61970CJ0038_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 38/70
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT AM MAIN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
DEUTSCHE TRADAX GMBH, HAVING ITS REGISTERED OFFICE IN HAMBURG,
AND
EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT AM MAIN,
Subject of the case
ON THE VALIDITY OF THE THIRD SUBPARAGRAPH OF ARTICLE 12 ( 1 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS, AND ON THE INTERPRETATION OF ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 183/67/EEC OF THE COMMISSION OF 27 JUNE 1967 ON IMPORT AND EXPORT LICENCES FOR CEREALS AND CEREAL-BASED PROCESSED PRODUCTS,
Grounds
1 BY ORDER OF 25 FEBRUARY 1970, RECEIVED AT THE COURT ON 23 JULY 1970, THE VERWALTUNGSGERICHT FRANKFURT AM MAIN HAS REQUESTED THE COURT, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, TO GIVE A PRELIMINARY RULING ON THE FOLLOWING QUESTIONS :
( 1 ) IS REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 VALID IN SO FAR AS IN THE FINAL PARAGRAPH OF ARTICLE 12 ( 1 ) IT MAKES THE ISSUE OF AN IMPORT LICENCE CONDITIONAL ON THE LODGING OF A DEPOSIT AND PROVIDES THAT THAT DEPOSIT SHALL BE FORFEITED IN WHOLE OR IN PART IF IMPORTATION IS NOT EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE?
( 2 ) IF THE ANSWER TO QUESTION ( 1 ) IS AFFIRMATIVE : DOES THE EXPRESSION " LEVY FIXED IN ADVANCE " IN ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 183/67 OF THE COMMISSION OF 27 JUNE 1967 MEAN THE LEVY FIXED FOR THE FINAL MONTH OF THE PERIOD OF VALIDITY OF THE LICENCE OR, AS THE DEFENDANT CONTENDS IN RELIANCE ON ARTICLE 15 OF REGULATION NO 120/67, THE RATE OF LEVY FIXED FOR THE EXPECTED MONTH OF IMPORTATION SPECIFIED IN THE APPLICATION OF THE HOLDER OF THE LICENCE?
FIRST QUESTION
2 THE FIRST QUESTION, RELATING TO THE LEGALITY OF THE SYSTEM OF DEPOSITS INITIATED IN THE FINAL SUBPARAGRAPH OF ARTICLE 12 ( 1 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 33 ), IS MATERIALLY IDENTICAL TO A QUESTION REFERRED BY THE SAME COURT IN CASE 11/70 UPON WHICH A RULING WAS GIVEN IN THE JUDGMENT OF THE COURT OF 17 DECEMBER 1970 .
3 IN THAT JUDGMENT THE COURT RULED THAT EXAMINATION OF THE QUESTION PUT BY THE VERWALTUNGSGERICHT REVEALED NO FACTOR CAPABLE OF AFFECTING THE VALIDITY OF THE PROVISIONS AT ISSUE .
4 NO FRESH FACTOR CAPABLE OF ALTERING THAT JUDGMENT HAS BEEN PRODUCED DURING THESE PROCEEDINGS .
SECOND QUESTION
5 THE SECOND QUESTION CONCERNS THE INTERPRETATION OF THE EXPRESSION " LEVY FIXED IN ADVANCE " EMPLOYED IN THE FIRST PARAGRAPH OF ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 183/67/EEC OF THE COMMISSION OF 27 JUNE 1967 ON IMPORT AND EXPORT LICENCES FOR CEREALS AND CEREAL-BASED PROCESSED PRODUCTS ( OFFICIAL JOURNAL 1967, P . 2631 ), WHICH IS ONE OF THE FACTORS TO BE TAKEN INTO ACCOUNT IN CALCULATING THE DEPOSIT OR PART OF THE DEPOSIT WHICH IS FORFEITED IF IMPORTATION IS NOT EFFECTED OR IS ONLY PARTIALLY EFFECTED DURING THE PERIOD OF VALIDITY OF THE IMPORT LICENCE .
6 IT APPEARS FROM THE INFORMATION SUPPLIED IN THE COURSE OF THESE PROCEEDINGS THAT THE COMPETENT AUTHORITIES OF THE VARIOUS MEMBER STATES HAVE INTERPRETED THIS PROVISION IN DIFFERENT WAYS . SOME OF THEM BELIEVE THAT THE PHRASE " LEVY FIXED IN ADVANCE " WITHIN THE MEANING OF THE PROVISION AT ISSUE MUST BE UNDERSTOOD AS THE RATE OF LEVY FIXED FOR THE EXPECTED MONTH OF IMPORTATION SPECIFIED IN THE IMPORT LICENCE, WHILE OTHERS TAKE THE VIEW THAT THIS EXPRESSION MEANS THE RATE FIXED FOR THE FINAL MONTH OF THE PERIOD OF VALIDITY OF THE LICENCE .
7 THE EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL OF FRANKFURT AM MAIN, WHICH IS THE INTERVENTION AGENCY FOR THE FEDERAL REPUBLIC OF GERMANY AND IS THE DEFENDANT IN THE MAIN ACTION, CONTENDS, IN RELIANCE ON ARTICLE 15 ( 2 ) OF REGULATION NO 120/67, THAT THE EXPRESSION " LEVY FIXED IN ADVANCE " IS TO BE UNDERSTOOD AS REFERRING TO THE RATE OF LEVY FIXED FOR THE EXPECTED MONTH OF IMPORTATION . THE PLAINTIFF IN THE MAIN ACTION, ON THE OTHER HAND, TAKES THE VIEW THAT THIS EXPRESSION REFERS TO THE RATE FIXED FOR THE FINAL MONTH OF THE PERIOD OF VALIDITY OF THE LICENCE . FOR A LONG TIME THE COMMISSION UPHELD THE INTERPRETATION PUT FORWARD BY THE GERMAN INTERVENTION AGENCY, BUT BEFORE THE COURT IT HAS ADOPTED THE SECOND INTERPRETATION, RELYING IN PARTICULAR ON ARTICLE 9 OF REGULATION NO 140/67/EEC OF THE COUNCIL OF 21 JUNE 1967 ON RULES FOR THE ADVANCE FIXING OF LEVIES ON CEREALS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 91 ) AND ON ARGUMENTS ADDUCED FROM THE OBJECTIVE OF THE SYSTEM OF DEPOSITS .
8 ARTICLE 8 ( 3 ) OF REGULATION NO 183/67 STATES THAT THE AMOUNTS TO BE TAKEN INTO CONSIDERATION WHEN CALCULATING THE DEPOSIT OR PORTION OF THE DEPOSIT WHICH IS FORFEITED, IN RESPECT OF IMPORT CERTIFICATES FOR WHICH THE LEVY HAS BEEN FIXED IN ADVANCE, ARE AS FOLLOWS :
" 0.50 UNITS OF ACCOUNT PER METRIC TON, INCREASED BY AN AMOUNT EQUAL TO :
- THE LEVY FIXED IN ADVANCE, INCREASED BY A PREMIUM PROVIDED FOR IN THE SCALE OF PREMIUMS IN FORCE ON THE DAY OF LODGING THE REQUEST FOR THE LICENCE FOR THE MONTH OF IMPORTATION SHOWN IN THE LICENCE, OR FOR THE FINAL MONTH OF THE PERIOD OF VALIDITY OF THE LICENCE, IF THE LATTER IS HIGHER; AND
- REDUCED BY THE LEVY APPLICABLE ON THE FINAL DAY OF THE PERIOD OF VALIDITY OF THE IMPORT LICENCE ".
ALTHOUGH THIS PROVISION HAS TAKEN CARE TO INDICATE WITH PRECISION VARIOUS FACTORS INVOLVED IN THE CALCULATION OF THE AMOUNT OF THE DEPOSIT OR PART DEPOSIT TO BE FORFEITED, IT HAS NOT DEFINED WHAT IS TO BE UNDERSTOOD BY " LEVY FIXED IN ADVANCE ". IN ORDER TO INTERPRET THAT EXPRESSION, REFERENCE MUST BE MADE TO THE PROVISIONS WHICH FORM THE LEGAL BASIS OF REGULATION NO 183/67 AS A WHOLE, NAMELY REGULATIONS NOS 120/67 AND 140/67 OF THE COUNCIL .
9 ARTICLE 15 ( 2 ) OF REGULATION NO 120/67 PROVIDES THAT IN A CASE OF ADVANCE FIXING THE LEVY TO BE CHARGED ON IMPORTATION IS " THE LEVY APPLICABLE ON THE DAY ON WHICH APPLICATION FOR A LICENCE IS MADE, ADJUSTED FOR THE THRESHOLD PRICE WHICH WILL BE IN FORCE DURING THE EXPECTED MONTH OF IMPORTATION ". SINCE REGULATION NO 183/67 USES THE EXPRESSION " LEVY FIXED IN ADVANCE " WITHOUT DEFINING IT MORE PRECISELY, IT MUST BE UNDERSTOOD IN THE SAME SENSE AS THAT IN WHICH IT IS USED IN THE BASIC REGULATION NO 120/67, WHICH REGULATION NO 183/67 IS INTENDED TO IMPLEMENT .
10 CONTRARY TO THE CONTENTIONS OF THE COMMISSION, THIS LEGAL SITUATION WAS NOT ALTERED BY ARTICLE 9 OF REGULATION NO 140/67, UNDER WHICH " IF IMPORTATION IS NOT EFFECTED DURING THE MONTH INDICATED AT THE TIME OF APPLICATION ... ( A ) THE LEVY APPLICABLE ON THE DAY ON WHICH THE APPLICATION FOR THE LICENCE WAS SUBMITTED SHALL BE ADJUSTED IN ACCORDANCE WITH THE THRESHOLD PRICE IN FORCE ON THE DAY OF IMPORTATION ... ". IN FACT, THAT PROVISION - WHICH IS INTENDED TO MEET THE CASE IN WHICH IMPORTATION IS EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE BUT DURING A MONTH OTHER THAN THAT INDICATED IN THE APPLICATION FOR A LICENCE - IS NOT APPLICABLE TO A CASE IN WHICH IMPORTATION IS NOT EFFECTED, OR IS ONLY PARTIALLY EFFECTED, DURING THE PERIOD OF VALIDITY OF THE LICENCE, SO THAT THE DEPOSIT IS WHOLLY OR PARTIALLY FORFEITED . IT CANNOT BE ACCEPTED THAT THE SAID PROVISION ALTERED THE SYSTEM LAID DOWN BY REGULATION NO 120/67, ESPECIALLY SINCE REGULATION NO 140/67, BEING AN IMPLEMENTING REGULATION NOT DIRECTLY BASED ON ARTICLE 43 ( 2 ) OF THE TREATY BUT ON THE ENABLING PROVISION OF ARTICLE 15 ( 4 ) OF REGULATION NO 120/67, COULD NOT HAVE DEROGATED FROM THE PROVISIONS OF THE BASIC REGULATION TO WHICH IT IS SUBORDINATE .
11 IN THESE CIRCUMSTANCES IT SEEMS UNNECESSARY TO GO INTO THE CONFLICTING ARGUMENTS WHICH HAVE BEEN PUT FORWARD IN THE COURSE OF THE PROCEDURE REGARDING THE PURPOSE OF THE PROVISIONS GOVERNING THE DETAILED RULES FOR FIXING THE AMOUNTS TO BE WITHHELD IN CASES OF FAILURE TO IMPORT, PARTICULARLY AS THESE ARGUMENTS HAVE GIVEN RISE TO WIDELY DIVERGENT INTERPRETATIONS .
12 THE EXPRESSION " LEVY FIXED IN ADVANCE " IN THE FIRST INDENT OF ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 183/67 SHOULD THEREFORE BE INTERPRETED AS REFERRING TO THE RATE OF LEVY FIXED FOR THE MONTH OF IMPORTATION SPECIFIED IN THE APPLICATION BY THE HOLDER OF THE IMPORT LICENCE .
Decision on costs
13 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE 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 NATIONAL COURT, 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 ORAL OBSERVATIONS OF 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;
HAVING REGARD TO REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967, REGULATION NO 140/67/EEC OF THE COUNCIL OF 21 JUNE 1967 AND REGULATION NO 183/67/EEC OF THE COMMISSION OF 27 JUNE 1967;
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 VERWALTUNGSGERICHT FRANKFURT AM MAIN BY ORDER OF 25 FEBRUARY 1970, HEREBY RULES :
( 1 ) EXAMINATION OF THE FIRST QUESTION REFERRED TO THE COURT HAS REVEALED NO FACTOR CAPABLE OF AFFECTING THE VALIDITY OF THE LAST SUBPARAGRAPH OF ARTICLE 12 ( 1 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 WHICH MAKES THE ISSUE OF IMPORT LICENCES CONDITIONAL ON THE LODGING OF A DEPOSIT GUARANTEEING THE OBLIGATION TO IMPORT DURING THE PERIOD OF VALIDITY OF THE LICENCE;
( 2 ) THE EXPRESSION " LEVY FIXED IN ADVANCE " IN ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 183/67/EEC OF THE COMMISSION OF 27 JUNE 1967 REFERS TO THE RATE OF LEVY FIXED FOR THE MONTH OF IMPORTATION INDICATED BY THE HOLDER OF THE IMPORT LICENCE IN HIS APPLICATION .