS THAT IT CONSIDERS THAT THE AUTHORIZATION REQUESTED SHOULD BE GRANTED IF THE MEASURE OF COMMERCIAL POLICY ADOPTED BY THE MEMBER STATE CONCERNED IS COMPATIBLE WITH THE TREATY , WITHOUT HAVING TO TAKE ACCOUNT OF THE REASONS ON WHICH THAT MEASURE IS BASED , AND , WHEN IT INVOLVES AN ABSOLUTE PROHIBITION ON IMPORTS , WITHOUT HAVING TO TAKE ACCOUNT OF THE QUANTITY , WHETHER LARGE OR NEGLIGIBLE , CONCERNED IN THE APPLICATIONS ALREADY RECEIVED .

BY FAILING TO REVIEW THE REASONS PUT FORWARD BY THE MEMBER STATE CONCERNED IN ORDER TO JUSTIFY THE MEASURES OF COMMERCIAL POLICY WHICH IT WISHES TO INTRODUCE , THE COMMISSION WAS IN BREACH OF ITS DUTY UNDER ARTICLE 115 TO EXAMINE WHETHER THE MEASURES HAVE BEEN ' TAKEN IN ACCORDANCE WITH THIS TREATY ' AND WHETHER THE PROTECTIVE MEASURES SOUGHT ARE NECESSARY WITHIN THE MEANING OF THE SAME PROVISION .

BY EXTENDING THE AUTHORIZATION TO APPLICATIONS ALREADY RECEIVED , WITHOUT TAKING ACCOUNT OF THE SIZE OR INSIGNIFICANCE OF THE QUANTITY IN QUESTION IN THESE APPLICATIONS , THE COMMISSION HAS ALSO EXCEEDED THE LIMITS OF ITS DISCRETION .

CONSEQUENTLY , THE CONTESTED DECISION MUST BE ANNULLED WITHOUT ITS BEING NECESSARY TO CONSIDER THE OTHER SUBMISSIONS PUT FORWARD IN THE APPLICATION . COSTS

7 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR .

IN THE PRESENT CASE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .

THEREFORE , IN ACCORDANCE WITH THE CONCLUSIONS OF THE APPLICANT , THE DEFENDANT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY RULES :

1 . THE DECISION OF THE COMMISSION OF 20 JANUARY 1975 AUTHORIZING THE FEDERAL REPUBLIC OF GERMANY NOT TO APPLY COMMUNITY TREATMENT TO CERTAIN PRODUCTS ORIGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA AND PUT INTO FREE CIRCULATION IN THE NETHERLANDS , IS ANNULLED TO THE EXTENT TO WHICH IT CONCERNS PRODUCTS IN RESPECT OF WHICH APPLICATIONS FOR LICENCES WERE PENDING BEFORE THE GERMAN ADMINISTRATION WHEN THE APPLICATION FOR AUTHORIZATION WAS LODGED .

2 . THE DEFENDANT IS ORDERED TO BEAR THE COSTS .