61982CJ0046_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 46/82,
FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY DR MARTIN SEIDEL, MINISTERIALRAT AT THE FEDERAL MINISTRY OF ECONOMICS, BONN, AND JOCHIM SEDEMUND, COLOGNE, ACTING AS AUTHORIZED AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHANCERY OF THE EMBASSY OF THE FEDERAL REPUBLIC OF GERMANY, 20-22 AVENUE EMILE-REUTER,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JORN SACK, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT COMMISSION DECISION NO 81/1034/EEC OF 16 NOVEMBER 1981 ( OFFICIAL JOURNAL, L 375, P . 7 ), CONCERNING THE CLEARANCE OF THE ACCOUNTS PRESENTED BY THE FEDERAL REPUBLIC OF GERMANY IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1975, IS VOID, INASMUCH AS THE COMMISSION HAS FAILED TO CHARGE TO THE FUND THE SUM OF DM 16 978 093.28 FOR THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS RELATING TO NATIONAL DELIVERIES OF WHEAT AND WHEAT FLOUR BY WAY OF FOOD AID, TOGETHER WITH THE SUM OF DM 945.51 IN RESPECT OF THE PAYMENT OF AID FOR THE PRIVATE STORAGE OF TABLE WINE,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 8 FEBRUARY 1982, THE FEDERAL REPUBLIC OF GERMANY BROUGHT AN ACTION UNDER THE FIRST PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY, CLAIMING THAT THE COURT SHOULD DECLARE VOID COMMISSION DECISION NO 81/1034/EEC OF 16 NOVEMBER 1981 CONCERNING THE CLEARANCE OF THE ACCOUNTS PRESENTED BY THE FEDERAL REPUBLIC OF GERMANY IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1975 ( OFFICIAL JOURNAL, L 375, P . 7 ), IN SO FAR AS THE COMMISSION FAILED TO CHARGE TO THE EUROPEAN GUIDANCE AND GUARANTEE FUND ( HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' ) A SUM OF DM 16 978 093.28 FOR THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS IN RESPECT OF NATIONAL DELIVERIES OF WHEAT AND WHEAT FLOUR BY WAY OF FOOD AID TO DEVELOPING COUNTRIES, AND AN AMOUNT OF DM 945.51 FOR THE PAYMENT OF AIDS FOR THE PRIVATE STORAGE OF TABLE WINE . FOLLOWING NEGOTIATIONS BETWEEN THE PARTIES IN THE COURSE OF THE WRITTEN PROCEDURE, THE COMMISSION CONCEDED THAT THE FUND SHOULD BEAR THE AMOUNT RELATING TO THE WINE-STORAGE, TOGETHER WITH A PART - NAMELY DM 11 570 202.60 - OF THE SUM CLAIMED BY WAY OF MONETARY COMPENSATORY AMOUNTS, WITH THE RESULT THAT THE DISPUTE BETWEEN THE PARTIES IS HENCEFORTH CONFINED TO A SUM OF DM 5 407 890.68 .
2 THE MONETARY COMPENSATORY AMOUNTS AT ISSUE WERE AWARDED BY THE COMPETENT GERMAN AUTHORITY, NAMELY THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS ( HEREINAFTER REFERRED TO AS ' ' THE HAUPTZOLLAMT ' ' ), TO THE EINFUHR- UND VORRATSSTELLE FUR GETREIDE UND FUTTERMITTEL ( IMPORT AND STORAGE AGENCY FOR CEREALS AND FEEDINGSTUFFS, HEREINAFTER REFERRED TO AS ' ' THE GERMAN INTERVENTION AGENCY ' ' ), IN RESPONSE TO APPLICATIONS SUBMITTED BY THE LATTER IN AUGUST 1975, IN THE FORM OF REMINDERS . THE APPLICATIONS REFERRED TO EXPORT TRANSACTIONS CARRIED OUT BETWEEN 1 JULY 1972 AND 18 MARCH 1975 .
3 ON THE OCCASION OF THOSE EXPORTS, THE GERMAN INTERVENTION AGENCY HAD SUBMITTED DOCUMENTS CONCERNING PAYMENT TO THE HAUPTZOLLAMT WITHIN THE SIX-MONTH PERIOD LAID DOWN BY ARTICLE 14 OF REGULATION NO 1463/73 OF THE COMMISSION OF 30 MAY 1973 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF ' ' MONETARY ' '
COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL, L 146, P . 1 ). AMONGST THE DOCUMENTS WERE SOME REFERRED TO AS ' ' NO 5 CONTROL COPIES ' ', SUCH AS ARE REQUIRED WHEN THE APPLICATIONS OF A COMMUNITY MEASURE CONCERNING THE EXPORTATION OF GOODS IS CONDITIONAL ON EVIDENCE THAT THE GOODS IN QUESTION HAVE BEEN PUT TO THE USE OR HAVE REACHED THE DESTINATION REFERRED TO OR PRESCRIBED BY THAT MEASURE . THE DOCUMENTS ALSO INCLUDED
REQUESTS FOR EXPORT REFUNDS BUT NO EXPRESS REQUEST FOR MONETARY COMPENSATORY AMOUNTS .
4 ON RECEPTION OF THE DOCUMENTS, THE HAUPTZOLLAMT GRANTED EXPORT REFUNDS IN RESPECT OF EXPORT TRANSACTIONS CARRIED OUT PRIOR TO NOVEMBER 1973, BUT REFUSED THEM IN RESPECT OF THE PERIOD THEREAFTER, ON THE GROUND THAT COMMUNITY RULES MADE NO PROVISION FOR REFUNDS ON EXPORT TRANSACTIONS CARRIED OUT AFTER NOVEMBER 1973 . THE HAUPTZOLLAMT MADE NO DECISION AS TO THE AWARD OF MONETARY COMPENSATORY AMOUNTS BEFORE RECEIVING THE REMINDERS IN AUGUST 1975 .
5 THE COMMISSION IS OF THE OPINION THAT THIS ABSENCE OF REQUESTS AND DECISIONS IS EXPLAINED INASMUCH AS BOTH THE HAUPTZOLLAMT AND THE GERMAN INTERVENTION AGENCY WERE UNAWARE OF THE FACT THAT THE EXPORT TRANSACTIONS WHICH HAD BEEN EFFECTED CONFERRED AN ENTITLEMENT TO MONETARY COMPENSATORY AMOUNTS . IT WAS, THE COMMISSION CONTENDS, NOT UNTIL AFTER PUBLICATION OF REGULATION NO 456/75 OF THE COMMISSION OF 26 FEBRUARY 1975 ( OFFICIAL JOURNAL, L 51, P . 5 ), WHICH ABOLISHED, AS REGARDS THE FUTURE, THE ENTITLEMENT TO MONETARY COMPENSATORY AMOUNTS IN RESPECT OF FOOD-AID TRANSACTIONS, THAT THE GERMAN INTERVENTION AGENCY AND THE HAUPTZOLLAMT REALIZED THAT SUCH ENTITLEMENT ACTUALLY EXISTED IN RESPECT OF THE TRANSACTIONS ALREADY COMPLETED .
6 HOWEVER, AS REGARDS EXPORTS EFFECTED MORE THAN SIX MONTHS PRIOR TO THE REMINDERS SENT BY THE INTERVENTION AGENCY, THE COMMISSION TOOK THE VIEW, WHEN THE ACCOUNTS WERE BEING CLEARED, THAT THE RETROACTIVE AWARD OF SUCH AMOUNTS HAD BEEN CONTRARY TO THE AFORESAID REGULATION NO 1463/73, BECAUSE ARTICLE 13 THEREOF REQUIERS A WRITTEN APPLICATION FROM THE PARTY CONCERNED, AND ALSO BECAUSE, IN THE COMMISSION ' S VIEW, THAT APPLICATION MUST BE LODGED WITHIN THE SAME SIX-MONTH PERIOD AS THAT LAID DOWN BY ARTICLE 14 WITH REGARD TO SUBMISSION OF THE APPLICATION FOR PAYMENT . THE COMMISSION THEREFORE DECIDED NOT TO CHARGE THOSE AMOUNTS TO THE FUND .
7 IN COURT, THE GERMAN GOVERNMENT REFERRED IN PARTICULAR TO THE JUDGMENT OF 22 JANUARY 1975 ( CASE 55/74 UNKEL V HAUPTZOLLAMT HAMBURG-JONAS ( 1975 ) ECR 9 ), IN WHICH THE COURT RULED THAT THE SUBMISSION OF THE CONTROL COPY TO THE COMPETENT NATIONAL AUTHORITY FOR THE GRANT OF REFUNDS WAS EQUIVALENT TO AN APPLICATION FOR A REFUND IF THAT COPY CONTAINED INFORMATION ENABLING IT TO BE SEEN THAT IT RELATED TO GOODS CONFERRING AN ENTITLEMENT TO THE REFUND . THE
GOVERNMENT TAKES THE VIEW THAT THIS CASE-LAW MAY BE REGARDED AS APPLICABLE TO THE SPHERE OF MONETARY COMPENSATORY AMOUNTS, ESPECIALLY AS ARTICLE 6 OF THE AFORESAID REGULATION NO 1463/73 PROVIDES THAT, IN TRADE WITH NON-MEMBER COUNTRIES, PROVISIONS CONCERNING THE GRANT OF EXPORT REFUNDS SHALL APPLY TO SUCH AMOUNTS . THE GOVERNMENT FURTHER STATES THAT THE CONTROL COPIES WHICH WERE ATTACHED TO THE DOCUMENTS RELATING TO PAYMENT LODGED BY THE GERMAN INTERVENTION AGENCY CONTAINED ALL THE INFORMATION REQUIRED FOR THE GRANT OF THE MONETARY COMPENSATORY AMOUNTS .
8 THE COMMISSION DOES NOT CONTEST THE LATTER STATEMENT AND IT ACCEPTS THAT THE CASE-LAW CITED ABOVE MAY EQUALLY BE APPLIED IN THE CONTEXT OF MONETARY COMPENSATORY AMOUNTS . IT WAS FOR THAT REASON, THE COMMISSION CLAIMS, THAT IT AGREED, FOLLOWING THE NEGOTIATIONS IN THE COURSE OF THE WRITTEN PROCEDURE, TO CHARGE TO THE FUND THE MONETARY COMPENSATORY AMOUNTS PAID OUT BY THE HAUPTZOLLAMT IN ALL CASES IN WHICH THE CONTROL COPY CONTAINED ANY REFERENCE WHATEVER TO THOSE AMOUNTS OR TO THE RULES GOVERNING THEM .
9 AS REGARDS THE REMAINING CASES ON THE OTHER HAND, THE COMMISSION MAINTAINS THAT IT IS IMPOSSIBLE TO POSTULATE AN APPLICATION SINCE THERE IS NO EVIDENCE OF ANY DESIRE TO THAT EFFECT . IN SUCH CASES IT IS EVEN OBVIOUS THAT THE GERMAN INTERVENTION AGENCY DID NOT INTEND TO SUBMIT AN APPLICATION .
10 IN THAT CONNECTION, IT IS APPROPRIATE IN THE FIRST PLACE TO STRESS THAT, ALTHOUGH IT MAY BE NECESSARY, FOR THE PROPER WORKING OF THE COMPLEX SYSTEM OF MONETARY COMPENSATORY AMOUNTS, TO REQUIRE, IN ARTICLE 13 OF THE AFORESAID REGULATION NO 1463/73, A WRITTEN APPLICATION FROM THE PERSON CONCERNED, IT IS NECESSARY, AS THE COURT HAS PREVIOUSLY HELD WITH WITH REGARD TO REFUNDS IN ITS JUDGMENTS OF 6 JUNE 1972 ( CASE 94/71 SCHLUTER & MAACK V HAUPTZOLLAMT HAMBURG-JONAS ( 1972 ) ECR 307 AND 22 JANUARY 1975 ( THE UNKEL CASE MENTIONED ABOVE ), TO AVOID ANY FORMALISM WHICH WOULD GO FURTHER THAN IS NECESSARY FOR AN EFFECTIVE SUPERVISION OF THE TRANSACTIONS .
11 IN THE SECOND PLACE, IT IS APPROPRIATE TO RECALL THAT DURING THE MAJOR PART OF THE PERIOD IN QUESTION EXPORTS OF GOODS, AS IN THIS CASE, COULD NOT CONFER AN ENTITLEMENT TO EXPORT REFUNDS . FOR THAT REASON, THE LODGING OF THE DOCUMENTS RELATING TO PAYMENT WITH THE AUTHORITY EMPOWERED TO GRANT REFUNDS AND MONETARY COMPENSATORY AMOUNTS MAY BE SEEN TO HAVE BEEN EFFECTED AS A PRECAUTION, IN CASE IT SHOULD SERVE SOME USEFUL PURPOSE . IN THE CIRSUMSTANCES IT
WOULD BE INCORRECT TO CONSTRUE THE ABSENCE OF AN EXPRESS APPLICATION AS A
WAIVER OF ENTITLEMENT TO THE AMOUNTS TO WHICH, ACCORDING TO THE INFORMATION CONTAINED IN THE DOCUMENTS REGARDING PAYMENT, THE TRADER WAS ENTITLED .
12 AS IT IS COMMON GROUND BETWEEN THE PARTIES THAT THE CONTROL COPIES WHICH WERE ENCLOSED WITH THE DOCUMENTS REGARDING PAYMENT SUBMITTED BY THE GERMAN INTERVENTION AGENCY CONTAINED DETAILS ENABLING IT TO BE ESTABLISHED THAT THE GOODS INVOLVED CONFERRED AN ENTITLEMENT TO MONETARY COMPENSATORY AMOUNTS, THE DELIVERY OF THOSE CONTROL COPIES TO THE HAUPTZOLLAMT MUST THEREFORE BE REGARDED AS EQUIVALENT TO A WRITTEN APPLICATION FOR PAYMENT OF THOSE AMOUNTS .
13 IT FOLLOWS THAT THE DISPUTED DECISION SHOULD BE DECLARED VOID TO THE EXTENT REQUESTED BY THE FEDERAL REPUBLIC OF GERMANY .
Decision on costs
COSTS
14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES VOID COMMISSION DECISION NO 81/1034/EEC OF 16 NOVEMBER 1981 CONCERNING THE CLEARANCE OF THE ACCOUNTS PRESENTED BY THE FEDERAL REPUBLIC OF GERMANY IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1975, IN SO FAR AS THE COMMISSION REFUSED TO CHARGE TO THE SAID FUND THE SUM OF DM 5 407 890.68 BY WAY OF MONETARY
COMPENSATORY AMOUNTS GRANTED ON THE EXPORT OF GOODS SUPPLIED AS PART OF THE NATIONAL FOOD-AID PROGRAMME ;
2.ORDERS THE COMMISSION TO PAY THE COSTS .