2.

In the second question the court making the reference inquires as to the relevant definition of the concept ‘quantitative restrictions and measures having equivalent effect’ which is contained in several articles of the Treaty in very similar wording and also in relation to exports and in Community regulations, especially in Article 1 of Regulation No 2513/69. In this connexion the court wishes to know whether the concept is to be understood in the sense that national rules are included which prohibit imports and exports without a licence if their rules are not in fact applied, or, because provision is made for exemption from hem, or licences are always issued on request (the so-called ‘toute licence accordée’ system). The parties to these proceedings are not all agreed upon the answer to be given to these questions. The Netherlands Government considers that the sole important point is the actual application of a national system of licences and the effects accompanying it. It appears to it particularly important whether express provision is made for exceptions from such a system. On the other hand the plaintiffs maintain that actual application cannot constitute the decisive factor. Further, it is of no significance that temporary exemptions from a system of licences are granted under provisions of inferior status, as the Member States have lost all jurisdiction in this sphere. Finally, the Commission has expounded at length a relatively complex view. It thus appears that the answer to this question is less simple than that to the first question. It must be agreed that the Commission is correct in its view that the basis for consideration of the problems raised is that all the said articles of the Treaty and regulations are founded on the same concept, as the same wording is employed everywhere (with the sole exception of Article 32 of the EEC Treaty in which the word ‘quota’ admittedly appears as the classic expression for a restrictive policy on imports). It is thus for the time being irrelevant that the decision in the main action, which is concerned with the legal position obtaining as from 1 March 1970 and with imports from third countries, exclusively turns on the meaning of Article 1 of Regulation No 2513. It is then relatively simple to ascertain what is generally to be understood by ‘quantitative restrictions on imports’. In fact this is a concept from the liberalizing code of the Organization for European Economic Cooperation and in the General Agreement on Tariff and Trade (GATT). According to those provisions it encompasses national measures which wholly or in part preclude direct imports which are not based on technical features (which also apply to the marketing of domestic products), but rather solely relate to the number and quantity of the products in question. With regard to the concept ‘measures having equivalent effect’, which represents a necessary supplement to the prohibition on quantitative restrictions on imports, many instructive indications relating to the concept ‘measures having equivalent effect’ — in this respect too, one must agree with the Commission — may be obtained from the case-law of the Court as developed in Cases 2 and 3/62 ([1962] ECR 425), 90 and 91/63 ([1964] ECR 625), and 10/65 ([1965] ECR 469), and 52 and 55/65 ([1966] ECR 195). It follows from the foregoing that this additional concept indicates the intention of the authors of the Treaty ‘to prohibit not only measures which obviously take the form of the classic customs duty but also all those which, presented under other names or introduced by the indirect means of other procedures, would lead to the same discriminatory or protective results as customs duties’ (Joined Cases 2 and 3/62, [1962] ECR 425). The same is true of the concept of ‘measures having an effect equivalent to quantitative restrictions on imports’ and it may accordingly be stated that the important factor is the comparability of the effects. Therefore such measures exist when imports are prevented in whole or in part and by reference to the number and quantity of goods, provided that there is an indirect impediment to imports which makes them more difficult and expensive than the marketing of comparable domestic products. This must be qualified however, by noting that this does not cover measures coming under particular provisions of the Treaty (such as those regarding customs duties, taxation and subsidies). In addition it is necessary to exclude measures, which, whilst having an inherent restrictive effect, are compatible with the Treaty because their adoption falls within the competence reserved to the States. This relates to certain commercial rules and the related prohibition—affecting both domestic and foreign products on the sale of goods displaying certain characteristics. In this respect the restrictive effect on imports arises from differences in national rules and only the approximation of national laws in pursuance of Article 100 of the EEC Treaty can provide a remedy for this. This is likewise true of the rules regarding customs-clearance formalities which continue to foe obligatory so long as national frontiers retain their significance. These exceptions must, however again be qualified—and in this matter too the Commission is correct—by saying that the restrictive effects inherent in the national measures can only be recognized as compatible with the Treaty to the extent to which they are essential to the attainment of the objectives sought by the measures. Proceedings from these considerations of principle, in my view it may definitely be stated that a system like that introduced in the Netherlands in 1963, that is to say, a prohibition on imports without a licence, does not constitute a quantitative restriction on imports or a measure having equivalent effect to the extent to which general and abstract provisions provide for exceptions from the necessity to grant a licence. This holds good even if the legislation implementing the rules governing exceptions are of a lower juridical order, provided that their efficacy under national law cannot be doubted and that therefore there can be no question that system of licences will not be applied. This is clearly the case regarding the previously mentioned Vrijstellingsbeschikking EEG 1968 I (and is, of course, ultimately a question to be settled by the national court). Thus we have an answer to the part of the second question and one may even take the view that this finding is sufficient for the national court, since the said Vrijstellingsbeschikking appears to have taken effect from 1 November 1968 with regard to imported apples from third countries. Nevertheless, if it is desired in addition to answer the second part of the question put, that is, to inquire whether restrictions on imports may be involved when licences are always issued (the so-called ‘toute licence accordée’ system) the following remarks must foe made. As the Court is aware, the Commission wishes to draw a distinction in this connexion. It considers that in cases where licences are only issued de facto the restrictive character of the system of licences is undeniable because the sole essential factor is the potential effects of such a measure. On the other hand if it is expressly provided that licences must always foe issued, there cannot be said to foe any direct impediment to imports, but at most a measure having equivalent effect. In this connexion I would first of all say that I find it hard to understand the need for such a distinction. I do not see how the argument for the general criterion of a potential effect, of the potential restriction of imports, can be deduced from Article 33(4) of the EEC Treaty under which unused quotas were to be abolished. In my view, it should not foe forgotten that this arrangement is justified on the ground that in such cases real restrictions on imports were not to be excluded in future, whereas an actual and constant practice on the issue of licences, effects of this nature are not to foe feared. Consequently, in considering the question whether there were restrictions on imports, nothing can turn on the potential effects of a national measure and that it is the actual effects which must be taken into consideration. In this connexion the case-law of the Court on the levying of charges having equivalent effect in particular provides an argument of substantial importance. Furthermore, in the situation to be considered now it must be borne in mind that the Overdrachtsbeschikking In- en Uitvoerwet 1968 expressly obliged the Produktschap to observe Community law, so that in this way alone, that is to say, without an express national rule that licences were always to be issued, provision was made for a certain and uniform practice in this sense. If one considers on this basis how to judge under the provisions of Community law a prohibition on imports without a licence, when in practice licences are constantly issued, if such issue is delayed or made subject to conditions then it must indeed be held that there are restrictive effects. This can of course lead to discouraging importers and thereby to impeding imports. On the other hand I should consider as in accordance with the Treaty a prompt and automatic issue if licences for imports from third countries, even if importers are burdened with administrative formalities, since customs clearance formalities are unavoidable in external trade. Referring to the previously-mentioned considerations submitted by the Commission, it is in fact undeniable that the maintenance of a national system of licences guaranteeing a constant survey of the developments in imports appears appropriate, not least because Article 3 of Regulation No 2514 allows unilateral national protective measures (for example the suspension of imports). It is thus difficult to regard this as constituting a quantitative re-striction on imports or a measure having equivalent effect. The reply which the Court must give to the second question is thus clear, always assuming that the Court considers that there is any need to reply to the question in its entirety.