61977CJ0146_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 146/77
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HIGH COURT OF JUSTICE, QUEEN ' S BENCH DIVISION, COMMERCIAL COURT, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
BRITISH BEEF COMPANY LIMITED
AND
INTERVENTION BOARD FOR AGRICULTURAL PRODUCE
Subject of the case
ON THE INTERPRETATION AND VALIDITY OF COMMISSION REGULATION ( EEC ) NO 2424/76 OF 5 OCTOBER 1976 ALTERING THE MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 275, P . 1 ),
Grounds
1BY ORDER OF 15 NOVEMBER 1977 WHICH REACHED THE COURT ON 2 DECEMBER 1977 THE HIGH COURT OF JUSTICE, QUEEN ' S BENCH DIVISION, COMMERCIAL COURT, REFERRED TO THE COURT OF JUSTICE IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS RELATING TO THE INTERPRETATION AND VALIDITY OF COMMISSION REGULATION ( EEC ) NO 2424/76 OF 5 OCTOBER 1976 ALTERING THE MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 275, P . 1 ).
2THESE QUESTIONS WERE RAISED IN THE COURSE OF AN ACTION BETWEEN A UNITED KINGDOM TRADER CARRYING OUT THE EXPORT OF BEEF TO OTHER MEMBER STATES, THE PLAINTIFF IN THE MAIN ACTION, AND THE BRITISH INTERVENTION BOARD FOR AGRICULTURAL PRODUCE, THE DEFENDANT IN THE MAIN ACTION, REGARDING THE LEVYING OF MONETARY COMPENSATORY AMOUNTS FIXED BY REGULATION NO 2424/76 ON THE OCCASION OF THE EXECUTION OF EXPORT CONTRACTS CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE REGULATION .
3IN SPITE OF THE TREND NOTED IN THE EXCHANGE RATE OF THE POUND STERLING THE COMMISSION, BY REGULATION ( EEC ) NO 2405/76 OF 1 OCTOBER 1976 ALTERING THE MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 271, P . 1 ), WHICH ENTERED INTO FORCE ON MONDAY 4 OCTOBER 1976, MAINTAINED UNCHANGED FOR THE UNITED KINGDOM THE AMOUNTS FIXED FOR THE PREVIOUS WEEK .
4IN THE WORDS OF THE FOURTH RECITAL IN THE PREAMBLE TO THE REGULATION THAT MEASURE WAS ADOPTED ' ' AS A PRECAUTIONARY MEASURE ' '
AND ' ' PENDING AN URGENT DECISION ON THE MATTER BY THE COUNCIL ' ' .
5AS THE PROPOSAL MADE BY THE COMMISSION RELATING TO A DEPRECIATION OF THE REPRESENTATIVE RATE OF THE POUND STERLING WAS NOT ADOPTED BY THE COUNCIL, THE COMMISSION ADOPTED REGULATION ( EEC ) NO 2424/76 WHICH ENTERED INTO FORCE ON WEDNESDAY 6 OCTOBER, UNDER WHICH THE MONETARY COMPENSATORY AMOUNTS APPLICABLE FOR THE UNITED KINGDOM WERE INCREASED SO AS TO ADJUST THEM TO THE DECLINE IN VALUE OF THE POUND .
THE FIRST QUESTION
6THE FIRST QUESTION INQUIRES WHETHER REGULATION NO 2424/76 MUST BE INTERPRETED AS MEANING THAT IT DID NOT APPLY TO EXPORTS EFFECTED IN EXECUTION OF CONTRACTS CONCLUDED PRIOR TO THE DATE ON WHICH IT WAS PROMULGATED .
7IT SHOULD BE NOTED ON THIS SUBJECT THAT THE ACTUAL RIGHT TO RECEIVE A MONETARY COMPENSATORY AMOUNT AND THE CHARGE RESULTING FROM THE LEVYING OF SUCH AN AMOUNT ARE ONLY CREATED BY THE PERFORMANCE OF THE IMPORT OR EXPORT TRANSACTION AS THE CASE MAY BE AND ONLY FROM THE MOMENT WHEN THAT TRANSACTION TAKES PLACES .
8IT FOLLOWS THAT IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY THE AMOUNTS TO BE PAID OR LEVIED ARE THOSE FIXED BY THE RULES IN FORCE AT THE MOMENT OF THE IMPORT OR EXPORT WHATEVER MAY BE THE DATE ON WHICH THE CONTRACT RELATING TO THE TRANSACTION IN QUESTION WAS CONCLUDED .
9ALTHOUGH ARTICLE 2 OF REGULATION NO 2424/76 FIXED THE DATE OF ENTRY INTO FORCE OF THE REGULATION AS 6 OCTOBER 1976 AND PROVIDED THAT IT MIGHT BE APPLIED, AT THE REQUEST OF ANY PARTY CONCERNED, WITH EFFECT FROM 4 OCTOBER 1976, THERE WAS NO PROVISION MAKING IT POSSIBLE TO EXEMPT CONTRACTS IN PROGRESS FROM THE CHARGES RESULTING FROM THE REGULATION .
10THE ANSWER TO BE GIVEN TO THE FIRST QUESTION SHOULD THEREFORE BE THAT REGULATION NO 2424/76 WAS APPLICABLE TO EXPORTS EFFECTED IN EXECUTION OF CONTRACTS CONCLUDED PRIOR TO THE DATE OF ITS PROMULGATION .
SECOND QUESTION
11IN THE SECOND QUESTION THE COURT IS ASKED WHETHER REGULATION NO 2424/76 IS VALID IN SO FAR AS IT PURPORTS TO APPLY TO EXPORTS EFFECTED IN EXECUTION OF CONTRACTS IN PROGRESS .
12THE PLAINTIFF IN THE MAIN ACTION HAS POINTED OUT IN THIS RESPECT THAT THE REGULATION FRUSTRATED ITS LEGITIMATE EXPECTATION OF THE MAINTENANCE UNCHANGED FOR THE WHOLE OF THE WEEK IN QUESTION OF THE MONETARY COMPENSATORY AMOUNTS FIXED FOR THE PREVIOUS WEEK AND RENEWED BY REGULATION NO 2405/76 .
13HOWEVER, HAVING REGARD TO THE RECITALS TO AND THE PROVISIONS OF THE REGULATION AND TO THE SPECIAL CIRCUMSTANCES EXISTING AT THE TIME OF ITS ADOPTION IT COULD NOT AROUSE IN THE MINDS OF PERSONS CONCERNED A LEGITIMATE EXPECTATION, WHICH THE COMMISSION WAS REQUIRED TO PROTECT, OF ITS MAINTENANCE FOR THE WHOLE OF THE WEEK IN QUESTION .
14INDEED IT MAY BE SEEN FROM THE STATEMENT OF THE GROUNDS ON WHICH THE REGULATION WAS BASED THAT IT HAD BEEN ADOPTED AS A PRECAUTIONARY MEASURE AND PENDING AN URGENT DECISION ON THE MATTER BY THE COUNCIL .
15THE PERSONS CONCERNED COULD NOT BE UNAWARE OF THE UNCERTAINTIES WHICH WERE TYPICAL OF THE SITUATION AND IN PARTICULAR OF THE POSSIBILITY THAT THE PROPOSAL OF THE COMMISSION FOR AN ALTERATION OF THE REPRESENTATIVE RATE OF THE POUND STERLING MIGHT NOT BE ADOPTED BY THE COUNCIL ; NOR COULD THEY FAIL TO RECOGNIZE THAT AS SOON AS THE PROPOSAL WAS SHOWN TO BE IMPRACTICABLE THE COMMISSION HAD NO FURTHER GROUND FOR NOT FIXING NEW MONETARY COMPENSATORY AMOUNTS ON THE BASIS OF THE RATES OF EXCHANGE RECORDED, IN ACCORDANCE WITH THE PROVISIONS OF THE BASIC REGULATION APPLICABLE IN THE MATTER .
16EVEN CERTAIN COMMUNICATIONS SENT OUT BY A PRIVATE ORGANIZATION ON WHICH THE APPLICANT IN THE MAIN ACTION BASED ITS CLAIMS REFLECTED THE UNCERTAINTY WHICH WAS TYPICAL OF THE SITUATION .
17THE REPLY SHOULD THEREFORE BE THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 2424/77 .
Decision on costs
COSTS
18THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED ITS OBSERVATIONS TO THE COURT ARE NOT REIMBURSABLE .
19AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HIGH COURT OF JUSTICE BY ORDER OF 15 NOVEMBER 1977, HEREBY RULES :
1 . COMMISSION REGULATION ( EEC ) NO 2424/76 OF 5 OCTOBER 1976 WAS APPLICABLE TO EXPORTS EFFECTED IN EXECUTION OF CONTRACTS CONCLUDED PRIOR TO THE DATE OF ITS PROMULGATION .
2 . CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THAT REGULATION .