OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 10 JANUARY 1973 (1)

Mr President,

Members of the Court,

In this reference for a preliminary ruling by the Verwaltungsgericht (Administrative Court) Frankfurt which I deal with today, we are concerned with the validity of the Commission's Regulation No 1643/71 of 28 July 1971 having as its purpose ‘introducing a system of minimum prices for imports of tomato concentrates from Greece’ (OJ L 171, 30. 7. 1971).

In this connection, one might first of all mention the following.

Tomato concentrate under Tariff No 20.02 is within the ambit of the common organization of the market in products processed from fruit and vegetables, created by Council Regulation No 865/68 of 28 June 1968 (OJ L 154, 1. 7. 1968). This organization of the market provided the application of the common customs tariff in relation to third countries only, it did not however contain a protective clause, since it did not yet effect the ‘coordination and unification of import regulations’ which individual Member States applied towards third countries. This gap was filled by Council Regulation No 1427/71 of 2 July 1971 introducing protective measures for products processed from fruit and vegetables (OJ L 151, 7. 7. 1971). Article 1 provides inter alia: 'If by reason of imports the Community market in one or more of the products listed in Article 1 of Regulation (EEC) No 865/68 experiences or is threatened with serious disturbances which may endanger the objectives of Article 39 of the Treaty, appropriate measures may be applied in trade with third countries until such disturbances or threat of disturbance has ceased. In this respect, there was promulgated on the same day the Council Regulation No 1428/71 “for laying down modes of application in relation to protective measures for products processed from fruit and vegetables” (OJ L 15, 7. 7. 1971). In this Regulation there must first of all be mentioned Article 2 (1) which reads “the measures which may pursuant to Article 1 (2) and (3) of Regulation (EEC) No 1427/71 be taken upon the occurrence of the situation mentioned in paragraph (1) of this Article are as follows: (a) a complete or partial cessation of imports or exports; (b) a system of minimum prices below which imports may be made dependent upon their taking place at a price in excess of the minimum price laid down for the relevant product”. This regulation was, in the first instance, applicable until 30 June 1972; its validity was then by Regulation No 1374/72 (OJ L 149, 1. 7. 1972) extended by one year.

Due to the increase of imports of tomato concentrates into the Community, having regard to the market prices likewise applicable to products from third countries (prices which lay considerably below cost price of processing plants within the Community), bearing in mind the fact that in the main producing areas within the Community a number of tomato processing plants had to cease their activity; finally faced with the threat of a possible surplus of a least 200000 tons of fresh tomatoes during the marketing year 1971, the Commission, in the summer of 1971, thought it necessary to make use of the possibilities afforded by Regulation No 1427. To this end it promulgated Regulation No 1558/71 of 20 July 1971“laying down protective measures applicable to imports of tomato concentrates” (OJ L 164, 22. 7. 1971). This introduced a system of import licences for limiting imports, without limitation of time. Excepted were imports from Greece and that having regard to the special system governing trade with that country created by the association agreement, or to be more precise Article 41 of that agreement which reads: “In so far as the gradual removal of customs duties and quantitative restrictions between the contractual parties might lead to prices that would tend to jeopardize the objects of Article 39 of the Treaty founding the Community, the Community on the one hand as from the date of coming into operation of the common agricultural policy, and Greece on the other hand as from the date of coming into force of this agreement, may in relation to certain products apply a system of minimum prices below which the importation may be either temporarily stopped or limited; or maybe made subject to a condition that it shall take place at prices in excess of the minimum prices laid down for the product concerned.”

Having regard to this provision, the previously mentioned Regulation of the Commission No 1643 was promulgated in relation to the importation of tomato concentrates from Greece. I must now draw your attention to Article 1 in that regulation according to which all imports of tomato concentrates from Greece falling within the sub-heading No ex 20.02 C of the Common Customs Tariff shall be subject to the submission of an import licence. In this connection Article 2 provides:

“The issue of the import licence shall be subject to:

(a) a written undertaking from the importer to ensure:

a written undertaking from the importer to ensure:

(aa) …

(bb) … that this importation arises from a contract providing for the sale and delivery free at Community frontier, or at a place situated outside the Community, at a price higher than that shown in the annex to this regulation for the quality in question, and

(cc) … that this price will actually be paid; …”

Finally in Article 8 it is stated: “Proof of compliance with the minimum price shall be furnished by submitting to the body which issued the licence:

— the contract referred to in Article 2 (a) (bb), and

— a bank attestation certifying that payment of the purchase price specified in that contract had been made …”

This Regulation came into force on 1 August 1971 and it evidently still remains in force today. For the sake of completeness one ought to add in this context, that the requirement of an import licence and the restrictions on imports as already provided for in Article 1 (4) of Regulation No 1558, was subsequently lifted as regards some countries that had agreed to the guarantee for observing a particular minimum price. This happened in relation to Spain, Portugal and Morocco by Regulation No 1738 of 6 August 1971 and in relation to Tunisia and Switzerland by Regulation No 1786 of 13 August 1971. In this connection the minimum price was by way of agreements fixed at a level which allowed imports from Greece a preference of approximately 4 %.

This Regulation is likewise of importance for the plaintiffs in the national proceedings, the firma Schroeder, a commercial undertaking resident in Hamburg. On 10 September 1971 they made application to the Bundesamt fur Ernährung und Forstwirtschaft (the Federal Office for Food and Forests), the competent German authority, to grant them a licence for the importation from Greece of tomato concentrate in tins, belonging to Tariff No 20.02. This application was however rejected, since Schroeder were not prepared to comply with the conditions mentioned in Article 2 of Regulation No 1643. Schroeder unsuccessfully appealed against this rejection and finally applied to the Verwaltungsgericht in Frankfurt.

By way of motivation of their point of view, they submit that Article 2 of Regulation No 1643 offends against Article 39 (1) (c) of the EEC Treaty and against Article 1 (1), first sentence: or to express it more precisely, that the minimum price system introduced by the Commission was because of existing possibilities of circumvention, not suitable to bring about the market stabilization that was desired. Furthermore, they claim that the Commission had not observed the order of priority in Regulation No 1428 (which refers in the first place to complete or partial cessation of imports and only thereafter to the introduction of a system of minimum prices), that the Commission had wrongly proceeded from the assumption that the conditions precedent for applying protective measures (serious market disturbances) existed and that they had fixed the minimum prices at too high a point, i.e. with prohibitive effect.

Since the doubts raised in relation to the validity of Regulation No 1643 did not appear entirely untenable to the Verwaltungsgericht in Frankfurt, the court by order dated 19 June 1972 adjourned the proceedings and referred the following question for a preliminary ruling:

(b) Does Article 2 of Regulation (EEC) No 1643/71 moreover infringe the authority in which it is based, in particular Article 1 (1), first sentence, of Regulation (EEC) No 1427/71 of the Council of 2 July 1971?

I will now deal with these questions in detail.

The first question consists of two parts which must be treated in conjunction. It deals on the one hand with the problem whether Article 2 of Regulation No 1643 (i.e. the obligation upon importers only to effect imports at prices which respect the minimum prices laid down in Regulation No 1643) offends against Article 40 (3) in conjunction with Article 30 (1) (c) of the EEC Treaty because the Regulation cannot be regarded as a measure necessary for attaining the objectives of Article 39 (in this context, for stabilizing the market). On the other hand, the question is asked whether the said Regulation offends against Article 1 (1), first sentence, where the reference is to measures which are appropriate.

for the purpose of dealing with market disturbances by reason of imports. In this connection one may assume, having regard to the fact that the Council itself by its Regulation No 1428 of the same date defined the measures got out in Regulation No 1427 and therein also referred to the minimum price system which has been criticized before you, that the second part of the question is to be understood as inquiring whether the said Council regulation can be reconciled with the principles of the Treaty.

As the Commission has rightly observed, the questions are to be seen in the light of the plaintiffs' complaint in the national proceedings, that a system which imposes an obligation to effect purchases in an exporting country at prices higher than the market prices ruling in that country was in the light of the natural profit motive of traders, positively conducive to provoke malpractices. In the plaintiffs' view there existed undoubtedly many possibilities of circumvention, both legal and illegal. Thus one could, pro forma, agree to the payment of higher prices in the exporting country, but on actual payment of such prices the exporter could by way of adjustment make a repayment without the same being entered in the books; or it could be an adjustment taking the form of a price reduction on delivery of other goods. One could also from a legal point of view, incorporate subsidiary companies in the exporting country or in a third country and via these effect imports, all the time respecting minimum prices, the subsidiary company meanwhile purchasing at market prices in the exporting country and the profit accruing to the parent company. In all the abovementioned cases it would be possible, whilst pretending to respect the minimum price regulations in fact to sell the imported goods in the Community at low prices and thus to prevent the desired effect of market stabilization. One therefore ought to deny the measures any suitability ab initio for achieving the objects aimed at.

If we now consider what weight to attach to this argument — which at first sight appears impressive — there is first of all an important objection, which has been raised by the Commission. We cannot get away from the fact that the Treaty itself by Article 44 provides for such a minimum-price system, that the Agreement with Greece has adopted the wording of Article 44 and in addition refers to the principles of Article 44 (2) and (3), that such systems — as we have been assured by the Commission — also have a place in agreements with other third countries and that previously they had already been customary in foreign trade — even outside the Community. We further have to bear in mind, that in the Decision of the Council of Ministers on minimum prices dated 4 April 1962, there was even accorded a certain measure of priority to the system criticized by the plaintiff and further that the minimum price regulations (as demonstrated by the Commission in page 17 of its pleading) can frequently also be met with elsewhere in the Community law on the regulation of the market. After all this, there must be a natural inclination to say that the system which is so widespread cannot be termed incapable of application. Indeed it is difficult to imagine that all those experienced and expert organizations that participated in working out the minimum price regulations had succumbed to a basic error as to its suitability. At least, those who put forward this contrary view will have to accept that very strict tests are applied to their arguments.

If one then examines whether the plaintiffs did indeed prove their argument, the following picture emerges: first of all one must certainly concede that the possibilities of illegal circumvention, as argued by the plaintiffs, do indeed exist and to a certain extent are probably also made use of. I cannot however accept that, in the case of the minimum price regulation for Greek tomato concentrates, these have become the rule, that the law-abiding merchant no longer exists in this context and that accordingly the system had to remain completely ineffective — only in that case after all can one speak of lack of suitability. I would rather go along with the Commission in assuming that supervising the observance of obligations provided for in Regulation No 1643 is not an impossibility and that strict application of the available local sanctions can, if only by their deterrent effect, render them sufficiently effective. As regards the legal possibilities of circumvention (the interpositioning of subsidiary companies incorporated in the exporting country or in third countries) one has to observe that these will not be so easy to accomplish, there might be difficulties on incorporation (one only has to think of the fiscal problems and expenses involved and also of the problems of disposing of profits realized by the subsidiary companies, if one bears in mind exchange control). One feels justified in thinking that in relation to protective measures such as before us today and which by their nature can only temporarily remain in force, it will not in fact come to legal attempts at circumvention to any large extent.

Besides, the following is above all important: looking back today we find that a development which would correspond with the plaintiff's theory, did not in fact occur. If the plaintiff's view that protective measures are wholly unsuitable, were in fact correct, then in line with the developments in preceding years, an increase in imports should have resulted. This however was not the case. In fact imports receded, indeed they have considerably receded. That emerges from official statistics, according to which imports in the period from August to December 1971 only amounted to about one half of those in the corresponding period of the previous year and on the basis of these statistics, this development continued during the first half of 1972. There are furthermore no real indications that the figures mentioned might be inaccurate, in the way the plaintiffs suspect, by inter alia referring to the data supplied by the exporting country. It therefore appears to me to be established that the protective measures did indeed relieve the pressure on the Community market and, looked at in this way, one cannot deny that they had a market stabilizing effect, which at the same time benefited the domestic tomato producers.

As regards the development of prices within the Community after the promulgation of the protective measures, it is true that the Community prices for Italian tomato concentrates during the financial year from August 1971 and until the poor harvest of 1972, were below the minimum prices fixed by the Commission ('even though not to the extent mentioned by the plaintiffs and documented by some offers to sell, but taken on average to a smaller extent). Apparently, the causes for this are not quite clear. Perhaps an excessively generous calculation of minimum prices (to which I shall have occasion to refer) plays some part, perhaps circumventions occurred to some degree, perhaps there were increased imports at low prices, as a result of deliberations on the necessity of taking protective measures becoming known in advance of their coming into force. One thing is certain, as regards development of prices likewise, one cannot speak of a complete lack of effect of the protective measures, since it appears that, as has been explained by the Commission, there was in the course of time at least a strong approximation to the level of the minimum prices. And that one can certainly call market stabilization within the meaning of the protective measures that had been taken.

We can therefore in relation to the first question adhere to the view that the plaintiffs' theory is not well-founded; there are no good reasons for saying that the protective measures were completely unsuited for achieving the purpose at which they were aimed and that the minimum price system of Regulation No 1643 could for that reason be termed invalid.

In its second question the national court then desires to know whether the system of Article 2 of Regulation No 1643 was invalid because of infringement against the principle of proportionality and the principle of protection of confidence, i.e. for having disregarded general legal maxims which likewise govern Community law.

What has been said by the plaintiffs in this respect has already partly been dealt with within the framework of the first question (this emerges as regards the principle of proportionality in its relationship to Article 40 (3) and Article 44 (2) and (3) of the EEC Treaty as well as the provisions of Regulations Nos 1427 and 1428). We shall in part still have to consider this principle in connection with the fourth question, i.e. on examining the appropriate order of the measures to be taken. At the present time apart from the alleged infringement of the principle of protection of confidence and legal certainty — we shall only have to examine whether a time limit ought to have been set on the protective measures taken by the Commission, whether a market disturbance had indeed occurred, whether limiting the protective measures to Italy would have been the right course.

Let us start with the alleged infringement of the principle of legal certainty (or protection of confidence). This is alleged to emerge from the fact that the possibilities of circumvention of the minimum price regulation precluded one from relying on its proper functioning and therefore to rely on the existence of genuine competitive conditions.

The observations which this seems to require can be kept quite short. One must admittedly concede that individual circumventions of a minimum-price system can never be wholly avoided. On the other hand one can probably say that, in the case of the regulations now before us, such circumventions were not likely to an extent which would have excluded any confidence in the appropriate functioning of the system. That this is a justifiable assumption, is already shown by the fact that there was no flooding of the Community market with Greek tomato concentrate (which should have occurred if the plaintiffs were right) but that the imports had in fact receded to a substantial degree.

From this point of view nothing therefore emerges that would militate against the validity of Regulation No 1643.

The question then arises, should the protective measures have been limited in time, i.e. have been confined to a short period only? That too should in the view of the plaintiffs be assumed. In this connection they point to the fact that no transitional provision in respect of existing contracts had been made and they also argue that the minimum price regulation should in the first instance have stopped imports from Greece altogether, having regard to relative price levels applicable within the Community. That however would only be acceptable if the protective measure had a temporary character.

As regards this objection one must first of all say that the plaintiffs' view — as I have shown already — does not apply in reality. In reality, the minimum price regulation in no way led to an import stop but only to a diminution of imports and, looked at in this way, one cannot say that completion of existing contracts would have been impossible.

It is likewise very relevant that no legal text lays down a time limit for such protective measures. In particular, the Commission has shown that the time limit provided for in the Council's decision concerning minimum prices, which was promulgated in relation to Article 44, does not apply in the present context. That much can be said, although Article 41 of the Agreement with Greece does in connection with the application of a minimum-price regulation insist upon observance of the principles of Article 44 of the EEC Treaty. Correctly understood, this only refers to the principles contained within Article 44 itself and not to the decisions of the Council released for the purpose of closer definition of Article 44. One also feels obliged to add that the decision mentioned is evidently designed in relation to the transitional period until the introduction of a common agricultural policy and that it cannot therefore without more ado be applied to the relationship with Greece.

The minimum price regulation cannot therefore be attacked because of the lack of a time limit. Rather is it a case of the Commission rightly assuming that the time limit would have to remain in force, for as long as the appropriate factors existed and only to put an end to it, when the factors giving rise to its original promulgation, no longer applied.

A further important point of dispute in the national proceedings is whether the community market for tomato concentrate was indeed exposed to or threatened by serious disturbances which could have jeopardized Article 39 of the Treaty. This too is doubted by the plaintiffs who argue that Greek tomato concentrate, measured as against the total production of the Community, has only a small share in the market, that it could not therefore have a material effect on the market. They further point out that if imports from Greece had indeed caused a market disturbance, then the price levels within the Common Market should shortly after the promulgation of the protective measures have adjusted to the level of the minimum prices. Since this has not occurred, one could assume that the market disturbance which had been found to exist, could in fact be traced back to other causes, say, an excessive production within the Community.

As regards this argument, one must first of all agree with the plaintiffs to the extent that to justify application of the protective measures of Regulation No 1427 would require the existence of strict conditions precedent. On the other hand, I believe that I should say at the outset that even if one applies this yardstick, the Commission's attitude cannot be criticized.

Thus the Commission has rightly found (at any rate this has not been disputed) that in the financial year prior to the promulgation of protective measures, dozens of tomato processing plants in the main producing areas of the Community had to cease operating and that this had involved a recession in tomato processing within the Community. This state of affairs emerged, together with the necessity that in the event of tomato production remaining at the same level, considerable quantities would have to be syphoned out of the market, the producers only being paid the very low intervention price. On the other hand, it is clear that the prices for tomato concentrate originating from third countries, in which the production costs only amount to 60 or 70 % of the production costs within the Community, lie considerably below Community level. It is also clear, that imports from third countries (which have to be looked at collectively since the protective measures work comprehensively) have increased considerably. If in 1967 only 18000 tons of tomato concentrate were imported, then during 1970 these imports reached 70000 tons. That corresponds to approximately 30 % of the Community production in tomato puree (the only valid comparison, since between tomato concentrate on the one hand and peeled tomatoes as well as tomatoes temporarily rendered durable, on the other hand, there is apparently, as the plaintiffs themselves admit, only a certain interchangeability). Recalculated in relation to the basic products, we therefore had imports of around 420000 tons as compared with a total tomato production within the main producing area of Italy of 3000000 tons, out of which approximately 1000000 tons were processed into tomato concentrate. On the basis of the tendency of previous years, one furthermore had to anticipate a continuation of this development and therefore expect a further squeezing out of domestic products, i.e. an increasing extent of intervention, which in the first seven months of 1971 already had to deal with 30000 tons of tomatoes.

Seen in this way one feels entitled to assume that there was at least the threat of a market disturbance of serious dimensions, which due to decreasing purchases by the national industry or due to the buying at low prices, had adverse repercussions on the income levels in agriculture and had to be treated as relevant within the meaning of the objects of Article 39. Furthermore, in the light of the comparative price levels described, even if the imports had only amounted to a fraction of the Community production, one would not be able to avoid the conclusion that the price level within the Common Market had been influenced precisely because of these imports. It follows, that one could hardly dispute that the conditions precedent for applying Regulation No 1427 did indeed exist and that the Commission had rightly attempted by means of protective measures to reduce imports.

Finally, one also cannot say (as the plaintiffs do) that the measures taken had remained without result. From the decline in imports one can deduce that a braking effect had made itself felt. Furthermore, there had undoubtedly been at least an appreciable approximation to the level of minimum prices. Furthermore, with Community production stagnating during the financial year 1971/72, the needs for intervention had become rarer than in the preceding year. One can undoubtedly see in this the favourable effects within the objects of Article 39 of the EEC Treaty.

It follows that Regulation No 1643 can certainly not be attacked on the grounds that the conditions precedent in Regulation No 1427 had not been present or because of lack of suitability of the measures taken to relieve the market disturbance.

Within the framework of the next question to be examined, it therefore only remains for us to consider whether, having regard to the fact that market disturbances had occurred mainly in Italy

it would have been appropriate to have a regional limitation of the protective measures to that Member State, as it had been provided for in Regulation No 1428.

That notion too can be quickly rejected. In this respect it suffices to point at the fact that Italy exports large quantities of tomato concentrate to the other Member States. This export opening would certainly have been impaired if the protective measure had been limited to Italy and if in the other Member States unlimited cheap imports from third countries had remained possible. A limited measure of protection would therefore hardly have led to the desired result of removing the market disturbance. Furthermore, one would have had good grounds for fearing that tomato concentrate originating from third countries would have been exported cheaply by Member States to Italy (transport costs hardly enter into the matter with this kind of product) and the situation in that country would have undergone a further deterioration to the detriment of producers.

If protective measures were to be effective, then the Commission indeed had no alternative but to extend them to the whole Community.

3.The third question to which we shall now turn, enquires whether Article 2 of Regulation No 1643 is contrary to law because the minimum prices set out in the Annex thereto, lay over the level of prices in Member States and therefore had a prohibitive effect.

In this respect the Commission did explain in the course of the proceedings, how the minimum prices came about. As we know, it relied upon information from the Italian Ministry of Agriculture concerning Italian cost prices (cost of basic product, cost of transportation to factory, cost of processing, cost of packing) and after examination, incorporated these figures into the provisions. It is above all important in this connection, that the cost of the basic product was estimated at a level which corresponds to the objects of Article 39, i.e. at a level above that of intervention prices.

Now the Commission itself, as has already been mentioned in a different context, had to concede that the minimum prices lay above the level of market prices within the Community. In this connection it may partly be of some importance, that the processing plants paid for the basic products prices lower than those that had been assumed and that perhaps by mixing them with imported tomato concentrate they achieved lower sales prices. Partly it is not easy to explain why the development of market prices for a long time took a different direction than had been expected. If one however asks oneself whether one is entitled from this to draw the conclusion that the fixing of minimum prices was contrary to law, then one has to have regard firstly to the fact that the Commission in this field of market regulating measures certainly enjoys a margin of discretion. It was forced to make a forecast of the future development of the market and naturally could not work with absolute precision in this respect. Certain deviations ought therefore doubtless to be treated as arising from that margin of discretion. On the other hand — and that is still more important — it is clear that the minimum-price regulation did not in fact have a prohibitive effect. Rather was the development of imports such, that they still reached the level of previous years, a level which one might perhaps term normal.

Looked at in this way there is no ground for the reproach that the Commission had not exercised its discretion correctly and that by excessively tightening the protective measures it had offended against the principle of proportionality. In other words, the considerations contained within the framework of the third question do likewise not lead to the conclusion that Regulation No 1643 was invalid.

4.We finally still have to consider the fourth question. This question on the part of the national court asks whether from Regulation No 1428 and Article 41 of the Agreement with Greece there emerges a due order in which the measures mentioned therein are to be applied.

At first sight this question admittedly aims at an interpretation of the said provisions; in reality however there is lurking behind it — that is clear from the reasons set out in the national court's order referring the matter — a question of validity. For if the due order for taking the possible measures could be arranged in such a way that in the first place one has to think of quantitative restriction of imports and only thereafter of a minimum-price regulation, then Regulation No 1643 with its minimum-price regulations ought under this heading, to be treated as invalid. This only appears to pose the problem, i.e. of measuring a Community regulation by the yardstick of an agreement concluded with an associated State. It is only apparent, because Article 3 of Regulation No 1428 expressly imposes a duty to observe the contractual obligations which are internationally binding upon the Community, so that one might say that in this context too, Community law itself provides the yardstick for testing the validity of Regulation No 1643.

In relation to this fourth question which we have just discussed, one arrives at the following conclusions:

First of all it is important that the system under Regulation No 1428 does not correspond with that under Article 41 of the Agreement with Greece. In the Regulations there are mentioned as measures, on the one hand the complete or partial cessation of imports or exports and on the other hand a system of minimum prices, where in the event of these not being reached, the permission to import can be made dependent on their taking place at a price higher than the minimum price for the relevant product. In the first case, the price obviously represents only one of several factors which pursuant to Article 1 of Regulation 1428 has to be taken into account. As against this Article 41 of the Agreement with Greece knows only one system of minimum prices, operating in such a way, that on the one hand upon the minimum price not being attained, imports are either temporarily stopped or limited or on the other hand, that imports are made conditional upon their taking place at prices in excess of the minimum price fixed for the relevant product. Now, since Article 3 of Regulation No 1428 — as I have said already — requires the observance of contractual obligations, one can only conclude from all this, that in the present context Regulation No 1428 can only be read in conjunction with the Agreement with Greece and not in isolation; this applies likewise to the order of application of the measures referred to.

It follows that it can probably not be disputed that neither the wording of Regulation No 1428 nor the Agreement with Greece points at any particular order of application. One feels entitled to say this, because the enumeration of several measures in one regulation does not necessarily mean the laying down of a particular order of application and because, apart from this, there is no conjunction clarifying this order of application. If one regards the Council's decision on minimum prices of 1962, as being important also in relation to the Agreement with Greece (that is because of its reference to the principles of Article 44 of the EEC Treaty), then one could even conclude from this a priority in favour of the minimum-price regulations, a fact which would militate against the plaintiff's view as to the correctness of the measure promulgated by the Commission.

Both Council and Commission appear to be right when they stress that you cannot claim that quantitative import restrictions are without exception less drastic than a minimum-price regulation, that indeed prima facie the opposite might apply if by quantitative import restrictions one got as far as a stop on imports and if the minimum prices were fixed in a manner which did not have a prohibitive effect. Indeed, if one wants to arrive at an opinion on the more or less effective character of a measure, one would have to take into account all the circumstances of the individual case, as well as the methods of application. Upon a retrospective examination, as has already been mentioned, we observe however, that the minimum-price regulations only had a moderate influence on the development of imports. For that reason it can certainly not be said a priori that this measure was stricter and more drastic than a measure of quantitative restrictions, which the Commission was able to fix at its discretion.

Following upon this realization, that the Commission in the present case was bound to observe both the provisions of the Treaty with Greece, as well as the provisions of Regulation No 1428, it therefore only remains to consider, whether preferable to the minimum-price regulation would have been one that upon minimum prices not being reached, would have implemented a temporary cessation or limitation of imports. Here too the answer should not really pose a problem. For in the course of the proceedings, we did learn that the last mentioned system (this follows inter alia from the Council's decision concerning minimum-prices) could only function if relevant quotations were available for the national market. Evidently these are lacking in respect of tomato concentrate and according to the Commission's cogent arguments, it could not have been possible without any more ado to bring about the functioning of such a system within a short period. Since on the other hand, one cannot doubt, that in the summer of 1971 there was a need for quick and effective protective measures in the field of production of tomato concentrate, nothing really remains to be argued against the legality of the choice which the Commission arrived at. Put into other words therefore, the considerations emerging from the framework of the fourth question are not of a kind that could shake the validity of Article No 1643.

Allow me to summarize all this. I suggest that the questions put by the Verwaltungsgericht Frankfurt be answered as follows:

(a)Examination of the compatibility of Article 2 of Regulation No 1643/71 with Article 40 (3) in conjunction with Article 39 (1) (c) on the one hand and with Regulation No 1427/71 in conjunction with Council Regulation No 1428/71 on the other hand, has shown nothing that might cast doubt upon the validity of this provision.

(b)There is likewise no cause to doubt the validity of Article 2 of Regulation No 1643 in relation to the principles of proportionality and of protection of confidence cited by the national court.

(c)The validity of the afore-mentioned provision can likewise not be subject to doubt by reason of the fact that the minimum prices mentioned in the Annex to Regulation No 1643 might have been fixed at a prohibitive level.

(d)Finally, neither from Article 2 (1) of Council Regulation No 1428/71 nor from Article 41 of the Association Agreement with Greece can one deduce a particular order of priority for applying the measures mentioned therein, of such a kind as to result in doubts concerning the legality of the choice made by the Commission.

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(1) Translated from the German.