61982J0109

AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK AND MILK PRODUCTS - EXPORT CERTIFICATES WITH ADVANCE FIXING OF REFUNDS - DAY OF ISSUE - CONCEPT - EXPORTS IN CONNECTION WITH INVITATIONS TO TENDER OPENED IN AN IMPORTING NON-MEMBER COUNTRY - DATE OF ISSUE - CONCEPT

( REGULATION NO 2044/75 OF THE COMMISSION , ARTS 3 ( 3 ) AND 6 )

IT APPEARS FROM THE CONTEXT IN WHICH THE CONCEPTS OF DAY OF ISSUE AND DATE OF ISSUE ARE USED IN ARTICLES 3 ( 3 ) AND 6 RESPECTIVELY OF REGULATION NO 2044/75 ON SPECIAL DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND THE ADVANCE FIXING OF REFUNDS IN RESPECT OF MILK AND MILK PRODUCTS THAT THE FIRST CONCEPT RELATES TO THE DAY ON WHICH THE EXPORT CERTIFICATE IS GRANTED AND THE SECOND TO THE DAY FROM WHICH THE PERIOD OF VALIDITY OF THE CERTIFICATE GRANTED MUST BE CALCULATED . CONSEQUENTLY , THERE IS NO CONTRADICTION BETWEEN THOSE TWO PROVISIONS AND ARTICLE 6 CANNOT BE CONSIDERED TO BE AN EXCEPTION TO THE RULE LAID DOWN BY ARTICLE 3 ( 3 ).

IN CASE 109/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL ADMINISTRATIF ( ADMINISTRATIVE COURT ), PARIS , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

INTERAGRA SA , PARIS ,

AND

FONDS D ' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES ( FORMA ) ( AGRICULTURAL MARKETS GUIDANCE AND STABILIZATION FUND ), PARIS ,

ON THE INTERPRETATION OF ARTICLES 3 ( 3 ) AND 6 OF REGULATION ( EEC ) NO 2044/75 OF THE COMMISSION OF 25 JULY 1975 ON SPECIAL DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND THE ADVANCE FIXING OF REFUNDS IN RESPECT OF MILK AND MILK PRODUCTS ,

1 BY JUDGMENT DATED 16 FEBRUARY 1982 WHICH WAS RECEIVED AT THE COURT ON 24 MARCH 1982 THE TRIBUNAL ADMINISTRATIF ( ADMINISTRATIVE COURT ), PARIS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLES 3 ( 3 ) AND 6 OF REGULATION ( EEC ) NO 2044/75 OF THE COMMISSION OF 25 JULY 1975 ON SPECIAL DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND THE ADVANCE FIXING OF REFUNDS IN RESPECT OF MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL , 1975 , L 213 , P . 15 ).

2 THE QUESTION WAS RAISED IN AN ACTION BROUGHT BY INTERAGRA SA BEFORE THE NATIONAL COURT FOR THE ANNULMENT , ON THE GROUND OF MISUSE OF POWERS , OF THE DECISION OF THE FONDS D ' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES ( AGRICULTURAL MARKETS GUIDANCE AND STABILIZATION FUND , HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' ) OF 28 NOVEMBER 1980 BY WHICH THE FUND DECLARED THAT IN VIEW OF COMMISSION REGULATION NO 2993/80 OF 19 NOVEMBER 1980 SUSPENDING ADVANCE FIXING OF REFUNDS ON EXPORTS OF BUTTER AND BUTTER-OIL ( OFFICIAL JOURNAL , 1980 , L 310 , P . 18 ) THE APPLICATION FOR AN ADVANCE-FIXING CERTIFICATE LODGED BY INTERAGRA ON 17 NOVEMBER 1980 HAD BECOME DEVOID OF PURPOSE BY VIRTUE OF ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 .

3 THAT APPLICATION OF REGULATION NO 2044/75 WAS CHALLENGED BY INTERAGRA BEFORE THE TRIBUNAL ADMINISTRATIF , PARIS , AND PROMPTED THAT COURT TO SUBMIT THE FOLLOWING QUESTION TO THE COURT OF JUSTICE :

' ' WHAT WAS THE SCOPE , ON 17 NOVEMBER 1980 , OF ARTICLES 3 ( 3 ) AND 6 OF REGULATION NO 2044/75 OF THE COMMISSION OF 25 JULY?

IN PARTICULAR :

( I ) DOES ARTICLE 6 LAY DOWN , IN RESPECT OF ALL EXPORTS TO NON-MEMBER COUNTRIES IN CONNECTION WITH INVITATIONS TO TENDER , A GENERAL RULE WHICH IS NEVERTHELESS SUBJECT TO AN EXCEPTION IN THE CASE OF THE PRODUCTS REFERRED TO IN ARTICLE 3 ( 3 ) AND WHICH IS NOT CAPABLE OF PREVENTING THE APPLICATION OF THE ' SPECIAL MEASURES ' REFERRED TO IN THAT PARAGRAPH?

( II)OR , ON THE CONTRARY , DOES ARTICLE 6 LAY DOWN FOR THOSE TRANSACTIONS SPECIAL PROVISIONS WHICH MAY BE REGARDED AS CONSTITUTING AN EXCEPTION TO THE GENERAL RULES CONTAINED IN ARTICLE 3 ( 3 ), SO AS TO PREVENT THE APPLICATION OF THE ' SPECIAL MEASURES ' REFERRED TO IN THE LATTER PROVISION?

' '

4 ON 17 NOVEMBER 1980 ARTICLE 3 OF REGULATION NO 2044/75 CONTAINED A THIRD PARAGRAPH PROVIDING THAT EXPORT CERTIFICATES FOR BUTTER AND BUTTER-OIL IN PARTICULAR WERE TO BE ISSUED ON ' ' THE FIFTH WORKING DAY FOLLOWING THAT ON WHICH THE APPLICATION IS LODGED , UNLESS SPECIAL MEASURES ARE TAKEN IN THE INTERVENING PERIOD ' ' . NONE OF THE PARTIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT DISPUTE THAT A MEASURE SUSPENDING THE ADVANCE FIXING OF EXPORT REFUNDS , SUCH AS THAT DECIDED ON BY THE COMMISSION IN REGULATION NO 2993/80 , IS A SPECIAL MEASURE WITHIN THE MEANING OF THE PROVISION CITED ABOVE .

5 INTERAGRA ' S APPLICATION FOR AN EXPORT CERTIFICATE WAS LODGED ON 17 NOVEMBER 1980 AND COMMISSION REGULATION NO 2993/80 , INTRODUCING SPECIAL MEASURES WITHIN THE MEANING OF ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 OF THE COMMISSION , ENTERED INTO FORCE ON 20 NOVEMBER 1980 , THAT IS TO SAY WITHIN THE FIVE-DAY PERIOD PROVIDED FOR BY ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 . AS A RESULT THE FUND REFUSED TO ISSUE THE CERTIFICATES APPLIED FOR .

6 INTERAGRA CONTENDED , HOWEVER , THAT THE RULE IN ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 DOES NOT APPLY IN THE CASE OF INVITATIONS TO TENDER OPENED IN AN IMPORTING NON-MEMBER COUNTRY FOR WHICH ARTICLE 6 OF THE SAME REGULATION LAYS DOWN , SO IT CONTENDS , A SPECIAL RULE CONCERNING THE ISSUE OF CERTIFICATES .

7 ARTICLE 6 OF REGULATION NO 2044/75 PROVIDES THAT IN THE CASE OF EXPORTS IN CONNECTION WITH AN INVITATION TO TENDER OPENED IN A NON-MEMBER COUNTRY THE EXPORT CERTIFICATE IS TO BE VALID FROM ITS DAY OF ISSUE WITHIN THE MEANING OF ARTICLE 9 ( 1 ) OF REGULATION ( EEC ) NO 193/75 . ARTICLE 9 ( 1 ) OF REGULATION NO 193/75 STATES THAT FOR THE PURPOSE OF DETERMINING THEIR PERIOD OF VALIDITY LICENCES OR CERTIFICATES ARE TO BE CONSIDERED TO HAVE BEEN ISSUED ON THE DAY ON WHICH THE APPLICATION FOR THEM WAS LODGED , THAT DAY BEING INCLUDED IN THE CALCULATION OF SUCH PERIOD OF VALIDITY .

8 IT IS CLEAR FROM THE VERY WORDS USED IN ARTICLE 9 ( 1 ) OF REGULATION NO 193/75 THAT THE DATE OF ISSUE USED FOR THE PURPOSE OF DETERMINING THE PERIOD OF VALIDITY OF A CERTIFICATE IS DEEMED TO BE THE DATE ON WHICH THE APPLICATION FOR A CERTIFICATE WAS LODGED AND THAT THAT DATE MAY BE DIFFERENT FROM THE DATE ON WHICH THE CERTIFICATE WAS ACTUALLY GRANTED OR THAT ON WHICH THE CERTIFICATE WAS PHYSICALLY DELIVERED TO THE EXPORTING UNDERTAKING .

9 IT THUS APPEARS FROM THE CONTEXT IN WHICH THE CONCEPTS OF DAY OF ISSUE AND DATE OF ISSUE ARE USED IN ARTICLES 3 ( 3 ) AND 6 RESPECTIVELY OF REGULATION NO 2044/75 THAT THE FIRST CONCEPT RELATES TO THE DAY ON WHICH THE EXPORT CERTIFICATE IS GRANTED AND THE SECOND TO THE DAY FROM WHICH THE PERIOD OF VALIDITY OF THE CERTIFICATE GRANTED MUST BE CALCULATED . CONSEQUENTLY , THERE IS NO CONTRADICTION BETWEEN THOSE TWO PROVISIONS AND ARTICLE 6 CANNOT BE CONSIDERED TO BE AN EXCEPTION TO THE RULE LAID DOWN BY ARTICLE 3 ( 3 ).

10 IN ITS OBSERVATIONS INTERAGRA TOOK THE VIEW THAT REGULATION NO 3137/80 OF 4 DECEMBER 1980 , AMENDING REGULATION NO 2044/75 FOR THE 18TH TIME , PROVIDES CONFIRMATION OF THE INTERPRETATION WHICH IT PLACES ON REGULATION NO 2044/75 AS IN FORCE IN NOVEMBER 1980 . IT IS NOT NECESSARY FOR THE COURT TO RULE UPON THE EXACT SCOPE OF THAT AMENDMENT , HOWEVER , FIRST BECAUSE THE QUESTION WHICH THE NATIONAL COURT HAS SUBMITTED CONCERNS THE SCOPE , ON 17 NOVEMBER 1980 , OF ARTICLES 3 AND 6 OF REGULATION NO 2044/75 AND SECONDLY BECAUSE THE AMENDMENT OF 4 NOVEMBER 1980 WAS RETROACTIVE ONLY TO 22 NOVEMBER 1980 , THAT IS TO SAY TO A DATE SUBSEQUENT TO THAT ON WHICH THE SPECIAL MEASURE CONSTITUTED BY REGULATION NO 2993/80 ENTERED INTO EFFECT .

11 THE ANSWER TO THE QUESTION SUBMITTED BY THE TRIBUNAL ADMINISTRATIF , PARIS , SHOULD THEREFORE BE THAT ON 17 NOVEMBER 1980 ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 APPLIED TO ALL APPLICATIONS FOR EXPORT CERTIFICATES FIXING IN ADVANCE THE REFUND ON THE PRODUCTS FALLING UNDER SUBHEADINGS 04.02 A II ( B ) 1 , 04.02 B I ( B ) 2 ( AA ) AND 04.03 ( SKIMMED-MILK POWDER , BUTTER AND BUTTER- OIL ), INCLUDING APPLICATIONS FOR SUCH CERTIFICATES LODGED IN CONNECTION WITH AN INVITATION TO TENDER OPENED IN AN IMPORTING NON-MEMBER COUNTRY .

COSTS

12 THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND THE COMMISSION , WHICH HAVE SUBMITTED 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 NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE TRIBUNAL ADMINISTRATIF , PARIS , BY JUDGMENT OF 16 FEBRUARY 1982 , HEREBY RULES :

ON 17 NOVEMBER 1980 ARTICLE 3 ( 3 ) OF REGULATION 2044/75 APPLIED TO ALL APPLICATIONS FOR EXPORT CERTIFICATES FIXING IN ADVANCE THE REFUND ON THE PRODUCTS FALLING UNDER SUBHEADINGS 04.02 A II ( B ) 1 , 04.02 B I ( B ) 2 ( AA ) AND 04.03 ( SKIMMED-MILK POWDER , BUTTER AND BUTTER-OIL ), INCLUDING APPLICATIONS FOR SUCH CERTIFICATES LODGED IN CONNECTION WITH AN INVITATION TO TENDER OPENED IN AN IMPORTING NON-MEMBER COUNTRY .