61977CJ0006_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 6/77
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN :
BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID N . G . J . SCHOUTEN B . V ., GIESSEN,
AND
HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN, THE HAGUE,
Subject of the case
ON THE INTERPRETATION OF ARTICLE 15 OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ, ENGLISH SPECIAL EDITION 1967, P . 33 ),
Grounds
1 BY ORDER OF 11 JANUARY 1977, WHICH REACHED THE COURT ON 12 JANUARY 1977, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 15 ( 2 ) OF REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ, ENGLISH SPECIAL EDITION 1967, P . 33 ).
2 THE NATIONAL COURT ASKS THE COURT OF JUSTICE WHETHER ' ARTICLE 15 ( 2 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL MUST BE INTERPRETED TO MEAN THAT A VARIATION OF THE THRESHOLD PRICE IN FORCE IN THE MONTH OF IMPORTATION FROM THE THRESHOLD PRICE IN FORCE ON THE DAY ON WHICH THE APPLICATION FOR THE CERTIFICATE IS LODGED RESULTS IN A CORRESPONDING ADJUSTMENT OF THE LEVY IN FORCE ON THAT DAY, THAT IS TO SAY, OF THE LEVY FIXED AS INCREASED BY THE PREMIUM, OR IN A CORRESPONDING ADJUSTMENT OF THE LEVY ALONE, SO THAT THE PREMIUM, REGARDLESS OF THE NATURE AND SIZE OF THE VARIATION FROM THE THRESHOLD PRICE, IS ALWAYS CHARGEABLE IN FULL ' .
3 THIS QUESTION HAS ARISEN IN THE CONTEXT OF A DISPUTE BETWEEN A NETHERLANDS MAIZE IMPORTER AND THE HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN CONCERNING THE CALCULATION OF THE LEVY FIXED IN ADVANCE, REFERRED TO IN ARTICLE 15 ( 2 ) OF REGULATION NO 120/67, FOR MAIZE IMPORTED INTO THE NETHERLANDS IN AUGUST 1974 ON THE BASIS OF IMPORT CERTIFICATES FIXING THE LEVY IN ADVANCE .
4 UNTER THE ABOVEMENTIONED ARTICLE 15 ( 2 ), AS AMENDED BY REGULATION ( EEC ) NO 2429/72 OF THE COUNCIL OF 21 NOVEMBER 1972 ( OJ, ENGLISH SPECIAL EDITION 1972 ( NOVEMBER ), P . 48 ), FOR CERTAIN PRODUCTS, INCLUDING MAIZE, THE ' LEVY APPLICABLE ON THE DAY ON WHICH THE APPLICATION FOR THE CERTIFICATE IS LODGED, ADJUSTED ON THE BASIS OF THE THRESHOLD PRICE VALID IN THE MONTH OF IMPORTATION, SHALL BE APPLIED, IF THE PARTY CONCERNED SO REQUESTS AT THE SAME TIME AS THE APPLICATION FOR THE CERTIFICATE IS MADE ( THE REQUESTS TO BE MADE NOT LATER THAN 13.00 HOURS ), TO IMPORTS EFFECTED DURING THE PERIOD OF VALIDITY OF THE CERTIFICATE . IN THIS CASE A PREMIUM, FIXED AT THE SAME TIME AS THE LEVY, SHALL BE ADDED TO THE LEVY ' .
5 THE FILE SHOWS THAT IN THE PRESENT CASE THE NATIONAL COLLECTION AGENCY INTERPRETED THAT PROVISION AS MEANING THAT THE LEVY APPLICABLE ON THE DAY ON WHICH THE APPLICATION FOR THE CERTIFICATE IS LODGED MUST FIRST BE ADJUSTED ON THE BASIS OF THE THRESHOLD PRICE VALID ON THE DATE OF IMPORTATION AND THEN INCREASED BY THE UNADJUSTED AMOUNT OF THE PREMIUM INTRODUCED BY REGULATION NO 140/67 OF THE COUNCIL ( OJ, ENGLISH SPECIAL EDITION 1967, P . 91 ).
6 SINCE THE CALCULATION OF THE AMOUNT OF THE LEVY ACCORDING TO THOSE RULES PRODUCED A NEGATIVE VALUE, THE COLLECTION AGENCY BROUGHT THAT AMOUNT TO 0 UNITS OF ACCOUNT AND ADDED THE PREMIUM THERETO .
7 THE PLAINTIFF IN THE MAIN ACTION CONTESTED THE VALIDITY OF THAT CALCULATION BY CLAIMING THAT, ACCORDING TO THE CORRECT INTERPRETATION OF ARTICLE 15 ( 2 ) OF REGULATION NO 120/67, THE LEVY APPLICABLE ON THE DAY ON WHICH THE APPLICATION FOR THE CERTIFICATE IS LODGED MUST, BEFORE BEING ADJUSTED ON THE BASIS OF THE THRESHOLD PRICE VALID IN THE MONTH OF IMPORTATION, FIRST BE INCREASED BY THE AMOUNT OF THE PREMIUM LAID DOWN BY THE ABOVEMENTIONED REGULATION NO 140/67 .
8 ARTICLE 15 ( 2 ) OF REGULATION NO 120/67 IS ONE OF THE FUNDAMENTAL RULES ON THE COMMUNITY SYSTEM OF LEVIES AND MUST BE INTERPRETED NOT ONLY IN THE LIGHT OF ITS WORDING BUT ALSO OF THE PRINCIPLES GOVERNING THE OPERATION OF THAT SYSTEM AND OF ITS OBJECTIVES WITHIN THE CONTEXT OF THE COMMON AGRICULTURAL POLICY .
9 THE COMMUNITY LEVY, WHICH IS PRIMARILY INTENDED TO PROTECT AND STABILIZE THE COMMUNITY MARKET, IN PARTICULAR BY PREVENTING PRICE FLUCTUATIONS ON THE WORLD MARKET FROM AFFECTING PRICES WITHIN THE COMMUNITY, INVOLVES THE IMPOSITION OF A CHARGE WHICH, AS RESULTS FROM THE ELEVENTH RECITAL OF THE PREAMBLE TO REGULATION NO 120/67, MAKES IT POSSIBLE TO ' COVER THE DIFFERENCE BETWEEN PRICES RULING OUTSIDE AND WITHIN THE COMMUNITY ' .
10 FOR THIS PURPOSE, THE FIRST SUBPARAGRAPH OF ARTICLE 13 ( 1 ) OF THAT REGULATION SPECIFIES THAT, FOR THE PRODUCTS IN QUESTION, THE LEVY CHARGED IS ' EQUAL FOR EACH PRODUCT TO THE THRESHOLD PRICE LESS THE CIF PRICE ' .
11 IN ORDER TO GUARANTEE THIS PROTECTION IN THE CASE OF ADVANCE FIXING OF THE LEVY, ARTICLE 15 ( 2 ) OF THE SAME REGULATION PROVIDES FOR THE APPLICATION OF A PREMIUM FIXED FOR EACH IMPORTATION ON THE BASIS OF THE VARIATIONS IN THE CIF PRICE, WHILE OBSERVING THE PRINCIPLE LAID DOWN IN THE FIRST RECITAL OF THE PREAMBLE TO REGULATION NO 140/67 OF THE COUNCIL ACCORDING TO WHICH ' THE COMMON THRESHOLD PRICE IS THE COMMUNITY MARKET ' S SOLE PROTECTION ' .
12 IN VIEW OF ITS OBJECTIVE AND THE FUNCTION WHICH IT FULFILS WITHIN THE SYSTEM OF LEVIES, IT IS THEREFORE IMPOSSIBLE FOR THE CORRECTING FACTOR OF THE PREMIUM TO BE APPLIED SO AS TO INCREASE THE LEVY FIXED IN ADVANCE BEYOND WHAT IS NECESSARY TO COVER THE DIFFERENCE BETWEEN THE PRICES RULING OUTSIDE AND WITHIN THE COMMUNITY .
13 IN A CASE SUCH AS THAT REFERRED TO BY THE ORDER FOR REFERENCE, THE APPLICATION OF THAT CORRECTING FACTOR AFTER THE LEVY HAS BEEN ADJUSTED ON THE BASIS OF THE THRESHOLD PRICE VALID IN THE MONTH OF IMPORTATION LEADS TO AN INCREASED CHARGE, WHICH IS UNJUSTIFIED HAVING REGARD TO THE OBJECTIVES OF THE LEVY, AND TO IMPORTATIONS AT A LEVEL HIGHER THAN THE THRESHOLD PRICE, WHICH IS INCOMPATIBLE WITH THE PRINCIPLES OF THE COMMON AGRICULTURAL POLICY .
14 ON THE OTHER HAND, SUCH RESULTS ARE AVOIDED IF THE PREMIUM IS APPLIED BEFORE THE LEVY IS ADJUSTED ON THE BASIS OF THE THRESHOLD PRICE VALID IN THE MONTH OF IMPORTATION .
15 IT FOLLOWS MOREOVER FROM REGULATION NO 140/67 THAT THE FIXING OF A PREMIUM IS LINKED SOLELY TO THE VARIATIONS IN THE CIF PRICE AND DOES NOT TAKE INTO ACCOUNT ANY VARIATIONS IN THE THRESHOLD PRICE .
16 IN FACT, IT IS ADDED TO THE LEVY, SUBJECT TO ARTICLE 4 OF THAT REGULATION, AS SOON AS THE CIF FORWARD DELIVERY PRICE IS LESS THAN THE CIF PRICE APPLICABLE ON THE DAY ON WHICH THE LEVY IS FIXED IN ADVANCE EVEN IF, IN THE ABSENCE OF VARIATIONS IN THE THRESHOLD PRICE, THE LEVY MUST NOT BE ADJUSTED WITHIN THE MEANING OF ARTICLE 15 ( 2 ) OF REGULATION NO 120/67 .
17 IT FOLLOWS, THEREFORE, FROM THE CONDITIONS RELATING TO THE APPLICATION OF THE PREMIUM THAT THE LEVY TO WHICH IT IS ADDED IS NOT THE LEVY WHICH HAS BEEN ADJUSTED BUT THE LEVY CALCULATED ON THE DAY ON WHICH THE APPLICATION FOR THE CERTIFICATE WAS LODGED .
18 MOREOVER, THE WORDING OF THE ABOVE-MENTION ARTICLE 15 ( 2 ) DOES NOT NECESSITATE A CONTRARY CONCLUSION .
19 IN PROVIDING THAT ' A PREMIUM FIXED AT THE SAME TIME AS THE LEVY SHALL BE ADDED TO THE LEVY ', THE SECOND SENTENCE OF THAT PROVISION IN FACT IMPLIES THAT THE LEVY AS INCREASED BY THE PREMIUM IS THE LEVY WHICH IS FIXED ON THE DAY ON WHICH THE APPLICATION FOR THE CERTIFICATE IS LODGED AND NOT THE ADJUSTED LEVY .
20 THE WORDS ' IN THIS CASE '
WHICH APPEAR IN THAT SENTENCE OBVIOUSLY REFER TO THE CASE IN WHICH THE LEVY IS FIXED IN ADVANCE AND NOT TO THAT OF THE ADJUSTMENT WHICH ONLY OCCURS IF CERTAIN CONDITIONS RELATING TO THE THRESHOLD PRICE ARE FULFILLED .
21 FOR THOSE REASONS, IT IS NECESSARY TO REPLY THAT ARTICLE 15 ( 2 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT A VARIATION IN THE THRESHOLD PRICE VALID IN THE MONTH OF IMPORTATION INTO THE COMMUNITY LEADS TO AN ADJUSTMENT OF THE LEVY APPLICABLE ON THE DAY ON WHICH THE APPLICATION FOR THE CERTIFICATE IS LODGED, AS INCREASED BY THE AMOUNT OF THE PREMIUM .
Decision on costs
COSTS
22 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
23 SINCE THE PROCEDURE IS, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, IT IS FOR THAT COURT TO MAKE AN ORDER AS TO COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY ORDER OF 11 JANUARY 1977 HEREBY RULES :
ARTICLE 15 ( 2 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT A VARIATION IN THE THRESHOLD PRICE VALID IN THE MONTH OF IMPORTATION INTO THE COMMUNITY LEADS TO AN ADJUSTMENT OF THE LEVY APPLICABLE ON THE DAY ON WHICH THE
APPLICATION FOR THE CERTIFICATE IS LODGED, AS INCREASED BY THE AMOUNT OF THE PREMIUM .