Judgment of the Court (Fourth Chamber) of 23 January 1997. - ANDRE en Co. NV v Belgian State. - Reference for a preliminary ruling: Raad van State - Belgium. - Monetary compensatory amounts - Exemption. - Case C-153/95.



European Court reports 1997 Page I-00311



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

Agriculture - Monetary compensatory amounts - Exemption from the charge - Relief clause - Scope - Borders crossed twice - Excluded - Import and export by different traders - No effect

(Commission Regulation No 926/80, Art. 8(2)(b))

Summary

Article 8(2)(b) of Regulation No 926/80 on exemption from the application of monetary compensatory amounts in certain cases where, as a result of changes to those amounts occurring between the conclusion of a contract and its performance, an additional charge is imposed on a trader, must be interpreted as meaning that the refusal of exemption under that provision applies equally to an exported product which is reimported within six months of its export and to an exported product which had previously been imported within the six months preceding its export.

In the latter situation, in order to refuse exemption from payment of monetary compensatory amounts, it is sufficient for the same product to be exported within six months of its importation, irrespective of whether it was imported by the same or another trader. Since the system of monetary compensatory amounts is designed to influence the formation of prices of agricultural products and not to prevent traders from making unusual profits or losses, the objective of Regulation No 926/80 is not to provide traders engaged in the performance of contracts containing predetermined conditions with full protection against the application of those monetary compensatory amounts following a monetary measure.

Parties

In Case C-153/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Belgian Raad van State, Belgium, for a preliminary ruling in the proceedings pending before that court between

ANDRÉ en Co. NV

and

Belgian State

on the interpretation of Commission Regulation (EEC) No 926/80 of 15 April 1980 on exemption from the application of monetary compensatory amounts in certain cases (OJ 1980 L 99, p. 15),

THE COURT

(Fourth Chamber),

composed of: C.N. Kakouris (Rapporteur), acting as President of the Chamber, P.J.G. Kapteyn and H. Ragnemalm, Judges,

Advocate General: A. La Pergola,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- ANDRÉ en Co. NV, by Jacques Steenbergen and Harold Nyssens, of the Brussels Bar,

- the Belgian Government, by Jan Devadder, Director of Administration in the Ministry of Foreign Affairs, External Trade and Cooperation with Developing Countries, acting as Agent,

- the Commission of the European Communities, by Hubertus van Vliet and Klaus-Dieter Borchardt, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of ANDRÉ en Co. NV, represented by Jacques Steenbergen, of the Belgian Government, represented by Paul Aerts, of the Ghent Bar, and of the Commission, represented by Hubertus van Vliet, at the hearing on 4 July 1996,

after hearing the Opinion of the Advocate General at the sitting on 19 September 1996,

gives the following

Judgment

Grounds

1 By order of 7 February 1995, received at the Court on 15 May 1995, the Raad van State van België (Belgian Council of State) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Article 8 of Commission Regulation (EEC) No 926/80 of 15 April 1980 on exemption from the application of monetary compensatory amounts in certain cases (OJ 1980 L 99, p. 15).

2 Those questions were raised in proceedings between ANDRÉ en Co. NV (`ANDRÉ'), a limited company having its registered office in Belgium, and the Belgian State concerning exemption from monetary compensatory amounts (`MCAs') for which ANDRÉ applied in 1982 pursuant to Regulation No 926/80, following the exportation of various quantities of cereals.

3 Before Regulation No 926/80, the Commission had adopted Regulation (EEC) No 1608/74 of 26 June 1974 on special provisions in respect of monetary compensatory amounts (OJ 1974 L 170, p. 38), which concerned exemption from the payment of MCAs in respect of imports or, as the case might be, exports carried out after those amounts were introduced or increased but made pursuant to contracts concluded before those amounts were introduced or increased (`existing contracts').

4 Since Regulation No 1608/74 had established only a very general framework for waiving payment of MCAs, the Commission considered that it would be appropriate, in the light of past experience, to draw up more detailed rules. Accordingly, it replaced Regulation No 1608/74 with Regulation No 926/80, which pursued the same objective of mitigating the disadvantages arising from existing contracts. Regulation No 926/80 therefore lays down the criteria and conditions in accordance with which Member States may or may not grant exemption from payment of MCAs.

5 In particular, Article 8 of Regulation No 926/80 provides:

`(1) Exemption may be granted only where the applicant, or the contracting party on whose behalf he acts, is subject, by virtue of the new monetary compensatory amount, to an additional expense which he could not have avoided by taking all the necessary and normal precautions.

(2) However, the provisions of this regulation shall not apply:

(a) (...)

(b) where it is established that the product to which the new monetary compensatory amount applies is re-exported or re-imported within six months of import or export.

(3) (...)'

6 Subsequently, Regulation No 926/80 was repealed by Commission Regulation (EEC) No 1084/84 of 18 April 1984 (OJ 1984 L 106, p. 26), and no new regulation has been adopted.

7 It is apparent from the order for reference that by eight contracts concluded between 15 January and 2 February 1982 ANDRÉ sold to companies having their registered offices in France and the Netherlands quantities of cereals which were exported and delivered between March and July 1982. Under those contracts, any MCAs to be paid on exportation were to be borne by the seller.

8 In order to carry out those deliveries, under the terms of eight contracts concluded in January and early February 1982, ANDRÉ bought from companies established in Belgium the same type and quantity of foreign cereals imported by those companies. Those contracts provided for the cereals to be delivered to ANDRÉ between February and July 1982.

9 It is common ground that those import and export operations took place between Member States. Furthermore, less than six months elapsed between the importation and exportation of the cereals.

10 On 21 February 1982 the Belgian franc was devalued. Consequently, an MCA of 8.6% was introduced and was to be granted upon importation of certain agricultural products into Belgium and a corresponding MCA of 8.6% was to be levied upon their exportation from Belgium.

11 Initially, ANDRÉ applied to the Centrale Dienst voor Contingenten en Vergunningen (`Central Quotas and Licences Agency', `the CDCV') for exemption from payment of MCAs pursuant to Article 8 of Regulation No 926/80. Since that application was unsuccessful, ANDRÉ lodged a complaint with the CDCV which was also rejected by decision of 24 November 1986, on the ground that the exported goods had been `cleared through customs in Belgium' to be re-exported later. ANDRÉ brought an action for the annulment of that decision before the Raad van State.

12 In that action, ANDRÉ claimed that the CDCV's decision was contrary to Article 8(2)(b) of Regulation No 926/80. In its first plea, ANDRÉ maintains that under that provision exemption is to be refused, not where, as in the circumstances of this case, imported goods are re-exported but only where the export transaction in respect of which exemption is claimed is followed by re-importation of the goods. In its second plea, it argues that even though Article 8(2)(b) of Regulation No 926/80 permits exemption from MCAs to be refused also where goods in respect of which an MCA has been granted on prior importation are re-exported, that provision applies only where the beneficiary of the exemption is the same person as the recipient of the MCAs on prior importation. The reason for this is that Regulation No 926/80 is intended to grant exemption from MCAs to those who themselves bear additional expenses which they could not have avoided even though they had taken all the normal and necessary precautions. Consequently, a disadvantage suffered in this case by the exporter cannot be offset by an advantage accruing to another importer effecting importation, even in the six months preceding exportation.

13 Having regard to the grounds set out above and to its own considerations, the Raad van State, uncertain as to the interpretation of that provision of Regulation No 926/80, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

`(1) Must Article 8(2)(b) of Commission Regulation (EEC) No 926/80 of 15 April 1980 be interpreted as meaning that application of that regulation in respect of an export operation must be refused where the products to which the new monetary compensatory amount applies were imported less than six months before the export transaction?

(2) Must Article 8(2)(b) of Commission Regulation (EEC) No 926/80 of 15 April 1980 be interpreted as meaning that application of that regulation must also be refused with regard to an export operation in respect of which monetary compensatory amounts are due, where the export operation was preceded less than six months before by an import operation for which monetary compensatory amounts were received by a person other than the person who exported the products?'

Question 1

14 In its first question, the national court asks in essence whether Article 8(2)(b) of Regulation No 926/80 is to be interpreted as applying only where the exported product is subsequently re-imported within six months of exportation or also where the exported product had previously been imported within the six months preceding its exportation.

15 In that regard, Article 1 of Regulation No 926/80 refers to exemption of imports and exports from payment of new MCAs, without drawing a distinction between importation before or after exportation and exportation before or after importation.

16 Furthermore, according to the third recital in the preamble to the regulation, `the purpose of the rules is to exempt, on a discretionary basis, operations carried out under "existing contracts" from the application of monetary compensatory amounts'. It follows that the regulation applies without distinction both to exports preceded by importation of the product and to exports followed by re-importation within six months of exportation.

17 In refusing to waive payment of MCAs where goods cross the frontiers of a Member State twice, Article 8(2)(b) is intended to provide a corrective mechanism for preventing a trader who is granted exemption from receiving an unfair advantage. Wherever frontiers are crossed twice in the circumstances referred to in Article 8(2)(b) of Regulation No 926/80, MCAs are offset, so that the exemption provided for by the regulation is no longer justified.

18 It follows that the objective of Regulation No 926/80 is satisfied every time a frontier is crossed twice in the circumstances set out in Article 8(2)(b); this twofold crossing of the frontier thus leads to neutralization of the charge. The charge would not be so neutralized if exemption were granted in respect of MCAs to be paid on exportation, despite the fact that an equivalent MCA had been received when the product was imported during the six months before exportation.

19 Consequently, the answer to the first question must be that Article 8(2)(b) of Regulation No 926/80 is to be interpreted as applying also where the exported product had previously been imported within the six months preceding its exportation.

Question 2

20 In its second question, the national court asks essentially whether Article 8(2)(b) of Regulation No 926/80 is to be interpreted as meaning that, in order to refuse exemption from payment of MCAs, it is sufficient for the same product to be exported within six months of its importation, irrespective of whether it was imported by the same or another trader, or as meaning that, in order to refuse exemption, the importation and preceding or subsequent exportation of the product must be effected by the same trader only.

21 It should be noted in this respect that Regulation No 926/80 forms part of the system of MCAs which seeks objectively to stabilize prices with regard to trade in agricultural products and as far as possible to prevent the prices of those products from being disrupted by a Member State devaluing or revaluing its currency. It follows that the purpose of MCAs is to influence the formation of prices of agricultural products and not to prevent traders from making unusual profits or losses.

22 In order to achieve that purpose, Article 8(2)(b) of Regulation No 926/80 refers, with a view to the refusal of exemption from payment of MCAs, only to the product itself, without adding further conditions concerning the traders who are to receive or pay the MCAs. It follows that the imposition of an additional condition that exemption from payment of MCAs is to be refused only where the product is imported by the same person would run counter to the purpose of the system of MCAs and the grant or refusal of the exemptions provided for.

23 Furthermore, the objective of Regulation No 926/80 is not to protect traders generally from any disadvantage arising from existing contracts. As the Court noted in Case 152/80 Debayser and Others [1981] ECR 1291, paragraph 12, which concerned Regulation No 1608/74, replaced by Regulation No 926/80, the purpose which the provisions of Regulation No 1608/74 were designed to fulfil was not to provide traders engaged in the performance of contracts containing predetermined conditions with full protection against the application of MCAs following a monetary measure.

24 Moreover, as stated in the sixth recital in the preamble to Regulation No 926/80, the latter lays down certain fixed limits so as to prevent abuse and simplify administration. It follows that, as the Commission has correctly observed, if exemption from payment of MCAs in respect of a product could be granted notwithstanding the fact that equivalent MCAs had been granted not long before, merely because those MCAs had been received by another trader, this would encourage those concerned to enter into agreements in order to circumvent the purpose of the regulation by receiving MCAs on importing a product without having to pay them on re-exporting it, on account of exemption having been granted.

25 It follows from the foregoing that, where it is established that the product exported is the same as that previously imported in the circumstances provided for in Article 8(2)(b) of Regulation No 926/80, exemption must be refused, irrespective of whether the product was imported by the same or another trader.

26 Consequently, the answer to the second question must be that Article 8(2)(b) of Regulation No 926/80 is to be interpreted as meaning that, in order to refuse exemption from payment of MCAs, it is sufficient for the same product to be exported within six months of its importation, irrespective of whether it was imported by the same or another trader.

Decision on costs

Costs

27 The costs incurred by the Belgian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT

(Fourth Chamber),

in answer to the questions referred to it by the Belgian Raad van State, by order of 7 February 1995, hereby rules:

1. Article 8(2)(b) of Commission Regulation (EEC) No 926/80 of 15 April 1980 on exemption from the application of monetary compensatory amounts in certain cases is to be interpreted as applying also where the exported product had previously been imported within the six months preceding its exportation.

2. Article 8(2)(b) of Regulation No 926/80 is to be interpreted as meaning that, in order to refuse exemption from payment of MCAs, it is sufficient for the same product to be exported within six months of its importation, irrespective of whether it was imported by the same or another trader.