Judgment of the Court (Sixth Chamber) of 8 June 1995. - Anton Dürbeck GmbH v Bundesamt für Ernährung und Forstwirtschaft. - Reference for a preliminary ruling: Verwaltungsgericht Frankfurt am Main - Germany. - Bananas - Import arrangements - Category of new operators. - Case C-389/93.



European Court reports 1995 Page I-01509



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Agriculture ° Common organization of the markets ° Bananas ° Import arrangements ° Tariff quota ° Allocation ° Category C operator ° Definition ° Conditions of registration

(Council Regulation No 404/93, Art. 19(1)(c); Commission Regulation No 1442/93, Arts 2(c) and 3(2))

Summary

It is clear from a comparison of the different language versions of Regulation No 404/93 on the common organization of the market in bananas and from the relationship between this regulation and Regulation No 1442/93 laying down detailed rules for the application of the arrangements for importing bananas into the Community that the definition of Category C operators contained in Article 2(c) of Regulation No 1442/93 does not differ from that contained in Article 19(1)(c) of Regulation No 404/93.

Those two provisions must be interpreted as meaning, first, that, when applying for registration under Category C, an operator must not already have developed an activity aimed at marketing bananas and, second, that an operator may apply for registration under Category C even if he intends to transfer the import licence to a third party.

Furthermore, registration as Category C operators is open to economic operators who entered into business prior to 1992 with a view to importing the bananas specified in Article 2(c) of Regulation No 1442/93 and who imported those bananas in 1992 or later.

Finally, Article 3(2) of Regulation No 1442/93, which provides that wholesalers and retailers are not to be regarded as operators, is not applicable to the concept of a Category C operator within the meaning of Article 2(c) of that regulation.

Parties

In Case C-389/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht, Frankfurt am Main (Germany), for a preliminary ruling in the proceedings pending before that court between

Anton Duerbeck GmbH

and

Bundesamt fuer Ernaehrung und Forstwirtschaft

on the interpretation of Article 19(1)(c) of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas (OJ 1993 L 47, p. 1) and Article 2(c) of Commission Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community (OJ 1993 L 142, p. 6),

THE COURT (Sixth Chamber),

composed of: F.A. Schockweiler (Rapporteur), President of the Chamber, G.F. Mancini, C.N. Kakouris, J.L. Murray and G. Hirsch, Judges,

Advocate General: M.B. Elmer,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Anton Duerbeck GmbH, by U.C. Feldmann, Rechtsanwalt, Cologne,

° the German Government, by E. Roeder, Ministerialrat in the Federal Ministry of Economic Affairs, and B. Kloke, Regierungsrat in the same Ministry, acting as Agents,

° the Spanish Government, by A.J. Navarro González, Director-General of Community Legal and Institutional Coordination, and R. Silva de Lapuerta, Abogado del Estado, of the Department for Community Legal Affairs, acting as Agents,

° the Commission of the European Communities, by U. Woelker, of the Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Anton Duerbeck GmbH, represented by U.C. Feldmann and G. Meier, Rechtsanwaelte, Cologne, the German Government, represented by E. Roeder, the Spanish Government, represented by R. Silva de Lapuerta, and the Commission, represented by U. Woelker, at the hearing on 2 February 1995,

after hearing the Opinion of the Advocate General at the sitting on 23 March 1995,

gives the following

Judgment

Grounds

1 By order of 5 August 1993, received at the Court Registry on 12 August 1993, the Verwaltungsgericht (Administrative Court), Frankfurt am Main (Germany), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty five questions on the interpretation of Article 19(1)(c) of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas (OJ 1993 L 47, p. 1) ("the Council regulation") and Article 2(c) of Commission Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community (OJ 1993 L 142, p. 6) ("the implementing regulation").

2 Title IV of the Council regulation introduces arrangements for trade with third countries and opens an annual tariff quota for imports of third-country bananas and non-traditional ACP bananas.

3 Article 19(1) of this regulation provides as follows:

"The tariff quota shall be opened from 1 July 1993 for:

(a) 66.5% to the category of operators who marketed third-country and/or non-traditional ACP bananas;

(b) 30% to the category of operators who marketed Community and/or traditional ACP bananas;

(c) 3.5% to the category of operators established in the Community who started marketing bananas other than Community and/or traditional ACP bananas from 1992.

...".

4 Article 15(5) of the Council regulation defines the terms "market" and "marketing" as meaning "placing on the market, not including making the product available to the final consumer".

5 Article 20 of the Council regulation authorizes the Commission to adopt detailed rules for issuing import licences and to determine the conditions governing their transferability.

6 Article 2 of the implementing regulation provides as follows:

"The following tariff quota is hereby opened for the second half of 1993:

(a) 665 000 tonnes for the category of operators who prior to 1992 marketed third-country bananas and/or non-traditional ACP bananas within the meaning of ... the ... [Council] regulation, hereinafter referred to as 'Category A' ;

(b) 300 000 tonnes for the category of operators who have marketed Community bananas and/or traditional ACP bananas, hereinafter referred to as 'Category B' ;

(c) 35 000 tonnes for the category of operators who commenced marketing bananas other than Community bananas and/or traditional ACP bananas as from 1992 or thereafter, hereinafter referred to as 'Category C' ."

7 Article 3(2) of this regulation provides as follows:

"Wholesalers and retailers shall not be considered operators by virtue solely of such activities."

8 Article 13 of the implementing regulation authorizes the transfer of rights accruing from import licences by Category A and B operators to Category C operators, but prohibits any transfer by a Category C operator to operators in Categories A and B.

9 Article 2(2) of Commission Regulation (EEC) No 1443/93 of 10 June 1993 on transitional measures for the application of the arrangements for importing bananas into the Community in 1993 (OJ 1993 L 142, p. 16) provides for Category C operators to register by a given date with the competent authorities of the Member States and requires those authorities to inform the Commission of the number of operators registered.

10 Anton Duerbeck GmbH imported third-country and non-traditional ACP bananas into the Community between 1992 and June 1993. At its request, the company was registered in June 1993 by the Bundesamt fuer Ernaehrung und Forstwirtschaft (Federal Office for Food and Forestry) as a Category C operator and was allocated a quantity of bananas for the second half of 1993.

11 The company lodged an objection with the Verwaltungsgericht Frankfurt am Main against all the allocation notices and import licences which had already been issued by the Bundesamt.

12 In support of its submissions, it argued that only operators who had already imported bananas prior to submission of their application were entitled to claim the status of Category C operators for the purposes of Article 2(c) of the implementing regulation. Any other interpretation, it argued, would render impossible any commercially viable importation of bananas and would allow licences to be issued to "men of straw".

13 Since it took the view that an interpretation of the rules of Community law was necessary in order to enable it to give a decision on an application for interim measures, the Verwaltungsgericht submitted the following questions to the Court by order of 5 August 1993:

"How are the provisions of Article 2(c) of Commission Regulation (EEC) No 1442/93, whereby a tariff quota amounting to 35 000 tonnes is opened for the category of operators who 'commenced' marketing bananas other than Community bananas and/or traditional ACP bananas as from 1992 or thereafter, to be interpreted? In this connection, the following questions arise in particular:

1. Is there any technical difference between the definition of Category C operators contained in Article 2(c) of Commission Regulation (EEC) No 1442/93 and the definition contained in Article 1(c) [read 19(1)(c)] of Regulation (EEC) No 404/93, which defines Category C operators as those who 'started' marketing bananas other than Community bananas and/or traditional ACP bananas from 1992, and wherein does such difference, if any, lie?

2. Is it also possible to regard as operators within the meaning of Article 2(c) of Regulation (EEC) No 1442/93 and/or Article 19(1)(c) of Regulation (EEC) No 404/93 those applicants who

° apply for registration pursuant to Article 2(2) of Regulation (EEC) No 1443/93 with a view to transferring the licences to other Category C operators;

° apply as aforesaid with a view to enabling Category A and B operators or third parties to use those licences;

° apply as aforesaid without having already developed a commercial activity aimed at marketing ° for the first time ° the bananas specified in Article 2(c) of Regulation (EEC) No 1442/93?

3. What requirements, if any, are to be imposed on a commercial activity in order that the applicant may be said to have started marketing bananas?

4. May economic operators who entered into business prior to 1992 with a view to the importation of the bananas specified in Article 2(c) of Regulation (EEC) No 1442/93 and imported those bananas in 1992 or later be registered as Category C operators?

5. Is Article 3(2) of Regulation (EEC) No 1442/93 applicable to Article 2(c) of Regulation (EEC) No 1442/93?"

Question 1

14 In Question 1 the national court asks whether the definition of Category C operators contained in Article 2(c) of the implementing regulation differs from that in Article 19(1)(c) of the Council regulation.

15 It should first be noted that the German version of Article 19(1)(c) of the Council regulation refers to operators "... die ab 1992 mit der Vermarktung ... beginnen" ("who start marketing"), whereas the other language versions, along with all the language versions of the implementing regulation, including the German version, refer to operators who "started marketing bananas ... from 1992".

16 Secondly, as is apparent from its title and preamble, the implementing regulation seeks to lay down the detailed rules for the application of the arrangements for banana imports laid down in the Council regulation; Article 2 of the implementing regulation merely reproduces the definitions of the three categories of operator set out in Article 19(1) of the Council regulation.

17 It is clear from a comparison of the different language versions and from the relationship between the Council regulation and the implementing regulation that the definition of Category C operators contained in the latter regulation does not differ from that contained in the former.

18 The answer to Question 1 must therefore be that the definition of Category C operators contained in Article 2(c) of the implementing regulation does not differ from that contained in Article 19(1)(c) of the Council regulation.

Question 2, third indent, and Question 3

19 In Question 2, third indent, and Question 3 the national court seeks essentially to determine whether Article 19(1)(c) of the Council regulation and Article 2(c) of the implementing regulation are to be interpreted as meaning that an operator must, at the date on which he applies for registration under Category C, already have developed an activity aimed at marketing bananas.

20 In order to determine the scope of the concept of a Category C operator, it is necessary to refer to the text of Article 19(1)(c) of the Council regulation and also to the purpose served by that provision.

21 The two provisions require Category C operators not to have marketed bananas prior to 1 January 1992. They do not, however, make registration as a Category C operator subject to the condition that the operator has begun to market bananas at the time when he submits his application.

22 This interpretation is also in keeping with the purpose served by the Council regulation, which, according to the thirteenth recital in its preamble, is to leave a quantity available for new operators who have recently embarked on commercial activity or are about to embark on commercial activity in this sector.

23 The arrangements for granting import licences to Category C operators differ fundamentally from those provided for Category A and B operators, who are required, under Article 19(1) of the Council regulation, to have marketed on their own account a minimum quantity of bananas, and whose applications for import licences are met, pursuant to Article 19(2), by reference to the average quantities marketed over the three preceding years.

24 The answer to Question 2, third indent, and Question 3 must therefore be that Article 19(1)(c) of the Council regulation and Article 2(c) of the implementing regulation are to be interpreted as meaning that, when applying for registration under Category C, an operator must not already have developed an activity aimed at marketing bananas.

Question 2, first and second indents

25 In this question the national court asks whether Article 19(1)(c) of the Council regulation and Article 2(c) of the implementing regulation are to be interpreted as meaning that an operator may apply for registration under Category C even if he intends to transfer the import licence to a third party.

26 The first indent of the second paragraph of Article 20 of the Council regulation expressly envisages the possibility of transferring import licences and authorizes the Commission to lay down detailed rules for such transfers.

27 Article 13 of the implementing regulation regulates in detail the different types of authorized licence transfers. Article 13(2) prohibits the transfer of licences by Category C operators to operators in Categories A and/or B.

28 Although the implementing regulation does not contain any express provisions in this regard, it follows from the general scheme of the Community rules that the sanction, in the event of a prohibited transfer, lies in the fact that the transferee will be unable to import the bananas to which the transferred licences relate.

29 Neither the Council regulation, nor the implementing regulation nor Regulation No 1443/93, cited above, requires an operator seeking Category C registration to demonstrate that he intends to use the import licence himself or to indicate the operators to whom he may transfer it.

30 The answer to Question 2, first and second indents, must therefore be that Article 19(1)(c) of the Council regulation and Article 2(c) of the implementing regulation are to be interpreted as meaning that an operator may apply for registration under Category C even if he intends to transfer the import licence to a third party.

Question 4

31 In Question 4 the national court asks whether economic operators who entered into business prior to 1992 with a view to importing the bananas specified in Article 2(c) of the implementing regulation and who imported those bananas in 1992 or later can be registered as Category C operators.

32 As has been stated at paragraph 21, Article 19(1)(c) of the Council regulation and Article 2(c) of the implementing regulation require only that Category C operators should not have marketed bananas prior to 1 January 1992.

33 Following the same reasoning, Article 19(1)(a) and (b) of the Council regulation and Article 2(a) and (b) of the implementing regulation define Category A and B operators as those who marketed bananas prior to 1992. According to the second subparagraph of Article 19(2) of the Council regulation, import licences are issued to these operators on the basis of the quantities which they marketed between 1989 and 1991.

34 Article 15(5) of the Council regulation defines the verb "market" as "placing on the market" of bananas.

35 Accordingly, an operator who simply entered into business without actually placing any bananas on the market before 1 January 1992 did not start marketing bananas prior to that date.

36 The answer to Question 4 must therefore be that economic operators who entered into business prior to 1992 with a view to importing the bananas specified in Article 2(c) of the implementing regulation and who imported those bananas in 1992 or later can be registered as Category C operators.

Question 5

37 In Question 5 the national court seeks to ascertain whether Article 3(2) of the implementing regulation, which provides that wholesalers and retailers are not to be regarded as operators, is applicable to the concept of operator within the meaning of Article 2(c) of that regulation.

38 In order to reply to that question, it is necessary to examine Article 3(2) of the implementing regulation in context and in the light of the purpose of the Community rules.

39 Article 3(2) does not specify whether the exclusion of wholesalers and retailers applies in respect of all three, or only some, of the categories of operator concerned.

40 Article 15(5) of the Council regulation, which, for the purpose of the arrangements for trade with third countries, defines the terms "market" and "marketing" as placing on the market, not including making the product available to the final consumer, may be relied on in support of the application of Article 3(2) of the implementing regulation to all categories of operator.

41 Paragraph (2) of Article 3, however, features in an article which deals exclusively with operators in Category A and/or B and the term "operators" in that provision refers to the operators in Category A and/or B expressly mentioned in Article 3(1), to the exclusion of any other category.

42 This interpretation is also consistent with the general scheme of the Community rules, which refrain from circumscribing the concept of Category C operators, except by requiring such operators not to have marketed bananas prior to 1 January 1992.

43 In those circumstances, the answer to Question 5 must be that Article 3(2) of the implementing regulation, which provides that wholesalers and retailers are not to be regarded as operators, is not applicable to the concept of operator within the meaning of Article 2(c) of that regulation.

Decision on costs

Costs

44 The costs incurred by the German and Spanish Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Sixth Chamber),

in answer to the questions referred to it by the Verwaltungsgericht, Frankfurt am Main (Germany), by order of 5 August 1993, hereby rules:

1. The definition of Category C operators contained in Article 2(c) of Commission Regulation (EEC) No 1442/93 of 10 June 1993 laying down detailed rules for the application of the arrangements for importing bananas into the Community does not differ from that contained in Article 19(1)(c) of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organization of the market in bananas.

2. Article 19(1)(c) of Regulation No 404/93 and Article 2(c) of Regulation No 1442/93 are to be interpreted as meaning that, when applying for registration under Category C, an operator must not already have developed an activity aimed at marketing bananas.

3. Article 19(1)(c) of Regulation No 404/93 and Article 2(c) of Regulation No 1442/93 are to be interpreted as meaning that an operator may apply for registration under Category C even if he intends to transfer the import licence to a third party.

4. Economic operators who entered into business prior to 1992 with a view to importing the bananas specified in Article 2(c) of Regulation No 1442/93 and who imported those bananas in 1992 or later can be registered as Category C operators.

5. Article 3(2) of Regulation No 1442/93, which provides that wholesalers and retailers are not to be regarded as operators, is not applicable to the concept of operator within the meaning of Article 2(c) of that regulation.