61978J0122

AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - IMPORT AND EXPORT LICENCES - SYSTEM OF SECURITIES - OBLIGATION TO IMPORT OR EXPORT - FULFILMENT - FURNISHING OF PROOF - PERIOD - FAILURE TO OBSERVE PERIOD - PENALTY - LOSS OF WHOLE OF SECURITY - PRINCIPLE OF PROPORTIONALITY - INFRINGEMENT - ARTICLE 3 OF COMMISSION REGULATION NO 499/76 - INVALID

THE PENALTY LAID DOWN IN ARTICLE 3 OF REGULATION NO 499/76 MUST BE HELD TO BE EXCESSIVELY SEVERE IN RELATION TO THE OBJECTIVES OF ADMINISTRATIVE EFFICIENCY IN THE CONTEXT OF THE SYSTEM OF IMPORT AND EXPORT LICENCES . IN PROVIDING FOR THE LOSS OF THE WHOLE OF THE SECURITY IN THE EVENT OF NON-OBSERVANCE OF THE PERIOD LAID DOWN FOR THE FURNISHING OF PROOF OF IMPORTATION OR EXPORTATION , THE SAID PROVISION APPLIES A FIXED PENALTY TO AN INFRINGEMENT WHICH IS CONSIDERABLY LESS SERIOUS THAN THAT OF FAILURE TO FULFIL THE OBLIGATION TO IMPORT OR EXPORT WHICH THE SECURITY ITSELF IS INTENDED TO GUARANTEE , WHICH IS SANCTIONED BY AN ESSENTIALLY PROPORTIONATE PENALTY . ALTHOUGH , IN VIEW OF THE INCONVENIENCE CAUSED BY THE BELATED PRODUCTION OF PROOFS , THE COMMISSION WAS ENTITLED TO INTRODUCE A PERIOD IN THIS CONNEXION , IT SHOULD HAVE SANCTIONED FAILURE TO COMPLY WITH THAT PERIOD ONLY WITH A PENALTY CONSIDERABLY LESS ONEROUS FOR THOSE CONCERNED THAN THAT PRESCRIBING THE LOSS OF THE WHOLE OF THE SECURITY AND MORE CLOSELY ALLIED TO THE PRACTICAL EFFECTS OF SUCH AN OMISSION . ARTICLE 3 OF REGULATION NO 499/76 IS THEREFORE INVALID .

IN CASE 122/78

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

S.A . BUITONI

AND

FONDS D ' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES

ON THE VALIDITY AND THE INTERPRETATION OF ARTICLE 3 OF COMMISSION REGULATION NO 499/76 OF 5 MARCH 1976 AMENDING REGULATION NO 193/75 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL L 59 , P . 18 ),

1BY JUDGMENT OF 22 MARCH 1978 THE TRIBUNAL ADMINISTRATIF , PARIS , REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION RELATING TO THE VALIDITY AND INTERPRETATION OF ARTICLE 3 OF COMMISSION REGULATION NO 499/76 OF 5 MARCH 1976 AMENDING REGULATION NO 193/75 OF 17 JANUARY 1975 ( OFFICIAL JOURNAL L 25 , P . 10 ) LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL L 59 , P . 18 ).

2IT APPEARS FROM THE JUDGMENT MAKING THE REFERENCE THAT THE PLAINTIFF IN THE MAIN ACTION , WHICH HAD OBTAINED , SUBJECT TO THE PROVISION OF A SECURITY , IMPORT CERTIFICATES FOR A QUANTITY OF TOMATO CONCENTRATES COMING FROM THIRD COUNTRIES AND HAD IMPORTED THOSE GOODS WITHIN THE PERIOD OF VALIDITY OF THE LICENCES WAS , BY DECISION OF THE FRENCH INTERVENTION AGENCY , REFUSED RELEASE OF THE SECURITY ON THE GROUND THAT IT HAD FAILED TO SUBMIT TO THAT AGENCY THE REQUISITE PROOF OF IMPORTATION WITHIN THE PERIOD LAID DOWN IN ARTICLE 3 OF REGULATION NO 499/76 .

3BEFORE THE NATIONAL COURT , IN WHICH IT BROUGHT AN ACTION AGAINST THAT DECISION , THE PLAINTIFF IN THE MAIN ACTION PLEADED THE INVALIDITY OF ARTICLE 3 OF REGULATION NO 499/76 , IN PARTICULAR ON THE GROUND OF VIOLATION OF THE PRINCIPLE OF PROPORTIONALITY , AND IT ALSO CLAIMED THAT THAT ARTICLE IS CONTRARY TO THE PURPOSE AND SPIRIT OF THE COMMUNITY SYSTEM OF SECURITIES .

4IN THE LIGHT OF THOSE CONSIDERATIONS THE NATIONAL COURT REQUESTED THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING ON THE VALIDITY AND INTERPRETATION OF THE SAID ARTICLE .

5PURSUANT TO REGULATION NO 193/75 OF THE COMMISSION OF 17 JANUARY 1975 , THE ISSUE OF AN IMPORT OR EXPORT LICENCE BY THE NATIONAL INTERVENTION AGENCIES IS CONDITIONAL UPON THE GIVING OF A SECURITY CALCULATED , AS IS STATED IN THE SIXTH RECITAL IN THE PREAMBLE TO THAT REGULATION , TO GUARANTEE THAT THE OBLIGATION TO IMPORT OR EXPORT WILL BE FULFILLED DURING THE PERIOD OF VALIDITY OF THE LICENCE .

6IT APPEARS FROM THE PROVISIONS OF ARTICLE 17 ( 2 ) OF THE REGULATION THAT RELEASE OF THE SECURITY SHALL BE SUBJECT TO PRODUCTION OF PROOF OF COMPLETION OF THE CUSTOMS IMPORT OR EXPORT FORMALITIES , WHICH PROOF SHALL BE FURNISHED , ACCORDING TO THE RULES LAID DOWN IN PARAGRAPH ( 3 ) OF THAT ARTICLE , BY PRODUCTION OF COPY NO 1 OF THE LICENCE ENDORSED BY THE OFFICE WHERE THOSE FORMALITIES WERE COMPLETED .

7PURSUANT TO ARTICLE 18 ( 1 ) OF THE REGULATION , THE SECURITY SHALL BE RELEASED ' ' AS SOON AS THE PROOF REFERRED TO IN ARTICLE 17 ( 2 ) AND ( 3 ) . . . HAS BEEN FURNISHED ' ' .

8BY VIRTUE OF ARTICLE 18 ( 2 ) AND ( 3 ) OF THAT REGULATION THE WHOLE OF THE SECURITY SHALL BE FORFEITED IF THE NET QUANTITY IMPORTED OR EXPORTED AMOUNTS TO LESS THAN 5% OF THE NET QUANTITY INDICATED IN THE LICENCE , BUT IT MAY BE RELEASED BY THE MEMBER STATES IN PROPORTION TO THE QUANTITIES OF PRODUCTS , EQUAL TO AT LEAST THAT PERCENTAGE , IN RESPECT OF WHICH THE PROOFS REFERRED TO IN ARTICLE 17 ( 2 ) AND ( 3 ) HAVE BEEN FURNISHED .

9ARTICLE 3 OF REGULATION NO 499/76 ADDED TO ARTICLE 18 OF REGULATION NO 193/75 A PARAGRAPH ( 4 ) PURSUANT TO WHICH , WHERE PROOF HAS NOT BEEN FURNISHED WITHIN THE SIX MONTHS FOLLOWING THE EXPIRY OF THE LICENCE , THE SECURITY SHALL BE FORFEIT SAVE IN CASE OF FORCE MAJEURE .

10IT APPEARS FROM THE THIRD RECITAL IN THE PREAMBLE TO REGULATION NO 499/76 THAT THE PROVISION WAS INTRODUCED ' ' FOR ADMINISTRATIVE REASONS ' ' .

11THE PLAINTIFF IN THE MAIN ACTION HAS CLAIMED , IN PARTICULAR , THAT IT IS CONTRARY TO THE PRINCIPLE OF PROPORTIONALITY TO APPLY THE SAME PENALTY FOR FAILURE TO FULFIL THE OBLIGATION TO IMPORT , WHICH THE SECURITY IS INTENDED TO GUARANTEE , AND FOR MERE DELAY IN SUBMISSION OF THE PROOFS OF FULFILMENT OF THE OBLIGATION , WHICH HAS BEEN DISCHARGED CORRECTLY AND WITHIN THE PRESCRIBED PERIOD .

12IN ITS WRITTEN OBSERVATIONS THE COMMISSION MAINTAINS THAT ARTICLE 3 OF REGULATION NO 499/76 IS JUSTIFIED BY THE FACT THAT BEFORE ITS INTRODUCTION THE FORFEITURE OF SECURITIES OCCURRED ON THE EXPIRY OF DIFFERENT PERIODS FROM ONE MEMBER STATE TO ANOTHER , WHICH LED BOTH TO DISCRIMINATORY TREATMENT FOR TRADERS AND A DISTORTION OF THE SYSTEM OF SECURITIES , THE PURPOSE OF THAT SYSTEM BEING TO ENABLE THE COMMUNITY TO HAVE PRECISE KNOWLEDGE OF THE MARKET SITUATION .

13THERE WAS , IN ADDITION , THE NEED , AT THE ADMINISTRATIVE LEVEL , TO SET A PERIOD FOR THE DEFINITIVE CLOSURE OF FILES .

14HOWEVER , THE COMMISSION ALSO EMPHASIZED , DURING THE ORAL PROCEDURE , THE IMPORTANCE , WITHIN THE SYSTEM OF IMPORT AND EXPORT LICENCES , OF THE INFORMATIONAL ROLE PLAYED BY THE SUBMISSION BY TRADERS TO THE COMPETENT NATIONAL AGENCIES OF THE PROOFS , IN THE FORM OF COPY NO 1 OF THE LICENCE ENDORSED BY THE OFFICE WHERE THE CUSTOMS FORMALITIES WERE COMPLETED , OF COMPLETION OF THE IMPORT OR EXPORT TRANSACTIONS .

15IN ITS SUBMISSION , INDEED , IT IS ONLY BY THAT MEANS THAT THE NATIONAL AGENCIES AND , THROUGH THEM , THE COMMUNITY AUTHORITIES , CAN OBTAIN EXACT KNOWLEDGE OF THE NUMBER OF TRANSACTIONS ACTUALLY EFFECTED ON THE BASIS OF THE LICENCES .

16AS REGARDS THE PROBLEM OF PROPORTIONALITY , IT SHOULD BE EXAMINED WHETHER THE PENALTY LAID DOWN IN ARTICLE 3 OF REGULATION NO 499/76 FOR FAILURE TO COMPLY WITH THE PERIOD FOR PRESENTATION OF THE PROOFS PRESCRIBED BY THAT PROVISION EXCEEDS WHAT IS APPROPRIATE AND NECESSARY TO ATTAIN THE OBJECTIVE SOUGHT .

17IN THIS RESPECT IT SHOULD BE RECALLED , ON THE ONE HAND , AS APPEARS FROM THE SIXTH RECITAL IN THE PREAMBLE TO REGULATION NO 193/75 , THAT THE SYSTEM OF SECURITIES IS INTENDED TO GUARANTEE THAT THE OBLIGATION TO IMPORT OR EXPORT , WHICH HAS BEEN VOLUNTARILY UNDERTAKEN , WILL BE FULFILLED DURING THE PERIOD OF VALIDITY OF THE LICENCE ISSUED FOR THAT PURPOSE .

18AS ALREADY STATED , PURSUANT TO ARTICLE 18 ( 2 ) AND ( 3 ) OF THAT REGULATION THE PENALTY LAID DOWN IN CASE OF FAILURE TO FULFIL THE OBLIGATION IS , IN ESSENCE , PROPORTIONATE TO THE DEGREE OF THAT FAILURE .

19ON THE OTHER HAND , THE PROVISIONS OF ARTICLE 3 OF REGULATION NO 499/76 , PROMPTED BY ' ' ADMINISTRATIVE REASONS ' ' , PROVIDE NOT ONLY FOR A PERIOD WITHIN WHICH THOSE PROOFS MUST BE FURNISHED BUT ALSO THE LOSS OF THE WHOLE OF THE SECURITY IN THE EVENT OF FAILURE TO COMPLY WITH THAT PERIOD .

20THAT FIXED PENALTY , WHICH IS APPLIED TO AN INFRINGEMENT WHICH IS CONSIDERABLY LESS SERIOUS THAN THAT OF FAILURE TO FULFIL THE OBLIGATION WHICH THE SECURITY ITSELF IS INTENDED TO GUARANTEE , WHICH IS SANCTIONED BY AN ESSENTIALLY PROPORTIONATE PENALTY , MUST THEREFORE BE HELD TO BE EXCESSIVELY SEVERE IN RELATION TO THE OBJECTIVES OF ADMINISTRATIVE EFFICIENCY IN THE CONTEXT OF THE SYSTEM OF IMPORT AND EXPORT LICENCES .

21ALTHOUGH , IN VIEW OF THE INCONVENIENCE CAUSED BY THE BELATED PRODUCTION OF PROOFS , THE COMMISSION WAS ENTITLED TO INTRODUCE THE PERIOD LAID DOWN IN ARTICLE 3 OF REGULATION NO 499/76 FOR THE FURNISHING OF PROOF , IT SHOULD HAVE SANCTIONED FAILURE TO COMPLY WITH THAT PERIOD ONLY WITH A PENALTY CONSIDERABLY LESS ONEROUS FOR THOSE CONCERNED THAN THAT PRESCRIBING THE LOSS OF THE WHOLE OF THE SECURITY AND MORE CLOSELY ALLIED TO THE PRACTICAL EFFECTS OF SUCH AN OMISSION .

22INDEED , EVEN IF ADMINISTRATIVE EFFICIENCY REQUIRES THAT FILES SHOULD NOT REMAIN OPEN INDEFINITELY , IT MUST , HOWEVER , BE NOTED THAT FAILURE TO COMPLY WITH SUCH A PERIOD WILL BE EXCEPTIONAL IN NATURE IN THAT IT IS CONTRARY TO THE VERY INTERESTS OF THE EXPORTER OR IMPORTER CONCERNED , WHO WILL NORMALLY SEEK RELEASE OF HIS SECURITY AS SOON AS POSSIBLE .

23IT IS ACCORDINGLY APPROPRIATE TO REPLY TO THE QUESTION RAISED BY THE NATIONAL COURT THAT ARTICLE 3 OF REGULATION NO 499/76 IS INVALID .

COSTS

24THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

25AS THESE PROCEEDINGS ARE , IN SO FAR 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 .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL ADMINISTRATIF , PARIS , BY JUDGMENT OF 22 MARCH 1978 , HEREBY RULES :

ARTICLE 3 OF COMMISSION REGULATION NO 499/76 OF 5 MARCH 1976 IS INVALID .