61978CJ0122_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 122/78
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL ADMINISTRATIF, PARIS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
S.A . BUITONI
AND
FONDS D ' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES
Subject of the case
ON THE VALIDITY AND THE INTERPRETATION OF ARTICLE 3 OF COMMISSION REGULATION NO 499/76 OF 5 MARCH 1976 AMENDING REGULATION NO 193/75 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL L 59, P . 18 ),
Grounds
1BY JUDGMENT OF 22 MARCH 1978 THE TRIBUNAL ADMINISTRATIF, PARIS, REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION RELATING TO THE VALIDITY AND INTERPRETATION OF ARTICLE 3 OF COMMISSION REGULATION NO 499/76 OF 5 MARCH 1976 AMENDING REGULATION NO 193/75 OF 17 JANUARY 1975 ( OFFICIAL JOURNAL L 25, P . 10 ) LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL L 59, P . 18 ).
2IT APPEARS FROM THE JUDGMENT MAKING THE REFERENCE THAT THE PLAINTIFF IN THE MAIN ACTION, WHICH HAD OBTAINED, SUBJECT TO THE PROVISION OF A SECURITY, IMPORT CERTIFICATES FOR A QUANTITY OF TOMATO CONCENTRATES COMING FROM THIRD COUNTRIES AND HAD IMPORTED THOSE GOODS WITHIN THE PERIOD OF VALIDITY OF THE LICENCES WAS, BY DECISION OF THE FRENCH INTERVENTION AGENCY, REFUSED RELEASE OF THE SECURITY ON THE GROUND THAT IT HAD FAILED TO SUBMIT TO THAT AGENCY THE REQUISITE PROOF OF IMPORTATION WITHIN THE PERIOD LAID DOWN IN ARTICLE 3 OF REGULATION NO 499/76 .
3BEFORE THE NATIONAL COURT, IN WHICH IT BROUGHT AN ACTION AGAINST THAT DECISION, THE PLAINTIFF IN THE MAIN ACTION PLEADED THE INVALIDITY OF ARTICLE 3 OF REGULATION NO 499/76, IN PARTICULAR ON THE GROUND OF VIOLATION OF THE PRINCIPLE OF PROPORTIONALITY, AND IT ALSO CLAIMED THAT THAT ARTICLE IS CONTRARY TO THE PURPOSE AND SPIRIT OF THE COMMUNITY SYSTEM OF SECURITIES .
4IN THE LIGHT OF THOSE CONSIDERATIONS THE NATIONAL COURT REQUESTED THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING ON THE VALIDITY AND INTERPRETATION OF THE SAID ARTICLE .
5PURSUANT TO REGULATION NO 193/75 OF THE COMMISSION OF 17 JANUARY 1975, THE ISSUE OF AN IMPORT OR EXPORT LICENCE BY THE NATIONAL INTERVENTION AGENCIES IS CONDITIONAL UPON THE GIVING OF A SECURITY CALCULATED, AS IS STATED IN THE SIXTH RECITAL IN THE PREAMBLE TO THAT REGULATION, TO GUARANTEE THAT THE OBLIGATION TO IMPORT OR EXPORT WILL BE FULFILLED DURING THE PERIOD OF VALIDITY OF THE LICENCE .
6IT APPEARS FROM THE PROVISIONS OF ARTICLE 17 ( 2 ) OF THE REGULATION THAT RELEASE OF THE SECURITY SHALL BE SUBJECT TO PRODUCTION OF PROOF OF COMPLETION OF THE CUSTOMS IMPORT OR EXPORT FORMALITIES, WHICH PROOF SHALL BE FURNISHED, ACCORDING TO THE RULES LAID DOWN IN PARAGRAPH ( 3 ) OF THAT ARTICLE, BY PRODUCTION OF COPY NO 1 OF THE LICENCE ENDORSED BY THE OFFICE WHERE THOSE FORMALITIES WERE COMPLETED .
7PURSUANT TO ARTICLE 18 ( 1 ) OF THE REGULATION, THE SECURITY SHALL BE RELEASED ' ' AS SOON AS THE PROOF REFERRED TO IN ARTICLE 17 ( 2 ) AND ( 3 ) . . . HAS BEEN FURNISHED ' ' .
8BY VIRTUE OF ARTICLE 18 ( 2 ) AND ( 3 ) OF THAT REGULATION THE WHOLE OF THE SECURITY SHALL BE FORFEITED IF THE NET QUANTITY IMPORTED OR EXPORTED AMOUNTS TO LESS THAN 5% OF THE NET QUANTITY INDICATED IN THE LICENCE, BUT IT MAY BE RELEASED BY THE MEMBER STATES IN PROPORTION TO THE QUANTITIES OF PRODUCTS, EQUAL TO AT LEAST THAT PERCENTAGE, IN RESPECT OF WHICH THE PROOFS REFERRED TO IN ARTICLE 17 ( 2 ) AND ( 3 ) HAVE BEEN FURNISHED .
9ARTICLE 3 OF REGULATION NO 499/76 ADDED TO ARTICLE 18 OF REGULATION NO 193/75 A PARAGRAPH ( 4 ) PURSUANT TO WHICH, WHERE PROOF HAS NOT BEEN FURNISHED WITHIN THE SIX MONTHS FOLLOWING THE EXPIRY OF THE LICENCE, THE SECURITY SHALL BE FORFEIT SAVE IN CASE OF FORCE MAJEURE .
10IT APPEARS FROM THE THIRD RECITAL IN THE PREAMBLE TO REGULATION NO 499/76 THAT THE PROVISION WAS INTRODUCED ' ' FOR ADMINISTRATIVE REASONS ' ' .
11THE PLAINTIFF IN THE MAIN ACTION HAS CLAIMED, IN PARTICULAR, THAT IT IS CONTRARY TO THE PRINCIPLE OF PROPORTIONALITY TO APPLY THE SAME PENALTY FOR FAILURE TO FULFIL THE OBLIGATION TO IMPORT, WHICH THE SECURITY IS INTENDED TO GUARANTEE, AND FOR MERE DELAY IN SUBMISSION OF THE PROOFS OF FULFILMENT OF THE OBLIGATION, WHICH HAS BEEN DISCHARGED CORRECTLY AND WITHIN THE PRESCRIBED PERIOD .
12IN ITS WRITTEN OBSERVATIONS THE COMMISSION MAINTAINS THAT ARTICLE 3 OF REGULATION NO 499/76 IS JUSTIFIED BY THE FACT THAT BEFORE ITS INTRODUCTION THE FORFEITURE OF SECURITIES OCCURRED ON THE EXPIRY OF DIFFERENT PERIODS FROM ONE MEMBER STATE TO ANOTHER, WHICH LED BOTH TO DISCRIMINATORY TREATMENT FOR TRADERS AND A DISTORTION OF THE SYSTEM OF SECURITIES, THE PURPOSE OF THAT SYSTEM BEING TO ENABLE THE COMMUNITY TO HAVE PRECISE KNOWLEDGE OF THE MARKET SITUATION .
13THERE WAS, IN ADDITION, THE NEED, AT THE ADMINISTRATIVE LEVEL, TO SET A PERIOD FOR THE DEFINITIVE CLOSURE OF FILES .
14HOWEVER, THE COMMISSION ALSO EMPHASIZED, DURING THE ORAL PROCEDURE, THE IMPORTANCE, WITHIN THE SYSTEM OF IMPORT AND EXPORT LICENCES, OF THE INFORMATIONAL ROLE PLAYED BY THE SUBMISSION BY TRADERS TO THE COMPETENT NATIONAL AGENCIES OF THE PROOFS, IN THE FORM OF COPY NO 1 OF THE LICENCE ENDORSED BY THE OFFICE WHERE THE CUSTOMS FORMALITIES WERE COMPLETED, OF COMPLETION OF THE IMPORT OR EXPORT TRANSACTIONS .
15IN ITS SUBMISSION, INDEED, IT IS ONLY BY THAT MEANS THAT THE NATIONAL AGENCIES AND, THROUGH THEM, THE COMMUNITY AUTHORITIES, CAN OBTAIN EXACT KNOWLEDGE OF THE NUMBER OF TRANSACTIONS ACTUALLY EFFECTED ON THE BASIS OF THE LICENCES .
16AS REGARDS THE PROBLEM OF PROPORTIONALITY, IT SHOULD BE EXAMINED WHETHER THE PENALTY LAID DOWN IN ARTICLE 3 OF REGULATION NO 499/76 FOR FAILURE TO COMPLY WITH THE PERIOD FOR PRESENTATION OF THE PROOFS PRESCRIBED BY THAT PROVISION EXCEEDS WHAT IS APPROPRIATE AND NECESSARY TO ATTAIN THE OBJECTIVE SOUGHT .
17IN THIS RESPECT IT SHOULD BE RECALLED, ON THE ONE HAND, AS APPEARS FROM THE SIXTH RECITAL IN THE PREAMBLE TO REGULATION NO 193/75, THAT THE SYSTEM OF SECURITIES IS INTENDED TO GUARANTEE THAT THE OBLIGATION TO IMPORT OR EXPORT, WHICH HAS BEEN VOLUNTARILY UNDERTAKEN, WILL BE FULFILLED DURING THE PERIOD OF VALIDITY OF THE LICENCE ISSUED FOR THAT PURPOSE .
18AS ALREADY STATED, PURSUANT TO ARTICLE 18 ( 2 ) AND ( 3 ) OF THAT REGULATION THE PENALTY LAID DOWN IN CASE OF FAILURE TO FULFIL THE OBLIGATION IS, IN ESSENCE, PROPORTIONATE TO THE DEGREE OF THAT FAILURE .
19ON THE OTHER HAND, THE PROVISIONS OF ARTICLE 3 OF REGULATION NO 499/76, PROMPTED BY ' ' ADMINISTRATIVE REASONS ' ', PROVIDE NOT ONLY FOR A PERIOD WITHIN WHICH THOSE PROOFS MUST BE FURNISHED BUT ALSO THE LOSS OF THE WHOLE OF THE SECURITY IN THE EVENT OF FAILURE TO COMPLY WITH THAT PERIOD .
20THAT FIXED PENALTY, WHICH IS APPLIED TO AN INFRINGEMENT WHICH IS CONSIDERABLY LESS SERIOUS THAN THAT OF FAILURE TO FULFIL THE OBLIGATION WHICH THE SECURITY ITSELF IS INTENDED TO GUARANTEE, WHICH IS SANCTIONED BY AN ESSENTIALLY PROPORTIONATE PENALTY, MUST THEREFORE BE HELD TO BE EXCESSIVELY SEVERE IN RELATION TO THE OBJECTIVES OF ADMINISTRATIVE EFFICIENCY IN THE CONTEXT OF THE SYSTEM OF IMPORT AND EXPORT LICENCES .
21ALTHOUGH, IN VIEW OF THE INCONVENIENCE CAUSED BY THE BELATED PRODUCTION OF PROOFS, THE COMMISSION WAS ENTITLED TO INTRODUCE THE PERIOD LAID DOWN IN ARTICLE 3 OF REGULATION NO 499/76 FOR THE FURNISHING OF PROOF, IT SHOULD HAVE SANCTIONED FAILURE TO COMPLY WITH THAT PERIOD ONLY WITH A PENALTY CONSIDERABLY LESS ONEROUS FOR THOSE CONCERNED THAN THAT PRESCRIBING THE LOSS OF THE WHOLE OF THE SECURITY AND MORE CLOSELY ALLIED TO THE PRACTICAL EFFECTS OF SUCH AN OMISSION .
22INDEED, EVEN IF ADMINISTRATIVE EFFICIENCY REQUIRES THAT FILES SHOULD NOT REMAIN OPEN INDEFINITELY, IT MUST, HOWEVER, BE NOTED THAT FAILURE TO COMPLY WITH SUCH A PERIOD WILL BE EXCEPTIONAL IN NATURE IN THAT IT IS CONTRARY TO THE VERY INTERESTS OF THE EXPORTER OR IMPORTER CONCERNED, WHO WILL NORMALLY SEEK RELEASE OF HIS SECURITY AS SOON AS POSSIBLE .
23IT IS ACCORDINGLY APPROPRIATE TO REPLY TO THE QUESTION RAISED BY THE NATIONAL COURT THAT ARTICLE 3 OF REGULATION NO 499/76 IS INVALID .
Decision on costs
COSTS
24THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
25AS 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, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT,
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL ADMINISTRATIF, PARIS, BY JUDGMENT OF 22 MARCH 1978, HEREBY RULES :
ARTICLE 3 OF COMMISSION REGULATION NO 499/76 OF 5 MARCH 1976 IS INVALID .