1.

With regard to the first question, whether the cancellation provided for in the second paragraph of Article 7 of Regulation No 1134/68 may only relate to the entire quota for which the advance fixing was granted and which is still outstanding on 4 August 1968, the plaintiffs in the main action and the Commission consider that a negative reply must be given whilst the defendants in the main actions and the Netherlands Government advocate an affirmative reply. In broaching this problem, which is moreover inseparable from Questions (3) and (4), one argument may certainly be dismissed from the outset: this is the argument which the plaintiffs base on the administrative practice followed in other Member States. If, in fact, this argument is of no assistance to them, it is not only because it was not fully clarified in the main proceedings but principally because it is impossible to rely on the weight of examples in interpreting legal provisions and consequently, although reference to a prevailing administrative practice may have a certain value, it constitutes at the most indication. As is always important in matters of interpretation, let us begin by considering the wording of the provision in question and see what indications may be derived from it. The defendants in the main actions and the Netherlands Government emphasize in particular that the wording of the second paragraph of Article 7 concerns a transaction still to be carried out after that date (that is to say, after 4 August 1968) and for which an advance fixing has been obtained and that the provision mentions the cancellation of the advance fixing and of the relevant document or certificate. They observe that it is drafted in the same way as the analogous provisions inserted in Article 1 (2), Article 2 (2) and the second subparagraph of Article 4 (1) of Regulation No 1134/68: in those provisions also the word ‘transaction’ appears only in the singular. They consequently assert that it seems logical to consider that the obligation to export arising from an advance fixing, which still remains on 4 August 1968, forms an entity and does not relate to the various export procedures to be completed within the context of that obligation. They add furthermore that the wording of Article 4 (1) (a) supports this view since with regard to the date of fixing the amounts in question reference is made to a transaction and moreover there is added the expression ‘part of a transaction’ which does not appear in Article 7. Indeed a certain logic cannot be denied those deductions for, as the defendants in the main actions emphasize, there is no longer any doubt that the expression ‘transaction’ appearing in Article 7 cannot refer to the export contract concluded with a customer, as it plainly does not relate in any way to the granting of the certificate. This is clear from the definition of the time for carrying out the transaction appearing in Article 6 of Regulation No 1134/68 which only considers the point when the obligation to export arises under the rules of public law and does not take into account the fulfilment of the obligations as they arise from the contract. Nevertheless, like the Commission, one cannot consider that the argument thus put forward is absolutely conclusive. First of all, it is certainly impossible literally to accumulate the sentences in which the cancellation of the certificate occurs and to consider this as forming an entity. This is recognized by the defendants in the main actions and the Netherlands Government themselves since in this connexion they only take into consideration the part of a transaction still to be carried out after 4 August 1968 and consequently divide the transaction, at least in this respect. Secondly I think that strictly speaking the definition which Article 6 gives for the word ‘transaction’ indicates that it necessarily relates to each of the stages of exportation since it is the completion of each of those stages which constitutes the occurrence of the event ‘on which the amount involved in the transaction becomes due and payable’. But as soon as it is recognized that this is indeed the case (and I consider that the wording of the provision in question does not leave the slightest doubt in this respect), one has no more difficulty than the Commission in also explaining why the word ‘transaction’ is only employed in the singular in Article 7. In any event I consider that it seems probable that the use of the singular originates in the need to use a general term encompassing all the acts listed in the annex to Regulation No 1134/68. In fact the draftsman of Article 7 might equally well have employed the following wording: ‘for an importation or an exportation still to be carried out after that date’, a formula which shows more clearly that it is dealing solely with the importation or exportation considered in isolation and that it does not relate to the obligation to import or to export considered as a whole. In addition, two very simple reasons also indicate that the second paragraph of Article 7 must indeed be understood in the way that I have just explained: first the meaning which the word ‘transaction’ bears in current usage, and secondly, the fact that the general, rule in administrative and commercial practice is that amounts entered on the certificate and those involved in the transaction do not generally coincide, in other words a certificate, far from being exhausted after a single transaction, is usually issued for a large number of transactions and in order to carry them out the amount entered on the certificate may be broken down if so desired. On the basis of a reasonable interpretation of the wording employed in the various provisions of Regulation No 1134/68, I am thus induced to favour the Commission's view or at any rate to state that it is indeed difficult to find a convincing reason for the interpretation advocated by the defendants and the Netherlands Government. This is moreover why the latter rely on other considerations to which in my view they attach much greater importance. They refer again to the option to cancel worded similar terms in Articles 1, 2 and 4 of Regulation No 1134/68; they investigate the recitals in the preamble to the regulation for the reasons which decided the legislature to provide such an option and relate those reasons to Article 7 which is in question in the present case. In this connexion the following passage in the recitals is of particular significance to them: ‘such an adjustment must not prejudice persons who have obtained an advance fixing … and … they should therefore be allowed to cancel that fixing’. The defendants in the main action and the Netherlands Government deduce from this passage that the legislature was guided above all by the desire to avoid prejudicial effects. On the basis of this view they maintain the following line of argument: when an occurrence envisaged by the regulation in question arises, that is to say, an alteration of parities followed by the adjustment of the amounts of the levies and refunds and when it is possible immediately to estimate what the results will be, if the person concerned, instead of instantly applying for the total cancellation of the certificates not yet exhausted, carried out various further transactions and does not subsequently indicate an intention to avail himself of his option to cancel the certificates, this attitude shows that in fact the alteration of the amounts has not prejudiced him and if he endeavours to obtain cancellation it is for other reasons, for example, in order to obtain a benefit if the amount of refunds at the prevailing rate should be adjusted to his advantage. Such an action cannot be tolerated as it is not in accordance with the objectives of the law. The defendants supported by the Netherlands Government, claim that if this holds good within the framework of Articles 1, 2 and 4 it must also be so in the case of Article 7, which amounts to saying that if the conditions laid down are fulfilled the person concerned may not begin by using the outstanding certificates for a certain period before applying for their cancellation. This line of argument incontestibly carries weight but in the end it will be seen that it too is irrelevant. The first objection which can be made against it is that even within the framework of Articles 1, 2 and 4 that is to say within the framework of the option to apply for cancellation following the alteration in parities, it does not: seem completely correct. In fact it is by no means certain that if, on the adjustment of the amounts of the levies and refunds the person concerned did not immediately request the complete cancellation of the certificates fixed in advance but still outstanding, he has not been prejudiced in any way by such adjustment. It may also happen that, by not having applied for an immediate cancellation and having carried out various transactions on the basis of the new conditions, the person concerned is less prejudiced than he would have been if he had obtained an immediate cancellation, in other words contrary to the view of the Netherlands Government, even if the adjustment of the amounts of the levies and refunds fixed in advance is clearly unfavourable to the persons concerned, it is not inconceivable from an economic point of view that they should delay availing themselves of the option to apply for cancellation. There is, however, another basic finding which I must make and indeed it is more important than the foregoing: this is that, both with regard to the role played by the option to cancel and to the reasons which led the Community legislature to make provision for them, it must be wrong to identify Article 7 with Articles 1, 2 and 4. No doubt one may consider, as the defendants in the main actions and the Netherlands Government rightly do, that the aim of the provisions inserted in Articles 1, 2 and 4, which henceforth are permanent features of the arrangements for advance fixing of which the persons concerned were aware when they obtained the certificate, is to protect such persons against prejudicial effects presenting a real and current threat or to contain such prejudicial effects within certain limits: but it is undoubtedly incorrect to speak also of'prejudicial effect with regard to Article 7. What was envisaged in this case was that a new role made applicable to existing legal situations might give rise to a risk not previously existing (the risk of being obliged to accept on the alteration of parities the adjustment of amounts fixed in advance or the cancellation of the certificates in question). In order to be able to deal with this the persons concerned were given the option to apply for the cancellation of certificates issued before the entry into force of Regulation No 1134/68. This amounts to saying that the essential characteristic of Article 7 is that it constitutes a transitional provision which may be applied only to the case with regard to which legal reasons induced the legislature to establish it. In deducing this characteristic we have thereby discovered the factor which is conclusive for the definition of the scope of Article 7. I consequently arrive at the following decisive finding: by reason of the protective nature of such a provision which alone justifies the serious and unforeseeable effect on pre-existing legal relationships, the only conceivable interpretation is a wide one and not the narrow interpretation advocated by the Netherlands Government. It is also clear that this wide interpretation necessarily leads me to assert that the cancellation may relate to the entire quota still remaining at 4 August 1968 on the advance fixing certificate as also to the part of that quota. This is the sole interpretation of the second paragraph of Article 7 of Regulation No 1134/68 which can be correct, as is indicated moreover by the following very important considerations. In fact the option to apply for the cancellation of a certificate breaks a fundamental rule relating to the issue of the certificates: that in accordance with which the person concerned is bound to carry out the transaction contemplated which the legislature has even ensured by providing for a deposit. Exceptions of this nature must be applied as restrictively as possible as this is the sole means of limiting the disturbances which they may involve in the functioning of the common organizations of the agricultural markets. It consequently appears that from the point of view of the common organizations of the markets as well, when the wording of the provision allows it, as is the case in the second paragraph of Article 7, such cancellation of certificates is permissible only if their interpretation is as restricted as possible. I should finally like to observe that this is the only interpretation which provides a reasonable explanation for the length of the period of time provided by the second paragraph of Article 7. If it were considered that the sole option open to the persons concerned was either to refrain from applying for cancellation or to obtain the cancellation of the advance fixings for the entire amount still outstanding on 4 August 1968, a much shorter period would have sufficed to make this choice. All these considerations, both on the basis of the letter and the spirit of the second paragraph of Article 7 of Regulation No 1134/68, consequently lead me to conclude that the first question must be given a negative reply; in other words to concur with the plaintiffs in the main actions and with the Commission in asserting that the cancellation obtained on the basis of Article 7 need not necessarily relate to the entire quantity still outstanding on 4 August 1968 to which the advance fixing relates.