Judgment of the Court of 12 December 1978. - Bundesanstalt für landwirtschaftliche Marktordnung v Jacob Hirsch & Söhne GmbH. - Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. - Cancellation on the ground of error of an application for a licence to import cereals. - Case 85/78.



European Court reports 1978 Page 02517

Greek special edition Page 00789

Portuguese special edition Page 00875



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - IMPORT LICENCES - LEVY - ADVANCE FIXING - APPLICATION BY PARTY CONCERNED - ERROR IN THE DECLARATION OF INTENT - APPLICABLE LAW - COMMUNITY LAW

( REGULATION NO 19/62/EEC OF THE COUNCIL , ART . 16 ( 1 ); REGULATION NO 130/62/EEC OF THE COUNCIL )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - IMPORT LICENCES - LEVY - ADVANCE FIXING - APPLICATION BY PARTY CONCERNED - ERROR IN THE DECLARATION OF INTENT - CANCELLATION NOT PERMISSIBLE

( REGULATION NO 19/62/EEC OF THE COUNCIL , ART . 16 ( 1 ); REGULATION NO 130/62/EEC OF THE COUNCIL )

Summary

1 . THE QUESTION WHETHER AN APPLICATION FOR THE GRANT OF AN IMPORT LICENCE UNDER THE FIRST SENTENCE OF ARTICLE 16 ( 1 ) OF REGULATION NO 19/62/EEC CAN BE CANCELLED AND WHAT THE EFFECTS OF SUCH CANCELLATION ARE MUST , HAVING REGARD TO THE SYSTEM ESTABLISHED BY THAT REGULATION , TOGETHER WITH REGULATION NO 130/62/EEC OF THE COUNCIL , BE DECIDED ON THE BASIS OF COMMUNITY LAW .

2 . IN VIEW OF THE CONTINUAL VARIATIONS IN THE RATE OF THE LEVY , IF ERRORS RELIED UPON BY TRADERS WERE TAKEN INTO CONSIDERATION IT WOULD BE POSSIBLE TO CALL IN QUESTION UNILATERALLY , ON THE BASIS OF THOSE FLUCTUATIONS , THE UNDERTAKINGS GIVEN BY IMPORTERS AND THE FORECASTS WHICH ARE ESSENTIAL FOR THE PURPOSE OF ENSURING EFFECTIVE MANAGEMENT OF THE COMMON MARKET IN CEREALS WOULD THUS BE MADE COMPLETELY UNRELIABLE .

AN IMPORTER CANNOT , WITHIN THE CONTEXT OF THE ORGANIZATION OF THE MARKET ESTABLISHED BY REGULATIONS NOS 19 AND 130 , RELY UPON AN ERROR MADE BY HIM AS REGARDS THE OPTION OF CHOOSING BETWEEN THE RATE OF THE LEVY IN FORCE AT THE DATE OF LODGING THE APPLICATION AND THAT IN FORCE AT THE DATE OF IMPORTATION ; RELIANCE UPON SUCH AN ERROR CANNOT IN PARTICULAR JUSTIFY CANCELLATION OF THE APPLICATION FOR THE GRANT OF AN IMPORT LICENCE .

Parties

IN CASE 85/78

REFERENCE UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF THE AGRICULTURAL MARKETS ), HAVING ITS OFFICES IN FRANKFURT AM MAIN ,

AND

FIRMA JACOB HIRSCH & SOHNE GMBH , WHOLESALER AND IMPORTER OF CEREALS , FEEDING-STUFFS AND SEEDS , HAVING ITS REGISTERED OFFICE IN MANNHEIM ,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 16 OF REGULATION NO 19/62/EEC OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ,

Grounds

1BY ORDER OF 27 JANUARY 1978 , RECEIVED AT THE COURT ON 28 MARCH 1978 , THE BUNDESVERWALTUNGSGERICHT REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY QUESTIONS ON THE INTERPRETATION OF REGULATION NO 19/62/EEC OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( JOURNAL OFFICIEL 1962 , P . 933 ) AND OF REGULATION NO 130/62/EEC OF THE COUNCIL OF 23 OCTOBER 1962 PROVIDING FOR EXCEPTIONS TO ARTICLE 17 OF REGULATION NO 19/62/EEC OF THE COUNCIL IN THE MATTER OF ADVANCE FIXING OF THE LEVY ON CERTAIN PRODUCTS ( JOURNAL OFFICIEL 1962 , P . 2555 ) IN RELATION TO THE QUESTION OF THE POSSIBILITY OF TAKING INTO ACCOUNT AN ERROR MADE BY THE APPLICANT FOR AN IMPORT LICENCE WITHIN THE CONTEXT OF THE PROVISIONS APPLICABLE AT THAT DATE TO INTRA-COMMUNITY TRADE IN CEREALS .

2IT APPEARS FROM THE ORDER FOR REFERENCE THAT ON 16 JANUARY 1963 FIRMA JACOB HIRSCH & SOHNE GMBH APPLIED TO THE GERMAN INTERVENTION AGENCY FOR A LICENCE FOR THE IMPORTATION OF A CONSIGNMENT OF FRENCH BARLEY , INDICATING IN ITS APPLICATION APRIL 1963 AS THE DATE OF DELIVERY . IN ACCORDANCE WITH THE APPLICABLE PROVISIONS LAID DOWN IN THE REGULATIONS , A BANK GUARANTEE ENSURED THAT THE IMPORT LICENCE APPLIED FOR WOULD BE ACTED UPON . THE IMPORT LICENCE WAS GRANTED BY THE INTERVENTION AGENCY ON THE DAY FOLLOWING THE LODGING OF THE APPLICATION , IN OTHER WORDS ON 17 JANUARY 1963 . THREE WEEKS AFTER OBTAINING THE LICENCE , THE UNDERTAKING APPROACHED THE INTERVENTION AGENCY WITH A VIEW TO OBTAINING ADVANCE FIXING OF THE LEVY AT THE RATE IN FORCE ON THE DATE OF ITS APPLICATION OF 16 JANUARY 1963 , CLAIMING THAT IT HAD FORGOTTEN TO DO SO AT THE TIME WHEN IT FILLED IN THE APPLICATION FORM FOR THE ISSUE OF THE LICENCE . THE INTERVENTION AGENCY REJECTED THIS REQUEST AND THE UNDERTAKING CONCERNED DECLARED BY LETTER OF 5 APRIL 1963 THAT IT CONTESTED THE VALIDITY OF ITS FIRST APPLICATION BECAUSE OF THE ERROR WHICH IT HAD MADE WHEN LODGING IT . CONSEQUENTLY , IT MAINTAINS THAT THE IMPORT LICENCE GRANTED ON THE BASIS OF THAT APPLICATION IS NOT VALID AND THEREFORE CLAIMS THE RELEASE OF ITS SECURITY . FOR ITS PART , THE INTERVENTION AGENCY DECLARED THE SECURITY FORFEIT ON THE DATE ON WHICH IT WAS ESTABLISHED THAT THE IMPORTATION WHICH WAS THE SUBJECT-MATTER OF THE LICENCE GRANTED HAD NOT BEEN CARRIED OUT WITHIN THE PRESCRIBED PERIOD .

3AN APPLICATION LODGED BY THE UNDERTAKING CONCERNED AT THE VERWALTUNGSGERICHT FRANKFURT FOR REPAYMENT OF THE SECURITY WAS DISMISSED BY JUDGMENT OF 10 JULY 1974 . THE UNDERTAKING APPEALED TO THE HESSISCHER VERWALTUNGSGERICHTSHOF AND THAT COURT FOUND IN ITS FAVOUR ON THE BASIS ESSENTIALLY OF AN ANALOGOUS APPLICATION OF THE RULES OF GERMAN CIVIL LAW ON THE CANCELLATION OF DECLARATIONS OF INTENT ON THE GROUND OF ERROR . THE INTERVENTION AGENCY BROUGHT A FURTHER APPEAL AGAINST THAT DECISION TO THE BUNDESVERWALTUNGSGERICHT ; THAT COURT SUBMITTED TO THE COURT OF JUSTICE THE FOLLOWING QUESTIONS :

1 . MUST THE QUESTION WHETHER AN APPLICATION FOR THE GRANT OF AN IMPORT LICENCE UNDER THE FIRST SENTENCE OF ARTICLE 16 ( 1 ) OF REGULATION NO 19/62/EEC CAN BE CANCELLED AND WHAT THE EFFECTS OF SUCH CANCELLATION ARE BE DECIDED ACCORDING TO NATIONAL LAW?

2 . IN THE EVENT OF QUESTION 1 BEING ANSWERED IN THE NEGATIVE : CAN SUCH AN APPLICATION BE CANCELLED UNDER EEC LAW ON THE GROUND OF ERROR AND IF SO CAN THIS BE DONE EVEN WHERE THE ERROR IS THE FAULT OF THE APPLICANT?

3 . IN THE EVENT OF QUESTION 2 BEING ANSWERED IN THE AFFIRMATIVE : WHAT LEGAL CONSEQUENCES HAS SUCH CANCELLATION ON THE FORFEITURE OF THE SECURITY WHICH THE APPLICANT HAS TO LODGE UNDER THE SECOND SENTENCE OF ARTICLE 16 ( 2 ) OF REGULATION NO 19/62/EEC TO GUARANTEE THE OBLIGATION TO IMPORT WHILE THE LICENCE IS VALID?

4THE QUESTIONS RAISED BY THE BUNDESVERWALTUNGSGERICHT MUST BE SETTLED WITHIN THE CONTEXT OF THE SYSTEM ESTABLISHED BY REGULATIONS NOS 19 AND 130 ON THE ORGANIZATION OF THE MARKET IN CEREALS .

5AS REGARDS INTRA-COMMUNITY TRADE , REGULATION NO 19 ESTABLISHED A SYSTEM OF LEVIES LINKED , ACCORDING TO ARTICLE 16 , TO THE GRANT OF AN IMPORT LICENCE . THE GRANT OF THAT LICENCE IS MADE SUBJECT , UNDER ARTICLE 16 ( 2 ) OF THAT REGULATION , TO THE LODGING OF A SECURITY WHICH GUARANTEES THE UNDERTAKING TO CARRY OUT THE IMPORTATION DURING THE PERIOD OF VALIDITY OF THE LICENCE AND WHICH IS FORFEIT IF THE IMPORTATION IS NOT CARRIED OUT WITHIN THAT PERIOD . UNDER ARTICLE 17 OF REGULATION NO 19/62/EEC , THE AMOUNT OF THE LEVY IS , IN THE CASE OF EACH IMPORTATION , THE LEVY APPLICABLE ON THE DATE ON WHICH THE IMPORTATION IS CARRIED OUT . IN DEROGATION FROM THAT PRINCIPLE , ARTICLE 17 ( 2 ) PROVIDED FOR THE POSSIBILITY OF FIXING IN ADVANCE THE AMOUNT OF THE LEVY FOR CEREALS IMPORTED FROM THIRD COUNTRIES ( A SYSTEM CALLED ' ' ADVANCE FIXING ' ' ).

6REGULATION NO 130/62/EEC SUBSEQUENTLY EXTENDED THAT OPTION TO IMPORTS OF CERTAIN CEREALS IN INTRA-COMMUNITY TRADE . FOR THIS PURPOSE , ARTICLE 2 OF THAT REGULATION PROVIDES THAT THE LEVY APPLICABLE WHERE THOSE CEREALS , INCLUDING BARLEY , ARE IMPORTED FROM MEMBER STATES ' ' IS FIXED IN ADVANCE UPON REQUEST TO BE MADE BY THE PERSON CONCERNED WHEN THE APPLICATION FOR THE LICENCE IS LODGED IN THE CASE OF AN IMPORTATION TO BE CARRIED OUT DURING THE PERIOD OF VALIDITY OF THAT LICENCE ' ' .

7IT FOLLOWS FROM A COMPARISON OF ARTICLE 17 OF REGULATION NO 19/62/EEC , THE BASIC REGULATION , WITH THE ABOVE-MENTIONED PROVISION OF REGULATION NO 130/62/EEC THAT THE GENERAL RULE IN THIS MATTER IS THE APPLICATION OF THE LEVY IN FORCE ON THE DATE OF THE IMPORTATION , WHEREAS ADVANCE FIXING APPEARS TO BE A SPECIAL BENEFIT WHICH AN IMPORTER MAY ONLY OBTAIN AT HIS EXPRESS REQUEST . IT IS THEREFORE FOR THE IMPORTER TO TAKE THE NECESSARY STEPS TO OBTAIN THE GRANT OF THAT BENEFIT IF IT IS IN HIS COMMERCIAL INTERESTS , AND THE AUTHORITIES ARE NOT BOUND TO GRANT THE BENEFIT OF ADVANCE FIXING UNLESS THERE IS AN EXPRESS REQUEST TO THAT EFFECT .

8THE FACT THAT THE APPLICATION FOR ANY IMPORT LICENCE MUST BE ACCOMPANIED BY A BANK GUARANTEE EMPHASIZES THAT THE IMPORTER UNDERTAKES BY HIS APPLICATION TO COMPLY STRICTLY WITH THE TERMS OF THE IMPORT DOCUMENT APPLIED FOR .

9IN VIEW OF THE CONTINUAL VARIATIONS IN THE RATE OF THE LEVY , IF ERRORS RELIED UPON BY TRADERS WERE TAKEN INTO CONSIDERATION IT WOULD BE POSSIBLE TO CALL IN QUESTION UNILATERALLY , ON THE BASIS OF THOSE FLUCTUATIONS , THE UNDERTAKINGS GIVEN BY IMPORTERS AND THE FORECASTS WHICH ARE ESSENTIAL FOR THE PURPOSE OF ENSURING EFFECTIVE MANAGEMENT OF THE COMMON MARKET IN CEREALS WOULD THUS BE MADE COMPLETELY UNRELIABLE .

10IN CASES SUCH AS THE PRESENT CASE , TO PREVENT IMPORTERS FROM REPUDIATING UNILATERALLY THEIR APPLICATIONS DOES NOT MOREOVER INVOLVE ANY UNJUSTIFIED HARDSHIP , WHEREAS THE EFFECT OF MAINTAINING THE LICENCE ONCE GRANTED IN ACCORDANCE WITH THE TERMS OF THE APPLICATION LODGED WITH THE INTERVENTION AGENCY IS MERELY THAT THE LEVY JUSTIFIED BY THE STATE OF THE MARKET AT THE ACTUAL DATE OF IMPORTATION IS APPLIED .

11IT IS NECESSARY TO CONCLUDE THAT AN IMPORTER CANNOT , WITHIN THE CONTEXT OF THE ORGANIZATION OF THE MARKET ESTABLISHED BY REGULATIONS NOS 19 AND 130 , RELY UPON AN ERROR MADE BY HIM AS REGARDS THE OPTION OF CHOOSING BETWEEN THE RATE OF THE LEVY IN FORCE AT THE DATE OF LODGING THE APPLICATION AND THAT IN FORCE AT THE DATE OF IMPORTATION .

12IT IS THEREFORE NECESSARY TO REPLY FIRSTLY THAT THE QUESTION WHETHER AN APPLICATION FOR THE GRANT OF AN IMPORT LICENCE UNDER THE FIRST SENTENCE OF ARTICLE 16 ( 1 ) OF REGULATION NO 19/62/EEC MAY BE CANCELLED AND WHAT THE EFFECTS OF SUCH CANCELLATION ARE MUST , HAVING REGARD TO THE SYSTEM ESTABLISHED BY THE ABOVE-MENTIONED REGULATION , TOGETHER WITH REGULATION NO 130/62/EEC , BE DECIDED ON THE BASIS OF COMMUNITY LAW . IT IS NECESSARY TO REPLY , THEREFORE , TO THE SECOND QUESTION THAT HAVING REGARD TO THE SYSTEM LAID DOWN BY THE ABOVE-MENTIONED REGULATIONS , AN APPLICATION FOR THE GRANT OF AN IMPORT LICENCE CANNOT BE CANCELLED BY THE APPLICANT ON THE GROUND OF AN ERROR IN HIS DECLARATION OF INTENT AS REGARDS THE CHOISE , MADE AVAILABLE UNDER REGULATION NO 130 , BETWEEN THE APPLICATION OF THE LEVY IN FORCE ON THE DATE ON WHICH THE APPLICATION WAS LODGED AND THE APPLICATION OF THE LEVY IN FORCE ON THE DATE OF IMPORTATION .

13IN VIEW OF THE REPLY GIVEN TO THE SECOND QUESTION , THE THIRD QUESTION IS PURPOSELESS .

Decision on costs

COSTS

14THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE BUNDESVERWALTUNGSGERICHT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESVERWALTUNGSGERICHT BY ORDER OF 27 JANUARY 1978 HEREBY RULES :

1 . THE QUESTION WHETHER AN APPLICATION FOR THE GRANT OF AN IMPORT LICENCE UNDER THE FIRST SENTENCE OF ARTICLE 16 ( 1 ) OF REGULATION NO 19/62/EEC OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS CAN BE CANCELLED AND WHAT THE EFFECTS OF SUCH CANCELLATION ARE MUST , HAVING REGARD TO THE SYSTEM ESTABLISHED BY THAT REGULATION , TOGETHER WITH REGULATION NO 130/62/EEC OF THE COUNCIL OF 23 OCTOBER 1962 PROVIDING FOR EXCEPTIONS TO ARTICLE 17 OF REGULATION NO 19 OF THE COUNCIL IN THE MATTER OF ADVANCE FIXING OF THE LEVY ON CERTAIN PRODUCTS , BE DECIDED ON THE BASIS OF COMMUNITY LAW .

2 . HAVING REGARD TO THE SYSTEM LAID DOWN IN REGULATIONS NOS 19 AND 130 OF THE COUNCIL , AN APPLICATION FOR THE GRANT OF AN IMPORT LICENCE CANNOT BE CANCELLED BY THE APPLICANT ON THE GROUND OF AN ERROR IN HIS DECLARATION OF INTENT AS REGARDS THE CHOICE , MADE AVAILABLE UNDER REGULATION NO 130 , BETWEEN THE APPLICATION OF THE LEVY IN FORCE ON THE DATE ON WHICH THE APPLICATION WAS LODGED AND THE APPLICATION OF THE LEVY IN FORCE ON THE DATE OF IMPORTATION .