Judgment of the Court of 7 November 1972. - Belgian State v NV Cobelex. - Reference for a preliminary ruling: Rechtbank van Koophandel Antwerpen - Belgium. - Case 20-72.



European Court reports 1972 Page 01055

Danish special edition Page 00275

Greek special edition Page 00251

Portuguese special edition Page 00363



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - LEVIES - APPLICATION BY THE IMPORTING MEMBER STATE MANDATORY WHERE REFUNDS FOR THIRD COUNTRIES ARE GRANTED BY THE EXPORTING MEMBER STATE - METHODS

( REGULATION NO . 19 OF THE COUNCIL, ARTICLE 19 )

Summary

ARTICLE 19 ( 2 ) ( A ) OF REGULATION NO 19 OF THE COUNCIL REQUIRES THE IMPORTING MEMBER STATE TO APPLY THE PRESCRIBED LEVY TO ALL IMPORTS IN RESPECT OF WHICH THE EXPORTING MEMBER STATE HAS GRANTED REFUNDS FOR THIRD COUNTRIES .

THIS PROVISION IS IMMEDIATELY APPLICABLE IN ALL THE MEMBER STATES AND IS BINDING UPON THOSE CONCERNED WITHOUT THE NEED FOR ADDITIONAL ANNOUNCEMENT BY THE IMPORTING MEMBER STATE .

Parties

IN CASE 20/72

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RECHTBANK VAN KOOPHANDEL, ANTWERP, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BELGIAN STATE, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS WHOSE OFFICES ARE AT 23 SQUARE DE MEEUS, BRUSSELS, AND

NAAMLOZE VENNOOTSCHAP COBELEX, WHOSE REGISTERED OFFICE IS AT 24 GROENENDALSTRAAT, ANTWERP,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 19 ( 2 ) OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ( JO 1962, NO 30, P . 933 ),

Grounds

1 BY JUDGMENT OF 26 APRIL 1972, RECEIVED AT THE COURT REGISTRY ON 8 MAY 1972, THE RECHTBANK VAN KOOPHANDEL, ANTWERP, HAS REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY, THREE QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 19 ( 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 ( JO NO 30, 1962 ).

2 THAT ARTICLE PROVIDES THAT " A MEMBER STATE WHICH, IN ACCORDANCE WITH THE PROVISIONS OF THIS REGULATION, IS ENTITLED TO APPLY LEVIES VIS-A-VIS ANOTHER MEMBER STATE MAY, WHEN EXPORTING TO SUCH STATE, REFUND AN AMOUNT EQUAL TO THE REFUND GRANTED IN RESPECT OF EXPORTS TO THIRD COUNTRIES ".

3 THE ARTICLE FURTHER PROVIDES THAT " WHEN A REFUND ON EXPORT IS GRANTED, THE AMOUNT OF THE LEVY CHARGED BY THE IMPORTING MEMBER STATE SHALL BE EQUAL TO THAT CHARGED VIS-A-VIS THIRD COUNTRIES IN ACCORDANCE WITH THE PROVISIONS OF THIS REGULATION, LESS THE STANDARD AMOUNT PROVIDED FOR IN ARTICLE 2 ( 1 ) ".

4 THE FIRST QUESTION ASKS WHETHER ARTICLE 19 ( 2 ) MEANS THAT WHERE THE EXPORTING MEMBER STATE GRANTS REFUNDS IN RESPECT OF THIRD COUNTRIES THE IMPORTING MEMBER STATE IS UNDER A DUTY TO APPLY LEVIES ON THE IMPORTER IMMEDIATELY, OR WHETHER THE IMPORTING MEMBER STATE IS ENTITLED TO DO SO FROM A LATER DATE WHICH IT MAY DETERMINE .

5 ARTICLE 19 ( 2 ) PROVIDES THAT ONLY THE LEVY IN QUESTION IS APPLICABLE TO IMPORTS CARRIED OUT IN THE CONDITIONS SPECIFIED .

6 THE VIEW THAT THE MEMBER STATE IS FREE TO APPLY OR NOT TO APPLY THE LEVIES PROVIDED FOR BY REGULATION NO 19 IS INCOMPATIBLE WITH THE AIM OF THIS REGULATION WHICH IS THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKETS .

7 IN FACT IF THE LEVIES CONCERNED INCLUDING THAT SET OUT IN ARTICLE 19 ( 2 ) ARE NOT APPLIED, IMPORTS WOULD BE MADE BELOW THE THRESHOLD PRICE OF THE IMPORTING MEMBER STATES AND WOULD THUS JEOPARDIZE THE ATTAINMENT OF THE LEVEL OF PRICES SOUGHT AND THE PROGRESSIVE APPROXIMATION OF NATIONAL TARGET PRICES TO A COMMON TARGET PRICE .

8 THIS CONCLUSION IS SUPPORTED BY THE PROVISIONS OF ARTICLE 15 ( 3 ) THE MANDATORY NATURE OF WHICH IS EVIDENT FROM COMPARISON WITH THE PROVISIONS RELATING TO REFUNDS ( ARTICLE 19 ( 2 ) AND ARTICLE 20 ) WHICH ARE OF AN OPTIONAL NATURE .

9 CONSEQUENTLY ARTICLE 19 ( 2 ) ( A ) REQUIRES THE IMPORTING MEMBER STATE TO APPLY THE PRESCRIBED LEVY TO ALL IMPORTS IN RESPECT OF WHICH THE EXPORTING MEMBER STATE HAS GRANTED REFUNDS FOR THIRD COUNTRIES .

10 THE SECOND QUESTION ASKS WHETHER THE IMPORTING MEMBER STATE' S DUTY AFFECTS IPSO JURE RELATIONS BETWEEN THAT STATE AND THE IMPORTER IN THAT IT IS IRRELEVANT THAT THE LATTER OBSERVED ALL THE FORMALITIES FOR THE PURPOSES OF ASCERTAINING AND DETERMINING THE AMOUNT OF THE LEVY AT THE PROPER TIME IF THE IMPORTING MEMBER STATE ONLY SUBSEQUENTLY DISCOVERS THAT THE EXPORTING COUNTRY GRANTED REFUNDS .

11 THE THIRD QUESTION ASKS IN PARTICULAR WHETHER THE DIRECT EFFECTS OF ARTICLE 19 ( 2 ) GO SO FAR THAT APART FROM THE NOTIFICATIONS PROVIDED FOR IN THE SECOND SUBPARAGRAPH OF THAT PARAGRAPH ANY ANNOUNCEMENT TO IMPORTERS AND EXPORTERS MADE IN ADVANCE IN THE MANNER PRESCRIBED BY THE NATIONAL LEGISLATION IS SUPERFLUOUS .

12 SINCE THEY FORM PART OF A COMMUNITY REGULATION THE PROVISIONS OF ARTICLE 19 ARE DIRECTLY APPLICABLE IN ALL MEMBER STATES BY VIRTUE OF ARTICLE 189 OF THE TREATY .

13 MOREOVER THE NATURE AND THE AIMS OF REGULATION NO 19 IMPLY THAT ITS PROVISIONS ARE APPLICABLE WITH THE SAME BINDING FORCE IN ALL THE MEMBER STATES IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKETS THEREBY ESTABLISHED .

14 IT SHOULD FIRST BE NOTED THAT THE PROVISIONS RELATING TO THE FIXING OF THE LEVY IN ADVANCE ONLY CONCERN BY THEIR VERY NATURE THE INTRA-COMMUNITY LEVIES REFERRED TO IN ARTICLE 2 OF REGULATION NO 19 .

15 SINCE THE LEVY PROVIDED FOR IN THE SECOND SENTENCE OF ARTICLE 19 ( 2 ) ( A ) DEPENDS ON WHETHER OR NOT THE EXPORTING MEMBER STATE EXERCISES THE POWER TO GRANT REFUNDS TO THIRD COUNTRIES, THE FIXING OF THAT LEVY IN ADVANCE ENTAILS RISKS WHICH THE IMPORTING MEMBER STATES CANNOT ALWAYS FORESEE .

16 MOREOVER THE CONDITION IMPOSED BY ARTICLE 19 ON THE GRANTING OF REFUNDS TO THIRD COUNTRIES IN INTRA - COMMUNITY TRADE, NAMELY THAT THE EXPORTING MEMBER STATE IS ENTITLED TO IMPOSE LEVIES IN RESPECT OF IMPORTS FROM THE IMPORTING MEMBER STATE IMPLIES THAT WITH REGARD TO TRADE IN THE OPPOSITE DIRECTION THE LEVY REFERRED TO IN ARTICLE 2 OF THE REGULATION IS FIXED AT ZERO .

17 THEREFORE ONLY WHEN THE LEVY UNDER ARTICLE 2 FOR IMPORTS FROM A MEMBER STATE IS ZERO NEED IMPORTERS EXPECT THAT THE PROVISIONS OF ARTICLE 19 AT ISSUE MAY BE APPLIED .

18 FINALLY THE APPLICATION OF ARTICLE 19 ( 2 ) ( A ) DOES NOT REQUIRE ANY PARTICULAR NOTIFICATION OR ANNOUNCEMENT TO IMPORTERS .

19 IN FACT THE NOTIFICATIONS TO WHICH THE RECHTBANK VAN KOOPHANDEL REFERS ARE SET OUT IN ARTICLE 19 ( 2 ) ( B ) AND RELATE TO A CASE OTHER THAN THAT REFERRED TO IN SUBPARAGRAPH ( A ).

20 WHILE THE AUTHORITIES OF THE IMPORTING COUNTRY MAY USEFULLY DRAW THE ATTENTION OF THOSE CONCERNED TO THE EXISTENCE AND THE POSSIBLE CONSEQUENCES OF THE PROVISIONS OF ARTICLE 19 ( 2 ) ( A ) BY MEANS OF ADDITIONAL INFORMATION, THE PROVISION DOES NOT REQUIRE SUCH ANNOUNCEMENTS FOR ITS APPLICATION .

21 MOREOVER THE COMMISSION' S DECISION ESTABLISHING MEANS OF SPECIAL ADMINISTRATIVE COOPERATION FOR THE APPLICATION OF THE INTRA-COMMUNITY LEVIES ESTABLISHED WITHIN THE CONTEXT OF THE COMMON AGRICULTURAL POLICY OF 17 JULY 1962 ( JO 1962, P . 2140 ), PROVIDES THAT A " MOVEMENT CERTIFICATE DD4 " IN WHICH THE NATURE OF THE REFUND GRANTED BY THE EXPORTING MEMBER STATE MUST BE SPECIFIED, IS TO BE PRESENTED TO THE CUSTOMS AUTHORITIES OF THE IMPORTING MEMBER STATE ( ARTICLE 6 ); THE IMPORTER MAY EXAMINE IT .

22 CONSEQUENTLY THE RULE EXPRESSED IN ARTICLE 19 ( 2 ) ( A ) IS IMMEDIATELY APPLICABLE IN ALL THE MEMBER STATES AND IS BINDING UPON THOSE CONCERNED WITHOUT THE NEED FOR ADDITIONAL ANNOUNCEMENT BY THE IMPORTING MEMBER STATE .

Decision on costs

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

AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE RECHTBANK VAN KOOPHANDEL, ANTWERP, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE RECHTBANK VAN KOOPHANDEL, ANTWERP, BY JUDGMENT OF THAT COURT OF 26 APRIL 1972 HEREBY RULES :

1 . ARTICLE 19 ( 2 ) ( A ) OF REGULATION NO 19 OF THE COUNCIL REQUIRES THE IMPORTING MEMBER STATE TO APPLY THE PRESCRIBED LEVY TO ALL IMPORTS IN RESPECT OF WHICH THE EXPORTING MEMBER STATE HAS GRANTED REFUNDS FOR THIRD COUNTRIES;

2 . THIS PROVISION IS IMMEDIATELY APPLICABLE IN ALL MEMBER STATES AND IS BINDING UPON INDIVIDUALS WITHOUT THE NEED FOR ADDITIONAL ANNOUNCEMENTS BY THE IMPORTING MEMBER STATE .