Opinion of Mr Advocate General Mancini delivered on 11 February 1988. - Hauptzollamt Hamburg-Jonas v Firma P. Krücken. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Export refund - monetary compensatory amount - Advance fixing. - Case 316/86.



European Court reports 1988 Page 02213



Opinion of the Advocate-General

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Mr President,

Members of the Court,

In proceedings between the Hauptzollamt ( Principal Customs Office ) Hamburg-Jonas and the company P . Kroecken of Mannheim, the Bundesfinanzhof ( Federal Finance Court ) seeks a ruling on the provisions relating to export certificates for cereals, in respect of which the refund and the monetary compensatory amount (" MCM ") have been fixed in advance . The questions relate in particular to Article 16 ( 4 ) of Council Regulation No 2727/75 of 29 October 1975 on the common organization of the market in cereals ( Official Journal 1975 281, p . 1 ) and to Article 2 ( 3 ) of Commission Regulation No 243/778 of 1 February 1978 ( Official Journal 1978 L 37, p . 5 ) which provides for the advance fixing of monetary compensatory amounts and at the same time limits the territorial validity of export certificates . The national court wishes to know whether that limitation prevents the grant of the refund at the rate fixed in advance where the goods are exported from a Member State other than that indicated when the certificate was issued .

In the event of an affirmative answer, the Bundesfinanzhof asks whether, by virtue of the principle of the protection of legitimate expectations the refund must in special circumstances be granted to the exporter at the rate fixed in advance in any case .

In May 1979 the company P . Kroecken (" Kroecken ") exported 1 250 tonnes of barley originating in France from the Federal Republic of Germany to Switzerland . The goods had been purchased from the French company Unifrex, which had transferred to Kroecken an extract from the export certificate

relating to that consignment . The extract, which showed advance fixing of the export refund and of the MCM and bore the endorsement "valable en France", had been issued by the competent French authority, the Office national interprofessionnel des céréales ( ONIC ) to the French company Ramel, which in turn had assigned it to Unifrex .

Initially that endorsement prompted the German customs officer at Idar-Oberstein to express doubts as to whether the export could be effected on the basis of an extract of the kind produced to him . Kroecken' s forwarding agent ( SGS Control GmbH of Mannheim ), however, drew his attention to Article 16 ( 3 ) of Commission Regulation No 193/75 of 17 January 1975 ( Official Journal 1975 No L 25, p . 10 ) according to which "certificates and extracts properly issued ... by the authorities of a Member State shall in each of the other Member States have the same legal effects as attach to (( national )) documents"; and the officer - either because he was convinced by the arguments put to him or because the export document showed that the goods were bound for Switzerland - withdrew his objections and proceeded to complete the formalities .

However, his decision was not upheld by the customs authorities at a higher level . By order of 7 August 1979, made pursuant to Article 2 ( 3 ) of Regulation No 243/78 which restricts the validity of an export certificate to the Member State indicated in the application by the person concerned, the Hauptzollamt Hamburg-Jonas refused to accept the document produced by Kroecken as valid; consequently it paid Kroecken the MCM at the rate ruling when the goods were cleared through customs and not at the rate fixed in advance on the certificate . Kroecken reacted by submitting a complaint to the administrative authority and thereafter by instituting proceedings before the Finanzgericht ( Finance Court ) Hamburg . That court upheld its claim, observing that the limitation of the territorial validity of an export certificate recording advance fixing of the MCM affected only the latter and not the export refunds, the amount of which was the same in all the Member States .

This led to an appeal on a point of law brought before the Bundesfinanzhof by the Hauptzollamt Hamburg-Jonas . By an interlocutory decision ( of 4 February 1986 ) that court held that the grant of the refund at the rate fixed in advance on the certificate was not conditional upon the territorial validity of that document; but subsequently, acceding to a request made by the appellant customs authority, it decided, by order of 29 October 1986, to stay the proceedings and refer the following questions to the Court for a preliminary ruling :

( a ) Does it follow from Community law ( Article 2 ( 3 ) of Commission Regulation ( EEC ) No 243/78, Article 16 ( 4 ) of Regulation ( EEC ) No 2727/75 of the Council ) that the advance fixing of an export refund contained in a licence submitted at the time of export is not applicable for the purposes of determining the export refund applicable to goods exported from a Member State if the licence ( which also contains an advance fixing of the monetary compensatory amount ) stipulates that it is valid for another Member State?

( b ) If so, is it possible in certain circumstances to apply the principle of the protection of legitimate expectations in such a case, with the result that the advance fixing of the export refund should none the less be applied?

Finally, I should point out that in these proceedings written observations were submitted by the parties to the appeal before the national court, and by the Commission of the European Communities . The latter and Kroecken also presented oral argument at the hearing .

For a better understanding of the facts which I have just outlined and of the problems on which the Court must give a ruling it is appropriate to give a summary of the Community legislation at issue ( but see also in that connection the article entitled "Le régime juridique des certificats d' importation, d' exportation et de préfixation" by Defalque in Revue trimestrielle de droit européen, 1984, p . 61 et seq .).

As is well known, import and export certificates - that is to say the documents relied upon by the Community authorities for precise details of patterns of trade in agricultural products - were introduced by the various basic regulations on the common organization of the markets ( in the case of cereals, see Article 12 of Council Regulation No 2727/75 of 29 October 1975 ). In 1970 the Commission considered that it was appropriate to apply a number of common rules to them and for that purpose it issued Regulation No 1373/70 of 10 July 1970 ( Official Journal, English Special Edition 1970 ( II ), p . 439 ), later replaced by Regulation No 193/75 of 17 January 1975, cited earlier . Further measures were adopted subsequently; as a result, consolidation was necessary and this was achieved by the adoption of Regulation No 3183/80 of 3 December 1980 ( Official Journal 1980 L 338, p . 1 ) which is still in force .

Within that complex of rules, the following points are relevant to the present case :

( a ) for every export to a non-member country it is necessary to produce a certificate which authorizes it and at the same time makes it obligatory ( Article 12 ( 1 ) of Regulation No 2727/75 and corresponding provisions for the other markets governed by common rules; Article 2 ( 1 ) of Regulation No 193/75; and Article 8 ( 1 ) of Regulation No 3183/80;

( b ) if the export refund is fixed in advance, the amount thereof is indicated on the certificate ( Article 12 ( 1 ) of Regulation No 2727/75; Article 2 ( 1 ) of Regulation No 193/75; and Article 8 ( 2 ) of Regulation No 3183/80;

( c ) it is possible to obtain extracts from certificates : they produce the same legal effects as certificates but only in respect of the quantity of goods for which they are issued ( Article 10 ( 2 ) of Regulation No 193/75 and Article 10 of Regulation No 3183/80 );

( d ) certificates and extracts duly issued by the authorities in one Member State are valid throughout the Community and in the other Member States they produce the effects attaching to the equivalent national documents ( third subparagraph of Article 12 ( 1 ) of Regulation No 2727/75; Article 16 ( 3 ) of Regulation No 193/75; and Article 11 of Regulation No 3183/80 ).

Let us now consider the advance fixing of MCMs . As is well known, they were introduced for the first time in 1969 and were applied generally by Regulation No 974/71 of the Council of 12 May 1971 ( Official Journal, English Special Edition 1970 ( I ), p . 257 ). The possibility of fixing them in advance was introduced in order to guarantee traders the required certainty in view of the frequent variations to which the MCMs were subject; this was done - albeit only for the purposes of trade with non-member countries - by Commission Regulation No 243/78 of 1 February 1978 ( subsequently replaced by Regulation No 1160/82, Official Journal 1982 L 134, p . 22, which in turn was re-cast in Regulation No 3155/85 of 11 November 1985, Official Journal 1985 L 310, p . 22 ).

The second subparagraph of Article 2 ( 1 ) of that regulation provides that the amount may be fixed in advance only if the export refund is fixed at the same time . Moreover, in order to prevent speculative manoeuvres, Article 2 ( 3 ) provides that "where the monetary compensatory amount is fixed in advance the certificate and ... extracts therefrom shall be valid in only one Member State" and that the Member State must be designated "by the applicant on submission of the application for the advance fixing ...". The problem of coordination with other Community measures underlying the present case derives precisely from that provision .

At this point I cannot fail to point out that Kroecken and the Commission conducted a detailed debate at the hearing concerning the validity of Article 2 ( 3 ) of Regulation No 243/78 in so far as it imposes a territorial limitation upon the validity of the certificates . As the Court is aware, that question was not raised by the Bundesfinanzhof; but it has now been established beyond doubt in decisions of this Court that it is legitimate for the Court to deal with problems of that kind even where the issue has not been raised by the national court .

That principle was laid down for the first time in the Court' s judgment of 1 December 1965 in Case 16/65 C . Schwarze v Einfuhr - und Vorratsstelle foer Getreide und Futtermittel (( 1965 )) ECR 877 : "If it appears that the real purpose of the questions submitted by the national court is concerned rather with the validity of Community measures, it is appropriate for the Court to inform the national court at once of its view without compelling the national court to comply with purely formal requirements which would uselessly prolong the procedure under Article 177 and would be contrary to its very nature . Although this type of adherence to formal requirements may be defended in the case of litigation between two parties whose mutual rights must be subject to strict rules, it would be inappropriate to the special field of judicial cooperation under Article 177 which requires the national court and the Court of Justice ... to make direct and complementary contributions to the working out of a decision" ( p . 886 ).

The Court' s subsequent pronouncements were no less significant . Thus, in its judgment of 3 February 1977 in Case 62/76 Strehl v Nationaal Pensioenfonds voor Mijnwerkers (( 1977 )) ECR 211, the Court, although requested to interpret Article 46 ( 3 ) of Regulation No 1408/71 and Decision No 91 of the Administrative Commission for Migrant Workers, considered by way of preliminary whether those measures were lawful and in fact declared them invalid . Then came the judgment of 13 December 1979 in Case 44/79 Hauer v Land Rheinland-Pfalz (( 1979 )) ECR 3727 . As requested, the Court interpreted Regulation No 1162/76 concerning wine-growing; but, in order to dispel the national Court' s doubts as to the compatibility of that interpretation with the protection of fundamental rights, it appraised the lawfulness of the measures in question in the light of those rights .

Finally, in paragraph 7 of the judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State,Customs Administration (( 1980 )) ECR 2917, the Court stated "Although, within the framework of the distribution of tasks between the national courts and the Court of Jstice for the implementation of Article 177 ... it is for the national courts to decide the relevance of the questions which are referred to the Court of Justice, it is for the Court of Justice to extract from all the information provided ... those points of Community law which, having regard to the subject-matter of the dispute, require interpretation or whose validity requires appraisal ".

Of the dicta to which I have referred, perhaps the last is the most important, even though it might perhaps be observed that it was anticipated twice, in the judgments of 18 February 1964 in Joined Cases 73 and 74/63 NV Internationale Crediet - en Handelsverening Rotterdam and Others v Minister van Landbouw en Visserij (( 1964 )) ECR 1, and of 29 November 1978, in Case 83/78 Pigs Marketing Board v Redmond (( 1978 )) ECR 2347 ( paragraphs 25 and 26 ). The Court in fact no longer seeks in the wording of the question or the grounds thereof a reason for concluding that the national court, although purporting to ask merely interpretative questions, is in fact looking for a decision as to the validity of the Community measure at issue . The problem of validity is now examined on the Court' s own initiative purely on the basis of the documents before it .

Let us now consider the present case . If the Court were to decline to examine the validity of Article 2 ( 3 ) of Regulation No 243/78 merely because the national court did not ask it to do so, Kroecken, which raised the matter at the hearing, would certainly raise it again before the same national court, and, being a court of last instance, the latter would be obliged to submit a question on it to the Court under the third paragraph of Article 177 . From the formal point of view such a course of action would be beyond reproach, but it would also run counter to the principle that legal proceedings should not be needlessly prolonged and to the need to ensure the utility of the preliminary-rulings procedure .

So the question now is whether Article 2 ( 3 ) of Regulation No 243/78 is valid . Kroecken criticizes it on three counts, two of which relate to the infringement of legal provisions ( specifically, the third subparagraph of Article 12 ( 1 ) of Regulation No 2727/75 of the Council and Article 16 of Commission Regulation No 193/75 ) and the third relates to breach of the principle of proportionality .

I shall consider them in that order . The first provision allegedly infringed states that "the import or export licence shall be valid throughout the Community ". According to the German company, Regulation No 243/78 makes an exception to that rule for which the Commission had no authority . The Commission on other hand considers that it was authorized for that purpose by two provisions : on the one hand, Article 12 ( 2 ) of Regulation No 2727/75 itself, which empowers it to fix the period of validity of licences and "other detailed rules for the application" of the system under the Management Committee procedure ( see Judgment of 26 June 1980 in Case 808/79 Pardini (( 1980 )) ECR 2103, paragraph 16 ); on the other hand, Article 6 ( 1 ) of Regulation No 974/71, cited earlier . That provision too entrusted the Executive with determination of the detailed rules for implementation of the regulation under the Management Committee procedure; but it also provided that such authority may entail "other derogations" from the regulations on the common agricultural policy .

Of the two views put forward, I prefer that of the Commission, at least in so far as it is based on Regulation No 974/71 . The rules on MCMs, of which that regulation forms part, must in fact be regarded as constituting a lex specialis in relation to the measures establishing the common market organizations : and, by referring to "other derogations", the provision relied upon by the Commission furnishes incontestable proof of its status as such . By limiting the territorial validity of export certificates showing advance fixing of the MCM, the Commission thus lawfully exercised the power vested in it by Article 6 ( 1 ) of Regulation No 974/71 .

No more acceptable is the second criticism, to the effect that Article

2 ( 3 ) of Regulation No 243/78 infringes Article 16 of Commission Regulation No 193/75, which attributes to certificates issued by the authorities in one Member State the effects attaching to the corresponding national documents . Both provisions emanate from the same source and it is obvious that the author is free to derogate from a rule which it adopted at an earlier stage .

In the third place, Kroecken complains of infringement of the principle of proportionality . The limitation imposed on the validity of the certificate is, it contends, not strictly necessary for the attainment of the aims - in particular that of preventing speculation - which the Commisison intended to pursue .

That complaint must likewise be rejected . As is well known, the advance fixing of MCMs raises the problem - a new problem, but one which was soon noticed by the legislature ( see the third and fifth recitals in the preamble to Regulation No 243/78 ) - of avoiding abuses for speculative ends; more specifically, that of ensuring that exporters in countries with weak currencies do not gamble on currency fluctuations occurring after the issue of the certificate, by exporting from that Member State which at the relevant time guarantees the best exchange rate . Now it seems to me that in order to satisfy that requirement there was only one possibility open to the Commission : that of limiting the territorial validity of certificates showing the advance fixing of the MCM to a single Member State, although allowing the trader concerned to specify which . Furthermore, it was recognized in the Pardini judgment to which I referred earlier that "the system of advance fixing ... was created in the interests of trade and ... in normal cases gives traders considerable benefits . If by requesting advance fixing traders take advantage of those benefits, it is ... just that they should bear the disadvantages which arise from the necessity, on the part of the Community, of preventing any abuse" ( paragraph 21 ).

I shall return to this matter when answering the first question . At this stage I need merely point out that the discretionary power vested in the Commission by the applicable rules is certainly quite wide . I would add, inter alia in the light of the Pardini judgment, that the Commission exercised it for a purpose which might be described as being required of it and in any event was in conformity with the principle of proportionality .

Having established the validity of Article 2 ( 3 ) of Regulation No 243/78 I must now consider the questions . It will be remembered that the Bundesfinanzhof asks the Court first of all to establish whether the limitation imposed by that provision on the territorial validity of export certificates showing advance fixing of the MCM extends to the advance fixing of export refunds also recorded on them .

The answer suggested to the Court by Kroecken is of course that it does not . Kroecken starts by saying that it is necessary to distinguish between the export certificate contemplated in the provision at issue, the certificate showing advance fixing of the refund and the certificate showing advance fixing of the MCM . Particularly clear support for that distinction is to be found in the German text of that provision; and, whilst it is undeniable that the third recital in the preamble to the regulation allows the advance fixing of MCMs only where the levy or refund has also been fixed in advance, it is also true that the fifth recital is concerned solely with limiting the "Gultigkeitsdauer" of a certificate to the territory of a single Member State . That restriction relates therefore only to the period of validity : that being inter alia the wording used in the fourth recital in the French version of the measure .

The conclusions to which the foregoing considerations lead are obvious : the three certificates represent distinct administrative acts and certainly cannot be regarded as forming a single whole because they are contained in the same document . There is thus nothing to prevent them from being subject to different rules and, in particular, there is nothing to prevent the limitation of territorial validity imposed with respect to MCMs from not being applied to the export refund system . Moreover, that view is expressed in the judgment of 8 April 1976 in Case 106/75 Merkur-Aussenhandel GmbH (( 1976 )) ECR 531, according to which the entitlement to the refund subsists even if the product exported is not the one for which the certificate was issued . Underlying that principle is an acknowledgment of the difference between the aims pursued by the rules on certificates and the rules on refunds : the first seek to offer the Community a means of forecasting movements of goods and the second is intended to offset the difference between Community prices and those prevailing on the world market .

The opposite view is taken by the Hauptzollamt and the Commission . In their opinion the distinction advocated by Kroecken has no foundation : the three documents form a single and inseparable administrative measure, and for that reason the limitation imposed upon its validity must be taken to refer to all the effects which it is capable of producing .

I associate myself with the latter view . Admittedly, as often happens with secondary law, certain problems are raised by the fact that the language versions of Article 2 ( 3 ) of Regulation No 243/78 do not coincide exactly . In the French, Italian and Dutch versions, for example, the measure which authorizes the export and that which fixes the refund and the MCM in advance are described by the same term "certificat", "certificato" and "certificaat "). By contrast, the German, English and Danish versions use different words "Lizenz" and "Bescheinigung", "licence" and "certificate" and "licence" and "attest "). Moreover, whilst in the German and Danish versions the limitation of territorial validity is linked to the "Lizenz" or "licens", in the English version it is linked to the "certificate ". It is thus understandable why Kroecken relies upon the German version : that version makes it appear certain that the limitation does not relate to advance fixing of the refund .

As I said earlier, however, that conclusion is supported only by the Danish text . And it is contradicted by a decisive observation made by the Commission : Article 1 of Regulation No 193/75 ( now 3183/80 ) gives a definition of "licences" ( in German "Lizenzen ") which covers both those relating to exports (" Ausfuhrlizenzen ") and those relating to advance fixing (" Vorausfestsetzungsbescheinigungen "). The term thus has a generic meaning : and that makes it possible without difficulty to interpret Article 2 ( 3 ) of Regulation No 243/78 as meaning that, where the MCM is fixed in advance, the limit laid down thereby applies to all the certificates contained in the customs document .

The view which I prefer is also supported by a number of considerations of legislative policy . As is apparent from the Pardini judgment, the advance fixing of MCMs is a benefit granted to traders carrying out operations from and to non-member countries, in so far as it enables them to make more accurate calculations and to offset the risks to which they are exposed as a result of fluctuations in world prices . Now, according to the rule cuius commoda eius et incommoda, those to whom benefits are granted must also bear the corresponding burdens . It is therefore reasonable that, having regard to the advance fixing, Community law should increase the amount of the security or, as in the present case, limit the validity of the certificate to only one country .

But the measure under review is seen to be reasonable above all if account is taken of the fact that it facilitates avoidance of the risk of speculation illustrated by the Commission in its replies to the questions put to it by the Court . If a trader who had applied for advance fixing of the MCM were free to disregard the fixing and export from other Member States, there would be nothing to prevent him from choosing in every case the solution most favourable to him and the most onerous for the European Agricultural Guidance and Guarantee Fund ( EAGGF ). Consider the case where in a country with negative MCMs ( as was the case in France where the certificate concerned here was issued ) there was a devaluation and, consequently, an increase in the MCMs : the exporter would without doubt choose to pay the sums involved at the ( lower ) rate fixed in advance . Conversely, in the event of revaluation he would prefer to abandon the amount fixed in advance and pay the ( lower ) rate ruling on the day of export . And of course mutatis mutandis the same would happen in a State where the MCMs were positive .

Limitation of the territorial validity of the certificate is therefore necessary in order to ensure that a facility designed to be in the interests of trade does not have a boomerang effect on the EAGGF . This can be illustrated by another example : a trader who had applied for and obtained advance fixing of the MCM and of the refund at the same time could, if he perceived it to be to his advantage, waive the MCM and export from a Member State other than that which he himself had chosen in advance; but he would retain - and this is the important point - at the expense of the EAGGF - the certainty and the probable advantages accruing to him from advance fixing of the refund .

And that is not all . The Commission is certainly corrrect in its observation that the system' s guarantee mechanisms are based on the premiss that the certificates are unitary in character, as is proved by the fact that the obligations to which they give rise are covered by a single security . If the certificates could be separated into component parts the legislature would have had to provide for a security for each of the obligations deriving from them .

Finally, it seems to me that Kroecken' s reference to the Merkur judgment is irrelevent . Admittedly, it is stated in that judgment that a trader is entitled to the refund even when he has exported goods other than those for which the licence was issued . But in that case the difference between the goods exported and the product indicated on the certificate was minimal and there was certainly no speculative intent underlying the consequent change in the customs classification . Furthermore, the refund was granted at the rate fixed for the product actually exported .

In the second question the national court asks whether "in certain circumstances" the principle of the protection of legitimate expectations makes it necessary also to grant the refund at the rate fixed in advance . The hypothesis to which the question relates is based on the facts of the case : an exporter whose invalid certificate was initially accepted by the national authority is in a position to prove that, had he known that he would not receive a refund of the amount fixed in advance, he would have produced another certificate or else would have effected the export from the Member State in which the certificate produced was valid .

Kroecken considers that the question should be answered in the affirmative, whilst the Hauptzollamt and the Commission observe that, since Kroecken' s representative contributed to the customs error, it is not entitled to any protection . For my part, I advocate a negative answer, but not on the same grounds as those put forward by Kroecken' s adversaries .

The company asks for the application of a "fairness clause" similar to those which, in other areas of Community law, make it possible to limit the damage suffered by a person through an error for which he is not responsible or to uphold the legitimate expectations engendered in him by a particular course of conduct on the part of the administration ( see Article 5 of Council Regulation No 1697/79, Official Journal 1979 197 p . 1, on the post-clearance recovery of duties and Article 13 of Council Regulation No 1430/79 of 2 July 1979, Official Journal 1979 175, p . 1, on the repayment or remission of import or export duties ). But Kroecken is overlooking Article 8 ( 2 ) of Regulation No 729/70 of the Council of 21 April 1970, Official Journal, English Special Edition 1970 ( I ), p . 218, on the financing of the common agricultural policy, according to which "in the absence of total recovery (( of sums lost by reason of irregularities or negligence )), the financial consequences shall be borne by the Community, with the exception of the consequences of irregularities or negligence attributable to administrative authorities or other bodies of the Member States ".

There is no doubt that in the present case the error ( if there was one ) was committed by the German customs authorities, and the conduct of the Community authorities is not at issue . Nor may it be objected that Article 8 ( 2 ) of Regulation No 729/709 is not applicable to this case . It is clear that there is a close analogy between the repayment of sums due and the payment of a refund at a rate higher than normal, if only because in both cases the expenses of the operation are to be paid out of the Community' s own resources .

Finally, Kroecken' s case is undermined by a number of pronouncements of the Court, and in particular that of 13 November 1984 in Joined Cases 98 and 230/83 Van Gend en Loos (( 1984 )) ECR 3763, paragraph 20 . The Court held that no protection was available for a trader whose export certificates were initially accepted by the customs officials and then, after more detailed investigations, were considered by the same authorities to be invalid ( see also, with respect to aids, the judgment of 24 February 1987 in Case 310/85 Deufill (( 1987 )) ECR 901, paragraphs 24 and 25 ).

The conclusion which I have reached does not of course deprive the aggrieved party of the possibility of bringing an action before the national court for compensation to be paid by the authorities responsible for the error which, in its view, caused it damage .

In view of all the foregoing considerations, I suggest that the Court should give the following answers to the questions submitted to it for a preliminary ruling by the Bundesfinanzhof by order of 29 October 1986 in the proceedings pending before it between Hauptzollamt Hamburg-Jonas and the company P . Kroecken of Mannheim :

( a ) Article 2 ( 3 ) of Commission Regulation No 243/78 must be interpreted as meaning that the advance fixing of a refund is not applicable to the export referred to in a document which also records the advance fixing of the monetary compensatory amount - produced at the time of exportation from a Member State - where that document is valid in another Member State;

( b ) there is no reason to change that interpretation on the basis of the Community principle requiring the protection of legitimate expectations, even in the special circumstances described by the national court .

(*) Translated from the Italian .