THE TREATY AND UNDER A REGULATION ADOPTED BY THE COUNCIL OF MINISTERS ON 4 APRIL 1962, PURSUANT TO ARTICLE 235 .
BY 'ABUSING ITS POWERS AND BY ADOPTING AN EXCESSIVELY LEGALISTIC ATTITUDE' AND BY FAILING TO DECIDE AS A MATTER OF URGENCY UPON THE REQUESTS, AS IT WAS OBLIGED TO DO, THE COMMISSION HAS IN THE DEFENDANTS' SUBMISSION, LOST THE RIGHT TO TAKE PROCEEDINGS AGAINST THE DEFENDANTS FOR INFRINGEMENT OF THE TREATY .
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AS THE COMMISSION IS OBLIGED BY ARTICLE 155 TO ENSURE THAT THE PROVISIONS OF THE TREATY ARE APPLIED, IT CANNOT BE DEPRIVED OF THE RIGHT TO EXERCISE AN ESSENTIAL POWER WHICH IT HOLDS UNDER ARTICLE 169 TO ENSURE THAT THE TREATY IS OBSERVED . IF IT WERE POSSIBLE TO PREVENT THE APPLICATION OF ARTICLE 169 BY A REQUEST FOR RECTIFICATION, THAT ARTICLE WOULD LOSE ALL ITS EFFECT .
A REQUEST FOR DEROGATION FROM THE GENERAL RULES OF THE TREATY - IN THIS CASE, MOREOVER, MADE AT A VERY LATE DATE - CANNOT HAVE THE EFFECT OF LEGALIZING UNILATERAL MEASURES WHICH CONFLICT WITH THOSE RULES AND CANNOT THEREFORE LEGALIZE RETROACTIVELY THE INITIAL INFRINGEMENT .
THE PROCEDURES FOR SEEKING A DEROGATION USED IN THE PRESENT CASE, THE OUTCOME OF WHICH DEPENDED UPON THE VIEW TAKEN BY THE COMMISSION, ARE ENTIRELY DISTINCT BOTH IN THEIR NATURE AND EFFECTS FROM THE WARNING PROCEDURE AVAILABLE TO THE COMMISSION UNDER ARTICLE 169 : THEY CANNOT IN ANY WAY FRUSTRATE THE LATTER PROCEDURE . THERE IS NO NEED TO CONSIDER WHETHER A POSSIBLE ABUSE BY THE COMMISSION OF ITS RIGHTS CAN DEPRIVE IT OF ALL THE METHODS AVAILABLE TO IT UNDER ARTICLE 169, AS IT SUFFICES TO STATE THAT IN THIS CASE NO PROOF OF SUCH AN ABUSE HAS BEEN GIVEN OR TENDERED .
IT EMERGES FROM THE ORAL PROCEDURE, MOREOVER, THAT THE DEFENDANTS NEGLECTED TO FURNISH THE COMMISSION WITH THE NECESSARY DETAILS TO ENABLE IT TO DECIDE UPON THEIR REQUESTS . WHAT IS MORE, ANY WRONGFUL ACT OR DEFAULT ON THE PART OF THE COMMISSION - WHICH WOULD HAVE TO BE DECIDED UPON IN AN ACTION ESPECIALLY BROUGHT ON THIS POINT - WOULD NOT IN ANY WAY AFFECT THE PROCEEDINGS FOR INFRINGEMENT OF THE TREATY BROUGHT IN RESPECT OF DECISIONS WHICH STILL SUBSIST AT PRESENT AND THE LEGALITY OF WHICH THE COURT IS BOUND TO EXAMINE .
THE APPLICATIONS MUST THEREFORE BE DECLARED ADMISSIBLE .
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ON THE SUBSTANCE OF THE CASE
THE APPLICATIONS ARE BROUGHT FOR THE PURPOSE OF OBTAINING A DECLARATION OF ILLEGALITY IN RESPECT OF THE INCREASE OF THE SPECIAL IMPORT DUTY ON GINGERBREAD IMPOSED AFTER THE TREATY ENTERED INTO FORCE, AND OF THE EXTENSION OF THAT DUTY TO OTHER SIMILAR PRODUCTS CONSIDERED AS A CHARGE HAVING EQUIVALENT EFFECT TO A CUSTOMS DUTY PROHIBITED BY ARTICLES 9 AND 12 .
1 . A CHARGE HAVING EQUIVALENT EFFECT TO A CUSTOMS DUTY
ACCORDING TO THE TERMS OF ARTICLE 9, THE COMMUNITY IS BASED ON A CUSTOMS UNION FOUNDED ON THE PROHIBITION OF CUSTOMS DUTIES AND OF