3.

Consequently, two points appear to me clear: — The Government of the Federal Republic requested authorization to establish a system of charges and refunds; the Commission's decision refused this authorization and it is to this extent that the decision forms the subject of the action for annulment. The object of the suspension of its operation is thus to obtain temporary suspension of the effects of this refusal. — Secondly, the application was made and the decision taken under Article 226 of the Treaty. The legality of that decision will therefore have to be reviewed in the light of that article; at all events it is within the framework of Article 226 that the scope of the decision must be reviewed today to decide whether the suspension should be granted. It is true that, following its application and the contested decision, the Government of the Federal Republic adopted other grounds, that is to say, Articles 109 and 115 of the Treaty, to maintain that the charging of compensatory amounts (if not the grant of the export subsidies) was justified and that it came within its exclusive competence — which is why it chose to charge such amounts by virtue of its order of 29 September 1969. By the contested decision the Commission thus endeavoured to obtain the repeal of this order or at any rate to deprive it of its basis in Community law. I do not wish to concern myself with this dispute and indeed I have difficulty in understanding the applicant's train of thought. If indeed Articles 109 and 115 could by themselves provide a basis for the decision taken by the German Government within the framework of its competence, why should it request authorization under Article 226? This is indeed the object of the application submitted to the Commission on 30 September, which does not even mention the order of the previous day, although it had already entered into force. It is scarcely necessary to recall that in the system set up by Article 226 although a Member State may apply for protective measures, it is for the Commission alone to determine the measures which it considers necessary. This decision falls within the exclusive competence of the Commission. As they have been submitted to you, the conclusions request a suspension to the extent to which the contested decision ‘prohibits all other measures derogating from Community rules in force’. From this point of view, the conclusions seem to me irrelevant; since protective measures taken pursuant to Article 226 are possible only under the conditions set out by the Commission in exercise of its power of decision, the disputed provision is merely declaratory. If the question is scrutinized more closely it will be found that the application for suspension really concerns that part of the decision which — by implication— refuses the authorizations requested. Such an application can only be rejected. In fact it has already been stated in Eyerman and Frohler's commentary on the former law concerning administrative disputes in various Lander (Verwaltungsgerichtsgesetz 1950, p. 183), that ‘suspension of operation is, by definition, applicable only to a measure which it is possible to implement; it cannot therefore apply to a measure rejecting an application for the grant of a power. In such a case suspension could only signify that the application was provisionally granted; the courts are prohibited from taking such a measure unless it is otherwise provided by the law’. This was in fact the Courts line of reasoning in proceedings which bear a fairly close resemblance to the present case from a legal point of view: Case 19/59 R, Geitling and Others v High Authority— Order of 12 May 1959— Recueil 1960, p. 91. The Ruhr coal marketing companies requested the Court to order suspension of the operation of an article in one of the High Authority's decisions pertaining to the renewal of authorizations concerning the selling-agencies of the Ruhr Basin. The Court held that this article was to be construed as refusing authorization and deduced therefrom that the request for suspension was irrelevant. In fact the Court said that suspension of the operation of a decision of rejection does not amount to granting the authorization refused; in any event such authorization may be granted only by the administration and in this the Court has no power of injunction. In the present case, by the expedient of the suspension provided for in Article 185 of the Treaty, the Government of the Federal Republic is endeavouring to obtain an authorization which the Commission has refused. The grant of this authorization might at some future date become binding on the Commission if in giving a ruling on the substance of the case the Court were to annul its decision; however, this depends on the grounds of your judgment. But at the present stage in the proceedings and within the framework of Article 185 suspension can neither be the equivalent of the grant of an authorization nor involve an obligation to grant one; the application, to repeat the terms of Order 19/59 R, ‘is irrelevant’ and it seems to me that it must be rejected.