Judgment of the Court of 24 June 1970. - Firma H. Oehlmann & Co. v Hauptzollamt Münster. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Case 73-69.



European Court reports 1970 Page 00467

Danish special edition Page 00071

Greek special edition Page 00337

Portuguese special edition Page 00387



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . AGRICULTURE - COMMON ORGANIZATION OF MARKETS - CEREALS - IMPORTS FROM THIRD COUNTRIES - LEVY - ADVANTAGES NOT PROVIDED BY THE RULES GOVERNING THE INTRA-COMMUNITY LEVY - VIOLATION OF THE PRINCIPLE OF COMMUNITY PREFERENCE - ABSENCE

2 . AGRICULTURE - COMMON ORGANIZATION OF MARKETS - CEREALS - IMPORTS FROM THIRD COUNTRIES - DELAY OWING TO FORCE MAJEURE - CONSEQUENCES AS REGARDS FIXING THE LEVY - NO APPLICATION BY ANALOGY TO INTRA-COMMUNITY LEVIES

( REGULATION NO 54/62 OF THE COUNCIL OF THE EEC, ARTICLE 7; REGULATION NO 87/62 OF THE COMMISSION OF THE EEC ARTICLE 9 )

Summary

1 . THE REGULATIONS WHICH PROVIDE, AS REGARDS IMPORTS OF CEREALS FROM THIRD COUNTRIES, FOR THE POSSIBILITY, DESIGNED TO PROTECT THOSE CONCERNED FROM EXCESSIVE PRICE FLUCTUATIONS, OF FIXING THE LEVY IN ADVANCE, AND LAY DOWN PROVISIONS IN CONNEXION THEREWITH FOR CASES OF FORCE MAJEURE WITHOUT DOING THE SAME FOR INTRA-COMMUNITY TRADE ARE NOT IN BREACH OF COMMUNITY PREFERENCE .

THIS CONCLUSION IS NOT INVALIDATED MERELY BY THE FACT THAT THE APPLICATION OF A PARTICULAR PROVISION OF THE RULES RELATING TO IMPORTS FROM THIRD COUNTRIES MIGHT HAVE RENDERED A DEALER ENGAGED IN INTRA-COMMUNITY TRADE SUBJECT, IN AN EXCEPTIONAL CASE, TO A SMALLER LEVY THAN THAT ACTUALLY APPLICABLE .

2 . THE RULES SET OUT IN ARTICLE 9 OF REGULATION NO 87/62 OF THE COMMISSION OF THE EEC OF 25 JULY 1962, IN CONJUNCTION WITH ARTICLE 7 OF REGULATION NO 54/62, OF THE COUNCIL OF THE EEC OF 30 JUNE 1962, CANNOT BE APPLIED BY ANALOGY TO THE IMPORTATION OF OATS FROM A MEMBER STATE .

Parties

IN CASE 73/69

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FIRMA H . OEHLMANN AND COMPANY, OLDENBURG,

AND

HAUPTZOLLAMT MUENSTER

Subject of the case

ON THE VALIDITY OF ARTICLE 17 ( 2 ) OF REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962 AND ON THE INTERPRETATION OF ARTICLE 9 OF REGULATION NO 87/62 OF THE COMMISSION OF THE EEC OF 25 JULY 1962 IN CONJUNCTION WITH ARTICLE 7 OF REGULATION NO 54/62 OF THE COUNCIL OF THE EEC OF 30 JUNE 1962,

Grounds

1 BY AN ORDER DATED 21 OCTOBER 1969, WHICH REACHED THE COURT REGISTRY ON 4 DECEMBER 1969, THE BUNDESFINANZHOF, PURSUANT TO ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, REFERRED TO THE COURT THREE QUESTIONS ON THE VALIDITY AND INTERPRETATION OF CERTAIN PROVISIONS OF COMMUNITY LAW RELATING TO THE CEREALS TRADE .

THE FIRST QUESTION

2 THE FIRST QUESTION REFERRED BY THE BUNDESFINANZHOF ASKS WHETHER IT IS COMPATIBLE WITH THE EEC TREATY THAT THE PROVISIONS CONTAINED IN ARTICLE 17 ( 2 ) OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ 1962, P . 933 ) ONLY APPLY TO IMPORTS FROM THIRD COUNTRIES AND NOT TO IMPORTS FROM MEMBER STATES .

3 THIS PROVISION PROVIDES, IN PARTICULAR, FOR THE POSSIBILITY OF FIXING IN ADVANCE THE LEVY ON IMPORTS FROM THIRD COUNTRIES .

4 AS CAN BE SEEN FROM THE FILE SUBMITTED AND THE OBSERVATIONS MADE BY THE PLAINTIFF IN THE MAIN ACTION, THIS QUESTION CONCERNS A POSSIBLE INCOMPATIBILITY WITH THE PRINCIPLE KNOWN AS COMMUNITY PREFERENCE OR WITH THE SPIRIT OF ARTICLE 40 OF THE EEC TREATY . THE DISPUTE IN THE MAIN ACTION ARISES FROM THE FACT THAT THE PLAINTIFF IMPORTED FROM THE NETHERLANDS OATS WHOSE ARRIVAL IN GERMANY IS SAID TO HAVE BEEN DELAYED BY THE FREEZING OF CANALS . BECAUSE OF THIS, IT IS ALLEGED THAT THE PLAINTIFF HAD TO PAY A HIGHER LEVY THAN IT WOULD HAVE HAD TO PAY IF THE IMPORTATION HAD TAKEN PLACE ON THE DATE ORIGINALLY PLANNED . THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT IT WOULD NOT HAVE BEEN SUBJECTED TO SUCH TREATMENT IF THE COMMUNITY RULES GOVERNING DELAYS IN IMPORTATION DUE TO FORCE MAJEURE HAD BEEN APPLICABLE TO IT, AND CONTENDS THAT THOSE RULES WERE NOT APPLIED TO IT BECAUSE THEY WERE INTENDED SOLELY FOR THE CASES COVERED BY ARTICLE 17 . IT THEREFORE CLAIMS THAT THIS ARTICLE IS INVALID . IT ALLEGES IN PARTICULAR THAT THIS PROVISION ON THE ONE HAND CREATES AN ADVANTAGE IN FAVOUR OF IMPORTS OF CEREALS FROM THIRD COUNTRIES AS AGAINST INTRA-COMMUNITY TRADE, WHICH IS CONTRARY TO THE PRINCIPLE OF COMMUNITY PREFERENCE, AND ON THE OTHER HAND IS MORE RESTRICTIVE THAN NECESSARY, WHICH CONFLICTS WITH THE PRINCIPLE OF PROPORTIONALITY ENSHRINED, IN ITS OPINION, IN ARTICLE 40 OF THE TREATY .

5 THE PROVISIONS WHICH REGULATION NO 19 MAKES FOR CEREALS AND CEREAL PRODUCTS COMING FROM THIRD COUNTRIES ON THE ONE HAND AND FROM MEMBER STATES ON THE OTHER ARE TOO DIVERSE FOR THEIR DETAILED PROVISIONS TO BE COMPARED ON ALL POINTS . ALTHOUGH REGULATION NO 19 PROVIDES FOR THE COLLECTION OF A LEVY ON ALL CEREAL PRODUCTS IMPORTED INTO THE MEMBER STATES, IN ORDER TO RAISE THEIR PRICES TO THE LEVEL OF THE " THRESHOLD PRICE " IN THE MEMBER STATE CONCERNED, THE ACTUAL IMPACT OF THIS LEVY VARIES ESSENTIALLY ACCORDING TO WHETHER IT IS IMPOSED ON IMPORTS FROM THIRD COUNTRIES OR ON INTRA-COMMUNITY TRADE . AS REGARDS IMPORTS FROM THIRD COUNTRIES THE REFERENCE PRICE FOR THE CALCULATION OF THE LEVY IS BASED ON THE WORLD MARKET PRICE WHICH IS USUALLY MUCH LOWER THAN THE THRESHOLD PRICE IN THE MEMBER STATES, SO THAT IN SUCH CASES LEVIES OF LARGE AMOUNTS ARE COLLECTED . ON THE OTHER HAND, THE INTRA-COMMUNITY LEVY IS BASED ON THE FREE-AT-FRONTIER PRICE IN THE EXPORTING MEMBER STATE WHICH IS USUALLY CLOSER TO THE THRESHOLD PRICE IN THE IMPORTING MEMBER STATE; IN ADDITION, THIS LEVY IS FURTHER REDUCED BY A FIXED AMOUNT IN ACCORDANCE WITH ARTICLE 2 OF THE REGULATION, SO THAT THE INTRA-COMMUNITY LEVY IS RELATIVELY MODEST AND OFTEN EVEN NIL . MOREOVER, PRICE FLUCTUATIONS IN THE COMMON MARKET ARE MUCH SMALLER THAN IN THE WORLD MARKET, PRECISELY BECAUSE OF THE COMMUNITY RULES, AND THE SITUATION MAY BE FURTHER AGGRAVATED BY THE FACT THAT THE LINES OF COMMUNICATION WITH THE PRINCIPAL EXPORTING THIRD COUNTRIES ARE GENERALLY LONGER THAN THE INTRA-COMMUNITY ROUTES .

6 ALTHOUGH, IN VIEW OF THESE DIFFERENCES, THE REGULATIONS HAVE PROVIDED, AS REGARDS IMPORTS FROM THIRD COUNTRIES, FOR THE POSSIBILITY, DESIGNED TO PROTECT THOSE CONCERNED FROM EXCESSIVE PRICE FLUCTUATIONS, OF FIXING THE LEVY IN ADVANCE, AND HAVE LAID DOWN PROVISIONS IN CONNEXION THEREWITH RELATING TO DELAYS CAUSED BY FORCE MAJEURE, WITHOUT DOING THE SAME FOR INTRA-COMMUNITY TRADE, SUCH A DISTINCTION CANNOT BE CONSIDERED AS A BREACH OF COMMUNITY PREFERENCE .

7 THIS CONCLUSION CANNOT BE INVALIDATED MERELY BY THE FACT THAT THE APPLICATION OF A PARTICULAR PROVISION OF THE RULES RELATING TO IMPORTS FROM THIRD COUNTRIES MIGHT HAVE RENDERED A DEALER ENGAGED IN INTRA-COMMUNITY SUBJECT, IN AN EXCEPTIONAL CASE, TO A SMALLER LEVY THAN THAT ACTUALLY APPLICABLE .

8 THE PLAINTIFF IN THE MAIN ACTION FURTHER SEEKS TO DEDUCE FROM THE FACT THAT SUBSEQUENT REGULATIONS PROVIDED FOR THE FIXING OF THE LEVY IN ADVANCE IN THE CASE OF INTRA-COMMUNITY IMPORTS ALSO, THAT THE LIMITATION IMPOSED BY ARTICLE 17 ( 2 ) OF REGULATION NO 19 TO TRADE WITH THIRD COUNTRIES PROVED TO BE UNNECESSARY, AND IS THEREFORE CONTRARY TO THE SPIRIT OF ARTICLE 40 OF THE TREATY WHICH MERELY EMPOWERS THE COUNCIL TO ISSUE THE RULES NECESSARY FOR THE FUNCTIONING OF A COMMON AGRICULTURAL MARKET .

9 HOWEVER, WITH THE RISK OF MANIPULATION TO WHICH THE RIGHT TO FIX THE LEVIES IN ADVANCE GIVES RISE, AND IN VIEW OF THE FACT THAT THIS RISK BECOMES GREATER THE SHORTER TRANSPORT DISTANCES ARE, IT WAS PERMISSIBLE FOR THE COUNCIL TO WITHHOLD THIS FACILITY FROM INTRA-COMMUNITY TRADE UNTIL AFTER EXPERIENCE OF IT HAD BEEN OBTAINED IN TRADE WITH THIRD COUNTRIES, WHICH IS EASIER TO VERIFY AND WHICH, MOREOVER, HAD GREATER NEED OF IT .

10 THERE IS THEREFORE NOTHING IN THE PARTICULARS SUBMITTED TO THE COURT THAT WOULD JUSTIFY AN AFFIRMATIVE REPLY TO THE FIRST QUESTION .

THE SECOND QUESTION

11 THIS QUESTION WAS PUT ONLY IN THE EVENT OF AN AFFIRMATIVE REPLY TO THE FIRST QUESTION AND IS THEREFORE SUPERFLUOUS .

THE THIRD QUESTION

12 IN THIS QUESTION THE BUNDESFINANZHOF ASKS WHETHER THE PROVISIONS OF ARTICLE 9 OF REGULATION NO 87 OF THE COMMISSION OF 25 JULY 1962 ( OJ 1962, P . 1895 ), IN CONJUNCTION WITH ARTICLE 7 OF REGULATION NO 54 OF THE COUNCIL OF 30 JUNE 1962 ( OJ 1962, P . 1581 ), ON THE IMPOSITION OF THE LEVY FIXED IN ADVANCE WHEN IMPORTS HAVE BEEN DELAYED BY FORCE MAJEURE, ALSO APPLY BY ANALOGY TO THE IMPORTATION OF OATS FROM THE NETHERLANDS .

13 THE QUESTION ASKS WHETHER THE LEVY APPLICABLE ON THE DATE PLANNED FOR THE IMPORTATION IS TO BE CHARGED IF THE IMPORTATION HAS BEEN DELAYED AS A RESULT OF FORCE MAJEURE .

14 THE ARTICLES MENTIONED GOVERN THE CONSEQUENCES OF THE FIXING OF THE LEVY IN ADVANCE, PARTICULARLY WHERE THE IMPORTATION HAS NOT TAKEN PLACE IN THE MONTH STATED AT THE TIME OF THE APPLICATION TO FIX THE LEVY IN ADVANCE ( ARTICLE 7 OF REGULATION NO 54/62 ) AND WHERE THIS DELAY IS DUE TO CIRCUMSTANCES JUSTIFYING EXCEPTIONAL TREATMENT ( ARTICLE 9 OF REGULATION NO 87/62 ).

15 THESE PROVISIONS PRESUPPOSE THE EXISTENCE OF A CERTIFICATE FIXING THE LEVY IN ADVANCE WHICH INCLUDES A COUNTER-OBLIGATION TO CARRY OUT THE IMPORTATION AT A DATE ALSO FIXED IN ADVANCE IN THE CERTIFICATE, AND THE PERFORMANCE OF THIS OBLIGATION MUST, MOREOVER, BE GUARANTEED BY THE DEPOSIT OF SECURITY . IT IS NOT APPARENT HOW THEY COULD BE APPLIED TO A COMPLETELY DIFFERENT SITUATION CHARACTERIZED MERELY BY THE FACT THAT THE IMPORTATION TOOK PLACE AT A DATE OTHER THAN THAT ORIGINALLY INTENDED . THIS SITUATION IS TOO DIFFERENT FROM THE SITUATION ENVISAGED BY THE PROVISIONS IN QUESTION TO MAKE IT POSSIBLE TO JUSTIFY THEIR APPLICATION BY ANALOGY .

16 THE THIRD QUESTION MUST THEREFORE BE ANSWERED IN THE NEGATIVE .

Decision on costs

17 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .

18 AS THESE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE BUNDESFINANZHOF, COSTS ARE A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY ITS ORDER OF 21 OCTOBER 1969, HEREBY RULES;

1 . EXAMINATION OF THE QUESTION REFERRED TO THE COURT BY THE BUNDESFINANZHOF HAS NOT REVEALED ANYTHING WHICH COULD AFFECT THE VALIDITY OF ARTICLE 17 ( 2 ) OF REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962;

2 . THE RULES SET OUT IN ARTICLE 9 OF REGULATION NO 87/62 OF THE COMMISSION OF THE EEC OF 25 JULY 1962, IN CONJUNCTION WITH ARTICLE 7 OF REGULATION NO 54/62 OF THE COUNCIL OF THE EEC OF 30 JUNE 1962, CANNOT BE APPLIED BY ANALOGY TO THE IMPORTATION OF OATS FROM THE NETHERLANDS .