I —Legislative background
Preserved mushrooms, which fall under subheading 20.02 of the Common Customs Tariff, are subject to a customs duty of 23% on importation into the Community. They are included amongst the products governed by Council Regulation (EEC) No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruit and vegetables (Official Journal, L 73, p. 1), being “vegetables prepared or preserved otherwise than by vinegar or acetic acid”. Under the combined provisions of Articles 10 and 11 of that regulation and Annex IV thereto, they are governed by a system of import certificates, which entails the lodging of a security to guarantee that importation will be effected during the period of validity of the certificate. The security is, except in cases of force majeure, forfeit in whole or in part if importation is not effected, or is effected only in part, within that period.Article 13 (2) of the abovementioned regulation provides as follows :“Save as otherwise provided in this regulation or where derogation therefrom is decided by the Council, acting by a qualified majority on a proposal from the Commission,the levying of any charge having equivalent effect to a customs duty, and the application of any quantitative restriction or measure having equivalent effect,shall be prohibited in trade with non-member countries”.Article 14, however, provides as follows:1. If, by reason of imports or exports, the Community market in one or more of the products specified in Article 1 is or is likely to be exposed to serious disturbances which might endanger the objectives set out in Article 39 of the Treaty, appropriate measures may be applied in trade with non-member countries until such disturbances or the threat thereof has [sic] ceased.The Council, acting by a qualified majority on a proposal from the Commission, shall adopt rules for the application of this paragraph and shall define the cases and the limits within which Member States may take protective measures.2. Should the situation envisaged in paragraph (1) arise, the Commission, acting either at the request of a Member State or on its own initiative, shall decide what measures are necessary and communicate them to the Member States; such measures shall be immediately applicable....”Pursuant to the second subparagraph of Article 14 (1), the Council adopted Regulation (EEC) No 521/77 of 14 March 1977 laying down detailed rules for applying protective measures in the market in products processed from fruit and vegetables (Official Journal, L 73, p. 28). Article 1 thereof provides that, in order to assess whether the Community market is experiencing or threatened with serious disturbances, “particular account shall be taken of:(a) the volume of imports or exports effected or foreseen;(b) the quantities of products available on the Community market;(c) the prices for Community products on the Community market or the foreseeable trend of these prices and in particular any excessive upward or downward trend thereof in relation to prices in the years immediately preceding;(d) where the abovementioned situation arises as a result of imports, the prices obtaining on the Community market, at a comparable stage, for products from third countries, and in particular any excessive downward trend in these prices.”Article 2 contains a list of the protective measures “which may be taken under paragraphs (2) and (3) of” Article 14 of Regulation No 516/77. As far as the products at issue here are concerned, the measures are the following:the total or partial discontinuation of the issue of certificates, as a result of which new applications will not be accepted ;the rejection of all or some of the applications for the issue of certificates which are being examined;the introduction of arrangements under which, if the price for an imported product falls below a certain minimum, a condition may be imposed whereby that product may be imported only at a price which is at least equal to such minimum.The measures may be taken “only to such extent and for such length of time as is strictly necessary”; they must take account of the special situation of products which are already on their way to the Community and 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, or to imports intended for particular regions of the Community. In any event (Article 3), the application of the regulation in question “shall respect the Community's obligations under international agreements”.Similar provisions had appeared in previous regulations, namely Regulations Nos 865/68 (Official Journal, English Special Edition 1968 (I), p. 225), 1927/75 (Official Journal, L 196 of 29. 7. 1975, p. 7) and 1928/75 (L 198 of 29. 7. 1975, p. 11). From 1975, the Commission resorted to the protective clause on several occasions and, since May 1978, has made constant use of it, adopting, over a period of two and a half years, 18 regulations which set limits on the importation of preserved mushrooms from non-member countries. The measures taken until 28 December 1980 always dealt with the restriction or suspension of the issue of import certificates and varied according to the country exporting the goods to which the measures applied, account being taken of the fact that some producer countries had signed undertakings of voluntary restraint with regard to their exports to the Community. Furthermore, the protective measures applied in some cases to preserved cultivated mushrooms generally and in others to preserved cultivated button mushrooms. The legality of those measures, in particular as regards the difference in the treatment of supplier countries outside the Community, was the subject of three cases brought before this Court, in which the Commission's actions were held to be lawful (see the judgments of 6. 5. 1982, Case 126/81 Wünsche [1982] ECR 1479, of 15. 7. 1982, Case 254/81 Edeka [1982] ECR 2745, and of 28. 10. 1982, Case 52/81 Faust [1982] ECR 3745).Commission Regulation (EEC) No 3429/80 of 29 December 1980, which is at issue in this case, introduced for the first time the following protective measures :(i) Article 2 (1) provides that applications for import licences are to be accepted for preserved mushrooms for up to 26% of the quantities for which import licences were issued during the first 11 months of 1980 for products from each supplier country in the Member State in which the licence application is made;(ii) Article 2 (2) allocates the total quantity resulting from the application of Article 2 (1) between the main supplier countries outside the Community;(iii) Article 1 provides that the release into free circulation in the Community of goods exceeding the stated quantities is to be subject, during the first quarter of 1981, to the levy of an “additional amount” of 175 European currency units per 100 kg net. For that purpose, licences issued for quantities in excess of the limit are required to bear the wording “additional amount to be levied” (Article 3).The new legislation on protective measures was kept in force by the Commission for the second and third quarters of 1981 (see Regulations Nos 796/81 of 27. 3. 1981, Official Journal, L 82, p. 8, and 1756/81 of 30. 6. 1981, Official Journal, L 175, p. 23). The Council then adopted definitive rules on the matter in the form of Regulation No 1796/81 of 30 June 1981 (Official Journal, L 183, p. 1), whereby the additional amount, reduced to 160 ECU per 100 kg net, was adopted not as a protective measure under Article 14 of Regulation No 516/77 but as a market-management measure under Article 13 (2) thereof.
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