Conclusions
OPINION OF ADVOCATE GENERAL
MISCHO
delivered on 23 January 2003 (1)
Case C-334/01
Glencore Grain Rotterdam BV
v
Bundesanstalt für Landwirtschaft und Ernährung
(Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany))
((Agriculture – Common organisation of the markets in cereals – Standing invitation to tender procedure – Cereal products for export to ACP countries – Event causing time to begin to run for production of proof of entry for consumption in the destination State – Second indent of the second subparagraph of Article 8(2) of Regulation (EC) No 2372/95 and Article 47(2) of Regulation (EEC)
No 3665/87))
1. This reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany) concerns cereals sold by an
agricultural intervention agency by means of a tendering procedure for export to signatory States of the Convention between
the Community and the African, Caribbean and Pacific States (
the ACP States). The question for the Court is what is the event which causes the 12-month period to begin to run during which exporters
must produce proof of the entry of products for consumption in the States of destination.
I ─ Legal context: Community legislation
A ─
Regulation (EEC) No 1766/92
2. Article 4 of Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals
(2)
provides that the intervention agencies designated by the Member States are to buy in certain types of cereals, including
common wheat, which are offered to them and have been harvested in the Community, provided that the offers comply with conditions
laid down, in particular in respect of quality and quantity.
3. Article 5 authorises the Commission, in the framework of the Management Committee procedure, to lay down the procedures and
conditions for the sale of cereals by the intervention agencies of the Member States.
B ─
Regulation (EEC) No 2131/93
4. Commission Regulation (EEC) No 2131/93 of 28 July 1993 laying down the procedures and conditions for the sale of cereals held
by intervention agencies
(3)
provides for two different tendering procedures, one for the sale of cereals on the Community market and the other for sale
on the export market.
5. Under Article 13(4) a security must be provided in either case. In addition, in the case of sales for export, a specific security
must be provided in certain circumstances in order to ensure that the cereals are exported and not sold on the Community market.
6. With regard to the release or forfeiture of either security, Article 17 of Regulation No 2131/93, as amended by Commission
Regulation (EC) No 120/94 of 25 January 1994,
(4)
provides as follows:
1. The securities referred to in this Regulation shall be lodged in accordance with Title II of Commission Regulation (EEC) No 2220/85.
2. The security provided for in Article 13 (4) shall be released where it covers quantities for which:
─
...
─
the selling price has been paid within the period laid down, and in the case of sales for export and where the price paid
is less than the minimum price for resale on the Community market, in accordance with Article 5(1), (2) and (3), a security
covering the difference between those two prices has been lodged.
3. The security provided for in the second indent of paragraph 2 shall be released where it covers quantities in respect of which:
─
...
─
the proof referred to in Article 18 of Regulation (EEC) No 3665/87 has been provided. However, the security shall be released
where the operator provides proof that a quantity of at least 1 500 tonnes of cereals products has left the customs territory
of the Community on a vessel suitable for sea transport.
...
5. Except in cases of
force majeure , the security provided for in the second indent of paragraph 2 shall be forfeited in respect of quantities for which the
proof referred to in the second indent of paragraph 3 has not been provided
within the period
(5)
laid down in Article 47 of Regulation (EEC) No 3665/87.
C ─
Regulation (EC) No 2372/95
7. Commission Regulation (EC) No 2372/95 of 10 October 1995 on the issuing of standing invitations to tender for the sale of
common wheat of breadmaking quality held by the French and German intervention agencies for export to certain ACP countries
in the 1995/96 marketing year
(6)
forms the main subject-matter of the dispute.
8. Article 2 provides that,
[s]ubject to the provisions of this Regulation, the sales of common wheat of breadmaking quality referred to in Article 1
shall take place in accordance with the procedure and conditions laid down by Regulation (EEC) No 2131/93.
9. Article 8 provides:
1. The security lodged pursuant to Article 13(4) of Regulation (EEC) No 2131/93 must be released once the export licences have
been issued to the successful tenderers.
2. The obligation to export and import into one of the countries of destination listed in Annex I shall be covered by a security
amounting to ECU 60 per tonne of which ECU 20 per tonne shall be lodged upon issue of the export licence, with the balance
of ECU 40 being lodged before removal of the cereals. Article 15(2) of Commission Regulation (EEC) No 3002/92 notwithstanding:
- ─
the amount of ECU 20 per tonne must be released within 20 working days of the date on which the successful tenderer supplies
proof that the wheat removed has left the customs territory of the Community,
- ─
the amount of ECU 40 per tonne must be released within 15 working days of the date on which the successful tenderer supplies
proof of entry for consumption into the ACP State or States referred to in Article 5(3). This proof shall be supplied in accordance
with Articles 18 and 47 of Commission Regulation (EEC) No 3665/87. ...
D ─
Regulation (EEC) No 3665/87
10. The specific regulation in the present case refers, from the viewpoint of the production of proof, to 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.
(7)
11. Article 18(1), which specifies the documents which the exporter must present for proving that the customs formalities for
entry for consumption have been carried out, provides as follows:
1. Proof that the product has been cleared through customs for release for consumption shall be furnished by production of:
(a) the relevant customs document or a copy or photocopy thereof; such copy or photocopy must be certified as being a true copy
by either the body which endorsed the original document, an official agency of the non-member country concerned, or an official
agency of a Member State; or
(b) the customs entry certificate made out in accordance with the specimen in Annex II; this certificate must be completed in
one or more official languages of the Community and in a language in current use in the non-member country concerned; or
(c) any other document endorsed by the customs authorities of the non-member country concerned which identifies the products and
shows that they have been released for consumption in that country.
12. However, it is clear from paragraph 2 of the same article that if, owing to circumstances beyond the control of the exporter,
none of the documents specified in paragraph 1 can be produced, or they are considered inadequate, proof of clearance through
customs for release for consumption may be deemed to be furnished by the production of seven other types of documents.
13. With regard to the procedure to be followed and the periods prescribed for payment of the export refund, Article 47 of Regulation
No 3665/87, as amended by Commission Regulation (EC) No 1829/94 of 16 July 1994,
(8)
provides as follows:
1. The refund shall be paid only on application by the exporter and shall be paid only by the Member State in whose territory
the export declaration was accepted. ...
2. Except in cases of
force majeure , the documents relating to payment of the refund or release of the security must be submitted
within 12 months following the date on which the ... export declaration was accepted.
(9)
...
4. Where the documents required under Article 18 cannot be submitted within the period referred to in paragraph 2, although the
exporter has acted with all due diligence to obtain them and communicate them within such period,
he may be granted further time
(10)
for the production of the documents. ...
E ─
Regulation (EEC) No 2220/85
14. Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system
of securities for agricultural products
(11)
sets out the rules governing securities to be given in the framework of the regulations on the common organisation of markets,
particularly in cereals,
unless other rules are laid down by those Regulations
(12)
(Article 1).
15. Article 3 reads as follows: For the purposes of this Regulation:
(a)
A
security is an assurance that a sum of money will be paid or forfeited to a competent authority if a particular obligation is not
met.
...
16. Articles 21, 22 and 28 of Regulation No 2220/85, as amended by Commission Regulation (EEC) No 1181/87 of 29 April 1987,
(13)
are worded as follows: Article 21Once the evidence laid down by the specific Regulation has been furnished that all primary, secondary and subordinate requirements
have been fulfilled, the security shall be released.Article 22
1. A security shall be forfeit in full for the quantity for which a primary requirement is not fulfilled, unless
force majeure prevented fulfilment.
2. A primary requirement shall be considered to have been breached if the relevant evidence is not produced within the time-limit
set for the production of that evidence unless
force majeure prevented production of such evidence within that time-limit. The procedure in Article 29 for recovering the sum forfeited
shall immediately be followed.
3. Where evidence that all primary requirements have been met is produced within
18 months of the deadline in the first subparagraph of paragraph 2, 85% of the sum forfeited shall be repaid. Where evidence that all primary requirements have been met is produced within 18 months of that deadline in circumstances
where the relevant secondary requirement has not been met, the sum to be repaid shall be the sum that would have been repayable
under Article 23(2), less 15% of the relevant part of the sum secured.
4. No repayment shall be made where evidence that all primary requirements have been respected is produced after the 18 month
period referred to in paragraph 3 has expired. unless
force majeure prevented production of this evidence within that period. Article 28
1. Where no period is laid down for producing the evidence needed to release a sum secured, such period shall be:
(a) 12 months from the time-limit specified for respecting all primary requirements, or
(b) where no such time-limit is specified, 12 months from the date by which all primary requirements have been met.
2. The period laid down in paragraph 1 shall not exceed three years from the time the security was assigned to a particular obligation,
except in cases of
force majeure .
II ─ Main proceedings and question referred to the Court
A ─
Background to the main proceedings
17. Glencore Grain Rotterdam BV (
Glencore), the plaintiff in the main proceedings, took part in the invitation to tender issued by Regulation No 2372/95. It was awarded
a total amount of 102 359 tonnes of common wheat and it then provided the security of ECU 60 per tonne pursuant to Article 8(2)
of Regulation No 2372/95.
18. According to the export certificates issued, the wheat was intended to be delivered to one or more of the ACP States listed
in the annex to Regulation No 2372/95. The common wheat in question was cleared by customs and left the territory of the Community
by ship between January and March 1996.
19. The plaintiff in the main proceedings observes that, in reality, only the amounts exported to Botswana, Lesotho and Swaziland
are relevant to the main proceedings. It further observes that as those three countries are in southern Africa and have no
ports, the wheat was unloaded at Durban, a port in the Republic of South Africa, where it was at first stored and then transported
to the three ACP countries in question as soon as transport became available.
20. Pursuant to the first indent of the second subparagraph of Article 8(2) of Regulation No 2372/95, the security of ECU 20 per
tonne was released by the defendant in the main proceedings following production of proof that the goods removed had left
the customs territory of the Community.
21. However, the documents proving the release of the goods for consumption in the destination countries were not lodged with
the defendant in the main proceedings until 24 June 1997, more than 18 months after acceptance of the export declaration.
22. The defendant in the main proceedings then declared forfeit 15% of the security of ECU 40 per tonne, taking as the legal basis
Article 22(2) and (3) and Article 29 of Regulation No 2220/85 together with the second indent of the second subparagraph of
Article 8(2) and Article 2 of Regulation No 2372/95, Article 17(5) of Regulation No 2131/93, and also Articles 18 and 47(2)
of Regulation No 3665/87.
23. The plaintiff in the main proceedings contested that decision without success and on 3 April 1998 brought an action before
the Verwaltungsgericht against the partial forfeiture of its security.
24. Before the national court, the plaintiff in the main proceedings claimed primarily that the 12-month time-limit laid down
by Article 47(2) of Regulation No 3665/87 did not apply in the context of the second subparagraph of Article 8(2) of Regulation
No 2372/95. It maintains that the 12-month period in Article 28(1)(b) of Regulation No 2220/85 should be applied. That provision,
unlike Article 47(2) of Regulation No 3665/87, does not cause time to run from the day following acceptance of the export
declaration, but merely provided that the evidence needed to release of the security should be furnished 12 months from the
date on which the primary requirement was met.
25. On the other hand, the defendant in the main proceedings considers that the second indent of the second subparagraph of Article 8(2)
of Regulation No 2372/95 constitutes the legal basis of the contested decision declaring the security forfeit. According to
those provisions, the security of ECU 40 per tonne must be released within 15 working days of the date on which the successful
tenderer supplies proof of entry for consumption in the ACP State or States referred to in Article 5(3) of that Regulation.
This evidence must be supplied in accordance with Articles 18 and 47 of Regulation (EEC) No 3665/87.
26. It is apparent from the order for reference that the Verwaltungsgericht is inclined to share the plaintiff's opinion that
the reference in the second indent of the second subparagraph of Article 8(2) of Regulation No 2372/95 to Article 47 of Regulation
(EEC) No 3665/87, and thus to the time-limit in Article 47(2), is a drafting error on the part of the legislature. It considers
that Regulation No 2372/95 does not lay down a time-limit for compliance with the primary obligation, namely the importation
of common wheat of breadmaking quality into an ACP State.
B ─
The question referred
27. Being of the view that the outcome of the dispute before it required an interpretation of the second indent of the second
subparagraph of Article 8(2) of Regulation No 2372/95 and of Article 47(2) of Regulation No 3665/87, the Verwaltungsgericht
Franfurt am Main decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:Must the second indent of the second subparagraph of Article 8(2) of Commission Regulation (EC) No 2372/95 of 10 October 1995
be interpreted as meaning that Article 47(2) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 must be simply
applied by analogy, so that the 12-month time-limit for supplying proof of importation into the ACP State concerned does not
begin to run until the primary requirement imposed by that regulation, namely the importation into the ACP State, is fulfilled?
III ─ Law
28. In essence, the national court is asking the Court to rule on whether the combined provisions of the second indent of the
second subparagraph of Article 8(2) of Regulation No 2372/95 and Article 47(2) of Regulation No 3665/87 may be interpreted
as meaning that the 12-month time-limit for proving importation into the ACP State concerned does not begin to run until the
primary obligation imposed by those provisions, namely, according to the national court, importation into the ACP State, has
been fulfilled.
A ─
The wording and interpretation of the provision in question
1. Glencore's submissions
29. According to the plaintiff in the main proceedings, whose viewpoint is shared by the national court, proof of the importation
of the wheat was furnished within the prescribed period because, on a proper interpretation of the second indent of the second
subparagraph of Article 8(2) of Regulation No 2372/95, the 12-month period prescribed for proving importation into the ACP
State concerned does not begin to run until importation into that State has been completed.
30. On this point, Glencore contends, first, that Regulation No 2372/95, unlike Regulation No 3665/87 on export refunds, prescribes
only one period within which the goods must be exported, but does not expressly provide for a period within which they must
be imported into the ACP State of destination. In those rules, which relate only to exports to ACP States, the legislature
intentionally refrained from setting a time-limit for completion of the importation of the goods into the ACP State concerned
because it was often impossible to adhere to the 12-month period. As the goods come from Europe by ship, they have initially
to be stored temporarily, for logistical reasons, before they can be loaded on to lorries or trains. They are then transported
across Africa under conditions which are often very difficult. As no time-limit was laid down for importation in the ACP State,
that necessarily implies that a time-limit cannot be imposed for furnishing proof either.
31. Glencore maintains that a comparison with Article 17 of Regulation No 2131/93 also shows that the legislature did not intend
to make proof of importation subject to a time-limit of 12 months following completion of customs export formalities. Article 17
provides that the security is to be released either on production of documents proving that import customs duties have been
paid under Article 18 of Regulation No 3665/87, or on production of proof that the cereals have left the customs territory
of the Community on a seagoing vessel. It is expressly stated that such proof must be provided within the time-limit laid
down in Article 47 of that regulation. Regardless of the fact that the time-limit laid down by Article 47(2) is expressly
mentioned in the aforesaid Article 17, such a provision is rational because it is simple and easy to prove that the goods
have left the Community on a seagoing vessel. Regulation No 2372/95 lays down a time-limit for exports only. If the legislature
had also intended to set a time-limit for furnishing proof of importation into the ACP States, it would not have omitted to
do so.
32. Finally, the foregoing interpretation of the second indent of the second subparagraph of Article 8(2) of Regulation No 2372/95
is also justified, in Glencore's submission, by the fact that Regulation No 2220/85 is applicable. The security to be provided
in connection with exports under the former regulation is a security within the meaning of Article 3(a) of Regulation No 2220/85.
The importation of cereals into the recipient ACP States is a primary requirement under Article 20(2) of that regulation.
It is common ground that that requirement was fulfilled.
33. No doubt Article 22(2) of that regulation gives the impression that the primary requirement must be deemed not to have been
fulfilled if the corresponding proof is not produced within the period allowed for the production of that proof. However,
the second indent of the second subparagraph of Article 8(2) of Regulation No 2372/95 does not set a time-limit for the production
of proof, unlike Article 17(5) of Regulation No 2131/93.
34. In so far as a time-limit is not laid down for fulfilling the primary requirement either, the time-limit for producing proof
of importation into the Member State of destination is, according to Article 28(1)(b) of Regulation No 2220/85, 12 months
from fulfilment of the primary requirement, namely importation into the ACP States of destination. In order to ensure that
that period does not become too long, Article 28(2) provides for an absolute maximum of three years from the date on which
the security was provided.
35. The plaintiff in the main proceedings concludes that the second indent of the second subparagraph of Article 8(2) of Regulation
No 2372/95 does not prescribe any period for producing proof of importation and that the reference to Article 47 of Regulation
No 3665/87 can only be interpreted as meaning that that provision may be given an interpretation by analogy suited to Regulation
No 2372/95.
36. Therefore the 12-month period should not begin to run until the primary requirement imposed by that regulation, namely importation
into the ACP State, has been fulfilled.
2. The Commission's viewpoint
37. The Commission contends that the provisions relating to time-limits in Article 47 of Regulation No 3665/87 are automatically
applicable by virtue of the second indent of the second subparagraph of Article 8(2) of Regulation No 2372/95, so that proof
of importation of the goods into the ACP country or countries concerned, which is necessary for release of the security, must
be provided within 12 months of the date of acceptance of the export declaration, subject to extension of the period pursuant
to Article 47(4) and (5) of Regulation No 3665/87 or in a case of
force majeure .
38. In the Commission's submission, the wording of the second indent of the second subparagraph of Article 8(2) of Regulation
No 2372/95 is clear and unambiguous: there is no suggestion in that provision that the reference to Article 47 of Regulation
No 3665/87 should not also extend to the time-limit provision in Article 47(2). If that provision were not taken into account,
the reference would be wholly ineffective.
39. The Commission maintains that Glencore's proposed recourse to the time-limit rules in Article 28 of Regulation No 2220/85
is inadmissible, because, according to Article 1, that regulation applies only in so far as other rules are not laid down
by the specific sector regulations adopted in the framework of the common organisation of the market. On that point, the Commission
also refers to the penultimate recital to Regulation No 2220/85. It submits that Glencore's approach would also be contrary
to the principle of legal certainty, according to which
Community legislation must be clear and its application foreseeable for all interested parties.
(14)
40. The Commission submits that if there had been a drafting error it would have been a simple matter to rectify the provision
or to amend it accordingly. No such rectification or amendment was made, although the Commission amended another provision
of Regulation No 2372/95 in November 1995.
41. Furthermore, Article 17 of Regulation No 2131/93 also refers to Article 47 of Regulation No 3665/87 in relation to the time-limit
for releasing the security. Consequently, Article 8 of Regulation No 2372/95 forms part of the detailed rules applying to
the procedures for placing on sale cereals from intervention stocks. It makes no difference that the wording of the reference
varies slightly from one provision to another. Had the legislature intended to depart from the general detailed rules relating
to time-limits, it would have made its intention clear.
3. Assessment
42. Clearly, it is regrettable that the Commission uses the technique of referring to other regulations even in cases where it
would be very easy to express the desired rule directly.
43. Thus, Regulation No 2372/95 would not have been unduly lengthened if the Commission had stated in Article 8(2): This proof shall be supplied, within 12 months of the date of acceptance of the export declaration, in accordance with one
of the methods of proof laid down in Article 18 of Commission Regulation (EEC) No 3665/87, save in cases of
force majeure . However, where the documents required under Article 18 have not been produced within that period, although the exporter
has taken steps to obtain and produce them within that period, further time may be allowed for production of the documents.
(15)
44. That said, there is no doubt to my mind that the provisions in question are not ambiguous. The reference to Article 47 of
Regulation No 3665/87 cannot be interpreted as applying to all the provisions of Article 47 with the exception of paragraph (2),
which prescribes a period of 12 months beginning on the date of acceptance of the export declaration, and paragraph (4), which
provides for further time.
45. Like the other provisions of Regulation No 3665/87, Article 47 refers to the system of export refunds. However, such refunds
are not granted in the context of the invitations to tender which form the subject-matter of this case. In those circumstances,
the Commission is correct to observe that it would be pointless to refer to Article 47 if the reference did not cover the
two paragraphs on time-limits.
46. Let me add that, in the opinion to which the Commission refers and which concerns the interpretation of regulations on the
administration and control of Community aid, Advocate General Léger observes: Provisions of Community law that are free from ambiguity are sufficient in themselves. Any interpretation by the Court owes
at least as much to their wording as to the purpose pursued by the legislation of which they are a part. Why interpret a text
which is both clear and precise by giving it a meaning which it clearly cannot have?
(16)
47. In that opinion, Advocate General Léger considers that
we should prefer the interpretation that is most consistent with the principle of legal certainty, that is, the interpretation
required by the actual wording
(17)
of the provision in question.
48. The Court itself refuses to accept an argument which runs counter to the wording of a provision of a regulation which is unambiguous
and the wording of which is sufficiently clear.
(18)
49. As regards Glencore's argument concerning Regulation No 2220/85 and an alleged drafting error, I consider that the Commission's
replies (summarised at points 38 and 39 above) are entirely convincing.
50. I conclude, therefore, that the provisions in question are not ambiguous and that their wording does not permit the interpretation
proposed by the national court. On the contrary, the period of 12 months during which an operator must produce proof of importation
does indeed begin to run on the date of acceptance of the export declaration.
51. As this conclusion enables me to give a definitive answer to the question put by the national court, it is purely as an ancillary
matter that I shall turn to the other arguments raised in this case.
B ─
The ratio legis of the mechanism and the detailed rules relating to time-limits laid down in Regulation No 2372/95 in the
light of the specific nature of that regulation and the circumstances of the particular case
52. On this point, I think it appropriate to set out the national court's observations, which are more detailed than Glencore's
while having the same impact.
1. The viewpoint of the national court
53. The national court, like Glencore, considers that Regulation No 2372/95 does not lay down a time-limit for fulfilling the
primary requirement, namely the export of common wheat to the ACP States.
54. However, according to the national court, if one were to accept the defendant's view that the documents certifying importation
into an ACP State must be produced within 12 months of the acceptance of the import declaration, that would amount to creating
indirectly, by means of a subordinate secondary requirement, a time-limit for the performance of a primary requirement.
55. Therefore, if the reference in Article 8(2) of Regulation No 2372/95 to Article 47 of Regulation No 3665/87 was not a drafting
error, the former regulation would have the effect of placing the exporter in a worse situation by comparison with the obligations
imposed on him by Regulation No 2131/93, which would be contrary to the
spirit and
purpose
(19)
of the regulation.
56. The national court adds that the recitals show that, because of the specific nature of the operation and the accounting situation
of the common wheat in question, the mechanisms and resale obligations in relation to intervention stocks were to be relaxed.
Special rules had to be laid down in order to ensure the lawfulness of the operations and to monitor them. For that purpose,
it was appropriate to provide for a security system to ensure that the desired aims were achieved while avoiding excessive
costs for the participants and it was therefore necessary to derogate from certain rules, in particular from Regulation No 2131/93.
57. In contrast to what was required by Regulation No 2131/95, an importer is required by Regulation No 2372/95 not only to remove
the goods after sale and market them outside the Community, but also to import them into ACP States.
58. Thus more is required from an exporter who has been awarded a tender under Regulation No 2372/95 than from an exporter referred
to in Regulation No 2131/93.
59. Furthermore, whereas an exporter under the latter regulation has 12 months in which to prove that the goods had been loaded
on to a vessel (such proof being relatively simple because it can be issued by the authorities of the Member States of the
Community), an exporter under Regulation No 2372/95 must prove that the goods have been released for consumption in an ACP
State (which is more difficult to prove) and he has the same 12-month period for that purpose. This takes no account of the
fact that Regulation No 2372/95 was intended to avoid excessive costs for operators, which made it necessary to derogate from
certain provisions of Regulation No 2131/93.
60. The national court further observes that under Regulation No 2372/95 an exporter must lodge a significantly higher security
(ECU 60 per tonne) than he is required to provide under Regulation No 2131/93.
61. Owing to its amount, that security not only covers the difference between the world market price and the Community price but
also has another objective. The defendant's argument that Regulation No 2131/93 always applies unless Regulation No 2372/95
provides otherwise cannot therefore succeed.
62. Article 17(5) of Regulation No 2131/93 cannot constitute the legal basis for the security provided for in Regulation No 2372/95
because that security represents neither a guarantee of supply nor a security designed to cover the difference between the
world market price and the Community price.
2. The Commission's viewpoint
63. In its observations, the Commission first of all emphasises, purely by way of precaution, that an interpretation based on
the objective of the provision, far from refuting the arguments raised in support of its theory, rather supports them.
64. Referring to the second and third recitals to Regulation No 2372/95, the Commission observes that the purpose of issuing the
standing invitation to tender was primarily to cover the requirements of the ACP States for common wheat of breadmaking quality.
The importation of common wheat into those countries was therefore indeed the primary obligation imposed on successful tenderers
and the performance of that obligation was ensured by the provision of the security provided for in Article 8(2). Had a longer
period been set than the comparable period applicable in the framework of the general scheme of Article 17(5) of Regulation
No 2131/93 for producing proof of the importation of the goods into the ACP States in question, which was necessary for the
release of the second part of the security, that would have detracted from the importance of the role which that obligation
plays in ensuring the success of the measure as a whole. That, however, would have been the consequence of applying the time-limit
provisions of Article 28(1)(b) of Regulation No 2220/85, as proposed by Glencore.
65. Finally, the Commission notes that that conclusion is not precluded by the fact that the purpose of the security required
by Article 8(2) of Regulation No 2372/95 was, according to the fourth recital to the regulation, to avoid excessive costs
for operators. That statement relates merely to the amount of the security to be lodged, not to the conditions for its release,
which, rather, are dealt with in the fifth recital.
3. Assessment
66. As regards the advantage and importance of a teleological interpretation, I shall refer, first of all, to the Opinion of Advocate
General Léger which I have already cited above,
(20)
which states: A careful examination of the case-law of this Court shows that
teleological interpretation is not used by the Court on every occasion....Reference is often made to the purpose of Community legislation in order to confirm the wording of the provision concerned.
This is intended to support the meaning of a provision which, although not always totally clear and unambiguous, generally
leaves little room for doubt. Recourse to the wording and recourse to the purpose of Community rules are thus complementary
with the process of interpretation.Conversely, where it is difficult to interpret legislation from its wording alone, an interpretation based on purpose becomes
fundamental. That is the case where the provision in dispute is ambiguous ...... [H]ere the provision is clear and precise. Thus, strictly as regards interpretation, it needs no confirmation or elucidation
requiring us to consider the purpose of the legislation of which it is part.
(21)
67. As the provisions in question are unambiguous, I see no need to ascertain the
ratio legis . Consequently, I shall examine this question purely by way of an alternative reply.
68. I readily accept that the Commission has not explained how Regulation No 2372/95 introduced
greater flexibility in the mechanisms and obligations governing the resale of intervention stocks (fourth recital), nor has it shown what the
excessive costs were which the security arrangement put in place ensured would not be imposed on operators. The example of the amount of
the security amount is clearly unconvincing, since it is higher than for ordinary exports.
69. That said, it must be noted that the main purpose of Regulation No 2372/95 is not to make certain mechanisms more flexible
or to enable certain costs to be avoided, but to ensure that the wheat reaches its destination within a reasonable period.
There are two reasons for this.
70. First, the object of the deliveries in question was to supply the recipient ACP States with the significant quantities of
wheat which they needed, and it may be assumed that they needed the wheat quite quickly, even though we are not talking about
an emergency food aid operation.
71. Secondly, the second recital to Regulation No 2372/95 states that
it is ... necessary to issue a specific invitation to tender to ensure that users in these countries have access to common
wheat of breadmaking quality under conditions appropriate to the highly competitive situation on the world market. The prices at which the lots were awarded therefore came within a specific economic context and deliveries therefore had
to take place in the period during which that context persisted.
72. I consider that those are valid reasons which legitimately led the Commission to make
[t]he obligation to export and
import into one of the countries of destination (Article 8(2) of Regulation No 2372/95) subject to a strict time-limit and to ensure compliance with that time-limit by the
lodging of a relatively high security.
73. Glencore has not produced the contracts which it concluded with the countries of destination and which, under Article 4 of
Regulation No 2372/95, ought to have been lodged with the national intervention agency before the date of the first invitation
to tender. Those contracts were to show the time-limit for delivery and, also pursuant to Article 4, they were to
cover only those
deliveries
(22)
to be made during the period October 1995 to February 1996.
74. Such rules are not imposed for
normal exports made within the framework of Regulation No 2131/93, which aims only to ensure that cereals from intervention agency
stocks are actually exported to unspecified third countries and not sold on the Community market.
75. In addition, it must be observed that Regulation No 2131/93 does not constitute the legal basis of Regulation No 2372/95.
It is not mentioned among the citations of the latter regulation. Both regulations are at the same level. Both have their
legal basis in Article 5 of Regulation No 1766/92 on the common organisation of the market in cereals.
76. Consequently Article 2 of Regulation No 2372/95 states, perfectly logically, that Regulation No 2131/93 is to apply only in
so far as Regulation No 2372/95 does not provide otherwise.
77. Finally, and for the sake of completeness, it should be noted that, from the technical viewpoint, the arrangement in issue
in this case has a number of similarities with that of differentiated refunds in so far as the identity of the country of
destination plays an essential role in both cases.
78. In its judgment in
DAT-SCHAUB ,
(23)
the Court, after identifying the specific characteristics of the system in question (
the reason for differentiated refunds being the desire to take account of the particular characteristics of each import market
in which the Community wishes to play a part), made the following inferences: It is essential for that purpose of the system of differentiated refunds that products in respect of which a subsidy is granted
in the form of a refund actually reach their market of destination so that they can be marketed there. ...Thus, in accordance with the provisions of Regulation No 3665/87, payment of refunds is conditional, in the case of differentiated
refunds, on the product having been imported into a non-member country and on the formalities for its release for consumption
having been completed.
(24)
79. I therefore conclude that consideration of the purpose of the provisions in question does not lead to an interpretation in
any way different from the interpretation based on their wording.
C ─
The principle of proportionality
80. Before the national court, the plaintiff in the main proceedings maintained that the substantial amount of the security which
was forfeited was contrary to the principle of proportionality.
81. In that regard, however, it must be observed that Article 47(2) of Regulation No 3665/87 expressly permits exporters to produce
proof of
force majeure
(25)
and that Article 47(4) permits them to request further time. As the Commission observed at the hearing, the use of the plural
indicates that more than one extension could be granted in succession.
82. Furthermore, the Commission correctly pointed out, in its written observations, that Article 22 of Regulation No 2220/85 lays
down a graduated system of sanctions for failure to fulfil the primary requirements within the prescribed periods. Thus, under
the first subparagraph of Article 22(3), only 15% of the security is forfeited where proof is produced within 18 months of
expiry of the original period. The entire security is forfeited under Article 22(4) only upon expiry of the additional period.
By means of this graduated scale, Article 22 takes account of the principles developed by the Court in its case-law
(26)
concerning the proportionality of sanctions for failure to meet time-limits.
83. If the national court had asked the Court whether Regulation No 2372/95 should be deemed invalid because it breached the principle
of proportionality, the Court would therefore, in my view, have had to reply in the negative.
IV ─ Conclusion
84. In the light of the foregoing observations, I propose that the Court reply as follows to the question from the Verwaltungsgericht
Frankfurt am Main:The second indent of the second subparagraph of Article 8(2) of Commission Regulation (EC) No 2372/95 of 10 October 1995 on
the issuing of standing invitations to tender for the sale of common wheat of breadmaking quality held by the French and German
intervention agencies for export to certain ACP countries in the 1995/96 marketing year must be interpreted as meaning that
proof of the importation of goods into the ACP States concerned, which is necessary for the release of the security in the
amount of ECU 40 per tonne, must be produced, in accordance with Article 47(2) of 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,
within a period of 12 months following the date of acceptance of the export declaration, unless the exporter has obtained
further time within which to produce the requisite proof or in a case of
force majeure , in accordance with Article 47(4) and (5) of the Regulation No 3665/87.
- 1 –
- Original language: French.
- 2 –
- OJ 1992 L 181, p. 21.
- 3 –
- OJ 1993 L 191, p. 76.
- 4 –
- OJ 1994 L 21, p. 1.
- 5 –
- Emphasis added.
- 6 –
- OJ 1995 L 242, p. 13.
- 7 –
- OJ 1987 L 351, p. 1.
- 8 –
- OJ 1994 L 191, p. 5.
- 9 –
- Emphasis added.
- 10 –
- Emphasis added.
- 11 –
- OJ 1985 L 205, p. 5.
- 12 –
- Emphasis added.
- 13 –
- OJ 1987 L 113, p. 31.
- 14 –
- See, in particular, Case C-325/91
France v
Commission [1993] ECR I-3283, paragraph 26.
- 15 –
- The last sentence is taken from Article 47(4) of Regulation No 3665/87.
- 16 –
- See the Opinion in Case C-63/00
Schilling and Nehring [2002] ECR I-4483, point 24.
- 17 –
- Ibid., point 32.
- 18 –
- See, in particular, Case C-74/98
DAT-SCHAUB [1999] ECR I-8759, paragraphs 31 and 44.
- 19 –
- Emphasis added.
- 20 –
- See footnote 15.
- 21 –
- Ibid., paragraphs 23 to 28.
- 22 –
- Emphasis added.
- 23 –
- Cited in footnote 18 (paragraphs 27 to 29); see also Case 89/83
Dimex [1984] ECR 2815, paragraph 8, and Case C-299/94
Anglo-Irish Beef Processors International and Others [1996] ECR I-1925, paragraphs 21 and 28, to which the judgment in
DAT-SCHAUB refers.
- 24 –
- On this point, the Court refers to the judgment in Case C-263/97
First City Trading and Other [1998] I-5537, paragraph 27.
- 25 –
- The plaintiff in the main proceedings could have pleaded
force majeure before the national court. However, it has not requested the Court to make a ruling on this point.
- 26 –
- See, most recently, Case C-356/97
Molkereigenossenschaft Wiedergeltingen [2000] ECR I-5461.
