Opinion of Mr Advocate General Mischo delivered on 15 June 1988. - John Friedr. Krohn (GmbH & Co.) KG and Van Es Douane-agenten BV v Hoofproduktschap voor Akkerbouwprodukten. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Conditions for athe issue of import licences under an annual tariff quota. - Case 217/87.



European Court reports 1988 Page 04727



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . Article 1 of Council Regulation No 604/83 ( 1 ) fixes the import levy for products falling within subheading 07.06 A of the Common Customs Tariff ( manioc and other similar roots ) at a maximum of 6% ad valorem, within the limits of the quantities fixed for each third country of origin . For non-member countries which were not GATT contracting parties a tariff quota of 370 000 tonnes was provided for 1983 and quotas for 1984, 1985 and 1986 were to be fixed by the Council, acting by qualified majority on a proposal from the Commission .

2 . In November 1985 the Commission proposed that the tariff quota for 1986 should be fixed at 200 000 tonnes . It was only by Regulation No 758/86 of 10 March 1986, ( 2 ) which entered into force on 16 March 1986, that the Council adopted the Commission' s proposal .

3 . Detailed rules for the application of Regulation No 604/83 were adopted by Commission Regulation No 3656/83 ( 3 ) of 23 December 1983, Article 2 of which, on the procedure for the issue of import licences, provides as follows :

"1 . Applications for import licences for each of the years 1984, 1985 and 1986 may be lodged with the authorities of the Member States from mid-December provided that their period of validity commences during the following January .

2 . Member States shall notify the Commission by telex of the names of importers, the quantities applied for and their origin, not later than the Thursday of the week following the week in which the application was made .

3 . Not later than the Friday of the week following the week of notification referred to in paragraph 2 the Commission shall, where necessary in proportion to the applications, fix the quantities for which licences are to be issued for each country or group of countries mentioned in Article 1 of Regulation ( EEC ) No 604/83 .

4 . ..."

4 . Because the Council was late in fixing tariff quotas for 1986 the Commission definitively authorized the advance issue during the period from 1 January to 11 February 1986 of import licences for a quantity of 130 000 tonnes . At the end of the week from 12 to 20 February 1986 the Commission was faced with fresh applications for import licences for a quantity of 87 020.261 tonnes . Together with the 130 000 tonnes covered by licences already authorized and issued since 1 January 1986 they therefore exceeded the 200 000 tonnes proposed by the Commission to the Council . By a telex message of 20 February 1986 the Commission accordingly informed the competent national authorities, in answer to applications made by them and still pending, that no licences could be issued until the Council had adopted the regulation fixing the tariff quota for 1986 . In view of that message the Hoofdproduktschap voor Akkerbouwprodukten ( the defendant in the main proceedings ) rejected two applications for licences submitted by the plaintiffs in the main proceedings on 12 February ( 15 300 tonnes ) and 20 February ( 5 000 tonnes ). The corresponding security was released and refunded . The plaintiffs immediately brought action against those decisions .

5 . After the entry into force on 16 March 1986 of the Council regulation fixing the quota at 200 000 tonnes the Commission informed the national authorities in a telex message of 21 March 1986 that to ensure equality among importers in respect of the 70 000 tonnes for which licences had not yet been granted it would apply the apportionment rule contained in Article 2 ( 3 ) of Regulation No 3656/83 . It also stated that it would extend the period for making fresh applications or for confirming earlier applications until 24 March 1986 .

6 . In a telex message of 25 March 1986 the Commission informed the defendant that the applications which had been submitted to it and forwarded to the Commission during the period from 16 to 24 March 1986 could be met to the extent of 4.191315% of the amounts requested . Those applications included the two applications from Krohn which had been rejected in February . The plaintiffs in the main proceedings brought action before the College van Beroep voor het Bedrijfsleven against the decisions of the Hoofdproduktschap voor Akkerbouwprodukten applying the abovementioned coefficient . The College van Beroep referred the following questions to the Court :

"( 1 ) Is the Commission' s notice to the defendant of 20 February 1986 contrary to Community law, in particular Regulation ( EEC ) No 3656/83, the prohibition of discrimination laid down in Article 40 ( 3 ) of the EEC Treaty and the principle of legal certainty?

( 2 ) Is the Commission' s notice to the defendant of 21 March 1986 contrary to Community law, in particular Regulation ( EEC ) No 3656/83, the prohibition of discrimination laid down in Article 40 ( 3 ) of the EEC Treaty and the principle of legal certainty?"

I - First question

7 . By way of a preliminary observation the College van Beroep voor het Bedrijfsleven queries in its reasons for judgment to what extent Regulation No 3656/83 is applicable in the event that the quota for the year to which the relevant applications for import licences are attributable has not yet been fixed . In such a situation it is not clear to the College van Beroep up to what quantity the Commission may permit import licences to be issued .

8 . While sympathizing with the doubts of the national court, I do not think it possible to reproach the Commission for having granted licences in respect of the 1986 quota before its amount had been fixed by the Council .

9 . It is true the Commission was under no obligation to do so and it could have allowed the applications to accumulate and remain pending until the Council regulation entered into force . However, it must be recognized that there are several weighty arguments in favour of the course adopted by the Commission .

10 . There is first of all the fact that the principle of annual quotas for 1983, 1984, 1985 and 1986 had been adopted once and for all by Council Regulation No 604/83 of 14 March 1983, and only the amount of the quota for 1986 remained to be fixed .

11 . Secondly, there is no doubt, as the Commission observes, that a refusal by it to issue import licences until the Council had fixed the tariff quota for 1986 would have interrupted imports and would not have been in the interest of commerce or of consumers .

12 . As the Court has held in another context, the Community must retain in all circumstances its capacity to comply with its responsibilities . ( 4 )

13 . In previous years the Commission had granted licences before the amount of the quota was fixed . The amount proposed by the Commission and fixed by the Council had always proved ample and there was no reason to expect that that would not be the case in 1986 .

14 . The Commission could therefore consider itself entitled to grant import licences as and when applications were made by adopting the relevant decisions at the rate laid down in Article 2 ( 3 ) of Regulation No 3656/83 . That is what it did until it observed that the total amount of applications which it had received exceeded what remained of the quota of 200 000 tonnes which it had proposed . It was then that it sent its notice of 20 February 1986 .

15 . ( a ) In its first question the College van Beroep voor het Bedrijfsleven asks first of all whether that notice is contrary to Regulation No 3656/83 . In its reasons for judgment it states that "the question also arises whether or not the Commission took into account the time-limit laid down in Article 2 ( 3 )".

16 . It thus seems that the national court wonders whether, once the Commission had begun to authorize the grant of licences without waiting for the entry into force of Council Regulation No 3656/83, it ought not to have continued each Friday to deal with the applications which had been forwarded to it during the previous week until the total amount which it had proposed to the Council was exhausted .

17 . It is clear that the sudden interruption of the advance application of the regulation may have appeared surprising at first sight . On the other hand, if the Commission had continued to deal as previously with the applications which it had received it would have been led to distribute all that remained of the quota, applying the apportionment rule .

18 . I think the Commission was right in not wishing to exhaust the quota totally before it was formally adopted by Council Regulation No 758/86 of 10 March 1986 . It is true that this case is not really one of retroactive application of a legal rule, since it was provided in 1983 that there would be a tariff quota for manioc roots in 1986 ( Council Regulation No 604/83 of 14 March 1983 ). However, because of the advance allocation of import licences the Council regulation fixing the quota for 1986 was necessarily going to be largely retroactive in effect . If the whole quota had been allocated before the regulation entered into force it would have served only to regularize ex post facto decisions already taken, a situation best avoided .

19 . Moreover, it was theoretically not impossible for the Council to fix a quota lower than 200 000 tonnes . The Commission therefore needed to retain a safety margin . Conversely, if the Council had adopted a quota larger than 200 000 tonnes the Commission would no doubt have been able to satisfy all the applications without having to apply the apportionment rule . There are thus excellent arguments in favour of interrupting the allocation of licences .

20 . In their observations the plaintiffs themselves admit that once the applications lodged together with the amounts already allocated exceeded the quota proposed by the Commission it would not have been reasonable for the Commission to continue to deal with applications before knowing the Council' s final decision .

21 . I therefore think that the Commission did not infringe Regulation No 3656/83 in deciding in its notice of 20 February 1986 "that until the Council has adopted the regulation on the import system applicable in 1986 no import licences may be issued ". Since the Commission had unilaterally and without being obliged to do so authorized the grant of licences before the Council' s decision and now had good reasons for no longer continuing to do so, I think it was entitled to act accordingly .

22 . It is only in relation to the second question put by the College van Beroep that I shall consider whether the Commission was entitled subsequently to take the view that applications were to rank only from the date they were confirmed .

23 . ( b ) Is the Commission' s notice of 20 February 1986 contrary to the prohibition of discrimination contained in Article 40 ( 3 ) of the EEC Treaty?

24 . On that issue also the plaintiffs in the main proceedings admit that the notice was not itself discriminatory, but they argue that it should be considered discriminatory when taken in conjunction with the subsequent decision . I take the view, however, that the telex message did not necessarily prejudge the ultimate decision and that at that time it was still possible that the applications submitted by the plaintiffs on 12 and 20 February 1986 would subsequently be satisfied on the basis of the date they were lodged .

25 . ( c ) Finally, the national court asks whether the telex message in question infringed the principle of legal certainty .

26 . In that respect I should observe that strict observance of the principle of legal certainty would have led the Commission not to grant any application before the Council regulation entered into force . It ill behoves the plaintiffs to rely on legal certainty when the Commission took liberties with that principle precisely in order to satisfy their interests and those of other importers . On the contrary, the notice of 20 February helped to make the situation more clear from the point of view of legal certainty .

27 . Moreover, it should be reiterated that the Commission' s notice of 20 February 1986 did not in itself prejudge the eventual fate of the plaintiffs' applications .

28 . My view therefore is, in relation to the first question, that the Commission' s notice of 20 February 1986 did not infringe Regulation No 3656/83, the prohibition of discrimination or the principle of legal certainty .

II - Second question

29 . It should be recalled that in a telex message of 21 March 1986 the Commission informed the Hoofdproduktschap voor Akkerbouwprodukten that "the time-limit for the submission of applications for import licences has been extended until 24 March 1986 for interested parties who have not yet applied for such licences, and the Member States are requested to confirm before that date the applications already submitted to them . On 25 March 1986 the Commission will determine in proportion to applications the quantities in respect of which licences may be issued ".

30 . On 25 March 1986 the Commission authorized the Hoofdproduktschap to issue licences in respect of 4.191315% of the quantities requested . It is this notice which was the basis of the decisions of the Hoofdproduktschap to grant import licences only in respect of 4.191315% of the quantities requested by Krohn on 12 and 20 February and confirmed by it on 21 March and the 25 000 tonnes applied for on 24 March 1986 . Consequently, in order properly to answer the second question of the College van Beroep voor het Bedrijfsleven I must also review the Commission' s notice of 25 March 1986 .

31 . ( a ) Is the position adopted by the Commission in March 1986 contrary to Article 2 of Regulation No 3656/83? In its reasons for judgment the College van Beroep voor het Bedrijfsleven states :

"In this regard the question arises inter alia whether the Commission should have encouraged the submission of new applications for import licences to the competent Member State authorities . The further question arises whether, in dividing the quota in proportion to the applications as provided for in Article 2 ( 3 ), the Commission should have taken into account these new applications to the detriment of persons who had already submitted applications for import licences on 12 and 20 February 1986 ."

32 . As regards the first of those questions my view is that the Commission can hardly be reproached for having encouraged the submission of fresh applications for licences to the Member State authorities . The Commission had to contemplate the possibility, even if it may have been quite remote, that not all the applications lodged between 11 and 20 February 1986 for a total quantity of 87 020.261 tonnes would be confirmed . If the applications confirmed had remained below 70 000 tonnes the balance could have been used to satisfy, pro rata, fresh applications .

33 . On the other hand, I think the Commission was wrong in treating confirmed applications and fresh applications in the same way and applying the same percentage reduction to them all .

34 . The Commission was bound by its own Regulation No 3656/83, Article 2 ( 3 ) of which provides for licences to be issued on a weekly basis .

35 . For the reasons set out above the Commission cannot be reproached for having interrupted the advance application of that regulation on 20 February 1986, but it was not entitled to disregard the fact that certain applications had already been forwarded to it by the national authorities before it stopped advance allocation of licences .

36 . Thus the applications submitted by the plaintiffs on 12 and 20 February 1986 should have retained the priority which the date on which they were lodged gave them . The Commission ought first of all to have made a decision on the group of applications which were confirmed and only then considered fresh applications .

37 . If on 25 March 1986 the total amount of confirmed applications exceeded the 70 000 tonnes remaining of the quota the Commission ought to have distributed the 70 000 tonnes in proportion to the quantities requested in the confirmed applications even though in that case no fresh application could even partially have been granted on 25 March 1986 .

38 . It is true that had that been done disappointed dealers might well have brought actions . However, that is only one of the possible consequences of the Commission' s decision to allocate the quota in advance and the risks which it thus assumed . There was unfortunately no entirely satisfactory solution to the problems created by the Council' s belated decision .

39 . At the hearing the Commission argued that if it had given any priority to the original applications it would also have had "artificially to reconstruct" the period of four weeks from 20 February to 21 March .

40 . I am not convinced by that argument . There is a substantial difference between applications such as those of the plaintiffs which were submitted to the national authorities and forwarded to the Commission before it decided to stop the advance issue of licences and applications which dealers might perhaps have wished to submit to the national authorities after that decision but which the national authorities had to refuse to register and forward following the Commission' s decision .

41 . Finally, it is is not without interest to observe that it appeared at the hearing that in implementing Council Regulation No 1898/86 of 17 June 1986 increasing the quota to 300 000 tonnes the Commission itself felt the need to give priority to products which were in customs warehouses or in a free zone when that regulation entered into force .

42 . It is my opinion therefore that in not giving priority to applications forwarded to it before its decision stopping advance allocation the Commission did not correctly apply the rules contained in Article 2 ( 2 ) and ( 3 ) of Regulation No 3656/83 requiring allocation to be made on a weekly basis .

43 . In view of the finding which I have just made I think it is no longer necessary to consider whether the Commission' s decisions of 21 and 25 March 1986 infringed the prohibition of discrimination or the principle of legal certainty . It is therefore only in the alternative that I do so .

44 . ( b ) Infringement of the prohibition of discrimination

45 . It follows from the foregoing discussion that in making no distinction between the applications which merely confirmed previous applications and fresh applications made after 21 March 1986 the Commission dealt in the same way with situations which were not comparable .

46 . As the Court has held, discrimination consists not only in treating in a different manner situations which are identical but also in treating in an identical manner situations which are different . ( 5 )

47 . ( c ) Infringement of the principle of legal certainty

48 . One of the requirements of the principle of legal certainty is that any factual situation should normally, in the absence of any contrary provision, be examined in the light of the legal rules existing at the time when that situation obtained ( see judgment of 12 October 1978 in Case 10/78 Tayeb Belbouab v Bundesknappschaft (( 1978 )) ECR 1915, at p . 1924, paragraph 7 ).

49 . In the present case, in taking its decisions of 21 and 25 March 1986, the Commission disregarded the fact that when the plaintiffs' applications were forwarded to it ( 13 and 20 February 1986 ) it had not yet stopped the advance application of the machinery provided for in Article 2 ( 2 ) and ( 3 ) of Regulation No 3656/83 . By virtue of the principle of legal certainty the applications ought to have had priority according to the date when they were forwarded to the Commission .

50 . Before concluding I ought to say a word on the subject of a related problem raised by the College van Beroep, namely to what extent Council Regulation No 1898/86 of 17 June 1986 increasing the tariff quota to 300 000 tonnes is relevant in this case .

51 . Under that regulation the defendant issued additional import licences to Krohn .

52 . In my opinion that fact is of importance only in connection with the claim for damages which the plaintiffs in the main proceedings have also brought before the College van Beroep .

Conclusion

53 . On the basis of the considerations set out above I propose the following answer to the College van Beroep voor het Bedrijfsleven :

"( 1 ) Consideration of the first question has disclosed no factor of such a kind as to affect the validity of the Commission' s notice of 20 February 1986 .

( 2 ) By its notices of 21 and 25 March 1986 the Commission infringed Article 2 ( 3 ) of Regulation No 3656/83 and, in the alternative, the prohibition of discrimination and the principle of legal certainty ."

(*) Translated from the French .

( 1 ) Council Regulation No.604/83 of 14 March 1983 on the import system applicable in 1983 to 1986 to products falling within subheading 07.06 A of the Common Customs Tariff and amending Regulation ( EEC ) No 950/68 on the Common Customs Tariff ( OJ L 72, 18.3.1983, p . 3 ).

( 2 ) Council Regulation ( EEC ) No 758/86 of 10 March 1986 on the import system applicable in 1986 to products falling within subheading 07.06 A of the Common Customs Tariff and originating in third countries which are not members of GATT ( OJ L 72, 13.3.1986, p . 1 ).

( 3 ) Commission Regulation ( EEC ) No 3656/83 of 23 December 1983 laying down detailed rules for the application of the import arrangements in 1984, 1985 and 1986 for products falling within subheading 07.06 A of the Common Customs Tariff and originating in non-member countries other than Thailand ( OJ L 361, 21.12.1983, p . 32 ).

( 4 ) See the judgment of 5 May 1981 in Case 804/79 Commission v United Kingdom (( 1981 )) ECR 1045, at paragraph 23 .

( 5 ) Judgment of 4 February 1982 in Case 817/79 Buyl v Commission (( 1982 )) ECR 245, at p . 266, and Case 1253/79 Battaglia v Commission (( 1982 )) ECR 297, at p . 322 .