Di Lenardo Adriano Srl (C-37/02) and Dilexport Srl (C-38/02) v Ministero del Commercio con l'Estero.
Date: 2004-07-15
55. The Court has consistently held that it follows from the context of the Treaty in which Article 211 EC must be placed and also from practical requirements that the concept of implementation must be given a wide interpretation. Since only the Commission is in a position to keep track of agricultural market trends and to act quickly when necessary, the Council may confer on it wide powers in that sphere. Consequently, the limits of those powers must be determined by reference to the essential general aims of the organisation of the market in question (Case 22/88 Vreugdenhil and Van der Kolk [1989] ECR 2049, paragraph 16, and Joined Cases C-9/95, C-23/95 and C-156/95 Belgium and Germany v Commission [1997] ECR I-645, paragraph 36).
56. Accordingly, the Court has held that, where agriculture is concerned, the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to such legislation or to the implementing legislation adopted by the Council (Case 121/83 Zuckerfabrik Franken  [1984] ECR 2039, paragraph 13, and Belgium and Germany  v Commission , cited above, paragraph 37).
70. Any trader on the part of whom an institution has promoted reasonable expectations may rely on the principle of the protection of legitimate expectations. However, if a prudent and circumspect trader could have foreseen that the adoption of a Community measure is likely to affect his interests, he cannot plead that principle if the measure is adopted (Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products  v Commission  [1987] ECR 1155, paragraph 44, and Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809, paragraph 25). Furthermore, while the principle of protection of legitimate expectations is one of the fundamental principles of the Community, traders are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained, particularly in an area such as that of the common organisation of the markets, the objective of which involves constant adjustment to reflect changes in economic circumstances (see, in particular, Case C-104/97 P Atlanta  v European Community [1999] ECR I-6983, paragraph 52).
82. It is settled case-law that the freedom to pursue a trade or profession, like the right to property, is one of the general principles of Community law. However, those principles are not absolute, but must be viewed in relation to their social function. Consequently, restrictions may be imposed on the exercise of the freedom to pursue a trade or profession, as on the exercise of the right to property, provided that such restrictions in fact correspond to objectives of general interest pursued by the European Community and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see, inter alia, Case C-44/94 Fishermen’s Organisations and Others [1995] ECR I-3115, paragraph 55; Case C-200/96 Metronome Musik [1998] ECR I-1953, paragraph 21; and Joined Cases C-20/00 and C-64/00 Booker Aquacultur and Hydro Seafood  [2003] ECR I-7411, paragraph 68).
84. However, as the Commission has correctly noted, such a restriction corresponds, as follows from recital 7 in Regulation No 896/2002, to an objective of general interest, which is to combat speculative or artificial practices in relation to the issue of import licences, thereby precluding the possibility of a traditional operator who already has a tariff quota from being included in that same quota again as a non-traditional operator through the intermediary of another operator to which it is related. Achievement of that objective itself contributes to steady supply to the Community market which the Community rules are designed to ensure.
86. The Commission referred to the lack of effectiveness, in that connection, of Article 11(1) of Regulation No 2362/98, which the importers did not really attempt to refute. Pursuant to that provision, the Member States were to check that the ‘newcomers’ were commercially active for their own account as importers into the Community and as independent economic units, and, where there was doubt as to whether that condition was met, the operators concerned had to provide evidence of compliance which was considered satisfactory by the national competent authorities in order to have their application accepted and prove their independent management. In that regard, Article 6(c) of Regulation No 896/2001 is certainly capable of preventing more effectively the misuse of the Community rules by speculative or artificial practices, without none the less removing any possibility of importing bananas into the Community. At the very most, that opportunity is restricted on the basis of the nature of the links between the economic operators concerned.
87. Moreover, action to counteract speculative or artificial practices that, through fictitious agents, increase the number of traditional operators receiving tariff quotas which were however intended for non-traditional operators, is, if it proves effective, capable of providing a means for genuine new operators to act on the market and therefore to deploy their economic activities fully.