61982CJ0311_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 311/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CONSEIL D ' ETAT ( STATE COUNCIL ) OF THE FRENCH REPUBLIC FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
SA ROQUETTE FRERES, A FRENCH LIMITED LIABILITY COMPANY WITH ITS REGISTERED OFFICE IN LESTREM ( PAS-DE CALAIS ),
AND
OFFICE NATIONAL INTERPROFESSIONNEL DES CEREALES ( ONIC ) ( NATIONAL CEREALS TRADES BOARD ),
Subject of the case
ON THE INTERPRETATION AND VALIDITY OF ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 2012/74 OF THE COMMISSION OF 30 JULY 1974 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF REGULATION ( EEC ) NO 1132/74 AS REGARDS PRODUCTION REFUNDS ON STARCHES,
Grounds
1 BY A DECISION OF 15 OCTOBER 1982 LODGED AT THE COURT ON 9 DECEMBER OF
THAT YEAR, THE CONSEIL D ' ETAT ( STATE COUNCIL ) OF THE FRENCH REPUBLIC REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING ON THE INTERPRETATION AND, IN THE ALTERNATIVE, THE VALIDITY OF ARTICLE 2 ( 3 ) OF REGULATION ( EEC ) NO 2012/74 OF THE COMMISSION OF 30 JULY 1974 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF REGULATION ( EEC ) NO 1132/74 AS REGARDS PRODUCTION REFUNDS ON STARCHES ( OFFICIAL JOURNAL 1974, L 209, P . 44 ).
2 THE QUESTION AROSE IN CONNECTION WITH LITIGATION PENDING BEFORE THAT COURT BETWEEN THE COMPANY ROQUETTE FRERES AND THE OFFICE NATIONAL INTERPROFESSIONNEL DES CEREALES ( NATIONAL CEREALS TRADES BOARD, HEREINAFTER REFERRED TO AS ' ' THE OFFICE NATIONAL ' ' ) CONCERNING A CLAIM FOR PAYMENT OF FF 3 615 399.50 BY WAY OF PRODUCTION REFUNDS ON MAIZE STARCH IN RESPECT OF MAIZE PROCESSED INTO STARCH IN AUGUST AND SEPTEMBER 1974 .
3 IT APPEARS FROM THE FILE THAT PRIOR TO 1 AUGUST 1974 ROQUETTE PLACED QUANTITIES OF MAIZE UNDER OFFICIAL SUPERVISION WHICH WERE PROCESSED IN AUGUST AND SEPTEMBER OF THE SAME YEAR . THE LITIGATION ARISES FROM THE FACT THAT THE SAME PERIOD SAW THE SIMULTANEOUS AMENDMENT OF THE PRICE LEVELS DETERMINING THE AMOUNT OF THE REFUND ( THAT IS, THE THRESHOLD PRICE AND THE SO-CALLED ' ' SUPPLY PRICE ' ' ) FIXED BY ARTICLE 1 OF REGULATION NO 1132/74 OF THE COUNCIL OF 29 APRIL 1974 ON PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS ( OFFICIAL JOURNAL 1974, L 128, P . 24 ) THE DIFFERENCE BETWEEN WHICH DICTATES THE AMOUNT OF THE REFUND . WHEREAS, AT THE MATERIAL TIME, THE THRESHOLD PRICE HAD FALLEN, THE SUPPLY PRICE HAD BEEN INCREASED BY THE LAST-MENTIONED REGULATION FROM 6.80 TO 8.20 UNITS OF ACCOUNT PER 100 KG AS FROM 1 AUGUST 1974 .
4 THE OFFICE NATIONAL HAD REGARD TO THE CHANGE IN BOTH PRICES WHEN DETERMINING THE AMOUNT OF THE REFUND . ROQUETTE DOES NOT CONTEST THE ADJUSTMENT MADE BY REFERENCE TO THE THRESHOLD PRICE, BUT POINTS OUT THAT REGULATION NO 2012/74 OF THE COMMISSION - ARTICLE 2 ( 3 ) OF WHICH PROVIDES FOR ADJUSTMENT OF THE REFUND IN ACCORDANCE WITH ANY FLUCTUATIONS ' ' IN THE THRESHOLD PRICE ' '
OCCURRING BETWEEN THE TIME WHEN THE MAIZE IS PLACED UNDER SUPERVISION AND THE TIME OF PROCESSING - MADE NO COMPARABLE PROVISION FOR ANY FLUCTUATION IN THE SUPPLY PRICE . CONSEQUENTLY IT TAKES THE VIEW THAT THE REFUND SHOULD BE CALCULATED BY REFERENCE, ON THE ONE HAND, TO
THE THRESHOLD PRICE PREVAILING AT THE TIME OF PROCESSING AND, ON THE OTHER HAND, TO THE SUPPLY PRICE IN FORCE AT THE TIME WHEN THE MAIZE IS PLACED UNDER OFFICIAL SUPERVISION .
5 IN ORDER TO RESOLVE THE DISPUTE, THE CONSEIL D ' ETAT ASKED THE COURT, FIRST, TO GIVE ITS INTERPRETATION OF ARTICLE 2 ( 3 ) OF REGULATION NO 2012/74, AND IN THE ALTERNATIVE, TO RULE ON THE COMPATIBILITY OF THAT PROVISION WITH REGULATION NO 1132/74 OF THE COUNCIL, SHOULD IT BE FOUND THAT ONLY THE CHANGE IN THE THRESHOLD PRICE WAS TO BE TAKEN INTO ACCOUNT IN DETERMINING THE AMOUNT OF THE REFUND .
6 AS THE COURT STATED IN ITS JUDGMENT OF 15 DECEMBER 1982 CONCERNING A SUBSTANTIALLY IDENTICAL CASE ( HAUPTZOLLAMT KREFELD V MAIZENA, CASE 5/82 ( 1982 ) ECR 4601 ), THE COMMUNITY RULES RELATING TO PRODUCTION REFUNDS FOR STARCH MADE FROM MAIZE ARE BASED ON REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 33 ), WHICH ESTABLISHED THE PRINCIPLE OF REFUNDS .
7 THAT PRINCIPLE WAS PUT INTO EFFECT FOR THE FIRST TIME BY REGULATION NO 371/67 OF THE COUNCIL OF 25 JULY 1967 FIXING PRODUCTION REFUNDS ON STARCHES AND QUELLMEHL ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 219 ) AND BY REGULATION NO 1060/68 OF THE COMMISSION OF 24 JULY 1968 ADOPTING CERTAIN DETAILED RULES FOR THE APPLICATION OF REGULATIONS NOS 367/67 AND 371/67 REGARDING PRODUCTION REFUNDS ON MAIZE PROCESSED INTO GROATS AND MEAL AND ON MAIZE AND COMMON WHEAT PROCESSED INTO STARCH AND QUELLMEHL ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), P . 352 ). ARTICLE 1 ( 1 ) OF REGULATION NO 371/67 PROVIDED THAT THE REFUND TO BE PAID IN RESPECT OF MAIZE WAS TO BE EQUAL TO THE DIFFERENCE PER 100 KG OF MAIZE BETWEEN THE THRESHOLD PRICE AND A GUARANTEED SUPPLY PRICE OF 6.80 UNITS OF ACCOUNT . ACCORDING TO REGULATION NO 1060/68 ( ARTICLES 1 AND 2 ( 4 )) A REFUND ADVANCE CALCULATED BY REFERENCE TO THE THRESHOLD PRICE IN FORCE AT THE START OF THE MARKETING YEAR WAS TO BE PAID NOT LATER THAN 30 DAYS FROM THE DATE ON WHICH THE STARCH MANUFACTURER REQUESTED IT AND FURNISHED PROOF THAT THE MAIZE INTENDED FOR THE MANUFACTURER OF STARCH HAD BEEN PLACED UNDER CUSTOMS SUPERVISION,
WHEREAS THE REFUND ( ARTICLE 3 ) WAS TO BE CALCULATED BY REFERENCE TO THE THRESHOLD PRICE IN FORCE WHEN THE MAIZE WAS PROCESSED INTO STARCH AND WAS TO BE PAID WITHIN 30 DAYS FROM THE DATE ON WHICH THE MANUFACTURER FURNISHED PROOF THAT THE CEREAL HAD BEEN PROCESSED . THE SYSTEM PROVIDED FOR IN THE REGULATIONS CITED ABOVE APPLIED UNTIL 31 JULY 1974 AND WAS REPLACED WITH EFFECT FROM 1 AUGUST 1974 BY THE SYSTEM PROVIDED FOR IN REGULATIONS NOS 1132/74 AND 2012/74 .
8 REGULATION NO 1132/74 OF THE COUNCIL DEPARTED FROM REGULATION NO 371/67 INASMUCH AS IT PROVIDED THAT HENCEFORTH THE REFUND WAS TO BE EQUAL TO THE DIFFERENCE PER 100 KG OF MAIZE BETWEEN THE THRESHOLD PRICE AND A GUARANTEED SUPPLY PRICE FIXED AT 8.20 UNITS OF ACCOUNT . REGULATION NO 2012/74 OF THE COMMISSION MODIFIED THE RULES FOR OPERATING THE REFUNDS BY ABOLISHING THE SYSTEM OF ADVANCE PAYMENTS AND PROVIDED, IN ARTICLE 2, THAT THE REFUND WAS TO BE CALCULATED BY REFERENCE TO THE THRESHOLD PRICE IN FORCE AT THE TIME WHEN THE PRODUCT WAS PLACED UNDER CUSTOMS SUPERVISION, SUBJECT TO AN ADJUSTMENT WHERE THERE WAS A CHANGE IN THAT PRICE BEFORE THE MAIZE WAS PROCESSED INTO STARCH .
9 BOTH ARTICLE 3 OF REGULATION NO 1060/68 AND ARTICLE 2 OF REGULATION NO 2012/74 DO IN FACT REFER TO THE SAME DATE FOR THE DETERMINATION OF THE THRESHOLD PRICE WHICH MUST BE TAKEN INTO ACCOUNT WHEN CALCULATING THE REFUND . SINCE ARTICLE 2 ( 3 ) OF REGULATION NO 2012/74 PROVIDES THAT THE REFUND ' ' SHALL, WHERE NECESSARY, BE ADJUSTED A POSTERIORI BY REFERENCE TO THE THRESHOLD PRICE VALID FOR ONE MONTH DURING WHICH PROCESSING TAKES PLACE ' ', THAT ARTICLE TOO ATTACHES PARAMOUNT IMPORTANCE TO THE THRESHOLD PRICE IN FORCE AT THE DATE OF PROCESSING .
10 AS REGARDS THE SUPPLY PRICE, WHILST BEFORE THE ENTRY INTO FORCE OF REGULATION NO 10/75 OF THE COMMISSION OF 31 DECEMBER 1974, AMENDING REGULATION NO 2012/74 LAYING DOWN DETAILED RULES AS REGARDS PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS ( OFFICIAL JOURNAL 1975, L 1, P . 24 ), COMMUNITY LAW DID NOT EXPRESSLY DEAL WITH THE PROBLEM OF THE PRACTICAL EFFECTS OF CHANGES IN THE PRICE OCCURRING BETWEEN THE TIME WHEN THE MAIZE WAS PLACED UNDER SUPERVISION AND THE TIME WHEN IT WAS PROCESSED, IT NEVERTHELESS FOLLOWS FROM THE CORPUS OF PROVISIONS ON THE PRODUCTION REFUND FOR STARCH IN FORCE SINCE 1967 THAT THE REFUND WAS TO BE CALCULATED ON THE BASIS OF THE RATES VALID ON THE DAY OF PROCESSING . UNLIKE THE THRESHOLD PRICE, WHICH CHANGES MONTHLY
AND IN RESPECT OF WHICH IT WAS THEREFORE NECESSARY TO MAKE PROVISION FOR ADJUSTMENT, IN REGULATION NO 2012/74 THE SUPPLY PRICE IS FIXED BY THE COUNCIL FOR AN INDEFINITE PERIOD AND REMAINS UNCHANGED UNTIL THE COUNCIL DECIDES TO ALTER IT . IN THE ABSENCE OF ANY EXPRESS PROVISION CONCERNING THE SUPPLY PRICE TO BE USED WHEN CALCULATING THE REFUND, THAT PRICE MUST OBVIOUSLY BE DETERMINED BY REFERENCE TO THE SAME DATE AS THAT TAKEN INTO ACCOUNT IN DETERMINING THE THRESHOLD PRICE .
11 BEFORE THIS COURT ROQUETTE CONTENDED THAT THE INFERENCE TO BE DRAWN FROM THE COURT ' S JUDGMENT OF 12 JULY 1977 ( CASE 2/77 HOFFMANN ' S STARKEFABRIKEN AG V HAUPTZOLLAMT BIELEFELD ( 1977 ) ECR 1375 ) WAS THAT THE DATE WHICH HAD TO BE TAKEN INTO ACCOUNT IN CALCULATING THE REFUND WAS NECESSARILY THE DATE AT WHICH THE PRODUCT WAS PLACED UNDER CUSTOMS SUPERVISION .
12 HOWEVER, IN THE PASSAGE OF THE JUDGMENT TO WHICH ROQUETTE REFERS, THE COURT MERELY STATES THAT ACCORDING TO ARTICLE 2 ( 1 ) AND ( 3 ) OF REGULATION NO 2012/74 THE PRODUCTION REFUND IS TO BE PAID AND CALCULATED AT THE MOMENT WHEN THE PERSON ENTITLED THERETO FURNISHES PROOF THAT THE BASIC PRODUCT HAS BEEN PLACED UNDER OFFICIAL SUPERVISON . HAVING REGARD TO THE RESERVATION CONTAINED IN THE SAME ARTICLE PERMITTING ADJUSTMENT OF THE REFUND, IT IS NOT POSSIBLE TO FIND IN THAT PASSAGE ANY SUPPORT FOR THE VIEW THAT THE DATE OF PROCESSING IS NOT TO BE THE DATE WHICH DETERMINES THE AMOUNT OF THE REFUND .
13 ROQUETTE ARGUES FURTHER THAT THE COMMISSION SUBSEQUENTLY AMENDED THE WORDING OF ARTICLE 2 ( 3 ) OF REGULATION NO 2012/74 IN REGULATION NO 10/75, MAKING IT REFER THEREAFTER TO ALL THE AMOUNTS ENVISAGED BY REGULATION NO 1132/74 OF THE COUNCIL SO AS TO EMBRACE CHANGES IN THE THRESHOLD PRICE AND THE SUPPLY PRICE . IT IS DIFFICULT TO SEE WHY THAT PROVISION SHOULD HAVE BEEN NECESSARY IN ORDER TO AMEND THE PREVIOUS REGULATION IF THE LATTER HAD, FROM THE OUTSET, BORNE THE MEANING ASCRIBED TO IT BY THE OFFICE NATIONAL AND THE COMMISSION .
14 THE GENERAL SCHEME OF THE REGULATIONS AT ISSUE AND THEIR ECONOMIC PURPOSE INDICATE THAT SINCE THE AIM IS TO ENABLE PRODUCERS TO SELL MAIZE STARCH ON THE
MARKET AT A COMPETITIVE PRICE, THE ADJUSTMENT MUST REFLECT THE PRICES PREVAILING AT THE TIME OF PROCESSING, NOT AT THE TIME WHEN THE MAIZE IS PLACED UNDER SUPERVISION . IT MUST THEREFORE BE HELD THAT THE APPROACH ADOPTED IN REGULATION NO 10/75 WAS ALREADY IMPLIED IN THE PROVISIONS OF REGULATION NO 2012/74 .
15 THUS THE REPLY TO BE GIVEN TO THE FIRST QUESTION RAISED BY THE CONSEIL D ' ETAT IS THAT ARTICLE 2 ( 3 ) OF REGULATION NO 2012/74 MUST BE INTERPRETED TO MEAN THAT THE PRODUCTION REFUND FOR MAIZE PROCESSED INTO STARCH MUST BE EQUAL TO THE DIFFERENCE BETWEEN THE THRESHOLD PRICE AND THE SUPPLY PRICE APPLICABLE ON THE DATE ON WHICH THE MAIZE IS PROCESSED .
16 IN THE LIGHT OF THAT REPLY THE SUBSIDIARY QUESTION AS TO THE COMPATIBILITY OF THE AFORESAID PROVISION WITH REGULATION NO 1132/74 IS DEVOID OF PURPOSE .
Decision on costs
COSTS
17 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CONSEIL D ' ETAT OF THE FRENCH REPUBLIC BY A DECISION OF 15 OCTOBER 1982, HEREBY RULES AS FOLLOWS :
ARTICLE 2 ( 3 ) OF REGULATION NO 2012/74 OF THE COMMISSION OF 30 JULY 1974 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF REGULATION ( EEC ) NO 1132/74 AS REGARDS PRODUCTION REFUNDS ON STARCHES MUST BE
INTERPRETED TO MEAN THAT THE PRODUCTION REFUND FOR MAIZE PROCESSED INTO STARCH MUST BE EQUAL TO THE DIFFERENCE BETWEEN THE THRESHOLD PRICE AND THE SUPPLY PRICE APPLICABLE ON THE DATE ON WHICH THE MAIZE IS PROCESSED .