61971CJ0049_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 49/71
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHER VERWALTUNGSGERICHTSHOF ( VITH SENATE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
HAGEN OHG, HAMBURG,
AND
EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT .
Subject of the case
ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATIONS NOS 120/67 OF THE COUNCIL ( OJ 2269/67 ), 132/67 OF THE COUNCIL ( OJ 2364/67 ) AND 1028/68 OF THE COMMISSION ( OJ L 176, P . 1 ),
Grounds
1 BY ORDER DATED 19 JULY 1971 RECEIVED AT THE COURT REGISTRY ON 29 JULY 1971 THE HESSISCHER VERWALTUNGSGERICHTSHOF HAS RAISED UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC VARIOUS QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 7 OF REGULATION NO 120/67 OF THE COUNCIL ( OJ NO 117 OF 19 . 6 . 1967 ), ARTICLE 1 OF REGULATION NO 132/67 OF THE COUNCIL ( OJ NO 120 OF 21 . 6 . 1967 ) AND ARTICLE 3 OF REGULATION NO 1028/68 OF THE COMMISSION ( OJ L 176 OF 23 . 7 . 1968, P . 1 ).
2 THIS INTERPRETATION IS REQUESTED WITH REGARD TO THE QUESTION WHETHER THE EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL WAS BOUND TO BUY IN QUANTITIES OF CEREALS HARVESTED IN FRANCE AND OFFERED FOR INTERVENTION AT THE MANNHEIM MARKETING CENTRE . THE OFFERS WERE MADE BY FORMS DATED 5 MAY AND RECEIVED ON 6 MAY 1969 WITHOUT A STATEMENT OF THE PLACE WHERE THE CEREALS, WHICH WERE THEN IN TRANSIT, WERE WHEN THE OFFER WAS MADE . THE SAID OFFERS WERE COMPLETED BY A STATEMENT OF THE ARRIVAL OF THE GOODS AT MANNHEIM AT A DATE SUBSEQUENT TO THE ENTRY INTO FORCE OF THE COMMISSION DECISION OF 8 MAY 1969 ( JO L 112 OF 9 . 5 . 1969, P . 2 ) AUTHORIZING THE FEDERAL REPUBLIC OF GERMANY TO RESTRICT INTERVENTION PURCHASES OF CEREALS OFFERED TO IT AFTER THE ENTRY INTO FORCE OF THE DECISION .
3 ACCORDING TO ARTICLE 7 OF REGULATION NO 120/67 OF THE COUNCIL INTERVENTION AGENCIES APPOINTED BY THE MEMBER STATES ARE OBLIGED, SUBJECT TO CERTAIN CONDITIONS, TO BUY IN CEREALS WHICH ARE OFFERED TO THEM AND HAVE BEEN HARVESTED IN THE COMMUNITY . ARTICLE 1 OF REGULATION NO 132/67 OF THE COUNCIL STATES THAT ALL OFFERS FOR INTERVENTION SHALL BE MADE TO AN INTERVENTION AGENCY IN RESPECT OF A MARKETING CENTRE CHOSEN FROM AMONG THE THREE CENTRES NEAREST TO THE PLACE WHERE THE CEREALS ARE WHEN THE OFFER IS MADE . UNDER ARTICLE 3 OF REGULATION NO 1028/68 OF THE COMMISSION ALL OFFERS FOR INTERVENTION MUST BE MADE IN WRITING . FINALLY ARTICLE 5 OF THE SAME REGULATION EMPOWERS INTERVENTION AGENCIES TO ADOPT, AS NEED MAY ARISE, SUPPLEMENTARY PROCEDURES AND CONDITIONS FOR TAKING OVER COMPATIBLE WITH THAT REGULATION TO TAKE ACCOUNT OF SPECIAL CONDITIONS EXISTING IN EACH MEMBER STATE .
QUESTION 1
4 QUESTION 1 ASKS WHETHER THE WORDS " OFFER " AND " OFFERED " CONTAINED IN THE AFORESAID REGULATIONS MUST BE INTERPRETED IN THE SAME WAY IN THE VARIOUS MEMBER STATES .
5 ARTICLE 7 OF REGULATION NO 120/67 OBLIGES INTERVENTION AGENCIES TO BUY IN THE CEREALS WHICH ARE OFFERED TO THEM ONLY IF THE OFFERS COMPLY WITH CONDITIONS, IN PARTICULAR IN RESPECT OF QUALITY AND QUANTITY, TO BE DETERMINED IN ACCORDANCE WITH PARAGRAPH ( 5 ) OF THAT ARTICLE . WHERE, IN ORDER TO STABILIZE MARKETS AND TO ENSURE A FAIR STANDARD OF LIVING FOR THE AGRICULTURAL COMMUNITY CONCERNED, INTERVENTION MEASURES MUST BE TAKEN, THEN ACCORDING TO THE FIFTH RECITAL TO THAT REGULATION, SUCH MEASURES MUST BE STANDARDIZED SO AS NOT TO IMPEDE THE FREE MOVEMENT OF CEREALS WITHIN THE COMMUNITY .
6 AS THE OBLIGATION TO INTERVENE DEPENDS DECISIVELY ON A PRIOR OFFER, IT IS IMPORTANT THAT THE CONCEPT OF A VALID OFFER AND THE CONDITIONS THEREBY INVOLVED SHALL APPLY THROUGHOUT THE COMMUNITY, IN ORDER THAT THE DESIRED STANDARDIZATION OF THE CONDITIONS FOR INTERVENTION MAY BE ACHIEVED . THIS REQUIREMENT APPEARS INDISPENSABLE, NOT ONLY BECAUSE THE COMMUNITY AUTHORITIES THEMSELVES DETERMINE THOSE CONDITIONS, BUT ALSO INASMUCH AS IT IS NECESSARY TO ENSURE THAT THE ADDITIONAL CONDITIONS, WHICH IN CERTAIN CASES THE INTERVENTION AGENCIES OF EACH MEMBER STATE ARE AUTHORIZED TO LAY DOWN, ARE COMPATIBLE WITH THE OBJECTIVES OF THE INTERVENTION SYSTEM . TERMS USED IN COMMUNITY LAW MUST BE UNIFORMLY INTERPRETED AND IMPLEMENTED THROUGHOUT THE COMMUNITY, EXCEPT WHEN AN EXPRESS OR IMPLIED REFERENCE IS MADE TO NATIONAL LAW .
7 IT FOLLOWS, THEREFORE, THAT ALTHOUGH INTERVENTION AGENCIES ARE EMPOWERED, UNDER ARTICLE 5 OF REGULATION NO 1028/68 TO ADOPT ADDITIONAL PROCEDURES AND CONDITIONS FOR TAKING OVER, THEY CANNOT HOWEVER DEROGATE FROM THE COMMUNITY CONCEPT OF AN OFFER AS CONTAINED IN PARTICULAR IN REGULATIONS NOS 120/67 AND 132/67 .
8 IT IS APPROPRIATE THEREFORE TO REPLY THAT THE TERMS " OFFER " AND " OFFERED ", CONTAINED IN REGULATIONS NOS 120/67, 132/67 AND 1028/68, MUST BE UNIFORMLY INTERPRETED IN THE MEMBER STATES, IN ACCORDANCE WITH THE OBJECTIVES OF THE INTERVENTION SYSTEM LAID DOWN BY THOSE REGULATIONS .
QUESTION 2
9 THE COURT IS ASKED WHETHER THE WORD " OFFER " MUST BE INTERPRETED AS MEANING THAT AN OFFER OF CEREALS FOR INTERVENTION MUST BE REGARDED AS MADE AS SOON AS THE PERSON MAKING THE OFFER DESPATCHES IT OR ONLY WHEN IT IS RECEIVED BY THE INTERVENTION AGENCY .
10 AN OFFER FOR INTERVENTION, MADE IN DUE FORM, AUTOMATICALLY OBLIGES THE INTERVENTION AGENCY TO BUY IN THE CEREALS OFFERED . SAVE IN EXCEPTIONAL CIRCUMSTANCES, A LEGAL TRANSACTION WITH SUCH COGENT CONSEQUENCES CAN BECOME BINDING UPON THE ADDRESSEE, ON WHOM IT PURPORTS TO IMPOSE OBLIGATIONS, AND CAN THUS BE REGARDED AS COMPLETE, ONLY WHEN IT COMES TO HIS KNOWLEDGE .
11 IT IS APPROPRIATE THEREFORE TO REPLY THAT AN OFFER WITHIN THE MEANING OF THE REGULATIONS REFERRED TO BY THE NATIONAL COURT CAN BE REGARDED AS MADE WHEN IT IS RECEIVED IN WRITING BY THE INTERVENTION AGENCY .
QUESTION 3
12 THE COURT IS ASKED FURTHER TO SAY WHETHER THERE IS A VALID OFFER CAPABLE OF BEING ACCEPTED WHEN IT CONTAINS NO INDICATION OF THE PLACE WHERE THE GOODS ARE OR WERE WHEN THE OFFER WAS MADE .
13 UNDER ARTICLE 1(1 ) OF REGULATION NO 132/67 OF THE COUNCIL ALL OFFERS FOR INTERVENTION SHALL BE MADE TO AN INTERVENTION AGENCY IN RESPECT OF A MARKETING CENTRE CHOSEN FROM AMONG THE THREE CENTRES NEAREST TO THE PLACE WHERE THE CEREALS ARE WHEN THE OFFER IS MADE AND UNDER ARTICLE 2(1 ) OF THE SAME REGULATION THE INTERVENTION AGENCY SHALL DECIDE ON THE PLACE WHERE THE CEREALS ARE TO BE TAKEN OVER .
14 ACCORDING TO THE DEFENDANT IN THE MAIN ACTION AND THE COMMISSION THESE PROVISIONS NECESSARILY IMPLY THAT THE PERSON CONCERNED MUST INDICATE THE PLACE WHERE THE GOODS ARE WHEN THE OFFER IS MADE SO AS TO ALLOW THE INTERVENTION AGENCY TO DECIDE WHETHER THE CONDITION IN ARTICLE 1 OF REGULATION NO 132/67 IS SATISFIED AND TO APPOINT THE PLACE FOR TAKING OVER WHICH APPEARS THE MOST ADVANTAGEOUS TO IT .
15 THE PLAINTIFF IN THE MAIN ACTION, WITHOUT DENYING THAT THIS INFORMATION MUST AS A RULE BE SUPPLIED, OBJECTS HOWEVER THAT IT HAS BECOME SUPERFLUOUS IN A CASE IN WHICH A MEMBER STATE, IN THE PRESENT CASE THE FEDERAL REPUBLIC OF GERMANY, HAS MADE USE OF THE POWER CONFERRED UPON IT BY ARTICLE 5 OF REGULATION NO 1028/68 TO LAY DOWN ADDITIONAL CONDITIONS AND HAS BY A DECISION OF GENERAL SCOPE APPOINTED IN ADVANCE IN RESPECT OF EACH MARKETING CENTRE PLACES FOR TAKING OVER WHERE THE INTERVENTION AGENCIES UNDERTAKE TO TAKE DELIVERY OF THE CEREALS WITHOUT THE DEALER' S INCURRING ANY OTHER COSTS . ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION IT WOULD THUS NO LONGER BE OF ANY USE TO INDICATE THE PLACE WHERE THE GOODS ARE WHEN THE OFFER IS MADE SINCE THERE IS NO LONGER ANY NEED FOR THE INTERVENTION AGENCY EITHER TO VERIFY WHETHER THE MARKETING CENTRE INDICATED IS ONE OF THE THREE REFERRED TO IN ARTICLE 1 OR TO INDICATE A PLACE FOR TAKING OVER, SINCE THIS HAS BEEN INDICATED AND ACCEPTED IN ADVANCE .
16 SUCH AN INTERPRETATION OF ARTICLE 1 OF REGULATION NO 132/67 IS INCOMPATIBLE BOTH WITH THE WORDING AND THE OBJECTIVE OF THIS PROVISION . THIS OBLIGES INTERVENTION AGENCIES, SO THAT THE ORGANIZATION OF THE INTERVENTION SYSTEM MAY BE AS RATIONAL AND AS INEXPENSIVE AS POSSIBLE, TO VERIFY IN ANY EVENT WHETHER THE MARKETING CENTRE INDICATED IS ONE OF THE THREE NEAREST TO THE PLACE WHERE THE CEREALS ARE WHEN THE OFFER IS MADE . IT IS PROPER FOR THE SYSTEM OF INTERVENTION, WHICH IS INTENDED TO GUARANTEE THAT, HAVING REGARD TO THE REGIONAL PRICE DIFFERENCES, PRODUCERS MAY SELL THEIR CEREALS AT FAIR PRICES WHEN THEY CANNOT BE SOLD IN NORMAL CONDITIONS OF PROFITABILITY, TO INCLUDE PRECAUTIONS DESIGNED TO ENSURE THAT THERE IS NO ENCOURAGEMENT TO TRANSPORT THE GOODS WITH THE SOLE OBJECTIVE OF OBTAINING A MORE ADVANTAGEOUS INTERVENTION . THE OBLIGATION TO INDICATE THE PLACE WHERE THE GOODS ARE WHEN THE OFFER IS MADE AND TO HOLD THEM THERE AT THE DISPOSAL OF THE INTERVENTION AGENCY, BY ALLOWING THE LATTER TO CHECK THAT THE OFFER IS IN ORDER AND IF SO GIVING IT THE OPPORTUNITY OF ITSELF INDICATING THE PLACE FOR TAKING OVER, CONTRIBUTES TO THE ATTAINMENT OF THIS OBJECTIVE .
17 THIS CONDITION DOES NOT LOSE ITS SIGNIFICANCE AND USEFULNESS WHERE THE PLACES FOR TAKING OVER ARE INDICATED IN ADVANCE IN A GENERAL WAY . MOREOVER, IT IS IN THIS WAY THAT THE AUTHORITIES OF THE FEDERAL REPUBLIC OF GERMANY SAY THEY APPLY THE ADDITIONAL MEASURES WHICH THEY HAVE ADOPTED .
18 IT IS THEREFORE APPROPRIATE TO REPLY THAT AN OFFER FOR INTERVENTION, TO BE IN ORDER AND TO BE BINDING ON THE INTERVENTION AGENCY, MUST INDICATE THE PLACE WHERE THE GOODS OFFERED ARE OR WILL BE WHEN THE OFFER IS MADE, THAT IS TO SAY WHEN IT IS RECEIVED BY THE SAID AGENCY .
QUESTIONS 4 AND 5
19 THE COURT IS ASKED WHETHER, IF THE PLACE WHERE THE CEREALS ARE IS NOT STATED IN THE OFFER, SUCH AN OFFER MAY SUBSEQUENTLY BE COMPLETED AND IF SO WHETHER IT MAY BE REGARDED AS MADE AT THE DATE OF THE ORIGINALLY INCOMPLETE OFFER .
20 THE PROPER FUNCTIONING OF THE INTERVENTION SYSTEM DOES NOT PREVENT AN INCOMPLETE OFFER, OTHERWISE IN ORDER AS TO FORM, FROM BEING SUBSEQUENTLY COMPLETED BY THE INDICATION OF THE PLACE WHERE THE GOODS ARE . IT IS HOWEVER ONLY AS FROM THE TIME AT WHICH THE OFFER IS COMPLETE THAT IT IS CAPABLE OF BEING EFFECTIVE .
21 IT IS APPROPRIATE THEREFORE TO REPLY THAT AN OFFER WHICH IS ORIGINALLY INCOMPLETE MAY BE SUBSEQUENTLY COMPLETED BUT THAT IT WILL BE EFFECTIVE ONLY WHEN IT SATISFIES ALL THE CONDITIONS UPON WHICH ITS VALIDITY DEPENDS .
QUESTION 6
22 THE COURT IS ASKED BY THE SIXTH QUESTION TO RULE WHETHER THE PHRASE " ARE WHEN THE OFFER IS MADE " USED IN ARTICLE 1 OF REGULATION NO 132/67 MEANS THAT THE OFFER IS IN ORDER ONLY WHEN THE GOODS OFFERED ARE STORED IN A GIVEN PLACE OR WHETHER THE INDICATION OF ONE OF THE THREE MARKETING CENTRES REFERRED TO IN THE SAID ARTICLE 1 MAY BE MADE IN RELATION TO GOODS IN TRANSIT .
23 IT FOLLOWS FROM THE REPLIES GIVEN TO THE PREVIOUS QUESTIONS THAT ARTICLE 1 OF REGULATION NO 132/67 IMPLIES THAT WHEN THE OFFER IS MADE THE GOODS OFFERED MUST BE AT THE DISPOSAL OF THE INTERVENTION AGENCY IN ORDER THAT ANY SUBSEQUENT CHANGE OF LOCATION MAY REMAIN EXCLUSIVELY A MATTER FOR THE AGENCY . THIS IS THE MEANING OF THE PHRASE " ARE WHEN THE OFFER IS MADE ".
QUESTION 7
24 FINALLY THE COURT IS ASKED WHETHER THE PROVISIONS CONTAINED IN THE AFORESAID COMMUNITY REGULATIONS ARE MANDATORY OR WHETHER THE MEMBER STATES MAY DEROGATE THEREFROM .
25 THE PROVISIONS, THE INTERPRETATION OF WHICH IS REQUESTED, RELATE TO ESSENTIAL FACTORS IN THE COMMON ORGANIZATION OF THE MARKET IN CEREALS . IF THE OBJECTIVES OF THE COMMON ORGANIZATION OF THE MARKET ARE TO BE ATTAINED, THE INTRODUCTION OF THE INTERVENTION MACHINERY MUST FOLLOW RULES WHICH ARE AS UNIFORM AS POSSIBLE, SO AS NOT TO IMPEDE THE FREE MOVEMENT OF CEREALS WITHIN THE COMMUNITY UNDER NORMAL MARKET CONDITIONS .
26 IN THE ABSENCE OF ANY CLEARLY EXPRESSED INTENTION ON THE PART OF THE DRAFTSMEN OF THE COMMUNITY REGULATIONS IT CANNOT BE CONSIDERED PERMISSIBLE FOR MEMBER STATES TO DEROGATE THEREFROM .
Decision on costs
27 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE HESSISCHER VERWALTUNGSGERICHTSHOF, COSTS ARE A MATTER FOR THAT COURT .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES TO THE MAIN ACTION AND THE COMMISSION OF THE EUROPEAN COMMUNITIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 38 TO 47 AND 177;
HAVING REGARD TO REGULATION NO 120/67 OF 13 JUNE 1967 AND REGULATION NO 132/67 OF 13 JUNE 1967, BOTH OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO REGULATION NO 1028/68 OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 19 JULY 1968;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLE 20;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,
Operative part
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHER VERWALTUNGSGERICHTSHOF BY ORDER OF THAT COURT DATED 19 JULY 1971, HEREBY RULES :
1 . THE TERMS " OFFER " AND " OFFERED ", CONTAINED IN REGULATIONS NOS 120/67, 132/67 AND 1028/68, MUST BE UNIFORMLY INTERPRETED IN THE MEMBER STATES, IN ACCORDANCE WITH THE OBJECTIVES OF THE INTERVENTION SYSTEM LAID DOWN BY THOSE REGULATIONS .
2 . IN ACCORDANCE WITH THE ABOVE REGULATIONS, AN OFFER MUST BE CONSIDERED AS EFFECTIVELY MADE WHEN IT IS RECEIVED IN WRITING BY THE INTERVENTION AGENCY .
3 . ( A ) IN ORDER TO BE VALID AND BINDING UPON THE INTERVENTION AGENCY, AN OFFER FOR INTERVENTION MUST STATE WHERE THE GOODS OFFERED ARE OR WILL BE AT THE TIME WHEN THE OFFER IS MADE, THAT IS, AT THE TIME WHEN IT IS RECEIVED BY THE AGENCY .
( B ) AN OFFER WHICH IS ORIGINALLY INCOMPLETE IN THIS RESPECT MAY SUBSEQUENTLY BE COMPLETED, BUT WILL BE EFFECTIVE ONLY WHEN IT SATISFIES ALL THE CONDITIONS UPON WHICH ITS VALIDITY DEPENDS .
4 . THE PHRASE " ARE WHEN THE OFFER IS MADE " CONTAINED IN ARTICLE 1 OF REGULATION NO 132/67 MUST BE INTERPRETED AS MEANING THAT THE GOODS OFFERED MUST, WHEN THE OFFER IS MADE, BE AT THE DISPOSAL OF THE INTERVENTION AGENCY, SO THAT ANY SUBSEQUENT CHANGE OF LOCATION REMAINS EXCLUSIVELY A MATTER FOR THE AGENCY .
5 . IN THE ABSENCE OF CLEARLY EXPRESSED PROVISIONS MEMBER STATES CANNOT DEROGATE FROM THE PROVISIONS CONTAINED IN THE AFORESAID REGULATIONS .