Judgment of the Court of 26 January 1972. - Westzucker GmbH and Gebrüder Dietz v Hoofdproduktschap voor Akkerbouwprodukten. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Joined cases 38 and 39-71.



European Court reports 1972 Page 00001

Portuguese special edition Page 00001



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - INVITATION TO TENDER AND DENATURING - DIFFERENT MEMBER STATES - DENATURING PREMIUM - STATE LIABLE TO PAY THE PREMIUM - DETAILED RULES FOR PAYMENT

( REGULATION ( EEC ) NO 1987/69, ARTICLES 5, 9 AND 10; REGULATION ( EEC ) NO 2061/69, ARTICLE 11 )

2 . AGRICULTURE - COMMON AGRICULTURAL POLICY - FINANCIAL TRANSACTIONS - INVITATION TO TENDER AND DENATURING OF PRODUCTS - DIFFERENT MEMBER STATES - PAYMENT OF THE DENATURING PREMIUM - RATE OF EXCHANGE

( REGULATION NO 129 OF THE COUNCIL OF THE EEC, ARTICLE 2 )

Summary

1 . ARTICLE 5(2)(E ) AND ( F ), THE FIRST INDENT OF ARTICLE 9(1)(A ), ARTICLE 9(3)(A ) AND ARTICLE 10(2)(C ) OF REGULATION ( EEC ) NO 1987/69 OF THE COMMISSION LAYING DOWN DETAILED RULES CONCERNING THE SALE BY TENDER OF SUGAR BY INTERVENTION AGENCIES AND ARTICLE 11(1)(A ) OF REGULATION ( EEC ) NO 2061/69 OF THE COMMISSION LAYING DOWN DETAILED RULES ON THE DENATURING OF SUGAR FOR ANIMAL FEED MUST BE INTERPRETED TO MEAN THAT WHERE THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE IS DIFFERENT FROM THAT IN WHICH THE TENDER IS INVITED AND WHERE THE DENATURING PREMIUM CERTIFICATE HAS BEEN ISSUED BY THE FORMER STATE, IT IS ALONE LIABLE TO PAY THE PREMIUM .

THESE PROVISIONS MUST BE INTERPRETED TO MEAN THAT, IN THE ABOVEMENTIONED CASE :

( A ) THE DENATURING PREMIUM INDICATED IN THE CERTIFICATE ISSUED BY THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE MUST NOT BE EXPRESSED IN THE CURRENCY OF THE MEMBER STATE IN WHICH THE TENDER IS INVITED;

( B ) THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE IS NOT OBLIGED TO PAY SUCH PREMIUM IN THE CURRENCY OF THE MEMBER STATE IN WHICH THE TENDER IS INVITED, BUT MAY PAY IT IN ITS OWN CURRENCY .

2 . IN THE CASE REFERRED TO UNDER 1 ABOVE, WHERE THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE PAYS IN ITS OWN CURRENCY A PREMIUM WHICH IS EXPRESSED IN THE STATEMENT OF AWARD ISSUED BY THE STATE IN WHICH THE TENDER IS INVITED IN THE CURRENCY OF THAT STATE, THE CONVERSION MUST BE EFFECTED AT THE RATE OF EXCHANGE PROVIDED FOR IN ARTICLE 2(1 ) OF REGULATION NO 129 OF THE COUNCIL OF 23 OCTOBER 1962 ON THE VALUE OF THE UNIT OF ACCOUNT AND THE EXCHANGE RATES TO BE APPLIED FOR THE PURPOSES OF THE COMMON AGRICULTURAL POLICY, THAT IS, AT THE RATE OF EXCHANGE CORRESPONDING TO THE PAR VALUE COMMUNICATED TO AND RECOGNIZED BY THE INTERNATIONAL MONETARY FUND .

Parties

IN JOINED CASES 38 AND 39/71,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

( 1 ) WESTZUCKER GMBH, DORTMUND ( CASE 38/71 ),

( 2 ) FRITZ DIETZ, REPRESENTING GEBRUEDER DIETZ, FRANKFURT AM MAIN ( CASE 39/71 ),

AND

HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN, THE HAGUE, REPRESENTING THE NETHERLANDS MINISTER FOR AGRICULTURE AND FISHERIES,

Subject of the case

ON THE INTERPRETATION, IN PARTICULAR :

- OF ARTICLE 5(2)(E ) AND ( F ), THE FIRST INDENT OF ARTICLE 9(1)(A ), ARTICLE 9(3)(A ) AND ARTICLE 10(2)(C ) OF REGULATION ( EEC ) NO 1987/69 OF THE COMMISSION OF 8 OCTOBER 1969 LAYING DOWN DETAILED RULES CONCERNING THE SALE BY TENDER OF SUGAR BY INTERVENTION AGENCIES ( OJ NO L 253, P . 7, ENGLISH SPECIAL EDITION 1969 ( II ), P . 424 );

- OF ARTICLE 11(1)(A ) OF REGULATION ( EEC ) NO 2061/69 OF THE COMMISSION OF 20 OCTOBER 1969 LAYING DOWN DETAILED RULES ON THE DENATURING OF SUGAR FOR ANIMAL FEED ( OJ L 263, P . 19 ),

Grounds

1 BY JUDGMENTS OF 6 JULY 1971 RECEIVED AT THE COURT REGISTRY ON 7 JULY 1971, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN HAS SUBMITTED TO THE COURT SEVERAL QUESTIONS CONCERNING, IN PARTICULAR, THE INTERPRETATION OF ARTICLE 5(2)(E ) AND ( F ), THE FIRST INDENT OF ARTICLE 9(1)(A ), ARTICLE 9(3)(A ) AND ARTICLE 10 OF REGULATION ( EEC ) NO 1987/69 OF THE COMMISSION AND OF ARTICLE 11(1)(A ) OF REGULATION ( EEC ) NO 2061/69 OF THE COMMISSION .

2 THE FILE SHOWS THESE QUESTIONS TO CONCERN AN ACTION WHICH AROSE FROM THE FACT THAT THE WESTZUCKER AND DIETZ UNDERTAKINGS WHICH WERE DECLARED BY THE GERMAN AUTHORITIES TO BE THE SUCCESSFUL TENDERERS FOR CERTAIN QUANTITIES OF SUGAR INTENDED FOR DENATURING, HAD THIS OPERATION CARRIED OUT IN THE NETHERLANDS WHERE THE AUTHORITIES ISSUED THEM WITH DENATURING PREMIUM CERTIFICATES .

3 THE UNDERTAKINGS IN QUESTION CONSIDER THAT THE NETHERLANDS AUTHORITIES WERE REQUIRED TO EXPRESS THE AMOUNT OF THE PREMIUM SOLELY IN GERMAN CURRENCY AND, THEREFORE, TO FIX IT AT A SUM IN DEUTSCHMARKS EQUAL TO THAT SHOWN IN THE TENDERS WHICH WESTZUCKER AND DIETZ SUBMITTED TO THE GERMAN AUTHORITIES AND ON THE BASIS OF WHICH THE LATTER AWARDED THE TENDER .

QUESTIONS 2 AND 3

4 UNDER THE TERMS OF THE FIRST SUBPARAGRAPH OF ARTICLE 6(1 ) OF REGULATION NO 2049/69 : " THE DENATURING PREMIUM SHALL BE GRANTED BY THE MEMBER STATE ON WHOSE TERRITORY DENATURING TAKES PLACE ".

5 HOWEVER, UNDER THE SECOND SUBPARAGRAPH OF THE SAME PARAGRAPH : " DURING THE 1969/70 MARKETING YEAR, ... THE DENATURING PREMIUM IN RESPECT OF SUGAR COMING FROM ONE MEMBER STATE INTENDED FOR DENATURING ON THE TERRITORY OF ANOTHER MEMBER STATE MAY BE GRANTED " BY THE MEMBER STATE FROM WHICH THE SUGAR COMES .

6 AS ARTICLE 16(1 ) OF REGULATION NO 2061/69 REFERS TO THE SITUATION IN WHICH " A MEMBER STATE ... USING THE AUTHORIZATION PRESCRIBED IN THE SECOND SUBPARAGRAPH OF ARTICLE 6(1 ) OF REGULATION ( EEC ) NO 2049/69, HAS ISSUED A DENATURING PREMIUM CERTIFICATE " IT MUST BE CONCLUDED THAT WHERE THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE IS DIFFERENT FROM THAT IN WHICH THE TENDER IS INVITED, THE SUCCESSFUL TENDERER MAY ONLY REQUIRE PAYMENT OF THE PREMIUM BY THE LATTER STATE IF IT MAKES USE OF THIS AUTHORIZATION .

7 AT ALL EVENTS, THE SUCCESSFUL TENDERER MAY ONLY REQUEST PAYMENT OF THE PREMIUM FROM THE STATE WHICH HAS ISSUED THE CERTIFICATE .

8 IT IS, THEREFORE, APPROPRIATE TO REPLY TO THE NATIONAL COURT THAT WHERE THE STATE IN WHICH DENATURING HAS TAKEN PLACE IS DIFFERENT FROM THAT IN WHICH THE TENDER IS INVITED AND WHERE THE CERTIFICATE HAS BEEN ISSUED BY THE FORMER STATE, IT IS ALONE LIABLE TO PAY THE PREMIUM .

QUESTIONS 1, 4, 5 AND 6

9 UNDER THE TERMS OF ARTICLE 9(2 ) OF BASIC REGULATION NO 1009/67 NATIONAL INTERVENTION AGENCIES - WHICH ARE OBLIGED TO PURCHASE THE COMMUNITY SUGAR WHICH IS OFFERED TO THEM AND WHICH ARE EMPOWERED TO RESELL IT IN ACCORDANCE WITH ARTICLES 9(1 ) AND 10(1 ) OF THE SAME REGULATION - " MAY GRANT DENATURING PREMIUMS FOR SUGAR RENDERED UNFIT FOR HUMAN CONSUMPTION ".

10 UNDER THE COMBINED PROVISIONS OF ARTICLE 10(1 ) OF THAT REGULATION ( AS AMENDED BY ARTICLE 2 OF REGULATION NO 1393/69 ) AND ARTICLE 3 OF REGULATION NO 447/68 ( AS AMENDED BY REGULATION NO 1395/69 ) THIS RESALE MAY TAKE PLACE " BY TENDER ".

11 UNDER THE TERMS OF ARTICLE 5(2)(E ) AND ( F ) OF REGULATION NO 1987/69 ANY PERSON WISHING TO ACCEPT THE INVITATION TO TENDER MUST INDICATE IN THE TENDER, IN PARTICULAR, " THE AMOUNT OF THE DENATURING PREMIUM PROPOSED, ... IN THE CURRENCY OF THE MEMBER STATE IN WHICH THE INTERVENTION AGENCY ISSUES THE INVITATION " AND " IN THE CASE OF DENATURING, THE MEMBER STATE IN WHICH THE SUGAR WILL BE DENATURED ".

12 ARTICLE 10 OF THE REGULATION IN QUESTION PROVIDES THAT THE INTERVENTION AGENCY CONCERNED " SHALL ... SEND A STATEMENT OF AWARD TO THE SUCCESSFUL TENDERERS " WHICH SHALL INDICATE IN PARTICULAR " THE AMOUNT OF THE DENATURING PREMIUM " ACCEPTED FOR THE QUANTITY AWARDED .

13 ARTICLE 9(1)(A ) OF THE SAME REGULATION PROVIDES THAT IF THE SUGAR IS INTENDED FOR ANIMAL FEED : " AN AWARD SHALL ... CONFER THE RIGHT TO THE ISSUE, IN RESPECT OF THE QUANTITY AWARDED, OF A DENATURING PREMIUM CERTIFICATE SHOWING THE DENATURING PREMIUM SPECIFIED IN THE TENDER ".

14 IN ACCORDANCE WITH ARTICLE 9(3 ) " WHERE ... THE SUGAR IS DENATURED IN A MEMBER STATE OTHER THAN THE MEMBER STATE WHICH ISSUED THE INVITATION TO TENDER, THE MEMBER STATE IN WHICH DENATURING IS EFFECTED :

( A ) SHALL, AT THE REQUEST OF THE SUCCESSFUL TENDERER, ISSUE THE DENATURING PREMIUM CERTIFICATE FOR THE QUANTITY OF SUGAR IN QUESTION IMMEDIATELY ON RECEIPT OF AN ATTESTATION FROM THE MEMBER STATE WHICH ISSUED THE INVITATION TO TENDER; "

UNDER PARAGRAPH ( 4 ) OF THE SAME ARTICLE THIS ATTESTATION SHALL INDICATE IN PARTICULAR " THE AMOUNT OF THE DENATURING PREMIUM ".

15 UNDER ARTICLE 10(2)(D ) OF REGULATION NO 2061/69 " THE DENATURING PREMIUM CERTIFICATE SHALL INDICATE ... THE DENATURING PREMIUM FIXED AS THE RESULT OF AN AWARD ... ".

16 FINALLY, UNDER THE TERMS OF ARTICLE 11(1)(A ) OF THE SAME REGULATION " THE ISSUE OF THE DENATURING PREMIUM CERTIFICATE GIVES RISE, AS REGARDS THE QUANTITY IN QUESTION, TO A RIGHT TO PAYMENT, AFTER DENATURING HAS TAKEN PLACE, OF THE DENATURING PREMIUM INDICATED IN THE CERTIFICATE ... ".

17 TAKEN AS A WHOLE THESE PROVISIONS SHOW THAT THE AMOUNT OF THE PREMIUM SHOWN IN THIS CERTIFICATE MUST CORRESPOND TO THE AMOUNT APPEARING IN THE TENDER MADE BY THE SUCCESSFUL TENDERER AND REFERRED TO IN THE STATEMENT OF AWARD .

18 HOWEVER, THEY DO NOT IN ANY WAY SHOW THAT WHERE THE STATE IN WHICH DENATURING HAS TAKEN PLACE IS DIFFERENT FROM THAT IN WHICH THE TENDER IS INVITED, THE FORMER STATE IS BOUND TO EXPRESS AND TO PAY THE PREMIUM IN THE CURRENCY OF THE LATTER STATE .

19 IN FACT, ALTHOUGH ARTICLE 5 OF REGULATION NO 1987/69 EXPRESSLY PROVIDES THAT THE AMOUNT OF THE PROPOSED PREMIUM MUST BE EXPRESSED IN THE TENDER IN THE CURRENCY OF THE STATE IN WHICH THE INVITATION IS ISSUED, THE PROVISIONS CONCERNING THE ISSUE OF THE CERTIFICATE AND THE PAYMENT OF THE PREMIUM ARE SILENT AS REGARDS THE CURRENCY TO BE USED FOR THIS PURPOSE BY THE STATE IN WHICH DENATURING HAS TAKEN PLACE .

20 THERE IS THUS NO OBLIGATION FOR THE STATE CONCERNED TO PAY THE PREMIUM IN QUESTION IN A FOREIGN CURRENCY .

21 MOREOVER, THIS INTERPRETATION IS BY IMPLICATION CONFIRMED BY ARTICLE 11(2 ) OF THE FINANCIAL REGULATION CONCERNING THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND OF 5 FEBRUARY 1964 WHICH PROVIDES THAT MEMBER STATES WHICH ARE CREDITORS OF THE FUND " SHALL ... RECEIVE A PAYMENT FROM THE COMMISSION MADE IN THEIR NATIONAL CURRENCY ".

22 HENCE, SINCE THE MEMBER STATE WHICH HAS ADVANCED THE DENATURING PREMIUM MAY ONLY REQUEST ITS REPAYMENT IN ITS OWN CURRENCY, IT CANNOT BE OBLIGED TO HAVE RECOURSE TO ANOTHER CURRENCY WHEN IT FIXES THE AMOUNT OF THE PREMIUM DUE AND PAYS IT TO THE SUCCESSFUL TENDERER .

23 A NEGATIVE REPLY MUST THEREFORE BE GIVEN TO THE FIRST AND FOURTH QUESTIONS AND, AS REGARDS THE FIFTH QUESTION, IT MUST BE RULED THAT THE DENATURING PREMIUM MAY BE PAID IN THE CURRENCY OF THE MEMBER STATE IN WHICH THE DENATURING HAS TAKEN PLACE .

24 IF THIS MEMBER STATE EXERCISES ITS POWER TO PAY THE PREMIUM IN ITS NATIONAL CURRENCY, IT IS BOUND TO CONVERT INTO THIS CURRENCY THE AMOUNT OF THE PREMIUM AWARDED IN THE CURRENCY OF THE MEMBER STATE INVITING THE TENDER .

25 TO ANSWER THE SIXTH QUESTION IT IS NECESSARY TO CONSIDER WHETHER THIS CONVERSION MUST BE CARRIED OUT AT THE RATE OF EXCHANGE TO BE APPLIED FOR THE PURPOSES OF THE COMMON AGRICULTURAL POLICY OR AT THE CURRENT RATE .

26 UNDER THE TERMS OF ARTICLE 2(1 ) OF REGULATION NO 129 OF 23 OCTOBER 1962 " WHERE MEASURES TAKEN IN PURSUANCE OF THE INSTRUMENTS OR PROVISIONS REFERRED TO IN ARTICLE 1 ", THAT IS TO SAY, IN PARTICULAR, " INSTRUMENTS CONCERNING THE COMMON AGRICULTURAL POLICY " ( ARTICLE 1 OF REGULATION NO 129, AS AMENDED BY ARTICLE 1 OF REGULATION NO 653/68 OF THE COUNCIL OF 30 MAY 1968 ( OJ L 123, P . 4, ENGLISH SPECIAL EDITION 1968 ( I ), P . 121 ) " REQUIRE SUMS GIVEN IN ONE CURRENCY TO BE EXPRESSED IN ANOTHER CURRENCY, THE EXCHANGE RATE TO BE APPLIED SHALL BE THAT WHICH CORRESPONDS TO THE PAR VALUE COMMUNICATED TO AND RECOGNIZED BY THE INTERNATIONAL MONETARY FUND ".

27 REGULATION NO 1009/67 ON " THE COMMON ORGANIZATION OF THE MARKET IN SUGAR " AND THE PROVISIONS ADOPTED ON THE BASIS OF THAT REGULATION ON THE DENATURING OF SUGAR CONCERN THE COMMON AGRICULTURAL POLICY .

28 AS A RESULT, THE PROVISIONS OF ARTICLE 2(1 ) OF REGULATION NO 129 APPLY TO TRANSACTIONS TO BE CARRIED OUT UNDER REGULATION NO 1009/67 AND THE MEASURES TAKEN IN IMPLEMENTATION THEREOF .

29 MOREOVER, A NOTE TO PARAGRAPH 2(E ) OF CHAPTER III OF THE NOTICE OF STANDING CALL FOR TENDER NO 3/1970, WHICH REFERS TO REGULATION NO 1987/69 AND WITHIN THE FRAMEWORK OF WHICH THE AWARDS IN DISPUTE WERE MADE, EXPRESSLY INDICATED THE PARITIES IN UNITS OF ACCOUNT OF THE CURRENCIES OF THE MEMBER STATES, AND THUS SHOWED CLEARLY THAT ANY NECESSARY CONVERSION WOULD TAKE PLACE AT THE RATE OF EXCHANGE REFERRED TO IN REGULATION NO 129 .

30 THE REPLY TO BE GIVEN TO THE NATIONAL COURT MUST THEREFORE BE THAT, IN THE CASES IN QUESTION, WHERE THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE PAYS IN ITS OWN CURRENCY A PREMIUM WHICH IS EXPRESSED IN THE STATEMENT OF AWARD ISSUED BY THE STATE IN WHICH THE TENDER IS INVITED IN THE CURRENCY OF THAT STATE, THE CONVERSION MUST BE EFFECTED AT THE RATE OF EXCHANGE PROVIDED FOR IN ARTICLE 2(1 ) OF REGULATION NO 129 .

Decision on costs

31 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY JUDGMENTS OF THAT COURT OF 6 JULY 1971, HEREBY RULES :

QUESTIONS 2 AND 3 :

1 . ARTICLE 5(2)(E ) AND ( F ), THE FIRST INDENT OF ARTICLE 9(1)(A ), ARTICLE 9(3)(A ) AND ARTICLE 10(2)(C ) OF REGULATION ( EEC ) NO 1987/69 OF THE COMMISSION, AND ARTICLE 11(1)(2 ) OF REGULATION ( EEC ) NO 2061/69 OF THE COMMISSION MUST BE INTERPRETED TO MEAN THAT WHERE THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE IS DIFFERENT FROM THAT IN WHICH THE TENDER IS INVITED AND WHERE THE DENATURING PREMIUM CERTIFICATE HAS BEEN ISSUED BY THE FORMER STATE, IT IS ALONE LIABLE TO PAY THE PREMIUM .

QUESTIONS 1, 4, 5 AND 6 :

2 . THESE PROVISIONS MUST BE INTERPRETED TO MEAN THAT IN THE ABOVEMENTIONED CASE :

( A ) THE DENATURING PREMIUM INDICATED IN THE CERTIFICATE ISSUED BY THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE MUST NOT BE EXPRESSED IN THE CURRENCY OF THE MEMBER STATE IN WHICH THE TENDER IS INVITED;

( B ) THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE IS NOT OBLIGED TO PAY THE PREMIUM IN THE CURRENCY OF THE MEMBER STATE IN WHICH THE TENDER IS INVITED, BUT MAY PAY IT IN ITS OWN CURRENCY .

3 . IN THE CASE REFERRED TO UNDER 1 . ABOVE, WHERE THE MEMBER STATE IN WHICH DENATURING HAS TAKEN PLACE PAYS IN ITS OWN CURRENCY A PREMIUM WHICH IS EXPRESSED IN THE STATEMENT OF AWARD ISSUED BY THE STATE IN WHICH THE TENDER IS INVITED IN THE CURRENCY OF THAT STATE, THE CONVERSION MUST BE EFFECTED AT THE RATE OF EXCHANGE PROVIDED FOR IN ARTICLE 2(1 ) OF REGULATION NO 129 .