61991CC0094_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1. The Tribunal Administratif (Administrative Court), Paris, has referred a question to the Court on the validity of Note 2 to Annex I to the Notice of 11 March 1981 on import and export licences and advance-fixing certificates for agricultural products (1) (hereinafter "the Notice"). That note is worded as follows:
"Where, for one and the same product, the above representative rates become applicable on different dates in different Member States, the amounts fixed in advance and expressed in national currency as are shown on the certificates will have to be converted as follows when the certificates are used in another Member State:
(a) the amount expressed in national currency appearing on the certificate is to be converted into ECU at the exchange rate used to calculate that amount;
(b) the amount expressed in ECU and arrived at in the manner described in (a) is to be converted into national currency at the exchange rate applicable on the day on which customs formalities are completed in the Member State in which the certificate is used".
Background
2. The question submitted for a preliminary ruling arose in proceedings between Hans-Otto Wagner GmbH (hereinafter "Wagner"), a company incorporated under German law and dealing in agricultural produce, and the French intervention agency, the Fonds d' Intervention et de Régularisation du Marché du Sucre (Sugar Market Intervention and Stabilization Fund, hereinafter "the Fund") concerning the payment in French Francs ("FF") of export refunds fixed by means of tenders in German Marks ("DM").
3. Pursuant to Article 19(1) of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector, (2) an export refund for sugar which covers the difference between prices on the world market and prices within the Community may be granted to the extent necessary to enable the products to be exported. Article 19(3) of that regulation provides that the refund is to be the same for the whole of the Community. Pursuant to Article 19(4) of the regulation, refunds are to be fixed periodically or, as in this case, by means of tenders.
In Regulation (EEC) No 766/68 of 18 June 1968, (3) the Council laid down general rules for granting export refunds on sugar. That regulation provides that the purpose of the tender is to determine the amount of the refund (Article 4(1)), that the terms of the invitation to tender must guarantee equal access for all persons established within the Community (Article 4(2)) and that the maximum amount of the refund for the invitation in question is to be fixed in accordance with the management committee procedure in the light of the tenders received (Article 4(3)).
4. By Regulation (EEC) No 2382/84 of 14 August 1984, (4) the Commission opened, until 12 June 1985, a principal standing invitation to tender in order to determine export levies and/or export refunds on white sugar allowing it, during the period of validity of the standing invitation, to issue partial invitations to tender (Article 1(1)). Pursuant to Article 2 of Regulation No 2382/84, the partial invitations were to be conducted in accordance with Regulation No 766/68 and, in particular, with the following provisions of Regulation No 2382/84. The tender was required to indicate the amount of the export levy or of the export refund per 100 kilograms of white sugar, expressed in the currency of the Member State in which the tender was submitted (Article 5(2)(d)). In the light of the intervention price for white sugar for the 1984/85 marketing year and, in particular, the current state and foreseeable development of the Community and world sugar markets, the Commission could fix either a minimum export levy or a maximum export refund (Article 9(1)). Where a maximum export refund was fixed, a contract was to be awarded to every tenderer whose tender quoted a rate of refund equal to or less than such maximum refund and to every tenderer who had tendered for an export levy (Article 9(3)). Every successful tenderer was to have the right to claim in respect of the quantity awarded, an export licence indicating, as appropriate, the export levy or the export refund quoted in his tender (Article 12(a)). Licences issued in connection with a partial invitation to tender were to be valid for a given period only. Export licences issued in connection with partial invitations issued in the period from 17 October to 28 November 1984 could be used only from 1 December 1984 and were valid until 30 April 1985 (Article 13(2)(b)).
In accordance with Article 3(1) of Regulation No 2382/84, a notice of invitation to tender setting out the terms thereof was published in the Official Journal of the European Communities. (5) That notice specified in paragraph V.8:
"In order to achieve comparability between tenders and for the making of awards by the Member States, the amount proposed for the export levy or refund, expressed in national currency, will be converted into ECU by applying the conversion rate applicable for the purposes of the common agricultural policy."
5. For a proper understanding of the financial implications of the dispute in the main proceedings, it is necessary to complete the legislative framework which I have just described by also taking account of Council Regulation (EEC) No 855/84 of 31 March 1984 on the calculation and the dismantlement of the monetary compensatory amounts applying to certain agricultural products, (6) pursuant to which the representative rate (also called the "agricultural conversion rate" or "green rate") of a number of currencies was amended. Thus the representative rate of the FF was devalued and the rate of the DM revalued in relation to the ECU, although those amendments became applicable on different dates according to the sectors concerned. Annex IV to Regulation No 855/84 provides that the (devalued) representative rate of the FF (1 ECU = FF 6.86866) was to apply as from 1 July 1984 for the sugar and isoglucose sector. Annex III to that regulation provides that the (revalued) representative rate of the DM (ECU 1 = DM 2.38516) is to apply as from 1 January 1985 without an exception for the sugar sector.
6. Wagner took part in Germany in the partial (tenth and eleventh) invitations to tender which were opened in October 1984 (that is, after the publication of Regulation No 855/84) within the framework of the principal standing invitation to tender provided for in Regulation No 2382/84. In accordance with Article 5(2)(d) of that regulation, Wagner expressed its tenders in DM. Pursuant to Article 9(1) of that regulation, after examining the tenders and in accordance with the opinion of the Management Committee for Sugar, the Commission fixed the maximum export refund for the tenth partial invitation at ECU 39.018 per 100 kilograms and for the eleventh invitation at ECU 39.136 per 100 kilograms. (7) Contracts were awarded in respect of four tenders submitted by Wagner indicating an export refund equal to or less than the maximum amount fixed by the Commission and relating to exports totalling 1 500 tonnes of white sugar. Export licences were issued to Wagner showing in DM the amount of the export refunds awarded to it (between DM 97.77 and DM 98.36 per 100 kilograms).
Although the export licences in question could be used as from 1 December 1984 (Article 13(2)(b) of Regulation No 2382/84), the 1 500 tonnes of sugar were not exported until April 1985 (in other words, after the new representative rate of the DM as fixed in Regulation No 855/84 of 31 March 1984 had come into effect). Moreover, Wagner chose to export the sugar from France. As the export refund is to be paid by the Member State in whose territory customs export formalities were completed, (8) Wagner applied to the Fund for payment of the refunds, which, according to its calculations, came to a total of FF 4 196 946. It is apparent from the case file that Wagner determined that amount as follows: it applied to the amount of the export refund set out in DM on the export licences the "cross" DM/FF exchange rate at the representative rate applicable at the time of export (DM 100 = FF 287.975); it then multiplied the amount in FF resulting from that exchange calculation by the monetary coefficient applicable at the time of export (1.020); finally, it adjusted the latter amount by deducting therefrom a monetary compensatory amount (which had not been fixed in advance) at the rate of FF 7.93 per 100 kilograms of sugar.
7. Although the Fund raised no objection to the last two stages of Wagner' s calculation (application of a monetary coefficient and of a rate by way of monetary compensatory amount), it considered that the refund expressed in DM on the export licences should have been converted into FF in accordance with Note 2 to Annex I to the Notice. It therefore first converted the amount of the refund appearing on each licence into ECU by applying the representative rate of the DM applicable at the time of the invitations to tender (Note 2(a)), that is to say before the revaluation of the green DM in relation to the ECU. It then converted the amounts in ECU so obtained into FF by applying the representative rate of the FF applicable at the time when customs formalities were completed (Note 2(b)). The Fund therefore paid out a sum of only FF 3 974 893, reducing the total amount sought by Wagner by FF 222 113. (9)
Wagner claimed that the Notice was not applicable to it and, furthermore, that Note 2 was not valid at the material time. It therefore formally demanded payment from the Fund of the amount of FF 222 113 representing the difference between the amount paid and the amount to which it believed it was entitled. That demand went unanswered, whereupon Wagner brought proceedings before the Tribunal Administratif, Paris. Taking the view that the outcome of the proceedings depended on whether Note 2 to the Notice could properly be applied by the Fund, the Tribunal Administratif asked the Court to give a preliminary ruling on the validity of that note.
Scope of the question referred
8. In order to assess the scope of the question, it is necessary first of all to determine the nature of the Notice and more particularly of Note 2 to Annex I thereto.
In my view, there is no doubt that the Notice, published in the Official Journal of the European Communities, C Series, does not constitute a binding Community measure which, in itself, would allow the Fund to rely on the conversion rules set out in Note 2 as against exporters such as Wagner. It is a measure of good administration the purpose of which, as the Commission pointed out in its observations, is to make it easier for traders and customs authorities to complete the formalities laid down in the Community rules relating to licences for trade in agricultural produce between the Community and non-member countries. The specific purpose of Note 2 to that Notice is to explain how, in accordance with existing Community rules, a refund fixed in advance in the currency of one Member State is to be converted into the currency of another Member State when the export licences are used in that other State.
In view of the purely explanatory nature of Note 2 to that Notice, there is no need to examine its validity, as the national court asks. However, regard being had to the subject-matter of the dispute in the main proceedings, the question referred must be understood as seeking to ascertain whether the Community provisions applicable at the material time are to be interpreted as imposing the use of the conversion rules referred to in Note 2. In order to provide the national court with an appropriate answer, therefore, it is necessary to identify the Community provisions governing conversion into the currency of the exporting State of an export refund fixed in advance in the currency of another State and to examine whether they are to be interpreted in the manner specified in Note 2.
Assessment
9. A situation such as that in the main proceedings is characterized by the following circumstances: (i) an export licence has been issued following a tendering procedure to determine export refunds on white sugar, in which the amount of the refund awarded and therefore fixed in advance (10) is expressed in the currency of the Member State in which the holder has tendered (in this case in DM), although that licence does not include advance fixing of monetary compensatory amounts; (ii) the licence has been used in another Member State (namely France) from which the sugar in question has been exported; (iii) the representative rate of the currency in which the refund is expressed on the licence has been amended in relation to the representative rate of the currency of the exporting Member State between the date of issue of the licence and the use thereof.
Each aspect of that situation is governed by distinct Community rules.
10. With regard to point (i), the detailed rules for granting and fixing the amount of the export refund are determined by regulations which, in accordance with Regulation No 1785/81 on the common organization of the markets in the sugar sector and Regulation No 766/68 laying down general rules for granting export refunds on sugar, open a tendering procedure enabling export refunds to be fixed. The relevant provision for the purposes of this case is Regulation No 2382/84, which will be examined in paragraphs 14 to 16 below. It should be pointed out at this stage that, pursuant to Article 5(2)(d) and Article 12 (a) of Regulation No 2382/84, the export licence expresses the amount of the refund in the currency of the Member State in which the tender is submitted, in this case in DM.
11. With regard to point (ii), as stated above (paragraph 6 and footnote 8), Article 30(1) of Regulation (EEC) No 2730/79 laying down common detailed rules for the application of the system of export refunds on agricultural products provides that the refund is to be paid by the Member State in whose territory customs export formalities were completed. Payment must therefore be made in the currency of the exporting Member State, which implies, in a situation such as this where the products have been exported from a Member State (France) other than that in which the tender was submitted (Germany), that the amount of the refund expressed in DM on the licence must be converted into the currency of the exporting State, namely into FF. Since that point is not disputed, I do not propose to deal with it.
12. As regards point (iii), in the words of Article 1 of Council Regulation (EEC) No 1223/83 of 20 May 1983 on the exchange rates to be applied in agriculture: (11)
"Where transactions to be carried out in pursuance of instruments relating to the common agricultural policy ... require the currencies ... to be expressed in another currency or in ECU, the rate of exchange shall ... be that corresponding to the representative rate for that currency."
In accordance with Council Regulation (EEC) No 878/77 of 26 April 1977 on the exchange rates to be applied in the agricultural sector, (12) which was subsequently replaced by Regulation No 1223/83, the Commission adopted Regulation (EEC) No 3016/78 of 20 December 1978 laying down certain rules for applying conversion rates in the sugar and isoglucose sectors. (13) Pursuant to Article 1 and to paragraph X(b) of the Annex to Regulation No 3016/78, the representative rate to be applied to all export refunds provided for under Regulation (EEC) No 3330/74 (14) where the monetary compensatory amounts are not fixed in advance is the
"representative rate applicable on the day of completion of customs formalities for export".
By laying down the representative rate applicable on the day the customs formalities are completed, paragraph X of the Annex to Regulation No 3016/78 is simply applying a general principle, set out in the second recital of the preamble to the regulation, according to which the representative rate to be applied is that applicable at the time when the event giving rise to the transaction in question occurs, in this case the completion of customs export formalities.
It follows that Note 2 to the Notice, assuming that the conversion set out under (a) is justified (that is to say the amount of the refund expressed in national currency on the licence must first be converted into ECU at the exchange rate applicable at the time of the invitation to tender), correctly explains under (b) that the amount in ECU so obtained must subsequently be converted into national currency "at the exchange rate applicable on the day on which customs formalities are completed in the Member State in which the certificate is issued". That point is not disputed either.
13. The point at issue is in fact whether the initial conversion into ECU provided for in Note 2(a) to the Notice has a legal basis. In that regard, Wagner is correct in stating that no provision of Community law expressly requires such conversion. However, as the Court has already held on several occasions, in particular in its judgment in Merck v Hauptzollamt Hamburg-Jonas (at paragraph 12): (15)
"in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part".
Like the French Government and the Commission, I consider that the provisions of Regulation No 2382/84, and in particular Article 9 thereof, when interpreted in the light of the context in which they are set and of the object of the regulation, do in fact require conversion, as provided for in Note 2(a) to the Notice, for the reasons set out below.
14. The primary aim of Regulation No 2382/84, as of every other regulation opening a tendering procedure in order to determine export refunds, is to enable the Community to export its surplus sugar to non-member countries while paying the least onerous export refunds by placing the traders concerned in competition with each other. In pursuing that budgetary aim, however, equal treatment must be ensured of all those concerned no matter where they are established within the Community (see Article 4(2) of Regulation No 766/68). To the extent to which a refund fixed under a tendering procedure is to be regarded as having been fixed in advance (see note 10), the aim of Regulation No 2382/84 is also to enable Community exporters to be certain of the amount of the refund for which they may qualify at the time of export. (16)
It follows from those aims that the holder of an export licence issued under a tendering procedure for export refunds has a vested right to receive, upon exportation, the amount of the refund awarded to him after examination of the tenders submitted, provided export actually takes place under the conditions laid down by the Community rules. (17) It also follows that the amount to which the licence holder is entitled, having regard to the budgetary aim of the regulation and to the principle of equal treatment which must be observed in the pursuit of that aim, may not be amended subsequently by, for example, adjusting it by reference to any monetary developments which occurred after it was set.
15. In the light of the foregoing it is possible to define the meaning of Article 9 of Regulation No 2382/84, according to which the Commission may fix "a maximum export refund" (paragraph 1) in which case "a contract shall be awarded to every tenderer whose tender quotes a rate of refund equal to or less than such maximum refund" (paragraph 3).
In order to ensure "comparability between tenders" - and, accordingly, equality of treatment between tenderers - for the "making of awards by the Member States", it is necessary, as stated in paragraph V.8 of the Notice of invitation to tender cited above (paragraph 4), to convert the tenders (expressed in national currency) into ECU at the representative rate, which is clearly the rate applicable at the time when those tenders are examined. On the basis of the tenders received (converted into ECU), the Commission fixes in ECU the maximum export refund. It necessarily follows that the amount to which tenderers are entitled who have submitted a tender equal to or lower than the maximum amount fixed is the amount in ECU obtained by applying the representative rate applicable at the time of the invitation to tender to the amount expressed in national currency in the tender.
16. The Court, moreover, has already endorsed that interpretation in its judgment in Case 162/78 Wagner v Commission. (18) The dispute in that case also concerned the rules for calculating an export refund for white sugar, awarded following a tendering procedure which had been opened under Regulation (EEC) No 2101/75, (19) similar to Regulation No 2382/84 under which the refunds at issue in this case were granted. In paragraph 19 of its judgment in that case the Court stated that:
"offers submitted by tenderers in answer to an invitation to tender are expressed in national currency ... but at the level of the Commission all calculations are effected in units of account. The tenders submitted are converted, in order to make them comparable, into units of account by applying the 'green' rates. Awards are made only after taking into account the maximum amount fixed in units of account and by comparison therewith."
The Court' s position in that case must be compared with the position which it had adopted the previous year in Wagner v Hauptzollamt Hamburg-Jonas. (20) In the light of an interpretation based on the wording of Regulation No 2101/75, the Court concluded (at paragraph 6):
"that the refunds in question were fixed in national currency and that their conversion into units of account constituted only an internal operation within the Commission in order to make tenders comparable".
It appears from a comparison of the two judgments cited that although the amount of the export refund is fixed in national currency, its award to the tenderer under the tendering procedure is necessarily made in ECU. As the amount awarded must be taken as the basis for payment of the refund following the export of the products in question (see above, paragraph 14), reference must therefore be made to the amount in ECU which is obtained by applying the representative rate applicable at the time of the invitation to tender to the amount expressed in national currency in the tender.
It follows from the foregoing that Note 2 to the Notice correctly explains under (a) that the amount expressed in national currency on the licence must be converted into ECU at the representative rate used to calculate that amount. That amount in ECU must then, as Note 2(b) also correctly explains, be converted into the national currency of the exporting Member State at the representative rate applicable at the time when customs export formalities are completed.
17. The arguments put forward by Wagner in favour of a "cross" DM/FF rate applicable at the time of export are not persuasive. Since representative rates are always expressed in relation to the ECU, the application of the representative "cross" DM/FF rate applicable at the time of export constitutes a twofold conversion (first from DM into ECU, then from ECU into FF) carried out each time at the representative rate applicable at the time. That is tantamount to allowing the tenderer to obtain a (higher) refund in FF calculated on the basis of an amount in ECU higher than that awarded to him, because it is obtained by converting the amount in DM set out in the tender at the (revalued) representative rate of the DM applicable at the time of export. Accordingly, it amounts to an a posteriori amendment of the refund set under the tendering procedure. I would point out, moreover, that applying the representative rate applicable at the time of export to the amount in DM set out in Wagner' s lowest tender (DM 99.77 2.38516 = ECU 40.99) would give a refund in ECU higher than the maximum refund fixed by the Commission for the tenth (ECU 39.018) and eleventh (ECU 39.136) partial invitations to tender. That clearly demonstrates that the conversion rules advocated by Wagner would distort the conditions of the invitation to tender. If those rules had been applied at the time of the invitation to tender, Wagner' s tenders would not have been accepted.
18. Moreover, the conversion rules advocated by Wagner could lead to deflection of trade since they encourage a tenderer systematically to export the products in question from a Member State other than that in which he submitted a tender. If it chose to export from another Member State, the rules advocated by Wagner would allow it to take advantage of the revaluation of the "green" DM which came into effect after the amount of the refund was set, while avoiding the corrective effect of the German monetary coefficient (21) which, in accordance with Article 6(1)(c) of Commission Regulation (EEC) No 1372/81 of 19 May 1981 laying down detailed rules for the calculation of monetary compensatory amounts, (22) would have been applicable to the refund in DM in the event of exportation from Germany. (23)
The application of the conversion rules advocated by Wagner would be particularly unjustified in a situation such as that which arises in this case. At the time when the tenders were submitted (that is during October 1984), tenderers were already aware that the representative rate of the DM would be revalued from 1 January 1985. Since the export licences to be issued under the partial invitations to tender in question could be used after that date (Article 13(2)(b) of Regulation No 2382/84), the conversion rules advocated by Wagner would, as explained above, have given tenderers who had chosen to submit their tenders in DM with the intention of using the licences obtained to export from a Member State other than Germany an unfair advantage over other tenderers.
19. Furthermore, Wagner does not dispute that the conversion method set out in Note 2 to the Notice must currently be followed in circumstances such as those of this case. It merely states that that method was introduced for the first time by Council Regulation (EEC) No 1676/85 of 11 June 1985 on the value of the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (24) and that, apart from certain specific cases, it was therefore inapplicable at the material time.
That argument is not well founded. As I have stated above, the provisions of Community law directly applicable to this case were to be interpreted in the manner specified in Note 2 to the Notice.
20. In the alternative, Wagner maintains that Annex I to the Notice of 11 March 1981 (containing, in addition to a table of the conversion rates applicable, the contested note) was subsequently (until 26 May 1987, when a new notice was published in place of the 1981 Notice) replaced by other annexes which made no reference to the conversion method set out in the note in question. The principles of legal certainty, equality of treatment and the uniform application of Community law therefore rule out the possibility that Note 2 to the 1981 Notice remained valid without interruption until 1987.
That argument must also be rejected. Since the relevant provisions of Community law must be interpreted in the manner specified in Note 2 to that Notice, the conversion method referred to therein is binding even in the absence of an explanatory note.
Conclusion
21. I propose that the Court rule as follows:
"The conversion of an export refund awarded in ECU under the principal standing invitation to tender provided for in Commission Regulation (EEC) No 2382/84 of 14 August 1984 and set out on the export licence in the currency of the Member State in which the tender is submitted must be carried out as follows where the licences are used in another Member State and the monetary compensatory amount has not been fixed in advance:
- the amount in national currency set out on the licence is to be converted into ECU at the representative rate applicable when the amount of the refund was set;
- the amount in ECU so obtained is to be converted into the national currency of the exporting Member State at the representative rate applicable at the time of completion of customs export formalities."
(*) Original language: French.
(1) - OJ 1981 C 52, p. 2.
(2) - OJ 1981 L 177, p. 4. I shall refer in this Opinion to the Community provisions in force at the material time.
(3) - OJ, English Special Edition 1968 (I), p. 155.
(4) - OJ 1984 L 221, p. 5.
(5) - OJ 1984 C 218, p. 27.
(6) - OJ 1984 L 90, p. 1.
(7) - See Commission Regulations (EEC) No 2976/84 of 24 October 1984 and No 3067/84 of 31 October 1984 fixing the maximum export refund for white sugar for, respectively, the tenth and eleventh partial invitations to tender issued within the framework of the principal standing invitation to tender provided for in Regulation No 2382/84 (OJ 1984 L 281, p. 22, and L 288, p. 65).
(8) - Article 30(1) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1).
(9) - The parties are in agreement on the figures indicated in the order for reference, including the amount in FF corresponding to the reduction effected by the Fund, although mathematically the difference between 4 196 946 and 3 974 893 comes to 222 053.
(10) - Article 2(2) of Commission Regulation (EEC) No 243/78 of 1 February 1978 providing for the advance fixing of monetary compensatory amounts (OJ 1978 L 37, p. 5) provides that levies or refunds fixed under a tendering procedure shall be considered to be fixed in advance .
(11) - OJ 1983 L 132, p. 33.
(12) - OJ 1977 L 106, p. 27.
(13) - OJ 1978 L 359, p. 11.
(14) - Council Regulation (EEC) No 3330/74 of 19 December 1974 on the common organization of the market in sugar (OJ 1974 L 359, p. 1). That regulation was repealed and replaced by Regulation No 1785/81.
(15) - Judgment in Case 292/82 [1983] ECR 3781.
(16) - See the judgment in Joined Cases 44/77 to 51/77 Union Malt v Commission [1978] ECR 57.
(17) - Compare paragraph 23 of the Union Malt judgment.
(18) - Judgment in Case 162/78 [1979] ECR 3467.
(19) - Commission Regulation of 11 August 1975 on a standing invitation to tender in order to determine a levy and/or refund on exports of white sugar (OJ 1975 L 214, p. 5).
(20) - Judgment in Case 108/77 [1978] ECR 1187.
(21) - The monetary coefficient applicable at the time when the sugar referred to in the licences was exported was set at 0.932 (and thus had a negative corrective effect) for exports from Germany and at 1.020 (thus having a positive corrective effect) for exports from France (see Annex II to Commission Regulation (EEC) No 3719/84 of 27 December 1984 amending the monetary compensatory amounts (OJ 1984 L 342, p. 1)).
(22) - OJ 1981 L 138, p. 14.
(23) - On the subject of the coefficient, see the judgment in Wagner v Commission, cited above, at paragraphs 18 to 21.
(24) - OJ 1985 L 164, p. 1. Wagner also refers to paragraph 7.1 of the General section of the Notice of 26 May 1987 (OJ 1987 C 140, p. 2) which replaced the Notice of 11 March 1981 under consideration in this case.