THE APPLICANT CHALLENGES THE CONTESTED DECISION ON THE GROUNDS OF INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT, INFRINGEMENT OF THE TREATY AND MISUSE OF POWERS .
THE COMPLAINT OF INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT
THE APPLICANT COMPLAINS THAT THE CONTESTED DECISION DID NOT EXPRESSLY STATE THAT THERE WAS IN THIS CASE NO DANGER OF ANY SERIOUS DISTURBANCE OF THE MARKET OF THE PRODUCTS CONCERNED . THIS COMPLAINT IS UNFOUNDED BECAUSE THE COMMISSION DOES NOT HAVE TO MENTION EXPRESSLY THAT IN ITS OPINION THERE IS NO DANGER OF SERIOUS DISTURBANCE .
IN ADDITION THE APPLICANT COMPLAINS THAT THE STATEMENT OF REASONS DOES NOT SPECIFICALLY DEAL WITH ALL THE CRITERIA OF ARTICLE 29 AND ALL THE OBJECTIVES LISTED IN ARTICLE 39 . AS THE COMMISSION DOES NOT HAVE TO TAKE INTO ACCOUNT THE CRITERIA AND OBJECTIVES NOT RELEVANT TO THE CASE IN POINT, IT MAY BE INFERRED FROM ITS SILENCE THAT IT CONSIDERED THAT THE CRITERIA AND OBJECTIVES NOT MENTIONED IN THE STATEMENT OF REASONS WERE INAPPLICABLE . THE OMISSION OF THE SAID CONSIDERATIONS DOES NOT THEREFORE CONSTITUTE A DEFECT IN THE STATEMENT OF REASONS .
THE APPLICANT ALSO CLAIMS THAT THE STATEMENT OF REASONS FOR THE CONTESTED REFUSAL IS INADEQUATE TO THE EXTENT THAT IT IS RESTRICTED TO MENTIONING A PRICE LEVEL ADJUSTED TO THE RATES OF THE COMMON CUSTOMS TARIFF FOR FRUIT WITHOUT STATING WHAT LEVEL, WHAT PRODUCTS, WHAT PRICES AND WHAT RATES ARE INVOLVED .
IT IS CLEAR FROM THE STATEMENT OF REASONS THAT THE PRICE LEVEL CONCERNED REFERS TO FRUIT IN GENERAL AND IN PARTICULAR TO APPLES, PEARS AND PEACHES ON THE ONE HAND AND ORANGES ON THE OTHER HAND . IT IS EQUALLY CLEAR THAT THE COMMISSION BY USING THE WORDS 'ADJUSTED TO THE RATES OF THE COMMON CUSTOMS TARIFF' INTENDED TO REFER TO THE PROTECTIVE FUNCTION OF THE EXTERNAL TARIFF AS A MEANS OF GUARANTEEING THE LEVEL OF COMMUNITY PRICES AGAINST THE REDUCTION WHICH MIGHT RESULT FROM THE IMPORTATION OF COMPETING PRODUCTS ORIGINATING IN THIRD COUNTRIES AT PRICES WHICH ARE TOO LOW . IT CANNOT THEREFORE BE SAID THAT THE STATEMENT OF REASONS IS INSUFFICIENTLY CLEAR .
THE APPLICANT COMPLAINS THAT THE STATEMENT OF REASONS SHOULD NOT REFER TO ARTICLE 8 OF REGULATION N . 23 OF THE COUNCIL, A PROVISION WHICH HAS NO CONNECTION WITH THE FACTS AND CANNOT THEREFORE SERVE AS A BASIS FOR THE DECISION . THIS COMPLAINT, IN SO FAR AS IT IS NOT A POINT OF SUBSTANCE, CANNOT BE UPHELD, BECAUSE, IF IN FACT THE ARTICLE REFERRED TO PROVED TO BE IRRELEVANT, IT WOULD IN NO WAY AFFECT THE LEGAL BASIS OF THE CONTESTED DECISION .
THE APPLICANT FINALLY COMPLAINS THAT THE STATEMENT OF REASONS IS CONTRADICTORY, BECAUSE THE COMMISSION CONSIDERS THE REQUESTED AUTHORIZATION AS AN OBSTACLE TO THE IMPLEMENTATION OF THE AGRICULTURAL POLICY AND AT THE SAME TIME FINDS THAT THE EFFECT OF THE REFUSAL ON THE PRICES AND QUANTITIES OF IMPORTED ORANGES WILL BE MINIMAL .
THE ALLEGED CONTRADICTION IS ONE OF APPEARANCE ONLY . WHEN THE COMMISSION TOOK THE VIEW THAT THE REFUSAL OF THE REQUESTED EXEMPTION WAS UNLIKELY TO RESTRICT IMPORTS OF ORANGES AND THEREFORE AFFECT THE VOLUME OF THIS TRADE, IT MERELY INTENDED TO RECORD THAT THE DISADVANTAGES RESULTING FROM THE NEED TO ADJUST THE DUTIES CHARGED BY THE FEDERAL REPUBLIC TO THE COMMON CUSTOMS TARIFF WERE NOT A DETERMINING FACTOR . THIS VIEW IS NOT INCONSISTENT WITH THE COMMISSION'S FINDING THAT THE REDUCTION IN THE PRICE OF ORANGES BY THE APPLICANT GOVERNMENT IS HOWEVER CAPABLE OF IMPEDING THE ESTABLISHMENT OF THE PRICE LEVEL NECESSARY FOR THE IMPLEMENTATION OF THE OBJECTIVES OF THE AGRICULTURAL POLICY FOR APPLES, PEARS AND PEACHES .
THE OBJECTIONS TO THE STATEMENT OF THE REASONS FOR THE CONTESTED DECISION THEREFORE DO NOT APPEAR TO BE WELL FOUNDED .
THE COMPLAINT OF INFRINGEMENT OF THE TREATY
IN SUPPORT OF THIS COMPLAINT THE APPLICANT ALLEGES THAT THE WORDING OF ARTICLE 25 ( 3 ) IS LESS STRICT THAN THE WORDING OF PARAGRAPHS ( 1 ) AND ( 2 ) OF THAT ARTICLE AND THAT IN VIEW OF THE EXTREME FLEXIBILITY OF PARAGRAPH ( 3 ) THE COMMISSION SHOULD HAVE GRANTED THE SUSPENSIONS APPLIED FOR AS SOON AS IT HAD ESTABLISHED THAT THERE WAS NO DANGER OF SERIOUS DISTURBANCES OF THE MARKET OF THE PRODUCTS CONCERNED, UNLESS DIFFICULTIES AROSE FROM A POSSIBLE CONFLICT WITH THE CRITERIA OF ARTICLE 29 .
ALTHOUGH IT IS TRUE THAT THE POWERS CONFERRED UPON THE COMMISSION BY THE SAID PARAGRAPH ( 3 ) ARE OF WIDER APPLICATION THAN THE NARROWLY DEFINED POWERS PROVIDED BY PARAGRAPHS ( 1 ) AND ( 2 ), THAT DOES NOT IMPLY THAT THE COMMISSION MUST GRANT EVERY REQUEST WHICH DOES NOT CREATE THE RISK OF SERIOUS DISTURBANCES . IN FACT THE USE OF THE WORD 'MAY' IN ARTICLE 25 ( 3 ) SHOWS CLEARLY THAT THE COMMISSION, IN THE EXERCISE OF THE POWERS REFERRED TO ABOVE, HAS A WIDER DISCRETION UNDER THIS PARAGRAPH THAN UNDER PARAGRAPHS ( 1 ) AND ( 2 ). WHEN CONSIDERING WHETHER A POSSIBLE GRANT OF TARIFF QUOTAS IS LAWFUL AND EXPEDIENT IT IS NECESSARY TO BEAR IN MIND THAT THE MEASURES AUTHORIZED BY ARTICLE 25 ARE IN DEROGATION OF THE COMMON CUSTOMS TARIFF LAID DOWN BY ARTICLES 3 AND 18 AND OF THE PROVISIONS OF ARTICLE 9 . THEREFORE THE COMMISSION, GUIDED BY THE CRITERIA SET OUT IN ARTICLE 29 OF THE TREATY, MUST HAVE REGARD TO THE SYSTEM AND FUNDAMENTAL RULES OF THE COMMON MARKET .
THE APPLICANT COMPLAINS THAT THE COMMISSION TOOK INTO CONSIDERATION THE EFFECT OF A POSSIBLE GRANT ON THE MARKET FOR APPLES, PEARS AND PEACHES, INSTEAD OF CONFINING ITSELF SOLELY TO THE MARKET IN THE PRODUCTS CONCERNED, THAT IS TO SAY ORANGES .
AS THE COMMISSION DID NOT RAISE THE QUESTION OF SERIOUS DISTURBANCE THERE IS NO NEED TO CONSIDER THE EXPRESSION 'MARKETS OF THE PRODUCTS CONCERNED' WHICH, ACCORDING TO ARTICLE 25 ( 3 ), IS ONLY OF SIGNIFICANCE WHEN TAKEN TOGETHER WITH THE CONCEPT OF SERIOUS DISTURBANCE . IN CONSIDERING WHETHER AN AUTHORIZATION IS APPROPRIATE, THE COMMISSION IS LEGITIMATELY ENTITLED TO TAKE ACCOUNT OF ITS EFFECTS NOT ONLY ON THE MARKET FOR THE PRODUCTS MENTIONED IN THE REQUEST BUT ALSO ON THE MARKET FOR COMPETING PRODUCTS . A RESTRICTION OF THE CONCEPT OF A MARKET, WHICH IS THE APPLICANT'S ARGUMENT, WOULD LEAD TO AN ARTIFICIAL SEPARATION OF THE MARKETS FOR DIFFERENT PRODUCTS . SUCH A CONCEPT WOULD NOT TAKE ACCOUNT OF THE INTERDEPENDENCE OF THE VARIOUS MARKETS AND WOULD DISREGARD THE FACTS OF ECONOMIC LIFE .
THE APPLICANT COMPLAINS THAT THE COMMISSION DISREGARDED THE CRITERIA SET OUT IN ARTICLE 29 OF THE TREATY AND BY SO DOING INFRINGED THIS PROVISION .
THESE CRITERIA RELATE TO DIFFERENT OBJECTIVES WHICH MAY CONFLICT WITH EACH OTHER OR NOT BE APPLICABLE AT THE SAME TIME, SO THAT THE COMPLAINT THAT THE COMMISSION HAS NOT CONSIDERED ALL OF THEM IS ONLY VALID IF THEY WERE ALL RELEVANT TO THIS CASE . IT IS NOT DISPUTED THAT THE CRITERIA SET OUT IN ARTICLE 29 ( B ) AND ( C ) HAVE NOTHING TO DO WITH THIS CASE . IF THE COMMISSION WAS IN ANY CASE OBLIGED TO BE GUIDED ONLY BY THE NEED TO PROMOTE TRADE WITH THIRD COUNTRIES THE RESULT WOULD BE THAT ANY REQUEST FOR EXEMPTION OUGHT TO BE GRANTED, AND THIS WOULD ENTIRELY DESTROY THE EFFICACY OF THE COMMON CUSTOMS TARIFF .
FINALLY, THE DEFENDANT RIGHTLY ARGUES THAT IT HAS COMPLIED WITH ARTICLE 29 ( D ) BY EXAMINING ITS APPLICATION NOT ONLY TO THE ORANGE MARKET BUT ALSO TO THE MARKET FOR APPLES, PEARS AND PEACHES .
THIS COMPLAINT IS THEREFORE UNFOUNDED .
THE APPLICANT COMPLAINS THAT THE COMMISSION DID NOT BASE ITS DECISION EXCLUSIVELY ON THE CRITERIA LAID DOWN IN ARTICLE 29, BUT ALSO TOOK INTO CONSIDERATION THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY AS LAID DOWN IN ARTICLE 39 OF THE TREATY .
ALTHOUGH IT IS TRUE THAT THE PROVISIONS LAID DOWN FOR ESTABLISHING THE COMMON MARKET ARE, IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY, APPLICABLE TO AGRICULTURAL PRODUCTS AND THAT ARTICLE 39 CANNOT BE REGARDED AS BEING IN CONFLICT WITH THE NORMAL APPLICATION OF ARTICLE 25 OF THE TREATY, IT IS EQUALLY TRUE THAT, IN EXERCISING ITS POWER UNDER PARAGRAPH ( 3 ) OF THIS ARTICLE, WHICH ONLY RELATES TO THE PRODUCTS LISTED IN ANNEX II, THE COMMISSION CANNOT IGNORE THE EFFECT OF ITS DECISIONS ON THE COMMON AGRICULTURAL POLICY AND MAY THEREFORE LEGITIMATELY AVOID TAKING ANY DECISION WHICH WOULD INTERFERE WITH THIS POLICY . WHEN APPLYING ARTICLE 25 ( 3 ), ACCOUNT MUST IN THE FIRST INSTANCE BE TAKEN OF ARTICLE 39, ALTHOUGH IT IS NOT SO IMPORTANT AS ARTICLE 29, BECAUSE THE OBJECTIVES WHICH IT SETS OUT MUST BE TAKEN INTO CONSIDERATION AND THE DANGER OF IMPEDING THE ATTAINMENT OF THESE OBJECTIVES MUST BE A FACTOR IN ASSESSING, AS THE COMMISSION IS REQUIRED TO DO UNDER THE SAID PARAGRAPH, THE EXPEDIENCY OF GRANTING AN AUTHORIZATION .
ALTERNATIVELY THE APPLICANT COMPLAINS THAT THE COMMISSION FAILED TO UNDERSTAND ARTICLE 39 BECAUSE THE OBJECTIVES LAID DOWN IN SUBPARAGRAPH ( 1 ) ( B ) OF THIS ARTICLE CAN ONLY BE ATTAINED BY THE METHODS LAID DOWN IN SUBPARAGRAPH ( 1 ) ( A ). HOWEVER IN THIS CASE IT IS NOT A QUESTION OF ACHIEVING THE OBJECTIVES LAID DOWN IN SUBPARAGRAPH ( 1 ) ( B ) BUT ONLY OF ENSURING THAT THEIR ATTAINMENT IS NOT IMPEDED BY THE APPLICATION OF OTHER PROVISIONS OF THE TREATY, IN THIS CASE ARTICLE 25 . IT FOLLOWS THAT, IF THE COMMISSION ADMITS THAT THERE IS COMPETITION BETWEEN ORANGES ON THE ONE HAND, AND APPLES, PEARS AND PEACHES ON THE OTHER, THE STABILIZATION OF THE MARKET FOR THESE LATTER PRODUCTS MAY BE IMPEDED BY THE IMPORTATION OF CHEAP ORANGES . FINALLY IF THE CONTESTED REFUSAL LEADS TO AN INCREASE IN THE PRICE OF ORANGES, THIS DOES NOT IMPLY THAT THESE PRICES ARE THEREFORE NO LONGER REASONABLE WITHIN THE MEANING OF ARTICLE 39 ( 1 ) ( E ).
WHEN THE COMMISSION STATES THAT 'IT IS KNOWN THAT IN THE CASE OF MOST AGRICULTURAL PRODUCTS THE PEOPLE WOULD BE ASSURED BETTER AND LESS EXPENSIVE SUPPLIES IF AN AGRICULTURAL POLICY HAVING AS ONE OF ITS OBJECTIVES THE STABILIZATION OF THE MARKET COULD BE ABANDONED ETC .', THE COMMISSION HAS CORRECTLY STRESSED THAT THE EXPRESSION 'REASONABLE PRICES', HAS TO BE CONSIDERED IN THE LIGHT OF AN AGRICULTURAL POLICY AS LAID DOWN BY THE TREATY AND CANNOT BE TAKEN TO MEAN THE LOWEST POSSIBLE PRICES .
THE COMPLAINT THAT ARTICLE 39 HAS BEEN INFRINGED MUST THEREFORE BE DISMISSED .
ACCORDING TO THE APPLICANT THE COMMISSION HAS ALSO INFRINGED THE TREATY BY RELYING ON ARTICLE 8 ( 2 ) OF REGULATION N . 23 OF THE COUNCIL REFERRING TO THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF MARKETS IN THE FRUIT AND VEGETABLE SECTOR .
THE DEFENDANT HAS REPLIED THAT IT QUOTED THIS PROVISION BECAUSE IT CONFIRMS THE GREAT IMPORTANCE OF THE PART PLAYED BY THE COMMON CUSTOMS TARIFF IN THE ESTABLISHMENT OF A COMMON MARKET IN FRUIT AND VEGETABLES .
IT HAS NOT BEEN SHOWN THAT BY THIS PROVISION THE COUNCIL INTENDED TO IMPOSE OBLIGATIONS ON THE COMMISSION IN THE EXERCISE OF THE POWERS CONFERRED UPON IT BY ARTICLE 25 ( 3 ).
THIS COMPLAINT THEREFORE IS UNFOUNDED .
FINALLY THE APPLICANT DISPUTES THE RELEVANCE OF THE STATEMENTS OF FACT UPON WHICH THE COMMISSION HAS BASED ITS REFUSAL AND CHALLENGES IN PARTICULAR THE ARGUMENTS THAT, ON THE ONE HAND, ORANGES, APPLES, PEARS AND PEACHES CAN BE SUBSTITUTED FOR EACH OTHER, AND ON THE OTHER HAND, THAT THE GRANT OF THE EXEMPTION REQUESTED WOULD IMPEDE THE AGRICULTURAL POLICY IN THE FRUIT SECTOR AND, FINALLY, THAT THE IMPORTATION OF CHEAP ORANGES WOULD PREVENT THE RATIONALIZATION AND STABILIZATION OF THE MARKETS FOR APPLES, PEARS AND PEACHES .
THE STATEMENT OF REASONS FOR THE CONTESTED DECISION IS BASED ON THE ASSERTION THAT THE SAID FRUITS CAN BE SOLD ON THE MARKET AT THE SAME TIME AND CAN BE SUBSTITUTED FOR EACH OTHER WITHOUT DIFFICULTY . THE COMMISSION CONCLUDES FROM THIS THAT A REDUCTION IN THE PRICE OF ORANGES MIGHT PREVENT THE ATTAINMENT OF CERTAIN OBJECTIVES OF THE AGRICULTURAL POLICY WITH REGARD TO MANY VARIETIES OF FRUIT AND IN PARTICULAR FRUSTRATE THE EFFORTS WHICH ARE BEING MADE TO OBTAIN A MORE UNIFORM DISTRIBUTION THROUGHOUT THE YEAR BY MEANS OF A BETTER SYSTEM OF STORAGE, SUCH AN IMPROVEMENT REQUIRING SUBSTANTIAL INVESTMENT WHICH PRE-SUPPOSES A CERTAIN SAFETY MARGIN WITH REGARD TO THE CONDITIONS OF COMPETITION WITH OTHER VARIETIES OF FRUIT . THE APPLICANT CLAIMS THAT ORANGES, ON THE ONE HAND, AND APPLES, PEARS AND PEACHES ON THE OTHER, CANNOT IN PRACTICE BE SUBSTITUTED FOR EACH OTHER, BECAUSE PUBLIC PREFERENCE IS PREDOMINANTLY INFLUENCED BY TASTE AND THE NEED FOR VITAMINS, WHILE THE DEFENDANT STATES THAT THE PUBLIC'S CHOICE IS CHIEFLY DICTATED BY THE PRICE . EACH OF THESE DIAMETRICALLY OPPOSED VIEWS APPEARS TO BE TOO RIGID BECAUSE THEY ASSUME THAT ONE SIMPLE FACT AMONG MANY OTHERS MAY ALONE DETERMINE THE PUBLIC'S CHOICE . THE STATISTICS SUPPLIED BY THE PARTIES SHOW THAT AT THE PRESENT TIME DEMAND IS GOVERNED CHIEFLY BY THE VOLUME OF SUPPLIES FROM TIME TO TIME AVAILABLE ACCORDING TO THE SEASON AND VARIES ACCORDING TO THE PRICE LEVEL AND THE QUANTITIES AVAILABLE . IN THE CIRCUMSTANCES IT WAS OPEN TO THE COMMISSION TO DRAW THE CONCLUSION THAT AN INCREASED SUPPLY OF APPLES OUT OF SEASON CAUSED BY BETTER STORAGE INCREASES THE CONSUMPTION OF THESE FRUITS . IT WAS EQUALLY OPEN TO THE COMMISSION TO HOLD THAT THE PRICE LEVEL OF ORANGES, A PRINCIPAL TABLE FRUIT DURING THE SEASON, IS A FACTOR WHICH CAN INDIRECTLY AFFECT THE SUCCESS OF A POLICY OF STORING APPLES . THEREFORE, HOWEVER EXTRAVAGANT THE STATEMENT MAY APPEAR THAT THE GRANT OF THE EXEMPTION APPLIED FOR WOULD NECESSARILY FRUSTRATE THE AGRICULTURAL POLICY IN THE SECTOR OF APPLES, PEARS AND PEACHES, IT DOES NOT APPEAR TO BE ENTIRELY WITHOUT FOUNDATION .
THE QUESTIONS OF THE EXTENT OF AND REASONS FOR THE OVER-PRODUCTION OF APPLES IN THE COMMUNITY AND OF THE LIKELY TREND OF THE CONSUMPTION OF APPLES IN THE FEDERAL REPUBLIC HAVE LITTLE RELEVANCE IN THIS CASE, MORE ESPECIALLY SINCE THE OBJECT OF THE CONTESTED DECISION, AS IS CLEAR FROM THE STATEMENT OF REASONS, IS NOT TO REDUCE THE SUPPLY OF ORANGES ON THE GERMAN MARKET, BUT SIMPLY TO MAINTAIN IT AT A PRICE LEVEL COMPATIBLE WITH THE COMMON CUSTOMS TARIFF .
IT FOLLOWS FROM THIS THAT THE APPLICANT, ALTHOUGH IT HAS SHOWN THAT CERTAIN ASSERTIONS IN THE STATEMENT OF REASONS MAY BE REGARDED AS EXAGGERATED, HAS NOT PROVED THAT THE ESSENTIAL REASONING IN IT IS WRONG . THE STATEMENTS PUT FORWARD BY THE COMMISSION CAN IN FACT VALIDLY SUBSTANTIATE THE CONTESTED DECISION .
THE COMPLAINT OF INFRINGEMENT OF THE TREATY MUST THEREFORE BE DISMISSED .
THE COMPLAINT OF MISUSE OF POWERS
APART FROM THE COMPLAINTS OF MISUSE OF POWERS PUT FORWARD BY THE APPLICANT AND ALREADY EXAMINED, THE APPLICANT HAS STATED THAT THE COMMISSION, HAVING BY ITS DECISION OF 5 JANUARY 1962 REFUSED THE REQUEST FOR AN EXEMPTION ON THE GROUND THAT THE COMMUNITY PRODUCTION OF ORANGES MUST BE PROTECTED, AGAIN REFUSED THE SAME REQUEST, SUBMITTED IN A FORM WHICH TOOK INTO ACCOUNT THE INTERESTS OF THIS PRODUCTION, FOR A COMPLETELY NEW REASON . FROM THIS THE APPLICANT CONCLUDES THAT THE COMMISSION REFUSED ITS APPLICATION FOR REASONS WHICH WERE ARBITRARY AND UNCONNECTED WITH THE FACTS . THE COURT, HOWEVER, HOLDS THAT THE REASONS FOR THE COMMISSION'S DECISION ARE VALID AND RELEVANT . ALTHOUGH THESE REASONS ARE ENTIRELY DIFFERENT FROM THOSE FOR THE EARLIER DECISION, THEY DO NOT RAISE THE PRESUMPTION THAT THE COMMISSION ACTED IN AN ARBITRARY WAY . AS THE STATEMENT OF REASONS MAY IN FACT BE LIMITED TO THE MOST IMPORTANT ASPECTS OF THE CASE, THE COMMISSION IS ENTITLED TO BASE A DECISION IDENTICAL WITH AN EARLIER DECISION ON FRESH GROUNDS IF THE REASONS FOR THE EARLIER DECISION ARE NO LONGER VALID IN THE CASE IN POINT . MOREOVER, ALTHOUGH IT MAY APPEAR APPROPRIATE THAT GOVERNMENTS WHICH HAVE APPLIED FOR EXEMPTIONS SHOULD BE INFORMED AT THE EARLIEST OPPORTUNITY OF THE LIKELY OBJECTIONS, THE COURT CANOT, BY USING THE SIMPLE EXPEDIENT OF THE CONCEPT OF MISUSE OF POWERS, FORCE THE COMMISSION TO ISSUE A PRIOR NOTIFICATION OF THIS KIND WHICH IS NOT LAID DOWN IN THE RELEVANT PROVISIONS .
NOR CAN THE COMPLAINT BE JUSTIFIED BY THE FACT THAT THE DECISION IS BASED ON REASONS WHICH HAVE NOT BEEN INVOKED BY THE GOVERNMENTS CONSULTED, BECAUSE THE COMMISSION MUST EVALUATE ALL THE MATERIAL FACTS, WHETHER THEY ARE CALLED IN AID BY THE SAID GOVERNMENTS OR NOT .
THE APPLICANT CLAIMS THAT, AS ITS REFUSAL RESTRICTED THE FREE CHOICE OF THE GERMAN CONSUMER, THE COMMISSION WAS ALSO GUILTY OF A MISUSE OF ITS POWERS . IT IS, HOWEVER, ONLY NECESSARY TO NOTE THAT THE RESTRICTION, TO THE EXTENT TO WHICH IT EXISTS, HAS BEEN BROUGHT ABOUT BY THE COMMON EXTERNAL TARIFF ITSELF AND THAT THEREFORE WHEN THE COMMISSION, BY VIRTUE OF THE POWERS CONFERRED UPON IT, REFUSES A REQUEST FOR EXEMPTION IT CANNOT BE RESTRICTING THE FREEDOM OF CHOICE OF CONSUMERS . SUCH AN EFFECT, IF IT WERE PROVED, WOULD MOREOVER CONSTITUTE AN INFRINGEMENT OF THE TREATY AND NOT A MISUSE OF POWERS .
FINALLY THE COMMISSION IS BLAMED FOR BEING GUIDED BY THE INTERESTS OF GERMAN PRODUCERS OF APPLES, PEARS AND PEACHES, WHICH, AS PURELY NATIONAL INTERESTS, MUST, ACCORDING TO THE APPLICANT, BE ASSESSED BY THE FEDERAL GOVERNMENT ALONE AND CANNOT THEREFORE BE USED TO OPPOSE A REQUEST FOR AN EXEMPTION MADE BY THIS GOVERNMENT IN THE NATIONAL INTEREST .
EVEN IF THIS ALLEGATION WAS CORRECT, IT WOULD NOT IN ITSELF JUSTIFY THE COMPLAINT BECAUSE THE COMMISSION IS ENTITLED TO TAKE INTO ACCOUNT THE INTERESTS OF ECONOMIC GROUPS NO MATTER TO WHICH MEMBER STATE THEY BELONG .
THE COMPLAINT OF MISUSE OF POWERS MUST THEREFORE BE DISMISSED .
UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY'S CONCLUSIONS .
THE DEFENDANT HAS SUBMITTED THAT THE APPLICANT SHOULD BE ORDERED TO PAY THE COSTS . THE APPLICANT, HAVING FAILED IN ITS ACTION, MUST BEAR THE COSTS .
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION;
2 . ORDERS THE APPLICANT TO PAY THE COSTS .
