, 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