Judgment of the Court of 28 June 1984. - Mabanaft GmbH v Hauptzollamt Emmerich. - Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany. - Coal - Differential customs duties. - Case 36/83.



European Court reports 1984 Page 02497



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . ECSC - PRINCIPLES - FREE MOVEMENT OF PRODUCTS - EXTENT - PRODUCTS ORIGINATING IN NON-MEMBER COUNTRIES AND RELEASED INTO FREE CIRCULATION IN A MEMBER STATE - INCLUSION

( ECSC TREATY , ART . 4 ( A ))

2 . ECSC - PRINCIPLES - FREE MOVEMENT OF PRODUCTS - LIMITATIONS

( ECSC TREATY , ART . 4 ( A ))

3 . ECSC - COMMERCIAL POLICY - IMPORTATION OF COAL ADVERSELY AFFECTING COMMUNITY PRODUCTION - POWERS OF THE HIGH AUTHORITY - DEPARTURE FROM THE PRINCIPLE OF THE FREE MOVEMENT OF PRODUCTS - WHETHER PERMISSIBLE

( ECSC TREATY , ART . 4 ( A ) AND SUBPARAGRAPH ( 3 ) OF FIRST PARAGRAPH OF ART . 74 ; RECOMMENDATIONS OF THE HIGH AUTHORITY OF 28 JANUARY 1959 AND 30 OCTOBER 1962 )

4 . ECSC - COMMERCIAL POLICY - IMPORTATION OF COAL ADVERSELY AFFECTING COMMUNITY PRODUCTION - RECOMMENDATION OF THE HIGH AUTHORITY PROPOSING THAT A MEMBER STATE SHOULD INTRODUCE CUSTOMS DUTIES - VALIDITY - DURATION - EFFECTS

( ECSC TREATY , ART . 4 ( A ) AND SUBPARAGRAPH ( 3 ) OF FIRST PARAGRAPH OF ART . 74 ; RECOMMENDATION OF THE HIGH AUTHORITY OF 28 JANUARY 1959 )

Summary

1 . UNDER THE PROVISIONS OF THE ECSC TREATY THE PRINCIPLE OF FREE MOVEMENT NECESSARILY EXTENDS TO PRODUCTS ORIGINATING IN NON-MEMBER COUNTRIES AND RELEASED INTO FREE CIRCULATION IN A MEMBER STATE . THE ECSC DOES NOT CONSTITUTE A FREE-TRADE AREA IN WHICH THE ORIGIN OF A PRODUCT IS A DETERMINING FACTOR , BUT IS MORE AKIN IN ITS STRUCTURE TO THE PRINCIPLE OF A CUSTOMS UNION .

2 . WHILST ARTICLE 4 ( A ) OF THE ECSC TREATY LAYS DOWN A PRINCIPLE OF FREE MOVEMENT OF PRODUCTS , UNLIKE ARTICLE 9 OF THE EEC TREATY , WHICH DOES NOT REFER TO ANY LIMITATION , IT SPECIFIES THAT IMPORT DUTIES AND OTHER RESTRICTIONS ARE RECOGNIZED AS INCOMPATIBLE WITH THE COMMON MARKET FOR COAL AND STEEL AND ARE ACCORDINGLY TO BE ABOLI- SHED AND PROHIBITED WITHIN THE COMMUNITY , ' ' AS PROVIDED IN THIS TREATY ' ' . IT IS APPARENT FROM THAT RESERVATION THAT THE PRINCIPLE OF FREE MOVEMENT MAY , UNDER THE ECSC TREATY , BE SUBJECT TO LIMITATIONS IN THE CIRCUMSTANCES ENVISAGED THEREIN .

3 . SINCE THE CONDITIONS IN SUBPARAGRAPH ( 3 ) OF THE FIRST PARAGRAPH OF ARTICLE 74 WERE SATISFIED , THE HIGH AUTHORITY WAS EMPOWERED TO AUTHORIZE A MEMBER STATE , BY WAY OF A RECOMMENDATION , TO DEPART FROM THE PRINCIPLE LAID DOWN BY ARTICLE 4 ( A ) OF THE TREATY WITH REGARD TO COAL IMPORTED FROM NON-MEMBER COUNTRIES AND RELEASED INTO FREE CIRCULATION IN ANOTHER MEMBER STATE .

4 . THE RECOMMENDATION OF THE HIGH AUTHORITY OF 28 JANUARY 1959 , PROPOSING THAT THE FEDERAL REPUBLIC OF GERMANY SHOULD INTRODUCE TEMPORARY CUSTOMS DUTIES , SUBJECT TO CERTAIN CONDITIONS , ON COAL ORIGINATING IN NON-MEMBER COUNTRIES MUST BE REGARDED AS VALID FROM ITS DATE OF ADOPTION UNTIL 1978 INCLUSIVE , SINCE THERE WAS NO REVERSAL OF TRENDS SUCH AS TO PUT AN END TO THE CIRCUMSTANCES WHICH HAD JUSTIFIED THE ADOPTION OF THAT RECOMMENDATION . THAT RECOMMENDATION MAY , THEREFORE , FOR THE PERIOD IN QUESTION , SERVE AS A LEGAL BASIS FOR NATIONAL RULES PROVIDING FOR THE CHARGING OF A DIFFERENTIAL CUSTOMS DUTY ON COAL ORIGINATING IN A NON-MEMBER COUNTRY AND IMPORTED AFTER ITS RELEASE INTO FREE CIRCULATION IN ANOTHER MEMBER STATE .

Parties

IN CASE 36/83

REFERENCE TO THE COURT UNDER ARTICLE 41 OF THE ECSC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) DUSSELDORF , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

MABANAFT GMBH , HAMBURG ,

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) EMMERICH

Subject of the case

ON THE VALIDITY OF THE RECOMMENDATIONS OF THE HIGH AUTHORITY OF 28 JANUARY 1959 AND 30 OCTOBER 1962 ,

Grounds

1 BY ORDER OF 7 FEBRUARY 1983 , RECEIVED AT THE COURT OF JUSTICE ON 8 MARCH 1983 , THE FINANZGERICHT ( FINANCE COURT ) DUSSELDORF SUBMITTED UNDER ARTICLE 41 OF THE ECSC TREATY A PRELIMINARY QUESTION CONCERNING THE VALIDITY OF THE RECOMMENDATIONS OF THE HIGH AUTHORITY OF 28 JANUARY 1959 AMTSBLATT OF 11 . 2 . 1959 , P . 197 ) AND OF 30 OCTOBER 1962 ( AMTSBLATT OF 12 . 11 . 1962 , P . 2683 ).

2 THE QUESTION AROSE IN LITIGATION BETWEEN MABANAFT GMBH , HAVING ITS REGISTERED OFFICE IN HAMBURG , AND THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) EMMERICH , WHICH HAD DEMANDED FROM THE PLAINTIFF PAYMENT OF DIFFERENTIAL CUSTOMS DUTIES TOTALLING DM 1 382 829.77 IN RESPECT OF COAL IMPORTED DURING 1977 AND 1978 BY THE LIMITED PARTNERSHIP FISSER & VAN DOORNUM KOLN GMBH & CO ., OF WHICH MABANAFT IS THE SUCCESSOR IN TITLE .

3 THE COAL IN QUESTION HAD INITIALLY BEEN IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY FREE OF CUSTOMS DUTIES , AS BEING ' ' EEC PRODUCTS OF NETHERLANDS ORIGIN , DUMP STOCKS AND STORAGE STOCKS ' ' . SUBSEQUENT INQUIRIES BY THE GERMAN CUSTOMS ENFORCEMENT OFFICERS REVEALED , HOWEVER , THAT ALTHOUGH THE GOODS WERE IN FREE CIRCULATION IN THE NETHERLANDS , THEY DERIVED IN FACT FROM VARIOUS NON-MEMBER COUNTRIES .

4 THE CORRECTIVE NOTICES DEALING WITH THE CHARGING OF A DIFFERENTIAL CUSTOMS DUTY WHICH WERE SERVED ON MABANAFT BY THE HAUPTZOLLAMT EMMERICH ARE BASED ON THE GERMAN LAW OF 14 DECEMBER 1970 ON TARIFF QUOTAS FOR SOLID FUELS FOR 1971 TO 1976 INCLUSIVE ( BUNDESGESETZBLATT I 1970 , P . 1713 ) AS AMENDED BY THE LAW OF 28 JUNE 1976 . THE LATTER , WHILST AMENDING THE QUOTA PREVIOUSLY IN FORCE , EXTENDED UNTIL 1981 THE VALIDITY OF THE 1970 LAW .

5 THE HAUPTZOLLAMT EMMERICH ARGUED BEFORE THE FINANZGERICHT THAT THE LEVYING OF A DIFFERENTIAL CUSTOMS DUTY ON IMPORTED COAL ORIGINATING IN NON-MEMBER COUNTRIES AND RELEASED INTO FREE CIRCULATION IN ANOTHER MEMBER STATE WAS NOT CONTRARY TO COMMUNITY LAW . IN ITS OPINION , THE ISSUE CONCERNED A MEASURE OF COMMERCIAL POLICY , WHICH REMAINS WITHIN THE POWERS OF MEMBER STATES PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 71 OF THE ECSC TREATY .

6 IN REPLY , MABANAFT CLAIMED THAT THE DISPUTED MEASURE WAS INCOMPATIBLE WITH ARTICLE 4 ( A ) OF THE ECSC TREATY , WHICH PROHIBITS WITHIN THE COMMUNITY ' ' IMPORT AND EXPORT DUTIES , OR CHARGES HAVING EQUIVALENT EFFECT , AND QUANTITATIVE RESTRICTIONS ON THE MOVEMENT OF PRODUCTS ' ' .

7 THE FINANZGERICHT CONSIDERED THAT THE CHARGING OF A DIFFERENTIAL CUSTOMS DUTY IN THE ABOVE-MENTIONED CASE DID NOT FALL WITHIN THE POWERS OF MEMBER STATES IN MATTERS OF COMMERCIAL POLICY , BUT THAT IT MIGHT NONE THE LESS BE COMPATIBLE WITH THE ECSC TREATY AS A MEASURE ADOPTED ON THE BASIS OF RECOMMENDATIONS WHICH WERE MADE TO THE FEDERAL REPUBLIC OF GERMANY BY THE HIGH AUTHORITY UNDER ARTICLE 74 OF THE ECSC TREATY , ON CONDITION THAT THOSE RECOMMENDATIONS WERE VALIDLY ADOPTED AND WERE STILL VALID AT THE MATERIAL TIME . THE FINANZGERICHT ACCORDINGLY REFERRED THE FOLLOWING QUESTION TO THE COURT :

' ' ARE THE RECOMMENDATIONS OF THE HIGH AUTHORITY OF 28 JANUARY 1959 ( AMTSBLATT DER EUROPAISCHEN GEMEINSCHAFTEN OF 11 . 2 . 1959 , P . 197 ) AND OF 30 OCTOBER 1962 ( AMTSBLATT OF 12 . 11 . 1962 , P . 2683 ) COMPATIBLE WITH ARTICLE 4 ( A ) OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY ; ARE THEY CAPABLE OF JUSTIFYING NATIONAL MEASURES INTRODUCING A DIFFERENTIAL DUTY ON COAL IMPORTED FROM THE OPEN MARKET IN A MEMBER STATE BUT WHICH ORIGINATED IN A NON-MEMBER COUNTRY , AND IF SO FOR HOW LONG ARE SUCH MEASURES JUSTIFIED?

' '

8 THE RECOMMENDATION OF 28 JANUARY 1959 RECOMMENDS THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY TO INTRODUCE , ON A TEMPORARY BASIS , CUSTOMS DUTIES ON IMPORTS OF COAL ORIGINATING IN NON-MEMBER COUNTRIES AND DESTINED FOR THE FEDERAL REPUBLIC , IN EXCESS OF A DUTY-FREE QUOTA , AT A RATE WHICH IS NOT TO EXCEED DM 20 PER TONNE , AND TO ESTABLISH , FOR 1959 , A DUTY-FREE QUOTA OF NOT LESS THAN 5 MILLION TONNES ; THE RECOMMENDATION CALLS UPON THE GOVERNMENTS OF THE OTHER MEMBER STATES TO LEND THE FEDERAL REPUBLIC THE ASSISTANCE ESSENTIAL FOR THE PURPOSE OF COLLECTING SUCH DUTIES .

9 THE RECOMMENDATION OF 30 OCTOBER 1962 IS THE LAST OF A SERIES ( COMPRISING THE RECOMMENDATIONS OF 3 NOVEMBER 1959 , 3 NOVEMBER 1960 , 13 DECEMBER 1961 AND 30 OCTOBER 1962 ) WHEREBY THE HIGH AUTHORITY FIXED THE MINIMUM LEVEL FOR THE DUTY-FREE QUOTA FOR THE YEARS 1960 , 1961 , 1962 AND 1963 RESPECTIVELY .

10 THE QUESTION SUBMITTED BY THE FINANZGERICHT MUST THEREFORE BE UNDERSTOOD AS INQUIRING , IN RESPECT OF EVERY YEAR FROM 1959 TO 1963 , WHETHER THE RECOMMENDATION OF 28 JANUARY 1959 AND THE RECOMMENDATION FIXING THE MINIMUM ANNUAL QUOTA WERE VALID ; ON THE OTHER HAND , AS REGARDS THE PERIOD FROM 1964 TO 1977/78 , THE QUESTION RELATES SOLELY TO THE VALIDITY OF THE RECOMMENDATION OF 28 JANUARY 1959 , SINCE NO FURTHER MINIMUM LEVEL WAS FIXED BY THE HIGH AUTHORITY FOR THE YEARS SUBSEQUENT TO 1963 .

11 THE FIRST PART OF THE QUESTION SIMPLY AMOUNTS TO ASKING WHETHER THE DISPUTED RECOMMENDATIONS ARE COMPATIBLE WITH THE PRINCIPLE OF THE FREE MOVEMENT OF PRODUCTS , AS LAID DOWN BY ARTICLE 4 ( A ) OF THE ECSC TREATY , IN RESPECT OF GOODS WHICH HAVE BEEN RELEASED INTO FREE CIRCULATION IN A MEMBER STATE . IN FACT , AS REGARDS THE CONDITIONS TO WHICH SUBPARAGRAPH ( 3 ) OF THE FIRST PARAGRAPH OF ARTICLE 74 OF THE ECSC TREATY SUBJECTS THE ADOPTION OF A RECOMMENDATION , IT IS NOT DENIED THAT THEY WERE FULFILLED DURING THE PERIOD FROM 1959 TO 1963 .

12 AN INTERPRETATION OF THE AFORESAID ARTICLE 4 MAY THUS BE SEEN TO BE ESSENTIAL FOR AN APPRAISAL OF THE VALIDITY OF THE DISPUTED RECOMMENDATIONS .

13 IN THAT CONNECTION IT IS APPROPRIATE TO BEGIN BY CONSIDERING THE INTERPRETATION SUGGESTED IN ITS OBSERVATIONS BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , WHICH TAKES THE VIEW THAT THE ARTICLE CANNOT BE CORRECTLY UNDERSTOOD UNLESS ACCOUNT IS TAKEN OF THE FIRST PARAGRAPH OF ARTICLE 71 OF THE ECSC TREATY , ACCORDING TO WHICH : ' ' THE POWERS OF THE GOVERNMENTS OF MEMBER STATES IN MATTERS OF COMMERCIAL POLICY SHALL NOT BE AFFECTED BY THIS TREATY , SAVE AS OTHERWISE PROVIDED THEREIN . ' '

14 ACCORDING TO THE GERMAN GOVERNMENT , THE SCOPE OF ARTICLE 4 ( A ) AND OF THE FIRST PARAGRAPH OF ARTICLE 71 MUST BE DETERMINED BY REFERENCE TO THE FACT THAT THE ECSC IS NOT A TRUE CUSTOMS UNION BUT , ALTHOUGH DISPLAYING THE CHARACTERISTICS OF A COMMON MARKET , IS WITHOUT A COMMON CUSTOMS TARIFF , WITH THE RESULT THAT PRODUCTS FALLING WITHIN THE ECSC - IN THIS INSTANCE , COAL - MAY BE IMPORTED INTO THE VARIOUS MEMBER STATES SOMETIMES SUBJECT TO PAYMENT OF A MORE OR LESS HIGH RATE OF CUSTOMS DUTY , AND SOMETIMES DUTY-FREE . IN THOSE CIRCUMSTANCES THE FIRST PARAGRAPH OF ARTICLE 71 ENABLES MEMBER STATES NOT ONLY TO PURSUE AN INDEPENDENT COMMERCIAL POLICY BUT ALSO TO ENSURE COMPLIANCE WITH THAT POLICY BY AVOIDING DEFLECTIONS OF TRADE BY MEANS OF CUSTOMS DUTIES LEVIED ON IMPORTS FROM ANOTHER MEMBER STATE WHICH HAVE ORIGINATED IN NON-MEMBER COUNTRIES .

15 IN THE LIGHT OF THOSE CONSIDERATIONS , THE GERMAN GOVERNMENT BELIEVES THAT THERE ARE GROUNDS FOR INTERPRETING ARTICLE 4 ( A ) IN A RESTRICTIVE MANNER , NAMELY AS AFFECTING THOSE PRODUCTS ORIGINATING IN MEMBER STATES THE FREE MOVEMENT OF WHICH DOES NOT THREATEN TO OBSTRUCT ANY MEMBER STATE ' S COMMERCIAL POLICY TOWARDS NON-MEMBER COUNTRIES .

16 IN THAT REGARD IT IS APPROPRIATE TO NOT THAT THE INTERPRETATION ADVOCATED BY THE GERMAN GOVERNMENT EXCEEDS THE BOUNDS OF THE QUESTION RAISED , INASMUCH AS IT NOT ONLY LEADS TO CLAIMING THAT ARTICLE 4 ( A ) IS NO OBSTACLE TO THE ADOPTION OF A RECOMMENDATION CALLING UPON A MEMBER STATE TO LEVY A CUSTOMS DUTY ON COAL ORIGINATING IN NON-MEMBER COUNTRIES AND IMPORTED FROM ANOTHER MEMBER STATE , BUT ALSO LEADS TO ACKNOWLEDGING THAT SUCH A DUTY MAY BE IMPOSED BY A MEMBER STATE INDEPENDENTLY OF ANY RECOMMENDATION .

17 THAT INTERPRETATION CANNOT BE UPHELD .

18 IT SHOULD BE POINTED OUT THAT UNDER THE PROVISIONS OF THE ECSC TREATY THE PRINCIPLE OF FREE MOVEMENT NECESSARILY EXTENDS TO PRODUCTS ORIGINATING IN NON-MEMBER COUNTRIES AND RELEASED INTO FREE CIRCULATION IN A MEMBER STATE .

19 IT IS APPARENT FROM THE PROVISIONS OF THE TREATY THAT THE INSTITUTIONS OF THE COMMUNITY HAVE CERTAIN DUTIES AS REGARDS EXTERNAL TRADE . THUS , ARTICLE 3 OF THE TREATY , WHICH LAYS DOWN THE TASKS OF THE COMMUNITY INSTITUTIONS , PROVIDES IN SUBPARAGRAPH ( A ) THAT THEY MUST ' ' ENSURE AN ORDERLY SUPPLY TO THE COMMON MARKET , TAKING INTO ACCOUNT THE NEEDS OF THIRD COUNTRIES ' ' AND IN SUBPARAGRAPH ( F ) MUST ' ' PROMOTE THE GROWTH OF INTERNATIONAL TRADE ' ' .

20 ARTICLE 15 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS , ANNEXED TO THE ECSC TREATY , PRESUPPOSES THE EXISTENCE OF THE PRINCIPLE OF THE FREE MOVEMENT OF GOODS , INASMUCH AS IT REQUIRES INTER ALIA , WITH REFERENCE TO STEEL , AUTHORIZATION FROM THE HIGH AUTHORITY TO ENABLE STATES TO TAKE APPROPRIATE STEPS OF THEIR OWN TO AFFORD THEIR INDIRECT IMPORTS THROUGH MEMBER STATES WITH LOWER TARIFFS THE SAME DEGREE OF PROTECTION AS THAT AFFORDED BY THEIR OWN TARIFFS TO THEIR DIRECT IMPORTS . IN FACT , THERE WOULD HAVE BEEN NO NEED FOR SUCH AUTHORIZATION IF MEMBER STATES HAD BEEN FREE TO ADOPT UNILATERALLY , WITHIN THE FRAMEWORK OF THEIR OWN COMMERCIAL POLICY , WHICHEVER MEASURES WERE CONSIDERED MOST EXPEDIENT IN DEALING WITH INDIRECT IMPORTS .

21 IN ITS JUDGMENT OF 14 JULY 1961 ( VLOEBERGHS , JOINED CASES 9 AND 12/60 , ( 1961 ) ECR 197 ), THE COURT EXPRESSLY ENDORSED THE PRINCIPLE ( WHICH WAS NOT DISPUTED BY THE PARTIES ) OF THE FREE MOVEMENT OF PRODUCTS ORIGINATING IN NON-MEMBER COUNTRIES AND RELEASED INTO FREE CIRCULATION IN A MEMBER STATE .

22 ALL THE FOREGOING CONSIDERATIONS SHOW THAT THE ECSC DOES NOT CONSTITUTE A FREE-TRADE AREA IN WHICH THE ORIGIN OF A PRODUCT IS A DETERMINING FACTOR , BUT IS MORE AKIN IN ITS STRUCTURE TO THE PRINCIPLE OF A CUSTOMS UNION .

23 WHILST IT SHOULD THEREFORE BE CONCLUDED THAT ARTICLE 4 ( A ) OF THE ECSC TREATY LAYS DOWN A PRINCIPLE OF FREE MOVEMENT WHICH EMBRACES ALSO PRODUCTS ORIGINATING IN NON-MEMBER COUNTRIES AND RELEASED INTO FREE CIRCULATION WITHIN THE MEMBER STATES , IT SHOULD NONE THE LESS BE POINTED OUT THAT , UNLIKE ARTICLE 9 OF THE EEC TREATY WHICH DOES NOT REFER TO ANY LIMITATION , ARTICLE 4 OF THE ECSC TREATY SPECIFIES THAT IMPORT DUTIES AND OTHER RESTRICTIONS ARE RECOGNIZED AS INCOMPATIBLE WITH THE COMMON MARKET FOR COAL AND STEEL AND ARE ACCORDINGLY TO BE ABOLISHED AND PROHIBITED WITHIN THE COMMUNITY , ' ' AS PROVIDED IN THIS TREATY ' ' .

24 IT IS APPARENT FROM THE FOREGOING RESERVATION THAT THE PRINCIPLE OF FREE MOVEMENT MAY , UNDER THE ECSC TREATY , BE SUBJECT TO LIMITATIONS IN THE CIRCUMSTANCES ENVISAGED THEREIN . IT IS THEREFORE NECESSARY TO CONSIDER WHETHER , IN RESPECT OF RECOMMENDATIONS , THE ECSC TREATY CONTAINS PROVISIONS WHICH EMPOWER THE HIGH AUTHORITY TO DEPART FROM THAT PRINCIPLE .

25 IN ARTICLE 74 , THE ECSC TREATY PROVIDES THAT THE HIGH AUTHORITY IS EMPOWERED TO TAKE ANY MEASURE WHICH IS IN ACCORDANCE WITH THE TREATY , AND IN PARTICULAR WITH THE OBJECTIVES SET OUT IN ARTICLE 3 , AND TO MAKE TO GOVERNMENTS , IN THREE CASES ENUMERATED IN SUBPARAGRAPHS ( 1 ), ( 2 ) AND ( 3 ) OF THE FIRST PARAGRAPH OF ARTICLE 74 , ANY RECOMMENDATION WHICH IS IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 71 . THE THIRD SUCH CASE CONCERNS ' ' ONE OF THE PRODUCTS REFERRED TO IN ARTICLE 81 OF THIS TREATY . . . IMPORTED INTO THE TERRITORY OF ONE OR MORE MEMBER STATES IN RELATIVELY INCREASED QUANTITIES AND UNDER SUCH CONDITIONS THAT THESE IMPORTS CAUSE OR THREATEN TO CAUSE SERIOUS INJURY TO PRODUCTION WITHIN THE COMMON MARKET OF LIKE OR DIRECTLY COMPETING PRODUCTS ' ' .

26 REGARD BEING HAD TO THE AFORESAID PROVISION , AND TO THE FACT THAT IT IS NOT DISPUTED THAT THE CONDITIONS SUBJECT TO WHICH MEASURES MAY BE TAKEN BY THE COMMISSION ARE SATISFIED , THE CONCLUSION TO BE DRAWN IS THAT THE HIGH AUTHORITY WAS EMPOWERED TO AUTHORIZE A MEMBER STATE , BY WAY OF A RECOMMENDATION UNDER SUBPARAGRAPH ( 3 ) OF THE FIRST PARAGRAPH OF ARTICLE 74 , TO DEPART FROM THE PRINCIPLE LAID DOWN BY ARTICLE 4 ( A ) OF THE ECSC TREATY WITH REGARD TO COAL IMPORTED FROM NON-MEMBER COUNTRIES AND RELEASED INTO FREE CIRCULATION IN ANOTHER MEMBER STATE .

27 IN THE LIGHT OF THE FOREGOING CONSIDERATIONS , THE DISPUTED RECOMMENDATIONS MUST THEREFORE BE RECOGNIZED AS BEING COMPATIBLE WITH ARTICLE 4 ( A ) OF THE ECSC TREATY .

28 THE SECOND PART OF THE QUESTION RAISED BY THE COURT MAKING THE REFERENCE INQUIRES IN SUBSTANCE HOW LONG THE RECOMMENDATIONS IN QUESTION HAVE REMAINED VALID .

29 SINCE THE CIRCUMSTANCES ENVISAGED BY SUBPARAGRAPH ( 3 ) OF THE FIRST PARAGRAPH OF ARTICLE 74 ARE ACKNOWLEDGED TO HAVE BEEN PRESENT DURING THE YEARS 1959 TO 1963 , ONLY THE PERIOD FROM 1964 TO 1978 INCLUSIVE REMAINS TO BE CONSIDERED .

30 IN THAT REGARD IT SHOULD FIRST BE MADE CLEAR THAT , IN RELATION TO THE ABOVE-MENTIONED PERIOD , THE QUESTION IS IN FACT CONCERNED ONLY WITH THE RECOMMENDATION OF 28 JANUARY 1959 .

31 AS MAY BE SEEN FROM SECTION A , THE RECOMMENDATION AUTHORIZES THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY TO INTRODUCE TEMPORARY CUSTOMS DUTIES ON COAL ORIGINATING IN NON-MEMBER COUNTRIES AND DESTINED FOR THE FEDERAL REPUBLIC , TO BE LEVIED ON IMPORTS IN EXCESS OF A DUTY-FREE QUOTA . PARAGRAPH 2 OF SECTION A STIPULATES THAT THE DUTY-FREE QUOTA FOR 1959 MAY NOT BE LESS THAN 5 MILLION TONNES .

32 THE RECOMMENDATION THEREBY LAYS DOWN THE PRINCIPLE OF OPENING A DUTY-FREE QUOTA IN ORDER TO SAFEGUARD , AS THE FIFTH RECITAL IN THE PREAMBLE EXPLAINS , THE TRADITIONAL PATTERNS OF IMPORTATION INTO THE COMMUNITY , SO AS TO ACHIEVE AN ORDERLY SUPPLY TO THE MARKET . HOWEVER , THE RECOMMENDATION CONFINES ITSELF TO FIXING A MINIMUM QUOTA FOR 1959 ALONE , ON THE UNDERSTANDING THAT THE LEVEL MAY BE AMENDED THEREAFTER IN THE LIGHT OF DEVELOPMENTS ON THE COAL MARKET .

33 IN THOSE CIRCUMSTANCES IT IS UNNECESSARY THAT THE QUOTA LEVEL SHOULD BE FIXED BY THE MEMBER STATE CONCERNED BY REFERENCE TO A MINIMUM INDICATED IN A RECOMMENDATION FROM THE HIGH AUTHORITY , AS WAS THE CASE UP TO AND INCLUDING 1963 . THE ONLY MATTER OF IMPORTANCE IS THAT THE HIGH AUTHORITY SHOULD BE IN A POSITION TO ASCERTAIN , IN GOOD TIME , THAT THE QUOTA HAS BEEN FIXED AT A SUITABLE LEVEL TO ENSURE THE PRESERVATION OF TRADITIONAL PATTERNS OF IMPORTATION . THAT FACILITY HAS ALWAYS BEEN GUARANTEED AS FAR AS GERMAN LEGISLATION ON QUOTAS IS CONCERNED , AND CONSEQUENTLY THE ABSENCE OF ANY RECOMMENDATION FROM THE HIGH AUTHORITY , FIXING THE MINIMUM QUOTA , IN NO WAY AFFECTS THE VALIDITY OF THE RECOMMENDATION OF 28 JANUARY 1959 .

34 ALTHOUGH THE ECSC TREATY DOES NOT EXPRESSLY LIMIT THE DURATION OF THE VALIDITY OF THE EXCEPTIONAL PROVISIONS DEROGATING FROM ITS RULES , IT IS OBVIOUS THAT SUCH PROVISIONS CANNOT BE REGARDED AS BEING STILL VALID ONCE THE CIRCUMSTANCES JUSTIFYING THEM HAVE CEASED TO OBTAIN .

35 IN THAT REGARD IT SHOULD BE OBSERVED THAT , EVEN AFTER THE PERIOD FROM 1959 TO 1963 THE DEMAND FOR COAL WITHIN THE COMMUNITY , TO WHICH COMMUNITY OUTPUT HAD TO ADAPT ITSELF , WAS IN CONSTANT DECLINE . THERE IS THEREFORE NO DOUBT THAT THE LIBERALIZATION OF IMPORTS OF PRODUCTS ORIGINATING IN NON-MEMBER COUNTRIES DURING THE MAJORITY OF THE YEARS TO BE TAKEN INTO CONSIDERATION WOULD STILL FURTHER HAVE DEPRESSED THE MARKET AND WOULD VERY SERIOUSLY HAVE HARMED GERMAN OUTPUT BY INCREASING TO AN INTOLERABLE EXTENT STOCKS WHICH WERE ALREADY VERY HIGH .

36 FURTHER , CERTAIN INCREASES IN DEMAND SUCH AS THOSE OF 1968 TO 1970 AND OF 1974 , WHICH WERE SUBSEQUENTLY SHOWN TO BE SHORT-LIVED PHENOMENA , CANNOT , CONTRARY TO THE OPINION OF THE PLAINTIFF IN THE MAIN PROCEEDINGS , BE REGARDED AS HAVING PUT AN END TO THE CIRCUMSTANCES WHICH JUSTIFIED THE EXISTENCE OF THE DISPUTED RECOMMENDATION .

37 THE VIEW MAY INDEED BE TAKEN THAT THERE WAS NO REASON TO BELIEVE THAT THE CRISIS IN THE COAL SECTOR HAD COME TO AN END MERELY ON THE STRENGTH OF A FEW SLIGHT IMPROVEMENTS IN DEMAND WHICH , AS EXPERIENCE LATER SHOWED , WERE SIMPLY DUE TO SHORT-TERM ECONOMIC FACTORS .

38 THE THREAT OF SERIOUS DAMAGE TO COMMUNITY OUTPUT MOREOVER NEVER CEASED TO EXIST , EVEN IN THE MOST FAVOURABLE YEARS , AS IS APPARENT FROM THE STATISTICS INCLUDED IN THE DOCUMENTS BEFORE THE COURT WHICH DEAL WITH OUTPUT , CONSUMPTION AND STOCKS DURING THE ABOVE-MENTIONED YEARS .

39 A STUDY OF THE POSITION ON THE COAL MARKET DURING THE PERIOD FROM 1964 TO 1978 THEREFORE POINTS TO THE CONCLUSION THAT , OVER THAT PERIOD , THERE WAS NO REVERSAL OF TRENDS SUCH AS TO PUT AN END TO THE CIRCUMSTANCES WHICH HAD JUSTIFIED THE ADOPTION OF THE DISPUTED RECOMMENDATION .

40 IN THE LIGHT OF THOSE CONSIDERATIONS THE COURT MUST THEREFORE RULE THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO CALL IN QUESTION THE COMPATIBILITY OF THE RECOMMENDATIONS OF THE HIGH AUTHORITY OF 28 JANUARY 1959 AND 30 OCTOBER 1962 WITH ARTICLE 4 ( A ) OF THE ECSC TREATY , THE VALIDITY OF THE RECOMMENDATION OF 30 OCTOBER 1962 AS REGARDS THE YEAR 1963 OR THAT OF THE RECOMMENDATION OF 28 JANUARY 1959 FROM THE DATE OF ITS ADOPTION UNTIL THE END OF 1978 . THOSE RECOMMENDATIONS MAY , THEREFORE , FOR THE PERIOD IN QUESTION , SERVE AS A LEGAL BASIS FOR NATIONAL RULES PROVIDING FOR THE CHARGING OF A DIFFERENTIAL CUSTOMS DUTY ON COAL ORIGINATING IN A NON-MEMBER COUNTRY AND IMPORTED AFTER ITS RELEASE INTO FREE CIRCULATION IN ANOTHER MEMBER STATE .

Decision on costs

COSTS

41 THE COSTS INCURRED BY THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT DUSSELDORF , BY ORDER OF 7 FEBRUARY 1983 , HEREBY RULES :

CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO CALL IN QUESTION THE COMPATIBILITY OF THE RECOMMENDATIONS OF THE HIGH AUTHORITY OF 28 JANUARY 1959 AND 30 OCTOBER 1962 WITH ARTICLE 4 ( A ) OF THE ECSC TREATY , THE VALIDITY OF THE RECOMMENDATION OF 30 OCTOBER 1962 AS REGARDS THE YEAR 1963 OR THAT OF THE RECOMMENDATION OF 28 JANUARY 1959 FROM THE DATE OF ITS ADOPTION UNTIL THE END OF 1978 . THOSE RECOMMENDATIONS MAY , THEREFORE , FOR THE PERIOD IN QUESTION , SERVE AS A LEGAL BASIS FOR NATIONAL RULES PROVIDING FOR THE CHARGING OF A DIFFERENTIAL CUSTOMS DUTY ON COAL ORIGINATING IN A NON-MEMBER COUNTRY AND IMPORTED AFTER ITS RELEASE INTO FREE CIRCULATION IN ANOTHER MEMBER STATE .