61970J0016

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AGRICULTURE - COMMON AGRICULTURAL POLICY - LEVIES AND REFUNDS - ADVANCE FIXING - CANCELLATION IN THE CASE OF AN ALTERATION OF THE UNIT OF ACCOUNT - CONDITIONS

( REGULATION NO 1134/68 OF THE COUNCIL, ARTICLE 7 )

THE SECOND PARAGRAPH OF ARTICLE 7 OF REGULATION NO 1134/68 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 30 JULY 1968 MUST BE INTERPRETED AS MEANING THAT CANCELLATION OF AN ADVANCE FIXING OF LEVIES OR REFUNDS MAY RELATE TO THE BALANCE OF THE QUOTA STILL OUTSTANDING AT THE DATE WHEN THE APPLICATION IS MADE, BUT ONLY TO SUCH BALANCE IN ITS ENTIRETY, AND MAY NOT RELATE TO AMOUNTS PREVIOUSLY IMPORTED OR EXPORTED .

IN CASE 16/70

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

COOEPERATIEVE VERENIGING " NECOMOUT " GA

AND

( 1 ) HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN, THE HAGUE

( 2 ) PRODUKTSCHAP VOOR GRANEN, ZADEN EN PEULVRUCHTEN, THE HAGUE,

ON THE INTERPRETATION OF ARTICLE 7 OF REGULATION ( EEC ) NO 1134/68 OF THE COUNCIL OF 30 JULY 1968 LAYING DOWN RULES FOR THE IMPLEMENTATION OF REGULATION ( EEC ) NO 653/68 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY,

1 BY A DECISION OF 10 APRIL 1970, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 13 APRIL 1970, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN, THE HAGUE, HAS PUT VARIOUS QUESTIONS UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, CONCERNING THE INTERPRETATION OF ARTICLE 7 OF REGULATION ( EEC ) NO 1134/68 OF THE COUNCIL OF 30 JULY 1968 LAYING DOWN RULES FOR THE IMPLEMENTATION OF REGULATION ( EEC ) NO 653/68 ON CONDITIONS FOR ALTERATIONS TO THE VALUE OF THE UNIT OF ACCOUNT USED FOR THE COMMON AGRICULTURAL POLICY .

2 REGULATION NO 1134/68, WHICH ENTERED INTO FORCE ON 4 AUGUST 1968, PROVIDES THAT IN THE CASE OF AN ALTERATION IN THE VALUE OF THE UNIT OF ACCOUNT OR IN THE PARITY OF THE CURRENCY OF A MEMBER STATE OR OF A THIRD COUNTRY THE AMOUNTS FIXED UNDER THE PROVISIONS RELATING TO THE AGRICULTURAL POLICY, AND IN PARTICULAR THE AMOUNTS OF LEVIES AND REFUNDS, MAY BE ADJUSTED TO THE NEW PARITIES, EVEN AS REGARDS LEVIES AND REFUNDS FOR WHICH TRADERS HAD EXERCISED THE RIGHT CONFERRED UPON THEM BY THE VARIOUS REGULATIONS ESTABLISHING THE ORGANIZATION OF THE AGRICULTURAL MARKETS TO HAVE THE AMOUNTS FIXED IN ADVANCE .

3 IN ORDER NOT TO PREJUDICE PERSONS HAVING PREVIOUSLY OBTAINED AN ADVANCE FIXING, THE REGULATION ENABLES THEM TO OBTAIN THE CANCELLATION OF SUCH FIXING IN THE EVENT OF CIRCUMSTANCES' REQUIRING ADJUSTMENT OF THE AMOUNTS FIXED IN ADVANCE .

4 IN ADDITION, THE TRANSITIONAL PROVISION OF THE SECOND PARAGRAPH OF ARTICLE 7 OF THE SAME REGULATION, WHICH WITH REGARD TO SUCH FIXING WAS BASED ON ESSENTIALLY LEGAL CONSIDERATIONS RELATING TO THE EFFECTS ON PENDING CONTRACTS OF A CHANGE IN LEGISLATION, CONFERS THE SAME RIGHT ON TRADERS WHO HAD OBTAINED BEFORE 4 AUGUST 1968 AN ADVANCE FIXING THE EFFECTS OF WHICH EXTENDED BEYOND THE ENTRY INTO FORCE OF THE NEW PROVISIONS LAID DOWN BY REGULATION NO 1134/68 .

5 UNDER THE TERMS OF THE SAID ARTICLE 7 THE WRITTEN APPLICATION FOR CANCELLATION WAS REQUIRED TO REACH THE COMPETENT AUTHORITY WITHIN THIRTY DAYS OF THE ENTRY INTO FORCE OF THE REGULATION, THAT IS TO SAY, NOT LATER THAN 3 SEPTEMBER 1968 .

6 THE NATIONAL COURT ASKS FIRST WHETHER THE APPLICATION FOR CANCELLATION MUST NECESSARILY RELATE TO THE ENTIRE AMOUNT STILL OUTSTANDING ON 4 AUGUST 1968 OF THE QUOTA TO WHICH THE ADVANCE FIXING RELATES .

7 ON THE ONE HAND, THIS QUESTION MUST BE CONSIDERED IN RELATION TO THE ARGUMENT EXPOUNDED BY NECOMOUT BEFORE THE COURT IN THE MAIN PROCEEDINGS TO THE EFFECT THAT A TRADER MAY AT ANY TIME DURING THE THIRTY DAYS ALLOTTED HIM APPLY FOR THE CANCELLATION OF THE ADVANCE FIXINGS RELATING TO THE WHOLE OF THE AMOUNT OUTSTANDING AT 4 AUGUST 1968, EVEN IF A PART OF THIS BALANCE HAS ALREADY BEEN IMPORTED OR EXPORTED IN THE MEANTIME SO THAT THE CANCELLATION MIGHT THUS HAVE RETROACTIVE EFFECT IN WHOLE OR IN PART .

8 ON THE OTHER HAND, IT MUST BE CONSIDERED IN RELATION TO THE ARGUMENT PROPOUNDED BY THE PRODUKTSCHAP TO THE EFFECT THAT AN APPLICATION FOR CANCELLATION MAY ONLY BE MADE WITH REGARD TO THE QUANTITY OUTSTANDING AT 4 AUGUST 1968 AND THAT IN THE MEANTIME NO PART OF THIS AMOUNT MAY BE IMPORTED OR EXPORTED .

9 THE SYSTEM OF ADVANCE FIXING, AS IT HAS BEEN IMPLEMENTED IN THE VARIOUS AGRICULTURAL REGULATIONS, ESTABLISHES A CONNEXION BETWEEN SUCH ADVANCE FIXING AND THE OBLIGATION TO IMPORT OR TO EXPORT THE ENTIRE QUOTA OF GOODS TO WHICH THE ADVANCE FIXING RELATES .

10 ARTICLE 7 OF REGULATION NO 1134/68 EXEMPTS FROM THIS OBLIGATION " A TRANSACTION STILL TO BE CARRIED OUT " AFTER 4 AUGUST 1968 THEREBY PROVIDING FOR THE DIVISION OF THE QUOTA MENTIONED IN THE LICENCE OR CERTIFICATE INTO ONE PART FOR WHICH THE ADVANCE FIXING IS VALID AND ANOTHER PART FOR WHICH IT MAY BE CANCELLED .

11 NEVERTHELESS, THE WORDING OF ARTICLE 7 DOES NOT NECESSARILY IMPLY THAT SUCH DIVISION MUST BE MADE BETWEEN THE PART OF THE QUOTA EXHAUSTED PRIOR TO 4 AUGUST 1968 AND THE BALANCE REMAINING AT THAT DATE .

12 FURTHERMORE, THE PROVISION OF A PERIOD OF THIRTY DAYS GRANTED TO THE TRADER CANNOT IMPLY THAT THE PERSON CONCERNED IS PROHIBITED FROM CONTINUING TO IMPORT OR TO EXPORT BETWEEN 4 AUGUST 1968 AND THE DATE ON WHICH HE CHOOSES TO LODGE HIS APPLICATION .

13 THIS MUST APPLY WITH EVEN GREATER FORCE IN VIEW OF THE FACT THAT THE TRADERS CONCERNED MAY BE BOUND BY CONTRACTUAL DELIVERY DATES AND THAT THE REGULATION SHOULD NOT BE INTERPRETED IN SUCH A WAY AS TO INCREASE THE DIFFICULTIES OF IMPLEMENTING SUCH OBLIGATIONS .

14 IN ANY EVENT, SINCE THE ARTICLE DOES NOT LAY DOWN THOSE CONDITIONS AND THEY DO NOT ARISE FROM THE GROUNDS WHICH FORM THE BASIS OF THE DISPUTED PROVISION, THERE IS NO REASON TO ADD TO THE LEGAL TEXT CONDITIONS WHICH IT DOES NOT CONTAIN EITHER EXPRESSLY OR BY IMPLICATION .

15 CONSEQUENTLY THE APPLICATION FOR CANCELLATION NEED NOT NECESSARILY REFER TO THE ENTIRE QUOTA STILL OUTSTANDING AT 4 AUGUST 1968 .

16 AN APPLICATION FOR CANCELLATION MUST THUS BE CONSIDERED EVEN IF A TRACER HAS BEFORE THE DATE OF HIS APPLICATION IMPORTED OR EXPORTED A PART OF THE BALANCE REMAINING ON 4 AUGUST 1968 TO WHICH THE ADVANCE FIXING RELATES .

17 THE REPLY THUS GIVEN TO THE FIRST QUESTION MAKES THE SECOND IRRELEVANT .

18 THE THIRD QUESTION ASKS WHETHER A TRADER WHO LODGES AN APPLICATION FOR CANCELLATION AFTER CONTINUING TO IMPORT OR EXPORT AFTER 4 AUGUST 1968 MAY APPLY FOR THE CANCELLATION OF ALL OR PART OF THE BALANCE OF THE QUOTA FIXED IN ADVANCE WHICH IS OUTSTANDING AT THE DATE OF LODGING THE APPLICATION .

19 IT IS CLEAR FROM THE WORDING OF ARTICLE 7, IN ACCORDANCE WITH WHICH THE APPLICATION RELATES TO THE CANCELLATION OF THE CERTIFICATE OR DOCUMENT CERTIFYING THE ADVANCE FIXING, THAT ONLY THE COMPLETE CANCELLATION OF THE CERTIFICATE CAN BE ENVISAGED CONSEQUENTLY INVOLVING THE CANCELLATION OF THE ENTIRE BALANCE .

20 FURTHERMORE, THIS INTERPRETATION CORRESPONDS TO THE RESTRICTED SCOPE OF THE EXCEPTION MADE BY THE SAID ARTICLE 7 TO THE PRINCIPLE OF THE IMMUTABILITY OF ADVANCE FIXINGS .

21 MOREOVER, SINCE SUCH CANCELLATIONS DISTURB THE PROPER FUNCTIONING OF THE SYSTEMS OF ORGANIZATION OF THE MARKETS, THERE CAN BE NO JUSTIFICATION FOR FAVOURING THEIR INCREASE WHEN THEY EXCEED THE LEGAL GROUNDS ON WHICH ARTICLE 7 WAS BASED .

22 CONSEQUENTLY, THE CANCELLATION OF THE ADVANCE FIXING MUST REFER TO THE ENTIRE QUOTA OUTSTANDING AT THE DATE OF LODGING THE APPLICATION .

23 THE FOURTH QUESTION ASKS WHETHER IF THE REPLY TO THE FIRST QUESTION IS IN THE NEGATIVE, IT IS ALSO POSSIBLE TO CANCEL THE ADVANCE FIXING WITH REGARD TO ONE OR MORE IMPORTATIONS OR EXPORTATIONS WHICH WERE EFFECTED BETWEEN 4 AUGUST 1968 AND THE DATE OF THE APPLICATION FOR CANCELLATION .

24 RETROACTIVE CANCELLATION WOULD PRECLUDE THE FORWARD PLANNING ON WHICH THE AUTHORITIES RESPONSIBLE FOR THE ADMINISTRATION OF THE AGRICULTURAL MARKETS MAY PROPERLY RELY IN ASSESSING THEIR CHARGES OR REVENUES AND IN DETERMINING MARKET TRADE .

25 SUCH AN INTERPRETATION WOULD, FURTHERMORE, EXCEED THE OBJECTIVES OF ARTICLE 7 WHICH AIM AT PROTECTING TRADERS AGAINST VIOLATION OF THE PRINCIPLE OF THE IMMUTABILITY OF ADVANCE FIXINGS .

26 IN THOSE CIRCUMSTANCES THE APPLICATION FOR CANCELLATION CAN ONLY RELATE TO THE QUOTA OUTSTANDING AT THE DATE OF THE APPLICATION .

27/28 THE EXPENSES INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND BY THE NETHERLANDS GOVERNMENT, WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN, BY ORDER OF THAT COURT OF 10 APRIL 1970, HEREBY RULES :

THE SECOND PARAGRAPH OF ARTICLE 7 OF REGULATION NO 1134/68 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 30 JULY 1968 MUST BE INTERPRETED AS MEANING THAT CANCELLATION OF AN ADVANCE FIXING OF LEVIES OR REFUNDS MAY RELATE TO THE BALANCE OF THE QUOTA STILL OUTSTANDING AT THE DATE WHEN THE APPLICATION IS MADE, BUT ONLY TO SUCH BALANCE IN ITS ENTIRETY, AND MAY NOT RELATE TO AMOUNTS PREVIOUSLY IMPORTED OR EXPORTED .