61973J0001

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1 . ACTS OF AN INSTITUTION - AMENDMENT OF A FORMER PROVISION - SITUATION ARISING UNDER THE LATTER PROVISION - FUTURE CONSEQUENCES - APPLICATION OF THE AMENDING RULE

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - SUGAR - EXPORT REFUNDS - ARTICLE 12 OF REGULATION NO 766/68 - AMENDMENT - SPHERE OF APPLICATION

( REGULATION NO 1048/71 OF THE COUNCIL )

1 . THE LAWS AMENDING A LEGISLATIVE PROVISION APPLY, UNLESS OTHERWISE PROVIDED, TO THE FUTURE CONSEQUENCES OF SITUATIONS WHICH AROSE UNDER THE FORMER LAW .

2 . THE AMENDMENT TO ARTICLE 12 OF REGULATION NO 766/68 OF THE COUNCIL OF 18 JUNE 1968, EFFECTED BY REGULATION NO 1048/71 OF THE COUNCIL OF 25 MAY 1971, APPLIES NOT ONLY TO ADVANCE FIXING CERTIFICATES ISSUED AFTER ITS ENTRY INTO FORCE, BUT ALSO TO THOSE ISSUED BEFORE SUCH DATE IF EXPORTATION HAD NOT YET TAKEN PLACE AND AN ADJUSTMENT OF THE INTERVENTION PRICE HAD NOT BEEN MADE .

IN CASE 1/73

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHES FINANZGERICHT, VIITH SENATE, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

WESTZUCKER GMBH, OF DORTMUND,

AND

EINFUHR - UND VORRATSSTELLE FUER ZUCKER, OF FRANKFURT,

ON THE INTERPRETATION OF REGULATION NO 766/68 OF THE COUNCIL OF 18 JUNE 1968 ( OJ L 143, 25 . 6 . 1968, P . 6 ) AND REGULATION NO 1048/71 OF THE COUNCIL OF 25 MAY 1971 ( OJ L 114, 26 . 5 . 1971, P . 10 ),

1 BY ORDER DATED 18 DECEMBER 1972, RECEIVED AT THE COURT REGISTRY ON 2 JANUARY 1973, THE FINANZGERICHT OF HESSE REFERRED TO THE COURT OF JUSTICE, UNDER ARTICLE 177 OF THE TREATY, FOR A PRELIMINARY RULING ON THREE QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 12 OF REGULATION NO 766/68 OF THE COUNCIL OF 18 JUNE 1968, LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON SUGAR ( OJ L 143, 25 . 6 . 1968, P . 6 ) AND TO THE INTERPRETATION OF REGULATION NO 1048/71 OF THE COUNCIL OF 25 MAY 1971 ( OJ L 114, 26 . 5 . 1971, P . 10 ), AMENDING THE ABOVEMENTIONED REGULATION AND ESPECIALLY ARTICLE 12 .

2 THE RULES ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR PROVIDE FOR THE GRANT OF EXPORT REFUNDS FOR WHITE SUGAR TO COVER THE DIFFERENCE BETWEEN THE PRICES ON THE WORLD MARKET AND THOSE WITHIN THE COMMUNITY, AND THE ADVANCE FIXING, FOR A SPECIFIED PERIOD, OF THE REFUND TO BE PAID EQUAL TO THAT VALID ON THE DAY OF THE APPLICATION FOR ADVANCE FIXING .

IN ITS ORIGINAL WORDING, ARTICLE 12 PROVIDED THAT, IF AN ALTERATION IN THE INTERVENTION PRICE OCCURED DURING THE INTERVAL BETWEEN THE FIXING OF THE REFUND UNDER A TENDER AND THE ACTUAL EXPORTATION, THE AMOUNT FIXED FOR THE REFUND WAS TO BE ADJUSTED ON THE BASIS OF THAT ALTERATION .

THE SAID REGULATION NO 1048/71, WHICH ENTERED INTO FORCE ON 27 MAY 1971, AMENDED THE SAID ARTICLE 12 TO THE EXTENT THAT, IF DURING THE SAID PERIOD THE PRICES FOR SUGAR OR MOLASSES WERE ALTERED, " AN ADJUSTMENT OF THE AMOUNT OF THE REFUND MAY BE MADE ".

3 IT CAN BE SEEN FROM THE FILE THAT THE PLAINTIFF IN THE MAIN ACTION OBTAINED ON 1 FEBRUARY AND 5 MAY 1971 THREE ADVANCE FIXING CERTIFICATES FOR THE EXPORTATION OF WHITE SUGAR, VALID VARIOUSLY UNTIL 31 JULY AND 31 AUGUST 1971 AND CONTAINING THE PHRASE " SUBJECT TO ARTICLE 12 OF REGULATION NO 766/68 ", AND REQUESTED THAT THE REFUND FIXED IN ADVANCE BE INCREASED ON THE BASIS OF THE INCREASE IN THE INTERVENTION PRICE BROUGHT IN ON 1 JULY 1971 UNDER REGULATION NO 1061/71 OF THE COUNCIL OF 25 MAY 1971 ( OJ L 115, 27 . 5 . 1971, P . 17 ).

ON THIS ACTION BEING BROUGHT BEFORE IT, THE FINANZGERICHT DREW UP THE THREE QUESTIONS WHICH IT HAS REFERRED .

AS TO THE FIRST AND SECOND QUESTIONS

4 IT IS ASKED WHETHER REGULATION NO 1048/71 MUST BE INTERPRETED AS MEANING THAT THE NEW ARTICLE 12 OF REGULATION 766/68 APPLIES TO THE CASE WHERE AN EXPORT LICENCE HAS BEEN ISSUED BEFORE 27 MAY 1971 ( THE DATE OF THE ENTRY INTO FORCE OF THE NEW WORDING ), AND ALSO WHERE EXPORTATION HAS BEEN CARRIED OUT AFTER 1 JULY ( THE DATE OF THE ENTRY INTO FORCE OF THE INCREASE IN THE INTERVENTION PRICES ).

5 ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE, THE LAWS AMENDING A LEGISLATIVE PROVISION APPLY, UNLESS OTHERWISE PROVIDED, TO THE FUTURE CONSEQUENCES OF SITUATIONS WHICH AROSE UNDER THE FORMER LAW .

CONSEQUENTLY THE AMENDMENT TO ARTICLE 12 OF REGULATION NO 766/68 APPLIES NOT ONLY TO ADVANCE FIXING CERTIFICATES ISSUED AFTER ITS ENTRY INTO FORCE, BUT ALSO TO THOSE CERTIFICATES ISSUED BEFORE SUCH DATE INASMUCH AS THE INTENDED EXPORTATION HAD NOT YET TAKEN PLACE AND AN ADJUSTMENT OF THE INTERVENTION PRICE HAD NOT BEEN MADE .

6 IT IS ASKED IN THE SECOND QUESTION WHETHER REGULATION NO 1048/71, THUS INTERPRETED, INFRINGES A PRINCIPLE OF LEGAL CERTAINTY BY WHICH THE CONFIDENCE OF PERSONS CONCERNED DESERVES TO BE PROTECTED ( VERTRAUENSSCHULTZ ).

7 IT CAN BE SEEN FROM THE RECITALS IN THE PREAMBLE TO THE REGULATION THAT THE COUNCIL, CONSIDERING THE PROVISION FOR A STRICT ADJUSTMENT OF THE EXPORT REFUND FIXED IN ADVANCE TO BE TOO RIGID, REPLACED THE OBLIGATORY PROVISION OF THE OLD ARTICLE 12 BY AN OPTIONAL PROVISION PERMITTING THE FIXING OF AN APPROPRIATE ADJUSTMENT .

IN FACT THE OLD ARTICLE 12, BY PROVIDING FOR AN AUTOMATIC ADJUSTMENT OF THE REFUND FIXED IN ADVANCE TO ACCORD WITH POSSIBLE INCREASES OR REDUCTIONS, INVOLVED THE RISK AS MUCH OF INFLICTING AN UNJUSTIFIABLE LOSS ON EXPORTERS, WHEN THERE WAS A REDUCTION IN THE INTERVENTION PRICE, AS OF GRANTING THEM EQUALLY UNJUSTIFIABLE ADVANTAGES WHEN THERE WAS AN INCREASE IN THE INTERVENTION PRICE .

SUBJECT TO CERTAIN EXCEPTIONS, IT CAN BE PRESUMED THAT TENDERS AND APPLICATIONS FOR EXPORT LICENCES ARE BASED, IN THE FIRST INSTANCE, ON THE GOODS AVAILABLE TO THE EXPORTER AND THE STATE OF THE COMMUNITY MARKET AT THE TIME OF THE TENDER AND THE APPLICATION .

AN AUTOMATIC ADJUSTMENT AS PROVIDED FOR IN THE OLD ARTICLE 12 WAS THUS LIABLE TO UPSET BOTH THE FORECASTS WHICH GOVERNED THE ADVANCE FIXING OF THE REFUND AND THE CALCULATIONS OF THE EXPORTERS WHO WERE HOLDERS OF AN EXPORT LICENCE .

8 CONSEQUENTLY, IF IT IS TRUE THAT IN THE CASE OF AN ALTERATION OF THE INTERVENTION PRICE BETWEEN THE TIME WHEN THE REFUND IS FIXED AND EXPORTATION IS CARRIED OUT ADJUSTMENTS MAY BE NECESSARY, IT IS NO LESS TRUE THAT THE OPTIONAL PROVISION OF THE NEW ARTICLE 12 HAS MORE REGARD FOR THE NEED FOR STABILITY IN TRADE AND IN THE FUNCTIONING OF THE MARKET .

IT SEEMS DIFFICULT TO CONSIDER THE AMENDMENT OF A PROVISION, WHICH WAS CAPABLE, BECAUSE OF ITS INFLEXIBILITY, OF CAUSING LOSSES OR GAINS FOR THOSE CONCERNED, AS ADVERSELY AFFECTING ANY ESTABLISHED POSITION WHICH THEY HOLD .

9 MOREOVER, IN THE CASE PARTICULARLY OF AN INCREASE IN THE INTERVENTION PRICE, ONE CANNOT CLAIM, AS DOES THE PLAINTIFF IN THE MAIN ACTION, THAT THE OLD ARTICLE 12 CONFERRED ON THE PERSONS CONCERNED THE CERTAINTY OF PROFITING FROM SUCH INCREASE .

THAT ARTICLE DID NOT EXCLUDE A POSSIBLE APPLICATION OF ARTICLE 37 ( 2 ) OF REGULATION NO 1009/67 OF THE COUNCIL, ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR, WHICH ALLOWS THE ADOPTION OF THE REQUISITE PROVISIONS TO PREVENT THE SUGAR MARKET BEING DISTURBED AS A RESULT OF AN ALTERATION IN THE PRICE LEVELS AT THE CHANGE-OVER FROM ONE MARKETING YEAR TO THE NEXT .

IT CAN BE SEEN FROM THE OUTLINE GIVEN BY THE COMMISSION THAT ON THE ADOPTION OF REGULATION NO 766/68 IT WAS PROVIDED THAT THIS PROVISION SHOULD BE APPLIED WHERE NECESSARY TO THE OWNERS OF STOCK LEFT OVER FROM THE PREVIOUS MARKETING YEAR IN ORDER TO DEDUCT IN ADVANCE THE PROFIT RESULTING FROM THE INCREASE .

THE HOLDERS OF ADVANCE FIXING CERTIFICATES HAD THEREFORE TO TAKE INTO ACCOUNT THE POSSIBILITY THAT UNDER ARTICLE 37 OF REGULATION NO 1009/67 THE ANTICIPATED BENEFITS UNDER THE OLD ARTICLE 12 WOULD BE TAKEN AWAY FROM THEM .

10 IT MUST BE CONCLUDED FROM THIS THAT THE COUNCIL, BY AMENDING ARTICLE 12 INSTEAD OF RESORTING TO THE MORE COMPLEX REMEDY OF AN APPLICATION OF THE SAID ARTICLE 37, DID NOT CHANGE INTRINSICALLY THE POSITION OF THE PERSONS CONCERNED AND THERE IS NO REASON TO CONSIDER THAT REGULATION NO 1048/71 INFRINGES THE PROTECTION OF CONFIDENCE OF PERSONS CONCERNED .

11 THESE CONCLUSIONS ARE FURTHER CONFIRMED BY THE CIRCUMSTANCES OF THE CASE .

IN FACT, ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION, THE EXPORT LICENCES WHICH IT OBTAINED RELATED TO STOCKS OF THE EINFUHR - UND VORRATSSTELLE, I . E . TO SO-CALLED INTERVENTION SUGAR, SUBJECT TO THE OLD INTERVENTION PRICE, AND THAT, AS THE PLAINTIFF COULD NOT DISPOSE OF THIS SUGAR WITHIN THE PRESCRIBED TIME BECAUSE OF THE EINFUHR - UND VORRATSSTELLE, IT HAD TO OBTAIN SUPPLIES FROM ELSEWHERE UNDER MORE DISADVANTAGEOUS CONDITIONS, INCLUDING THE OBLIGATION TO PAY FOR THE SUGAR DELIVERED AFTER 1 JULY 1971 ON THE BASIS OF THE NEW INTERVENTION PRICE .

12 IF THESE FACTS ARE CORRECT, IT FOLLOWS THAT THE LOSS CLAIMED TO HAVE BEEN SUFFERED WAS NOT CAUSED BY RELIANCE ON THE OLD ARTICLE 12, BUT BY OTHER CIRCUMSTANCES .

13 EXAMINATION OF THE SECOND QUESTION HAS THEREFORE REVEALED NO FACTORS LEADING ONE TO CONCLUDE THAT, BY AMENDING ARTICLE 12 OF REGULATION NO 766/68, REGULATION NO 1048/71 HAS FAILED TO RECOGNIZE A PRINCIPLE OF LEGAL CERTAINTY BY WHICH THE CONFIDENCE OF PERSONS CONCERNED DESERVES PROTECTION ( VERTRAUENSSCHUTZ ).

AS TO THE THIRD QUESTION

14 THERE IS NO NEED TO DEAL WITH THIS QUESTION AS IT IS ONLY TO BE CONSIDERED IN THE CASE OF EITHER A REPLY IN THE NEGATIVE TO THE FIRST QUESTION OR A REPLY IN THE AFFIRMATIVE TO QUESTIONS 1 AND 2, NEITHER OF WHICH IS THE CASE .

15 THE COSTS INCURRED BY THE COMMISSION, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT OF HESSE, BY ORDER OF THAT COURT DATED 27 DECEMBER 1972, HEREBY RULES :

1 . THE AMENDMENT OF ARTICLE 12 OF REGULATION NO 766/68 OF THE COUNCIL OF 18 JUNE 1968 BY REGULATION NO 1048/71 OF THE COUNCIL OF 25 MAY 1971 APPLIES NOT ONLY TO ADVANCE FIXING CERTIFICATES ISSUED AFTER ITS ENTRY INTO FORCE, BUT ALSO TO THOSE ISSUED BEFORE THAT DATE TO THE EXTENT THAT THE EXPORTATION IN QUESTION HAD NOT YET TAKEN PLACE .

2 . EXAMINATION OF THE SECOND QUESTION POSED HAS NOT REVEALED ANY FACTORS LEADING ONE TO CONCLUDE THAT, IN SO DOING, REGULATION NO 1048/71 HAS FAILED TO RECOGNIZE A PRINCIPLE OF LEGAL CERTAINTY BY WHICH THE CONFIDENCE OF PERSONS CONCERNED DESERVES PROTECTION .