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COURT OF JUSTICE
OFTHE
EUROPEANCOMMUNITIES
Reports
of
CasesbeforetheCourt
1968
LUXEMBOURGThesereports are'published'bytheCourtof Justice;they maybereproduced,
providedthesourceis acknowledged.Themodeofcitationofajudgment in
thisvolumeshallbeasfollows:Case7/68Commissionofthe European
CommunitiesvItalianRepublic[1968]ECR 423.
The head-noteofajudgment hasnobindingforceandisinnowaytobe re­
garded asanauthenticinterpretationofthejudgment summarized therein.
Textsbearingthefootnote'CMLR'arebasedontranslationsfrom Common
MarketLawReports, publishedbycommonLaw ReportsLtd.,ofElm House,
ElmStreet,LondonWC1XOBB.Thirdpartiesreproducingsuchtests are
requestedto acknowledgethattheyare basedontranslationsoriginally pub­
lishedbyCommonLawReportsLtd.intheCommonMarketLaw Reports.
OFFICE FOROFFICIAL PUBLICATIONS OF THE EUROPEANCOMMUNITIES
Boîtepostale 1003—Luxembourg6431Table of Cases reported in Volume 1968
Case 28/66: Government of the Kingdom of the Netherlands v Commission of the European
Communities
Judgment of the Court of 8 February 1968 1
Opinion of Mr Advocate-General Gand delivered on 12 December 1967 16
Case 3/67: Fonderie Acciaierie Giovanni Mandelli v Commission of the European Commu­
nities
Judgment of the Court of 8 February 1968 25
Opinion of Mr Advocate-General Roemer delivered on 18 January 1968 34
Case 32/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Gerechtshof (Court of Appeal), The Hague (First Tax Chamber), in the action pending
before that court between I.G.F. Van Leeuwen and City of Rotterdam
Judgment of the Court of 8 February 1968 43
Opinion of Mr Advocate-General Roemer delivered on 18 January 1968 50
Case 24/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Gerechtshof (Court of Appeal), The Hague, in the action pending before that court between
Parke, Davis and Co. and Probel, Reese, Beintema -Interpharm and Centrafarm
Judgment of the Court of 29 February 1968 55
Opinion of Mr Advocate-General Roemer delivered on 7 February 1968 74
Case 5/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Finanzgericht (Finance Court), Munich, in the action pending before that court between
W. Beus GmbH & Co., Munich, and Hauptzollamt (Principal Customs Office), München -
Landsbergerstrasse
Judgment of the Court of 13 March 1968 83
Opinion of Mr Advocate-General Gand delivered on 22 June 1967 101 of Mr Gand on 30 November 1967 107
Case 30/67: Industria Molitoria Imolese and others v Council of the European Communities
Judgment of the Court of 13 March 1968 115
Opinion of Mr Advocate-General Roemer delivered on 8 February 1968 122
Case 33/67: Dietrich Kurrer v Council of the European Communities
Judgment of the Court (Second Chamber) of 28 March 1968 127
Opinion of Mr Advocate-General Gand delivered on 29 February 1968 138
ITABLE OF CASES REPORTED IN VOLUME 1968
Case 28/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Bundesfinanzhof (Federal Finance Court) in the action pending before that court between
Firma Molkerei-Zentrale Westfalen/Lippe GmbH, Trockenmilchwerk and Hauptzollamt
(Principal Customs Office) Paderborn
Judgment of the Court of 3 April 1968 143
Opinion of Mr Advocate-General Gand delivered on 25 January 1968 159
Case 7/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Finanzgericht (Finance Court), Munich, in the action pending before that court between
Firma Milchwerke H. Wöhrmann und Sohn KG, Appeldoorn and Hauptzollamt (Principal
Customs Office), Bad Reichenhall
Judgment of the Court of 4 April 1968 177
Opinion of Mr Advocate-General Gand (vide Case 28/67) 185
Case 13/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Finanzgericht (Finance Court), Munich, in the action pending before that court between
Firma Kurt A. Becher, Munich and Hauptzollamt (Principal Customs Office) München -
Landsbergerstrasse
Judgment of the Court of 4 April 1968 187
Opinion of Mr Advocate-General Gand (vide Case 28/67) 196
Order of the Court of 16 May 1968 196
Case 20/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Finanzgericht (Finance Court), Munich, in the action pending before that court between
Firma Kunstmühle Tivoli, Munich, and Hauptzollamt (Principal Customs Office) Würzburg
Judgment of the Court of 4 April 1968 199
Opinion of Mr Advocate-General Gand (vide Case 28/67) 206
Case 25/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Finanzgericht (Finance Court) of the Saarland in the action pending before that court be­
tween Firma Milch-, Fett-und Eierkontor GmbH, Hamburg, and Hauptzollamt (Principal
Customs Office), Saarbrücken
Judgment of the Court of 4 April 1968 207
Opinion of Mr Advocate-General Gand (vide Case 28/67) 222
Case 27/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Finanzgericht (Finance Court), Munich, in the action pending before that court between
Firma Fink-Frucht GmbH, Frankfurt-am-Main, and Hauptzollamt (Principal Customs
Office), München -Landsbergerstrasse
Judgment of the Court of 4 April 1968 223
Opinion of Mr Advocate-General Gand (vide Case 28/67) 234
Case 31/67: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Finanzgericht (Finance Court), Hamburg, in the action pending before that court between
Firma August Stier, Hamburg, and Hauptzollamt (Principal Customs Office), Hamburg-
Ericus
Judgment of the Court of 4 April 1968 235
Opinion of Mr Advocate-General Gand (vide case 28/67) 243
Case 34/67: Reference for preliminary ruling under Article 177 of the EEC Treaty by the
Finanzgericht (Finance Court), Düsseldorf, in the action pending before the court between
Firma Gebrüder Lück, Cologne-Braunsfeld, and Hauptzollamt (Principal Customs Office),
Köln-Rheinau
Judgment of the Court of 4 April 1968 245
Opinion of Mr Advocate-General Roemer delivered on 8 February 1968 253
IITABLE OF CASES REPORTED IN VOLUME 1968
Joined Cases 9 and 58/65: Acciaierie San Michele S.p.A. (in liquidation) v High Authority
of the ECSC
Order of the Court (Second Chamber) of 22 February 1968 259
Case 29/67: De Wendel et Cie SA v Commission of the European Communities
Judgment of the Court of 11 June 1968 263
Opinion of Mr Advocate-General Roemer delivered on 26 March 1968 281
Case 16/67: Henri Labeyrie v Commission of the European Communities
Judgment of the Court (First Chamber) of 11 July 1968 293
Opinion of the Advocate-General Roemer delivered on 12 June 1968 305
Case 26/67: Henri Danvin v Commission of the European Communities
Judgment of the Court (Second Chamber) of 11 July 1968 -. . . . 315
Opinion of Mr Advocate-General Gand delivered on 27 May 1968 323
Case 35/67: August Josef van Eick v Commission of the European Communities
Judgment of the Court (First Chamber) of 11 July 1968 329
Opinion of Mr Advocate-General Roemer delivered on 12 June 1968 347
Case 3/68: Fernand de Schach v Council of the European Communities
Judgment of the Court (Second Chamber) of 11 July 1968 361
Opinion of Mr Advocate-General Gand delivered on 25 June 1968 371
Case 4/68: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Verwaltungsgericht (Administrative Court), Frankfurt-am-Main, Third Chamber, in the
action pending before that court between Firma Schwarzwaldmich GmbH, and Einfuhr-und
Vorratsstelle fur Fette
Judgment of the Court of 11 July 1968 377
Opinion of Mr Advocate-General Gand delivered on 12 June 1968 389
Case 5/68: Reference for a preliminary ruling under Article 150 of the EAEC Treaty by the
Belgian Cour de Cassation (Second Chamber) in the action pending before that Court be­
tween Claude Moïse Sayag and Another, and Jean-Pierre Leduc and Others
Judgment of the Court of 11 July 1968 395
Opinion of Mr Advocate-General Gand delivered on 11 June 1968 404
Case 6/68: Zuckerfabrik Watenstedt GmbH v Council of the European Communities
Judgment of 11 July 1968 409
Opinion of Mr Advocate-General Roemer delivered on 13 June 1968 416
Case 7/68: Commission of the European Communities v Italian Republic
Judgment of 10 December 1968 423
Opinion of Mr Advocate-General Gand delivered on 23 October 1968 432
Case 2/68: Ufficio Imposte di Consumo di Ispra v Commission of the European Communities
Order of the Court of 17 December 1968 435
Opinion of Mr Advocate-General Roemer delivered on 23 October 1968 440
Case 13/68: Reference for a preliminary ruling under Article 177 of the EEC Treaty by the
Corte d'Appello, Rome, in the action pending before that court between SpA Salgoil, in
liquidation, Milan, and Italian Ministry of Foreign Trade, Rome
Judgment of the Court of 19 December 1968 453
Opinion of Mr Advocate-General Gand delivered on 14 November 1968 464
IIITABLEOE CASES REPORTEDIN VOLUME 1968
Case19/68: Referencefora preliminaryrulingunderArticle 177oftheEECTreatyby the
Sozialgericht(SocialCourt), Augsburg,(6th Chamber)intheaction pendingbefore that
court betweenGiovannideCiccoand Landesversicherungsanstalt Schwaben,Augsburg
JudgmentoftheCourtof 19 December 1968 473
OpinionofMr Advocate-GeneralGand deliveredon10 December1968 483
IndexofParties 489
AlphabeticalIndexof SubjectMatter 491
Indexof Provisionsjudiciallyconsidered 499
IVJUDGMENT OF THE COURT
8 FEBRUARY 19681
Government of the Kingdom of the Netherlands
v Commission of the European Communities
Case 28/66
Summary
1. Transport — Special internal rates and conditions — Purpose of such special rates and
conditions — Authorization justified
(ECSC Treaty, Article 70)
2. Transport — Special internal rates and conditions — Unforeseeable circumstances justi­
fying authorization of special and — Modifications in the infrastructure
of transport
3. ECSC Treaty — General objectives — Natural conditions of competition — Concept
(ECSC Treaty, second paragraph of Article 2)
4. ECSC Treaty — General objectives — Continuity of employment — Preservation of
balance between different general objectives
(ECSC Treaty, Articles 2 and 3)
5. Transport — Special internal rates and conditions — Application to a group of under­
takings — Authorization permissible
(ECSC Treaty, Article 70)
6. Transport — Special internal rates and conditions — Restrictive clause — Authorization
Exceptional nature — Temporary authorization — Fixing of time-limit
(ECSC Treaty, Article 70)
2. The unforeseeable nature of the circum­1. The purpose of the authorization of
special rates and conditions is to grant stances justifying the grant of special
rates and conditions must be assessed intemporary aid to enable undertakings to
overcome—in particular by means of a the light of the facts of each case and
readaptation of production and distribu­ according to a reasonable assessment of
the situation.tion—exceptional difficulties resulting
from unforeseeable circumstances which In the transport sector, modifications in
are likely to result in a situation in the infrastructure, execution of which
the composition of production costs no brings about a change in the existing
longer corresponds to the natural con­ economic situation, constitute such un­
foreseeable circumstances.ditions of competition existing between
them. 3. The concept set out in the second para­
Cf. paragraph 2, summary, judgment in graph of Article 2 of the Treaty con­
Joined Cases 27, 28 and 29/58, Rec. cerning conditions which will of them­
selves ensure the most rational distribu-1960, p. 505 and p. 527.
1 — Language of the Case: Dutch.
1JUDGMENT OF 8. 2. 1968 — CASE 28/66
tion of production cannot be regarded as in Case 8/57, Rec. 1958, p. 228.
a fixed concept, but covers facts which 5. The application of special rates and con­
ditions in the interest of one or moreare themselves contingent and variable,
in particular with regard to time. undertakings does not necessarily imply
4. Although it is true that the establishment individual measures and in no way
of the Common Market is based in excludes the introduction of measures
particular on the most rational distribu­ adapted to a group of undertakings
tion of production at the highest possible which are similarly placed.
level of productivity, it in no way follows 6. As the application of special rates and
that the social objectives set out in conditions constitutes an altogether
Article 2 of the Treaty are always of exceptional procedure, the Treaty only
allows it to the extent to which it enablessecondary importance and can in no
case constitute one of the decisive the undertakings in whose favour it
grounds for Community action. operates to re-establish, within the
As the general objectives set out in appropriate time-limits, conditions which
will of themselves ensure the mostArticles 2 and 3 of the ECSC Treaty
cannot always be pursued simultane­ rational distribution of production at
ously in their totality, the Community the highest possible level ofproductivity.
In order to ensure observance of themust continually reconcile any possible
conflict which may be implied by these objectives of the Treaty, a time-limit
objectives when considered individually, must be attached to the temporary agree­
and when such conflict arises must grant ment given by the High Authority to the
such priority to one or other of the application of the special rates and con­
ditions.general objectives as appears necessary
having regard to the economic facts or Cf. paragraph 2, summary, judgment in
circumstances in the light of which it Joined Cases 27, 28 and 29/58, Rec.
adopts its decisions. 1960, p. 505.
Cf. Paragraph 4 (b), summary, judgment
In Case 28/66
Government of the Kingdom of the Netherlands , represented by Professor
W. Riphagen, Legal Adviser to the Ministry of Foreign Affairs at The Hague,
assisted by D. J. Veegens, advocate of The Hague, with an address for service in
Luxembourg at the Netherlands Embassy, 8 rue Pierre-d'Aspelt,
applicant,
v
Commission of the European Communities , taking the place of the High Authority
of the ECSC by virtue of Article 9 of the Treaty of 8 April 1965, represented by its
Legal Advisers, R. Baeyens and H. Matthies, acting as Agents, assisted by C. R. C.
Wijckerheld Bisdom, Advocate of The Hague, with an address for service in
Luxembourg at its offices, 2 place de Metz,
defendant,
Application for the annulment of Decision No 14/66 of the High Authority of
20 July 1966, concerning the authorization of special rates and conditions intro­
2NETHERLANDS v COMMISSION
duced by the Deutsche Bundesbahn (German Federal Railways) and applicable to
the carriage of coal and steel to or from the Saarland,
THE COURT
composed of: R. Lecourt, President, A. M. Donner and W. Strauß, Presidents of
Chambers, A. Trabucchi, R. Monaco (Rapporteur), J. Mertens de Wilmars and
P. Pescatore, Judges,
Advocate-General: J. Gand
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts obtained, or if the conditions on which
approval was granted were not satisfied
within the time-limit laid down.By letters of various dates between 30 May
1964 and 14 March 1966, the Government On 21 September 1966 the Government of
of the Federal Republic of Germany in­ the Kingdom of the Netherlands lodged an
formed the High Authority of the introduc­ application against this decision at the
tion by the Deutsche Bundesbahn (German Court Registry by virtue of the first para­
Federal Railways) of special rates and con­ graph of Article 33 of the ECSC Treaty.
ditions concerning the carriage of coal and
steel to or from the Saarland.
II — Conclusions of the parties
By letter of 11 July 1966, supplemented by
telex on 13 July 1966, the Federal German The applicant claimed that the Court
Government requested the High Authority should:
to grant, to the extent necessary, the
'— annul Decision No 14/66 of the High
authorizations required by virtue of Article Authority of 20 July 1966;
70 and the other applicable provisions of — order the High Authority to pay the
the ECSC Treaty. costs.'
Having regard in particular to the change The defendant contended that the Court
which has taken place in the conditions of
should:
competition to the detriment of the ECSC '— dismiss the application brought by the
undertakings in the Saarland as a result of Government of the Kingdom of the
the canalization of the Main, the Neckar Netherlands as unfounded;
and the Moselle', the High Authority by — order the applicant to pay the costs.'
Decision No 14/66 of 20 July 1966 (Official
Journal No 141 of 2 August 1966) gave con­
III — Submissions and argumentsditional approval to the introduction of
of the partiesspecial rates and conditions.
Article 4(2) of this decision specifies that
Admissibilitythe authorizations granted would be
amended or withdrawn if the circumstances The defendant raises no objections to the
which gave rise to the grant no longer admissibility of the application.
3JUDGMENT OF 8. 2. 1968 — CASE 28/66
Substance canalization of the Main, the Neckar and
the Moselle, and to which the High Author­
A — Infringement of the Treaty ity refers in the recitals to its decision, is
The applicant alleges that the contested necessarily of a permanent rather than a
decision is not in accordance with the pro­ temporary nature.
visions of Articles 2 to 5 and Article 70 of Secondly, the improvement of the infra­
the Treaty and puts forward several argu­ structure of traffic routes by the public
ments on this point. Under the terms of the works authorities cannot be regarded as an
unforeseeable circumstance. It is in fact onefourth paragraph of Article 70 of the
Treaty, the application of special internal of the constant preoccupations of public
authorities in all the Member States and therates and conditions in the interest of one or
more coal- or steel-producing undertakings undertakings of the Saarland have for
is to require the prior agreement of the several years been able to foresee this
High Authority, which is required to verify normal development and to adjust their
that they are in accordance with the prin­ policies to the new situation.
ciples of the Treaty. Any authorization of Finally, the composition of the production
costs of the undertakings of the Saarland,special support tariffs adversely affects the
principle of non-discrimination which is within the meaning of that judgment, was
fundamental to the Treaty. According to not changed as a result of these canaliza­
the case-law ofthe Court such an authoriza­ tions and the consequent reduction in rail
tion in favour of special rates and conditions tariffs. These canalizations merely reduced
which, as in this instance, do not derive the production costs of the competing
from the method of transport, may only be undertakings, which benefited directly
granted in exceptional cases. thereby. Contrary to the view expressed by
The judgment of the Court in Joined Cases the High Authority in the final sub­
3 to 18, 25 and 26/58 cannot be relied upon paragraph of recital II(1) of the preamble
in order to determine whether the special to the decision, the changes in the infra­
rates and conditions in dispute may be structure must be regarded as part of the
'natural conditions' in which each under­applied, since the purpose of the support
tariffs referred to therein was to offset the taking works, within the meaning given to
disadvantages caused to the recipient under­ this expression by the Court in the above-
takings not by economic factors but by mentionedjudgment.
specific political circumstances. Reference The applicant maintains that the contested
should rather be made to the judgment of decision is based upon a policy which is
the Court in Joined Cases 27, 28 and 29/58, likely to produce results contrary to the
which concerned special rates and condi­ aims of the Treaty as defined in Articles 2
tions introduced for purely economic to 5. The authorization of support tariffs
reasons. According to this judgment (Rec. to offset the difficulties suffered by certain
1960, p. 527), such support tariffs were undertakings as a result of changes in the
infrastructure such as those in this instanceonly able to be authorized by virtue of the
fourth paragraph of Article 70 of the risk perpetuating for ever the advantages
Treaty if they enabled the undertakings in and disadvantages of each place of estab­
lishment.whose favour they were made to overcome
exceptional and temporary difficultieswhich The applicant maintains that the recitals
arose from unforeseeable circumstances set out under II(3) of the contested decision
and were likely to result in a situation in (in which it was regarded as unnecessary to
which the composition of the production consider the basic operating conditions of
costs no longer corresponded to the natural each undertaking) clearly show that the
conditions to which those undertakings arguments contained in the recitals under
were subject. The support tariffs in dispute II(2) concerning the structural nature of the
satisfy none of these three conditions. The difficulties suffered by the coalfields of the
change which took place in the conditions Saarland and, to a more limited extent, the
of competition to the detriment of the iron and steel industry of that region, con­
undertakings of the Saarland following the stitute inter alia the fundamental grounds
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