CELEX: 61972CC0020
Language: en
Date: 1972-10-05
Title: Opinion of Mr Advocate General Roemer delivered on 5 October 1972. # Belgian State v NV Cobelex. # Reference for a preliminary ruling: Rechtbank van Koophandel Antwerpen - Belgium. # Case 20-72.

OPINION OF MR ADVOCATE-GENERAL ROEMER
      DELIVERED ON 5 OCTOBER 1972 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The facts giving rise to the present case are as follows:
      The defendant and appellant in the main proceedings, a trading company with its registered office in Antwerp, imported maize from France into Belgium on 11 January 1964 and between 1 and 29 February 1964. These operations were carried out on the basis of import licences which were issued on 29 November 1963 and 3 December 1963 by the Belgisch-Luxemburgse Gemengde Administratieve Commissie (Belgian-Luxembourg Joint Administrative Commission) and were valid until 29 February 1964 (first licence) and 31 March 1964 (second licence). It was stated on the licences that they were only valid on production of a movement certificate on form DD4, that is, the certificate introduced by the Decision of the Commission of 17 July 1962 with regard to the application of the intra-Community levy for the common organization of the markets (JO 1962, p. 2140). In addition in accordance with the information given (nil levy) by the defendants by telex messages sent on 28 and 29 November 1963 (relating to the first licence) and on 2 December 1963 (relating to the second licence) the entry ‘O’ was made under the headings ‘duty’ and ‘charge’.
      The defendants received two final statements of account dated 12 March 1964 and 17 March 1964 in which the amount payable as levy was also stated to be ‘O’. However after the Belgian administration discovered that the relevant movement certificates DD4 mentioned the refunds for third countries paid to the French exporter which had apparently been granted in respect of exports of maize from France since October 1963, the statements of account were later amended by a letter of 6 July 1964 and levies imposed on the importations. However Cobelex refused to pay the amounts of levy set out in the amended statement of account. It did not alter its position after receiving on 13 July 1964 an answer to its complaint of 7 July 1964 wherein reference was made to a notification published in the Moniteur Belge of 24 January 1964 whereby the levy for third countries reduced by the flat-rate amount of BF 5.50 was applicable if cereal produced in the exporting Member State was imported in respect of which the refund to non-member countries was indicated in movement certificate DD4.
      In view of the attitude of Cobelex, on 20 February 1968 the Belgian State initiated proceedings at the Rechtbank van Koophandel, Antwerp, and applied for payment of the levy which it regarded as payable under Regulation No 19 (JO 1962, p. 933).
      Since in these proceedings problems concerning the application of provisions of Community law were at issue, the court stayed the proceedings by order of 26 April 1972 and referred the following questions to the Court of Justice for a preliminary ruling:
      
               1.
            
            
               Does Article 19(2) of Regulation No 19 of the Council of 4 April 1962 imply that where the exporting Member State grants refunds, the importing Member State is under a duty to apply levies on the importer immediately or is the importing Member State entitled to do so merely from a later date which it may determine?
            
         
               2.
            
            
               If the first hypothesis is correct, must it be considered that this duty only applies in respect of relations existing between the Member States concerned or does it also ipso jure influence relations between the importing Member State and the importer in that it is irrelevant that the latter observed all the formalities in that respect 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 State granted refunds?
            
         
               3.
            
            
               Again, if the first hypothesis is correct, does the ‘self-executing’ nature of Article 19(2) of Regulation No 19 go so far that apart from the notification provided for in the second subparagraph of Article 19(2), any announcement to the importers and exporters themselves made in advance in the manner prescribed by the national legislation of the Member States concerned is superfluous?
            
         The parties to the main action and the Commission of the European Communities submitted written observations and the defendant in the main action and the Commission presented oral argument.
      Before I examine these questions I think it is necessary to make some preliminary observations concerning the Community law which applied at the date of the imports and which is decisive for the solution of the problems raised.
      As the wording of the question already shows, Regulation No 19 on the progressive establishment of a common organization of the market in cereals is of decisive importance. It is also relevant that the organization of the market has not yet produced uniformity of prices. Within the limits set out by Community rules the Member States established basic target prices, intervention prices and threshold prices according to the situation in the national markets. In these circumstances, in order to compensate for differences in price it was necessary to impose intra-Community levies. As you know, they were based on the difference between the free-at-frontier price fixed by the Commission for the particular exporting country and the higher threshold price of the importing country. In addition, in the interests of intra-Community preference, they were reduced by a certain flat-rate amount. However in the organization of the market it was also provided that, with the aid of refunds, the exporting Member States could reduce the prices of exported goods to the level of world market prices. Under Article 19 of Regulation No 19 application of the above-mentioned normal intra-Community levy was excluded in such cases. However the amount of the levy was equal under Article 19 (2) (a), ‘to that charged vis-à-vis third countries in accordance with the provisions of this regulation less the standard amount provided for in Article 2(1)’.
      The following points should be noted in considering how the questions referred by the Rechtbank van Koophandel, Antwerp, should be answered in view of this basic regulation.
      
               1.
            
            
               First, with regard to the first question, namely the problem whether, where refunds are granted by the exporting Member State, the importing Member State must under Article 19 (2) (a) of Regulation No 19 apply the levies in respect of third countries reduced by a standard amount or whether it may impose such levies merely from a later time which it may determine.
               After the observations made in the course of the proceedings, I believe there can be no doubt that the answer can only be that there is a duty to charge the levies to the exclusion of all national discretionary power even in respect of the date of charging the levy.
               In this respect it may be pointed out that in general the Member States do not possess any freedom with regard to the imposition of levies. This is evident from the mandatory wording of Articles 1 and 15(3) of Regulation No 19. It also follows from the scheme of the levy system and its objective. As you know it is intended to ensure the maintenance of a particular level of prices, namely the level of national guide prices, so that the objective of Regulation No 19, the progressive approximation of national prices to a common guide price is not endangered. Particular reference was made to this in the case-law of this Court (Case 76/70, Wünsche v Hauptzollamt Ludwigshaven, [1971] ECR, 393). Clearly this consideration applies not only to upward variation, that is, if national charges were to produce a level in excess of that of the target prices; it must also be applied with regard to downward variations as would be possible if imports could be made below the level of the threshold prices where refunds for third countries were granted but corresponding levies were not simultaneously imposed. Therefore it is also relevant that Article 19 (2) (a), the provision here in question, is clearly mandatory and the word ‘may’, used with regard to the granting of export refunds, is not used. Further support for this view may be drawn by reference to the eleventh recital of the preamble to Regulation No 19. In stating that ‘in the case of exports from a Member State where the price is higher to another Member State where the price is lower, continuance of the practice whereby the export price is aligned with the world price is permissible, subject to certain specified conditions’, it is evident that the term ‘subject to certain specified conditions’ refers to those of Article 19 (2) (a) and it is thus made clear that the application of these special conditions must necessarily go hand in hand with the system of refunds. In agreement with the view postulated by the Commission and the Belgian Government which the defendant in the main action was unable to challenge substantially, the answer to the first question must therefore be that where refunds are granted by the exporting Member State, the importing Member State is under a duty to impose levies immediately on the importers.
            
         
               2.
            
            
               In its second question the Antwerp court asks whether the duty to pay the levy applies directly to the relations between the Member State and the importer or whether it is relevant that the importer has complied with all formalities for the purposes of ascertaining the amount of the levy at the proper time and the Member State concerned has misapplied Community law.
               There is little that needs to be said with regard to this question either. Indeed, as the Commission rightly said, there can be no doubt as to the direct applicability of the provision in question. Reference should be made to the legal nature of Regulation No 19 and the clear requirement of Article 189 of the EEC Treaty. In addition, as the Commission also pointed out, the relevant provision of Regulation No 19 possesses all the characteristics which the case-law of the Court of Justice has declared necessary for direct applicability to exist. In this respect it must also be recalled that in the case-law it has been stated that levies serve to regulate the market within the context of a common organization of the market and that the rules relating thereto must have the same force in the Member States. Thus Article 19 (2) (a) of Regulation No 19 does not require any national implementing measures to have direct effect in the Member States such as the notification published in the Moniteur Belge of 24 January 1964 which in fact was nothing more than a reproduction of the text of the regulation and which therefore, as the Belgian Government has emphasized, was merely for information. Moreover it is certain, as has been repeatedly stressed in the case-law of this Court, that it must be regarded as impossible for national measures to amend the levy system or affect its scope.
               Moreover with regard to the efforts of the defendant in the main action to obtain in good time reliable information as to the rate of levy applicable, we may point out, as the Commission does, that the advance fixing applied for related to the normal intra-Community levy. It was applicable only to cereals harvested in the exporting country and only where that country did not grant refunds for third countries. The importer therefore had to make efforts to obtain corresponding goods. However if refunds for third countries are granted, the advance fixing must be carried out differently, as is evident from Regulation No 31/63 (JO 1963, p. 1225), namely in accordance with Article 17 of Regulation No 19. Although at the date of the importation reference was initially made to the levy originally notified this must merely be seen as a misapplication of the levy system which properly speaking is in principle not capable of affecting the obligation to pay which stems directly from Regulation No 19.
               In my opinion there is nothing more that can be said with regard to the second question from the point of view of Community law. All further matters including the consequences of any mistake in administration on the part of national courts must be dealt with according to the principles of national law.
            
         
               3.
            
            
               The third question raised by the Antwerp court relates finally to the problem of publicity. The court asks whether the direct applicability of Article 19(2)(a) of Regulation No 19 goes so far that prior notification as to its application in accordance with national law is superfluous. The reference is evidently to the abovementioned notice to the importers concerned published in the Moniteur Belge of 24 January 1964.
               The answer to this question should also pose no particular difficulties. If Article 19 (2) (a) or Regulation No 19 is directly applicable, as I believe it is, then in fact a special national announcement as to its application must be regarded as unnecessary. In fact with regard to the legal consequences of this provision (imposition of the levy for third countries reduced by a standard amount) everything necessary was published in good time and in the prescribed form. This applies to the amount of the levy for third countries which must be calculated by the Member States according to data which are partly determined by the Commission and partly by the Member States. As the Commission has shown it was published in good time time in the Moniteur Beige. The same applies with regard to the abovementioned standard amount which must be deducted from the levy. It was fixed by the Commission for the whole marketing year and published in Regulation No 58/63 (JO 1963, p. 1801).
               However with regard to the granting of a refund to third countries by the exporting Member State, that is, an essential condition for the application of the provision relating to the special intra-Community levy, then in fact there is no need, properly speaking, for a public notice by a national body in the importing country. In this respect the importers concerned should themselves have attempted to obtain the necessary information which they could have done without special effort. In this respect the circular from the Beroepsvereniging van de Handel in granen en zaden of Antwerp of 16 February 1963 mentioned by the Commission is important. It shows that business circles in the relevant sector in Belgium were quite aware of the French decision to grant export refunds. In addition the fact that the validity of the import licences was made expressly dependent on the production of a movement certificate on form DD4 in which the refunds for third countries must be specified may be relevant. Even if in fact the importer did not see these certificates because they only had to be submitted to the customs authorities by the exporter, it must still be regarded as reasonable to expect the importer to obtain information from its business partner about the contents thereof which were regarded as important.
               Therefore the answer to the third question may be that no problems of publication which could be raised in this connexion prevent Article 19 (2) (a) of Regulation No 19 from being directly applicable.
            
         
               4.
            
            
               Therefore the following answers may be given to the questions referred to the Court of Justice for a preliminary ruling by the court in Antwerp:
               
                        (a)
                     
                     
                        Article 19(2) of Regulation No 19 of the Council of 4 April 1962 requires the importing Member State to impose the appropriate levies on the importers immediately if the exporting Member State grants refunds for third countries.
                     
                  
                        (b)
                     
                     
                        This obligation applies not only with regard to relations between the Member States concerned but also directly to the relations between the importing Member State and the importer. In principle it is not affected by misapplication of the abovementioned provision by the importing Member State.
                     
                  
                        (c)
                     
                     
                        Prior publication under national law relating to the application of Article 19(2) (a) of Regulation No 19 is not required for this provision to be applicable.
                     
                  
         (
            1
         )	Translated from the German.