Offene Handelsgesellschaft in Firma Werner Faust v Commission of the European Communities (52/81)

I —Facts and written procedure

The Offene Handelsgesellschaft in Firma Werner Faust [commercial partnership, trading as Werner Faust] (hereinafter referred to as “Faust”) is an undertaking which carries on business in the Federal Republic of Germany as an import agency on cif terms. A substantial part of its business consists in importing preserved mushrooms from Taiwan for the account of principals.Preserved mushrooms come within the common organization of the market in products processed from fruit and vegetables established by Regulation (EEC) No 865/68 of the Council (Official Journal, English Special Edition 1968 (I), p. 225). That regulation authorized the Commission to adopt, inter alia, protective measures where imports of products from nonmember countries threatened to disrupt the Community market.Such measures were adopted for the first time in 1974 by means of Regulation No 2107/74 of the Commission of 8 August 1974 (Official Journal, 1974, L 218, p. 54) which made all imports of preserved mushrooms from nonmember countries subject to the submission of an import licence. That licence was issued to the party applying therefor for a quantity which was calcul.ued by reference to the quantity ot products which that party had imported in the corresponding month of the preceding year or by reference to the average quantity imported during the three preceding years. Article 1 (4) of tliat regulation expressly excluded from that reference system imports from nonmember countries which stated their willingness to give certain guarantees, in particular that they would observe a certain minimum level of prices and that they would prevent any deflection of trade.Towards the end of 1976, the Commission, considering that the pressure from imports had eased, adopted Regulation (EEC) No 3096/76 of 17 December 1976 (Official Journal 1976, L 348, p. 26) relaxing those protective measures.On 14 March 1977 the Council adopted Regulation (EEC) No 516/77 which codified and supplemented the basic provisions on the common organization of the market in products processed from fruit and vegetables (Official Journal 1977, L 73, p. 1). Article 14 (2) of that regulation authorizes the Commission to adopt, inter alia, the necessary measures in a case where the market is threatened by serious disturbances. The detailed rules for the application of those measures were adopted by Council Regulation (EEC) No 521/77 of 14 March 1977 (Official Journal 1977, L 73, p. 28) Article 2 whereof enumerates the protective measures applicable with regard to imports from nonmember countries, providing in particular that those measures may “be restricted to products imported from or originating in particular countries, to exports to particular countries or to particular qualities or types of presentation”. Article 3 of that regulation provides that its application is to respect the Community's obligations under international agreements.Pursuant to Regulation No 516/77, the Commission adopted on 25 May 1978, by means of Regulation (EEC) No 1102/78 (Official Journal 1978, L 139, p. 26), fresh protective measures consisting in the immediate suspension of the issue of import licences for mushrooms. Under the terms of Article 2 (1) of that regulation the import ban was not to apply to “preserved mushrooms originating in third countries which the Commission accepts as being able to ensure that their exports to the Community do not exceed a level agreed by the Commission”. Article 3 stated that the People's Republic of China was to benefit under the terms of Article 2.By Regulation (EEC) No 1213/78 of 5 June 1978 (Official Journal 1978, L 150, p. 5) the Commission also excluded Taiwan from the application of the protective measures. That regulation was, however, almost immediately repealed by Commission Regulation (EEC) No 1449/78 of 28 June 1978 (Official Journal 1978, L 173, p. 25). The Commission argues that it was once again obliged to extend the protective measures to apply to Taiwan on account of a substantial and unforeseen increase in applications for import certificates in respect of preserved mushrooms from that country.In 1979, import certificates were issued solely to the People's Republic of China, which had undertaken to restrict its exports to the Common Market to 20000 tonnes and, towards the end of the year, to South Korea which had agreed to restrict its exports to the Community to 1500 tonnes. Taiwan, which had refused to accept a quota of 1000 tonnes, was only able to place on the common market 400 tonnes which were already in German customs authorities' warehouses.Similarly, in 1980, the protective measures remained applicable to all nonmember countries with the exception of the People's Republic of China and South Korea, until 4 March 1980, when, by the adoption of Regulation (EEC) No 547/80 of that date (Official Journal 1980, L 60, p. 16) the Commission relaxed those protective measures and, in respect of countries which in 1977 and 1978 had exported small tonnages to the Community, authorized the issue of import licences up to a limit of 10% of the total quantities imported in 1977 and 1978. That scheme was not however applied to Taiwan. Taiwan eventually agreed to restrict to 1000 tonnes its deliveries of preserved mushrooms in the Community in 1980 and, as a result, import licences were finally issued up to that quantity in respect of products from that country.More recent Community legislation then reduced imports of preserved mushrooms from Taiwan from 14727.2 tonnes, the figure for 1978, to a negligible quantity (55.3 tonnes) in 1979 and 1000 tonnes in 1980.Faust, which in 1978 had received commission of DM 117593 in respect of imports of 396128 cartons of Taiwanese mushrooms, imported none in 1979. The quantity of imports in 1980 is not stated but it may be supposed that the same situation occurred in that year.It claims to have suffered substantial damage (which it specifies in its conclusions) and to have been unable to mitigate that damage by participating in the new patterns of trade established with the People's Republic of China since that country deals exclusively with two or three large importers and, moreover, refuses for political reasons to enter into business relations with undertakings which also market products from Taiwan.Faust is of the opinion that the losses which it suffered in 1979 and 1980 are the result of Community regulations on the importation of mushrooms, in particular Commission Regulation (EEC) No 3096/76 of 17 December 1976, Commission Regulation (EEC) No 1102/78 of 25 May 1978 and Commission Regulation (EEC) No 1449/78 of 28 June 1978.Since those regulations are in its view unlawful it considered that it was entitled to bring an action for damages against the Community under the second paragraph of Article 215 of the EEC Treaty and it did so by application lodged at the Court Registry on 10 March 1980.On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, it requested Faust to produce certain telex messages which Faust had mentioned in its reply.By order of 26 October 1981 the Court decided, pursuant to Article 95 (1) and (2) of the Rules of Procedure, to assign the case to the First Chamber.