61972J0032

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1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - COMMON WHEAT AND RYE OF BREAD-MAKING QUALITY - CARRY-OVER PAYMENT WITHIN THE MEANING OF ARTICLE 9 OF REGULATION NO 120/67 - CONDITIONS OF GRANT - ABSOLUTE LIMITATION PERIOD FOR MAKING AN APPLICATION

( REGULATION NO 602/68 OF THE COMMISSION, ARTICLE 3 )

2 . COMMUNITY LAW - SPECIFIC AND ESSENTIAL RULES OF COMMON APPLICATION - ADDITIONAL NATIONAL MEASURES AUTHORIZED - EXCEPTIONS TO RULES OF COMMON APPLICATION - NOT PERMISSIBLE

1 . THE TIME-LIMIT LAID DOWN IN ARTICLE 3 OF REGULATION NO 602/68/EEC OF THE COMMISSION FOR THE SUBMISSION OF APPLICATIONS FOR CARRY-OVER PAYMENTS UNDER ARTICLE 9 OF REGULATION NO 120/67/EEC OF THE COUNCIL IS AN ABSOLUTE LIMITATION PERIOD .

2 . THE POWER ASSIGNED TO MEMBER STATES BY THE COMMUNITY REGULATIONS TO ADOPT ADDITIONAL MEASURES GIVES NO AUTHORITY TO ADOPT MEASURES WHICH CREATE EXCEPTIONS TO A SPECIFIC RULE OF COMMON APPLICATION WHICH IS ESSENTIAL FOR THE OPERATION OF A MARKET ORGANIZATION MECHANISM .

IN CASE 32/72

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

WASAKNAECKE KNAECKEBROTFABRIK GMBH, NOW WASA GMBH, CELLE, AND

EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT AM MAIN,

ON THE INTERPRETATION OF THE FIRST SENTENCE OF THE SECOND INDENT OF ARTICLE 3 OF REGULATION NO 602/68/EEC OF THE COMMISSION OF 16 MAY 1968 ( JO NO L 114, P . 13 ) ON THE CONDITIONS FOR GRANTING CARRY-OVER PAYMENTS FOR COMMON WHEAT AND RYE OF BREAD-MAKING QUALITY IN STOCK AT THE END OF THE 1967/1968 MARKETING YEAR .

1 BY DECISION OF 21 APRIL 1972, RECEIVED AT THE COURT ON 13 JUNE 1972, THE BUNDESVERWALTUNGSGERICHT, IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY, SUBMITTED VARIOUS QUESTIONS ON THE INTERPRETATION OF ARTICLE 3 OF REGULATION NO 602/68/EEC OF THE COMMISSION OF 16 MAY 1968 ( JO L 114, P . 13 ) CONCERNING THE CONDITIONS FOR GRANTING CARRY-OVER PAYMENTS IN RESPECT OF COMMON WHEAT AND RYE OF BREAD-MAKING QUALITY IN STOCK AT THE END OF THE 1967/1968 MARKETING YEAR . THIS ARTICLE PROVIDED, INTER ALIA, THAT IN ORDER TO QUALIFY FOR THE CARRY-OVER PAYMENT UNDER ARTICLE 9 OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ( OJ, SPECIAL EDITION, 1967, P . 33 ) THE APPLICANT HAD TO SUBMIT AN APPLICATION FOR THE CARRY-OVER PAYMENT BY REGISTERED LETTER, TELEX MESSAGE OR TELEGRAM SENT TO THE COMPETENT AUTHORITY NOT LATER THAN 5 AUGUST 1968 . THE COURT IS ASKED TO GIVE A RULING ON WHETHER THIS TIME-LIMIT IS AN ABSOLUTE LIMITATION PERIOD, THE NON-OBSERVANCE OF WHICH ALWAYS ENTAILS THE LOSS OF THE RIGHT TO THE CARRY-OVER PAYMENT .

2 BY PROVIDING THAT THE GRANT OF THE CARRY-OVER PAYMENT SHALL BE CONDITIONAL UPON THE SUBMISSION OF THE APPLICATION WITHIN A PREDETERMINED TIME-LIMIT, THE WORDING OF ARTICLE 3 TENDS TO ESTABLISH THAT THIS TIME-LIMIT IS STRICT . THIS INTERPRETATION IS CONFIRMED BY THE FICTION ATTRIBUTED TO THIS TIME-LIMIT WITHIN THE FRAMEWORK OF THE INTERVENTION MACHINERY INSTITUTED BY REGULATION NO 120/67 OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS . IN ORDER TO ENSURE THAT THE PRICE GUARANTEE GIVEN TO PRODUCERS REMAINS FULLY EFFECTIVE THROUGHOUT THE MARKETING YEAR, ARTICLE 6 OF THAT REGULATION PROVIDES THAT THE INTERVENTION PRICE SHALL BE THE SUBJECT OF MONTHLY INCREASES PHASED OVER ALL OR PART OF THE MARKETING YEAR . IN ORDER TO AVOID MASSIVE QUANTITIES OF CEREALS BEING OFFERED FOR INTERVENTION UPON THE EXPIRY OF THE MONTHLY INCREASES IN INTERVENTION PRICES AT A TIME WHEN A LARGE PART OF THE CEREALS IN STOCK COULD BE SOLD DIRECTLY ON THE MARKET BEFORE THE BEGINNING OF THE NEW MARKETING YEAR, ARTICLE 9 OF REGULATION NO 120/67 PROVIDES THAT A CARRY-OVER PAYMENT MAY BE GRANTED IN RESPECT OF STOCKS OF CEREALS HARVESTED IN THE COMMUNITY .

3 HOWEVER, SINCE FOR SOME CEREALS THE NEW HARVEST BEGINS BEFORE 31 JULY, WHICH IS THE END OF THE MARKETING YEAR, NECESSARY MEASURES HAD TO BE TAKEN TO PREVENT NEWLY-HARVESTED CEREALS FROM BENEFITING IMPROPERLY FROM THE CARRY-OVER PAYMENT UNDER ARTICLE 9 . IT IS FOR THIS PURPOSE THAT ARTICLE 3 OF REGULATION NO 602/68 OF THE COMMISSION PROVIDES THAT TO RECEIVE THE CARRY-OVER PAYMENT IN QUESTION AN APPLICANT MUST MAKE A DECLARATION OF STOCKS HELD ON 31 MAY 1968, TO BE SENT TO THE COMPETENT AUTHORITY NOT LATER THAN 7 JUNE, AND MUST MAKE AN APPLICATION FOR THE CARRY-OVER PAYMENT SETTING OUT STOCKS HELD ON 31 JULY, TO BE SENT TO THE SAME COMPETENT AUTHORITY NOT LATER THAN 5 AUGUST . THE SHORTNESS OF THE TIME-LIMIT LAID DOWN FOR THE APPLICATION FOR THE CARRY-OVER PAYMENT IS NOT, MOREOVER, SUCH AS TO PREVENT THE OPERATION OF THE SYSTEM OF WHICH IT IS AN ESSENTIAL ELEMENT . THE NEED TO ENSURE EQUAL CONDITIONS FOR THE GRANTING OF THE CARRY-OVER PAYMENT NECESSITATES THE APPLICATION OF UNIFORM TIME-LIMITS .

4 FOR THESE REASONS, THE RULES IN QUESTION DO NOT PROVIDE ANY POSSIBILITY OF EXTENDING THE TIME-LIMITS LAID DOWN BY ARTICLE 3 OF REGULATION NO 602/68 . THE POWER WHICH ARTICLE 5 OF THAT REGULATION GRANTS TO THE AUTHORITIES OF EVERY MEMBER STATE TO ADOPT " ALL ADDITIONAL MEASURES REQUIRED TO TAKE ACCOUNT OF THE PARTICULAR CONDITIONS WITHIN ITS TERRITORY " CANNOT INCLUDE THE ADOPTION OF MEASURES CREATING EXCEPTIONS TO A SPECIFIC RULE OF COMMON APPLICATION, SUCH AS THE DURATION OF THE TIME-LIMIT MENTIONED, WHICH IS OF ESSENTIAL IMPORTANCE FOR THE OPERATION OF THE INTERVENTION MECHANISM . CONSEQUENTLY, NEITHER PROOF THAT THE APPLICATION IS IN FACT JUSTIFIED, NOR THE FACT THAT THE DELAY IS NOT DUE TO FAULT IS SUFFICIENT TO JUSTIFY THE ADMISSION OF APPLICATIONS FOR CARRY-OVER PAYMENTS SUBMITTED AFTER THE EXPIRY OF THE TIME-LIMIT LAID DOWN IN THIS CONNEXION BY ARTICLE 3 OF REGULATION NO 602/68 .

5 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THE PRESENT 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 .

THE COURT

IN ANSWER TO THE QUESTIONS SUBMITTED BY THE BUNDESVERWALTUNGSGERICHT BY DECISION OF THAT COURT OF 21 APRIL 1972, HEREBY RULES :

1 . THE TIME-LIMIT LAID DOWN IN ARTICLE 3 OF REGULATION NO 602/68/EEC OF THE COMMISSION FOR THE SUBMISSION OF APPLICATIONS FOR CARRY-OVER PAYMENTS UNDER ARTICLE 9 OF REGULATION NO 120/67/EEC OF THE COUNCIL IS AN ABSOLUTE LIMITATION PERIOD;

2 . NEITHER PROOF THAT THE APPLICATION IS IN FACT JUSTIFIED NOR THE FACT THAT THE DELAY IS NOT DUE TO FAULT IS SUFFICIENT TO JUSTIFY THE ADMISSION OF APPLICATIONS FOR CARRY-OVER PAYMENTS SUBMITTED AFTER THE EXPIRY OF THE TIME-LIMIT LAID DOWN IN ARTICLE 3 OF REGULATION NO 602/68/EEC OF THE COMMISSION .