1 THE PURPOSE OF THE APPLICATION IS TO OBTAIN THE ANNULMENT OF ARTICLE 1 OF DECISION NO 70/446 OF THE COMMISSION OF 15 SEPTEMBER 1970 ( OJ L 213, P . 70 ), WHEREBY THE FEDERAL REPUBLIC OF GERMANY WAS AUTHORIZED TO EXCLUDE FROM COMMUNITY TREATMENT CERTAIN PRODUCTS ORIGINATING IN THE PEOPLE' S REPUBLIC OF CHINA WHICH WERE IN FREE CIRCULATION IN THE BENELUX COUNTRIES, IN SO FAR AS THIS AUTHORIZATION " LIKEWISE COVERS IMPORTS OF THESE PRODUCTS IN RESPECT OF WHICH APPLICATIONS FOR LICENCES ARE CURRENTLY AND DULY PENDING BEFORE THE GERMAN AUTHORITIES ".
2 I - ADMISSIBILITY ( 1 ) THE COMMISSION FIRST CONTENDS THAT THE APPLICATION IS INADMISSIBLE BECAUSE THE CONTESTED PROVISION IS NOT OF CONCERN TO THE APPLICANT . IT MAINTAINS THAT THE WORDS " CURRENTLY AND DULY PENDING " EXCLUDE APPLICATIONS FOR IMPORT LICENCES WHICH THE GERMAN AUTHORITIES OUGHT ALREADY TO HAVE GRANTED BEFORE THE ENTRY INTO FORCE OF THE CONTESTED DECISION, AT THE RISK OF INFRINGING THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS . THIS IS SAID TO BE THE CASE WITH THE PLAINTIFF' S APPLICATION SINCE THE GERMAN AUTHORITIES HAD PERMITTED AN EXCESSIVELY LONG PERIOD TO ELAPSE BEFORE REPLYING TO IT .
3 THE EXPRESSION " DULY PENDING " MUST BE UNDERSTOOD AS CONSTITUTING AN APPLICATION OF ARTICLE 10 ( 1 ) OF REGULATION NO 865/68/EEC OF THE COUNCIL OF 28 JUNE 1968 IN CONJUNCTION WITH ARTICLE 2 ( 3 ) ( Q ) AND 4 ( 1 ) OF THE COMMISSION' S DIRECTIVE OF 22 DECEMBER 1969; ACCORDING TO THESE PROVISIONS THE MEMBER STATES ARE OBLIGED TO GRANT APPLICATIONS FOR IMPORT LICENCES FOR THE PRODUCTS IN QUESTION WITHIN A PERIOD WHICH IS NOT " EXCESSIVE ", OTHERWISE THEY CONTRAVENE THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS .
4 IN THE PRESENT CASE IT IS SUFFICIENT TO NOTE THAT THE FEDERAL GOVERNMENT, WHICH HAD JUSTIFIED ITS INITIATIVE BY REFERENCE TO AN APPLICATION SUBMITTED TO IT AT THE TIME, MIGHT HAVE ASSUMED THAT THE PROVISION AT ISSUE WAS PRECISELY INTENDED TO COVER APPLICATIONS WHICH HAD ALREADY BEEN SUBMITTED . ON 15 SEPTEMBER 1970, THE DATE WHEN THE CONTESTED DECISION WAS TAKEN, THE DEFENDANT WAS AWARE THAT THE AUTHORIZATION WAS TO EXTEND, IN ACCORDANCE WITH THE WISHES OF THE FEDERAL GOVERNMENT, TO APPLICATIONS FOR LICENCES WHICH WERE ALREADY PENDING BEFORE THE GERMAN AUTHORITIES BEFORE 11 SEPTEMBER 1970, THE DATE ON WHICH THE GERMAN GOVERNMENT APPLIED TO THE DEFENDANT . THEREFORE, IF THE DEFENDANT INTENDED TO EXCLUDE THESE APPLICATIONS FROM THE PROTECTIVE MEASURE IT SHOULD HAVE EXPRESSED THIS CLEARLY, INSTEAD OF USING THE WORDS " THE PRESENT AUTHORIZATION LIKEWISE COVERS ", WITH WHICH, BY IMPLICATION, IT EXTENDED THE SCOPE OF THE FIRST SENTENCE OF ARTICLE 1 OF THE DECISION .
5 ACCORDINGLY, SINCE THE SECOND SENTENCE OF THAT ARTICLE MUST BE INTERPRETED AS APPLYING TO THE APPLICANT' S CASE, THE PROVISION THE ANNULMENT OF WHICH IS SOUGHT IS OF CONCERN TO THE APPLICANT .
6 ( 2 ) THE DEFENDANT CONTENDS THAT IN ANY EVENT AN AUTHORIZATION GRANTED TO THE FEDERAL REPUBLIC IS NOT OF DIRECT CONCERN TO THE APPLICANT SINCE THE FEDERAL REPUBLIC REMAINED FREE TO MAKE USE OF IT .
7 THE APPROPRIATE GERMAN AUTHORITIES HAD NEVERTHELESS ALREADY INFORMED THE APPLICANT THAT THEY WOULD REJECT ITS APPLICATION AS SOON AS THE COMMISSION HAD GRANTED THEM THE REQUISITE AUTHORIZATION . THEY HAD REQUESTED THAT AUTHORIZATION WITH PARTICULAR REFERENCE TO THE APPLICATIONS ALREADY BEFORE THEM AT THAT TIME .
8 IT FOLLOWS THEREFORE THAT THE MATTER WAS OF DIRECT CONCERN TO THE APPLICANT .
9 ( 3 ) THE DEFENDANT CLAIMS THAT THE CONTESTED DECISION IS NOT OF INDIVIDUAL CONCERN TO THE APPLICANT BUT COVERS IN THE ABSTRACT ALL TRADERS WISHING TO IMPORT THE PRODUCTS IN QUESTION INTO GERMANY WHILE THE DECISION IS IN FORCE .
10 HOWEVER, THE APPLICANT HAS CHALLENGED THE DECISION ONLY TO THE EXTENT TO WHICH IT ALSO COVERS IMPORTS FOR WHICH APPLICATIONS FOR IMPORT LICENCES WERE ALREADY PENDING AT THE DATE OF ITS ENTRY INTO FORCE . THE NUMBER AND IDENTITY OF IMPORTERS CONCERNED IN THIS WAY WAS ALREADY FIXED AND ASCERTAINABLE BEFORE THAT DATE . THE DEFENDANT WAS IN A POSITION TO KNOW THAT THE CONTESTED PROVISION IN ITS DECISION WOULD AFFECT THE INTERESTS AND SITUATION OF THOSE IMPORTERS ALONE . THE FACTUAL SITUATION THUS CREATED DIFFERENTIATES THE LATTER FROM ALL OTHER PERSONS AND DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .
11 THE OBJECTION OF INADMISSIBILITY MUST THEREFORE BE DISMISSED . II - THE SUBSTANCE
12 THE APPLICANT COMPLAINS THAT THE DEFENDANT HAS EXCEEDED ITS POWERS UNDER ARTICLE 115 OF THE EEC TREATY AND THUS VIOLATED THE PRINCIPLE OF THE PROPORTIONALITY OF ADMINISTRATIVE MEASURES . IT MAINTAINS THAT IN VIEW OF THE SMALL QUANTITY OF PRESERVED MUSHROOMS WHICH IT WISHED TO IMPORT - 65.5 METRIC TONS, THAT IS TO SAY, LESS THAN 0.15 PER CENT OF THE ANNUAL CONSUMPTION OF PRESERVED MUSHROOMS IN THE FEDERAL REPUBLIC - IT WAS NOT NECESSARY TO EXTEND THE AUTHORIZATION AT ISSUE TO APPLICATIONS FOR IMPORT LICENCES PENDING AT THE DATE WHEN THE REQUEST WAS SUBMITTED TO THE COMMISSION .
13 ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 115 : " IN ORDER TO ENSURE THAT THE EXECUTION OF MEASURES OF COMMERCIAL POLICY TAKEN ... BY ANY MEMBER STATE IS NOT OBSTRUCTED BY DEFLECTION OF TRADE, OR WHERE DIFFERENCES BETWEEN SUCH MEASURES LEAD TO ECONOMIC DIFFICULTIES IN ONE OR MORE OF THE MEMBER STATES, " THE COMMISSION MAY, INTER ALIA, " AUTHORIZE MEMBER STATES TO TAKE THE NECESSARY PROTECTIVE MEASURES, THE CONDITIONS AND DETAILS OF WHICH IT SHALL DETERMINE, " IT BEING NEVERTHELESS UNDERSTOOD THAT UNDER THE THIRD PARAGRAPH OF THE SAME ARTICLE : " IN THE SELECTION OF SUCH MEASURES, PRIORITY SHALL BE GIVEN TO THOSE WHICH CAUSE THE LEAST DISTURBANCE TO THE FUNCTIONING OF THE COMMON MARKET ".
14 SUCH AUTHORIZATION MAY IN PARTICULAR CONSTITUTE AN EXCEPTION TO THE PROVISIONS OF ARTICLE 9 OF THE TREATY IN CONJUNCTION WITH THOSE OF ARTICLE 30, WHEREBY THE PROHIBITION OF QUANTITATIVE RESTRICTIONS ON IMPORTS AND ALL MEASURES HAVING EQUIVALENT EFFECT APPLIES NOT ONLY TO GOODS ORIGINATING IN MEMBER STATES BUT ALSO TO GOODS IN FREE CIRCULATION IN MEMBER STATES WHICH ORIGINATED IN THIRD COUNTRIES . BECAUSE THEY CONSTITUTE NOT ONLY AN EXCEPTION TO THE AFOREMENTIONED PROVISIONS, WHICH ARE FUNDAMENTAL TO THE OPERATION OF THE COMMON MARKET, BUT ALSO AN OBSTACLE TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY PROVIDED FOR BY ARTICLE 113, THE DEROGATIONS ALLOWED UNDER ARTICLE 115 MUST BE STRICTLY INTERPRETED AND APPLIED .
15 IT APPEARS FROM THE FILE THAT AT THE DATE OF THE CONTESTED DECISION THE GERMAN AUTHORITIES WERE CONSIDERING ONLY TWO APPLICATIONS, AMOUNTING TO A TOTAL IMPORT OF SOME 120 METRIC TONS, THAT IS TO SAY, ABOUT 0.26 PER CENT, ACCORDING TO THE DEFENDANT' S OWN STATEMENTS, OF THE TOTAL OF 46 122 METRIC TONS OF PRESERVED MUSHROOMS IMPORTED INTO GERMANY IN 1969 . IN THESE CIRCUMSTANCES, THE COMMISSION, BY EXTENDING THE AUTHORIZATION AT ISSUE TO AN APPLICATION RELATING TO A TRANSACTION WHICH WAS INSIGNIFICANT IN TERMS OF THE EFFECTIVENESS OF THE MEASURE OF COMMERCIAL POLICY PROPOSED BY THE MEMBER STATE CONCERNED AND WHICH IN ADDITION HAD BEEN SUBMITTED AT A TIME WHEN THE PRINCIPLE OF THE FREE CIRCULATION OF GOODS APPLIED UNRESTRICTEDLY TO THE GOODS IN QUESTION, HAS EXCEEDED THE LIMITS OF WHAT IS " NECESSARY " WITHIN THE MEANING OF ARTICLE 115 - INTERPRETED WITHIN THE GENERAL FRAMEWORK OF THE TREATY, FOLLOWING THE EXPIRY OF THE TRANSITIONAL PERIOD .
16 ACCORDINGLY, THE CONTESTED PROVISION MUST BE ANNULLED WITHOUT ITS BEING NECESSARY TO CONSIDER THE OTHER SUBMISSIONS IN THE APPLICATION .