CELEX: C1997/295/22
Language: en
Date: 1997-09-27 00:00:00
Title: Reference for a preliminary ruling by the Divisional Court, Queen's Bench Division, by order of that court of 26 March 1997, in the case of The Queen against Intervention Board for Agricultural Produce, ex parte: First City Trading Ltd and another (Case C-263/97)

C 295/ 14                EN                  Official Journal of the European Communities                                      27 . 9 . 97
2 . ( a ) Does the reasoning set out in paragraphs 21 to 31                 where by reason of force majeure goods in transit in
           of the judgment in Case C-165/91 Van Munster v.                  the course of export to third countries are repatriated
           Rijksdienst voor Pensioenen in respect of                        to the Member State of export, or are they limited to
           Question 2 comprehend the phrase ' unforeseen                    those cases where the goods were imported into a
           adverse effects of the lack of coordination between              different third country to that which was originally
           social security schemes'?                                        declared by the exporter to the competent authority ?
     ( b ) In the light of paragraphs 32, 33 and 34 of that
           judgment, is point 2 of the operative part of that           2.  In circumstances where :
           judgment to be interpreted as meaning that, where
           it is impossible to interpret an applicable provision
           of national law in such a way as to eliminate the                ( a ) by Commission Decision 96/239/EC ( 2 ) of
           adverse effects of its application in a specific                        27 March 1996 exports of beef from the United
           situation on free movement of workers, the                              Kingdom to third countries were prohibited;
           national court must apply that rule in full , or that
           the national court must disapply that rule of
           national law ?
                                                                            ( b ) bans on the importation of beef from the United
                                                                                   Kingdom were also imposed by a number of third
                                                                                   countries ;
3 . In the light of point 2 of the operative part of the
     judgment in Van Munster v. Rijksdienst voor
     Pensioenen and the case-law of the Court of Justice, is                ( c ) exporters of beef were at the time of the said
     it compatible with Community law, more particularly                           Decision in the process of carrying goods to third
     Article 5 , 48 and 51 of the Treaty, to take the view                         countries;
     that the national court may not disapply express,
     binding provisions of national law in order to
     eliminate the adverse effects :
                                                                            ( d ) the said exporters were forced to repatriate the
                                                                                   beef to the United Kingdom;
     — of the application of the rule of national law to
           migrant workers who have exercised their right to
           free movement,                                                    ( e ) the exporters received advance-paid export refunds
                                                                                   in accordance with Commission Regulations ( EEC )
                                                                                   No 565/80 ( 3 ) and ( EEC ) No 3665/87 as amended
     — of the lack of coordination between social security                         in respect of the export transactions in issue; and
           schemes of different Member States ?
                                                                             ( f) the exporters suffered losses as a result of not
                                                                                   being able to sell the beef on the export markets in
                                                                                   question;
Reference for a preliminary ruling by the Divisional
                                                                             are the exporters entitled to retain all or part of the
Court, Queen's Bench Division, by order of that court of                     export refund by reason of the general principles of
26 March 1997, in the case of The Queen against
                                                                             Community law and in particular force majeure,
Intervention Board for Agricultural Produce, ex parte:
                                                                             legitimate expectations, proportionality or equity ?
                 First City Trading Ltd and another
                           ( Case C-263/97
                             ( 97/C 295/22 )                            3 . If answer to Question 2 is that the exporter is entitled
                                                                             to retain in principle some or all of the export refund
                                                                             in question are the exporters bound to give credit for
                                                                             any revenues derived from the disposal of the beef in
 Reference has been made to the Court of Justice of the
                                                                             the United Kingdom ( for example where the original
 European Communities by an order of the Divisional                          vendor of the beef to the exporter was bound to
 Court, Queen's Bench Division, of 26 March 1997, which                       repossess the beef under a retention of title clause in
 was received at the Court Registry on 21 July 1997, for a                   the original contract of sale and where the vendor
 preliminary ruling in the case of The Queen against
                                                                              repaid all or a portion of the original purchase price )?
 Intervention Board for Agricultural Produce, ex parte:
 First City Trading Ltd and another, on the following
 questions :
                                                                        4.    Are either or both of Commission Decision 96/239/EC
                                                                              or Regulation ( EC ) No 773/96 ( 4 ) unlawful to the
 1 . Do Articles 23 and 33 of Commission Regulation                           extent that they do not provide for exporters in the
      No 3665/87/EEC H as amended apply to the case                           circumstances referred to in Question 2 above being
 ---pagebreak--- 27 . 9 . 97                EN                    Official Journal of the European Communities                                  C 295/ 15
        entitled to retain export refunds, applicable to the                    produkten against the decision of 2 July 1992 ( SG(92 )
        exports in question or any portion thereof?                             D/8782 ) inadmissibile and in any event dismiss them,
                                                                                and
(') Commission Regulation ( EEC ) No 3665/87 of 27 November
       1987 laying down common detailed rules for the application
      of the system of export refunds on agricultural products ( OJ         — order Florimex BV and Vereniging van Grooth­
      L 351 , 14 . 12 . 1987, p. 1 ).                                           andelaren in Bloemkwekerijprodukten jointly and
( 2 ) Commission Decision 96/239/EC of 27 March 1996 on                         severally to pay the costs of both sets of proceedings
      emergency measures to protect against bovine spongiform                   in accordance with Article 69 ( 2 ) of the Rules of
      encephalopathy ( OJ L 78 , 28 . 3 . 1996, p. 17).                         Procedure .
(') Council Regulation ( EEC ) No 565/80 of 4 March 1980 on the
      advance payment of export refunds in respect of agricultural
      products ( OJ L 62 , 7. 3 . 1980, p. 5 ).                             Pleas in law and main arguments adduced in support:
C ) Commission Regulation ( EC ) No 773 /96 of 26 April 1996
      laying down special measures derogating from Regulations
      ( EEC ) No 3665/87, ( EEC ) No 3719/88 and ( EEC ) No 1964/
                                                                            — The Court of First Instance wrongly applied very
      82 in the beef and veal sector ( OJ L 104 , 27 . 4 . 1996 , p. 19 ).
                                                                                stringent requirements as to the statement of the
                                                                                reasons on which the decision of 2 July 1992, in
                                                                                which the Commission rejected the complaints of
                                                                                Florimex and Others, was based and, when assessing
                                                                                whether those requirements were satisfied, undertook
                                                                                a detailed examination of the complainants'
Appeal brought on 19 July 1997 by the cooperative                               arguments . The Court thereby demonstrated an
society 'Verenigde Bloemenveilingen Aalsmeer' (VBA) BA                          incorrect legal view of Article 190 of the EC Treaty,
against the judgment delivered on 14 May 1997 by the                            applied an incorrect standard of assessment and
Court of First Instance of the European Communities in                          wrongly acted in the Commission 's stead .
Joined Cases T-70/92 and T-71/92 between, on the one
hand, Florimex BV and Vereniging van Groothandelaren                        — In paragraphs 137 and 138 the Court of First Instance
in Bloemkwekerijprodukten and, on the other hand, the
                                                                                erred in law by holding that it was not called upon to
Commission of the European Communities, supported by
                                                                                adjudicate on the arguments put forward by the VBA
the cooperative society 'Verenigde Bloemenveilingen                             concerning the non-application of Article 85 ( 1 ) of the
                          Aalsmeer' (VBA ) BA
                                                                                Treaty or the possible application of the second
                           ( Case C-265 /97 P )                                 sentence of Article 2 ( 1 ) of Regulation No 26 , but
                               ( 97/C 295/23
                                                                                only on the legality of the conclusion reached by the
                                                                                Commission in the contested decision of 2 July 1992
                                                                                that the user fee falls within the first sentence of
                                                                                Article 2 ( 1 ) of Regulation No 26 : the Commission,
An appeal against the judgment delivered on 14 May                              and the Court of Justice in its case-law, at that time
 1997 by the Court of First Instance of the European                            still considered the second sentence of Article 2 ( 1 ) of
 Communities in Joined Cases T-70/92 and T-71 /92
                                                                                Regulation No 26 as an application ( particularization )
 between, on the one hand, Florimex BV and Vereniging                           of the first sentence and specifically of the second
 van Groothandelaren in Bloemkwekerijprodukten and, on
                                                                                exception therein ( justification on the basis of a
 the other hand, the Commission of the European                                 national market organization was irrelevant ). It is thus
 Communities, supported by the cooperative society
                                                                                self-evident that the assessment framework taken by
 'Verenigde Bloemenveilingen Aalsmeer' (VBA ) BA, was                           the Commission is the first sentence of Article 2 ( 1 ) of
 brought before the Court of Justice of the European                            Regulation No 26 . That does not imply that the
 Communities on 19 July 1997 by the cooperative society                         Commission did not also take into consideration the
 'Verenigde Bloemenveilingen Aalsmeer' ( VBA ) BA,
                                                                                conditions for — as later happened — the third
 represented by G. van der Wal , with an address for service                    exception , or that the second sentence of Article 2 ( 1 )
 in Luxembourg at the Chambers of Aloyse May, 31                                of Regulation No 26 can be disregarded .
 Grand-Rue .
 The appellant claims that the Court should :                                   It cannot be the case that an agricultural cooperative
                                                                                 such as the VBA, which accepts members in ( the
                                                                                 border areas of) other Member States, cannot rely on
 — declare the VBA's appeal against the judgment of the                          the second sentence of Article 2 ( 1 ) of Regulation
        Court of First Instance of the European Communities                      No 26 .
        of 14 May 1997 in Joined Cases T-70/92 and T-71 /92
        admissible,
                                                                            — The Court of First Instance wrongly refused or in any
                                                                                 event,   without   stating its reasons,   neglected to
 — set aside the judgment of the Court of First Instance                         consider to what extent the action should be dismissed
         of the European Communities of 14 May 1997 in                           on the basis of — in short — the ' rule of reason '. The
        Joined Cases T-70/92 and T-71 /92 and, ruling afresh,                    Court should have examined whether the judgment in
         declare the actions brought by Florimex BV and                          Case C-250/90 (') is relevant in this case and leads to
         Vereniging van Groothandelaren in Bloemkwekerij­                        a different decision .