61977J0044

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - EXPORT REFUND - ADVANCE FIXING - AIM

( COMMISSION REGULATION NO 413/76 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - EXPORT REFUNDS - ADVANCE PAYMENT - AIM

( REGULATION NO 441/69 OF THE COUNCIL )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - EXPORT REFUND - ADVANCE FIXING - ADVANCE PAYMENT - ESTABLISHED RIGHT OF THE HOLDER OF AN EXPORT LICENCE - SCOPE AND LIMITS

( COMMISSION REGULATION NO 413/76 ; REGULATION NO 441/69 OF THE COUNCIL )

1 . THE AIM OF THE RULES RELATING TO THE ADVANCE FIXING OF THE REFUNDS WITHIN THE MEANING OF REGULATION NO 413/76 IS TO ENABLE COMMUNITY EXPORTERS TO BE CERTAIN OF THE AMOUNT OF THE REFUND FOR WHICH THEY MAY QUALIFY WHEN THE EXPORTS UNDER CONSIDERATION TAKE PLACE , IN SO FAR AS THEY ARE ACTUALLY CARRIED OUT BEFORE THE EXPIRY OF THE PERIOD OF VALIDITY OF THE LICENCE .

2 . AS IS SHOWN , IN PARTICULAR , BY THE SECOND , THIRD AND FIFTH RECITALS , THE SYSTEM FOR ADVANCE PAYMENT OF REFUNDS SET UP BY REGULATION NO 441/69 SEEKS TO ENSURE , BOTH AS REGARDS COMMUNITY BASIC PRODUCTS INTENDED FOR EXPORT TO THIRD COUNTRIES AFTER PROCESSING AND FOR COMMUNITY PRODUCTS INTENDED FOR EXPORT UNPROCESSED , EQUALITY OF TREATMENT WITH PRODUCTS ORIGINATING IN THIRD COUNTRIES AND ALLOWED TO BENEFIT FROM THE INWARD PROCESSING ARRANGEMENTS AND FROM THE BONDED WAREHOUSE OR FREE ZONE PROCEDURES .

3 . THE RULES GOVERNING ADVANCE-FIXING WITHIN THE MEANING OF REGULATION NO 413/76 AND THOSE COVERING THE ADVANCE PAYMENT OF EXPORT REFUNDS WITHIN THE MEANING OF REGULATION NO 441/69 PURSUE SEPARATE AIMS AND CANNOT BE ASSIMILATED TO ONE ANOTHER . ALTHOUGH THE HOLDER OF AN EXPORT LICENCE FIXING THE REFUND IN ADVANCE HAS AN ESTABLISHED RIGHT TO RECEIVE THE REFUND FIXED IN ADVANCE WHEN THE EXPORT IS CARRIED OUT , IN SO FAR AS IT ACTUALLY TAKES PLACE UNDER THE CONDITIONS LAID DOWN BY THE COMMUNITY RULES , HE CANNOT ACQUIRE FROM THE ISSUE OF THAT LICENCE A RIGHT TO HAVE THE SYSTEM FOR ADVANCE PAYMENT OF THE REFUND APPLIED TO HIM IN ACCORDANCE WITH THE RULES IN FORCE ON THE DAY OF ISSUE OF THE LICENCE . IN PARTICULAR , THE SPECIAL OBJECTIVES OF THE SYSTEM FOR ADVANCE PAYMENT OF REFUNDS AND THE REASON FOR ITS EXISTENCE CANNOT JUSTIFY ITS BEING USED AS IF ITS PRINCIPAL AIM WERE TO OVERRUN THE PERIOD OF VALIDITY OF THE EXPORT LICENCES . THE PERIOD OF VALIDITY OF THOSE LICENCES IS FIXED IN THE CONTEXT OF THE RELEVANT RULES AND MAY ONLY BE AMENDED UNDER THE CONDITIONS PROVIDED FOR THEREIN , WITHOUT REGARD FOR THE RULES RELATING TO THE ADVANCE PAYMENT OF REFUNDS .

IN JOINED CASES 44 TO 51/77

44/77 : GROUPEMENT D ' INTERET ECONOMIQUE ' UNION MALT ' , WHOSE REGISTERED OFFICE IS AT AUREC-SUR-LOIRE ;

45/77 : SOCIETE ' GRANDES MALTERIES MODERNES ' , WHOSE REGISTERED OFFICE IS IN PARIS ;

46/77 : SOCIETE ' MALTERIES FRANCO-BELGES ' , WHOSE REGISTERED OFFICE IS IN PARIS ;

47/77 : SOCIETE ' ETABLISSEMENTS J . SOUFFLET ' , WHOSE REGISTERED OFFICE IS AT NOGENT-SUR-SEINE , AND SOCIETE ' LA PROVIDENCE AGRICOLE DE CHAMPAGNE ' , WHOSE REGISTERED OFFICE IS AT RHEIMS ;

48/77 : SOCIETE ' COOPERATIVE INTER-MALT ' , WHOSE REGISTERED OFFICE IS AT LONGUENESSE ;

49/77 : SOCIETE ' MALTERIES CHEVALIER MARTIN ' , WHOSE REGISTERED OFFICE IS AT DIJON , AND SOCIETE ' UNION-CHAMPAGNE MALT ' , WHOSE REGISTERED OFFICE IS AT RHEIMS ;

50/77 : GROUPEMENT D ' INTERET ECONOMIQUE ' PARIS-MALT ' , WHOSE REGISTERED OFFICE IS AT ISSOUDUN ;

51/77 : SOCIETE ' MALTERIE BOUCQUEY ' , WHOSE REGISTERED OFFICE IS AT SAINT- ANDRE ,

REPRESENTED AND ASSISTED BY JEAN-FRANCOIS PERICAUD , ADVOCATE AT THE COUR D ' APPEL ( COURT OF APPEAL ), PARIS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR LOESCH AND MR WALTER , ADVOCATES AT THE COUR D ' APPEL ( COURT OF APPEAL ), LUXEMBOURG , 2 RUE GOETHE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , BRUSSELS , REPRESENTED BY ITS LEGAL ADVISERS , J . AMPHOUX AND R . WAINRIGHT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MR CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR DAMAGES UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

1THE PRESENT APPLICATIONS , WHICH ARE BROUGHT UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY , SEEK AN ORDER THAT THE COMMISSION OF THE EUROPEAN COMMUNITIES PAY DAMAGES TO THE APPLICANTS TO COMPENSATE FOR THE LOSS WHICH THEY CLAIM TO HAVE SUFFERED AS A RESULT OF COMMISSION REGULATION NO 413/76 OF 25 FEBRUARY 1976 ( OFFICIAL JOURNAL 1976 , L 50 , P . 18 ), WHICH ENTERED INTO FORCE ON 4 MARCH 1976 , AMENDING REGULATION NO 1957/69 OF THE COMMISSION OF 30 SEPTEMBER 1969 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 417 ) CONCERNING THE PERIODS DURING WHICH CEREAL PRODUCTS SUCH AS MALT AND BARLEY MAY REMAIN UNDER THE BONDED WAREHOUSE PROCEDURES FOR UNPROCESSED GOODS AND FOR THE PROCESSING OF GOODS UNDER CUSTOMS CONTROL BROUGHT IN BY REGULATION NO 441/69 OF THE COUNCIL OF 4 MARCH 1969 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( I ), P . 91 ).

2IT IS ESTABLISHED THAT THE PRODUCTS IN QUESTION ARE SUBJECT TO THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS SET UP BY REGULATION NO 120/67 OF THE COUNCIL , REPLACED SINCE 1 NOVEMBER 1975 BY REGULATION NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975 ( OFFICIAL JOURNAL 1975 , L 281 , P . 1 ).

3AS REGARDS TRADE WITH THIRD COUNTRIES , ARTICLE 12 OF THE LATTER REGULATION PROVIDES THAT EXPORTS FROM THE COMMUNITY OF THE PRODUCTS IN QUESTION SHALL BE SUBJECT TO THE SUBMISSION OF AN EXPORT LICENCE WHICH , AS REGARDS MALT , IS VALID FOR A PERIOD OF 11 MONTHS FROM THE MONTH FOLLOWING THAT IN WHICH IT IS ISSUED .

4IN ADDITION , ARTICLE 16 ( 1 ) OF THE REGULATION PROVIDES THAT IN ORDER TO ENABLE THOSE PRODUCTS TO BE EXPORTED OUT OF THE COMMUNITY THE DIFFERENCE BETWEEN THE PRICES ON THE COMMUNITY MARKET AND THE QUOTATIONS OR PRICES ON THE WORLD MARKET MAY BE COVERED BY A REFUND .

5PARAGRAPH 4 OF THE SAME ARTICLE PROVIDES FOR THE POSSIBILITY OF FIXING THE REFUND IN ADVANCE BY STIPULATING THAT THE REFUND APPLICABLE ON THE DAY ON WHICH APPLICATION FOR THE LICENCE IS LODGED MAY BE APPLIED TO AN EXPORT TO BE EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE .

6THE COMMUNITY RULES ALSO PROVIDE THAT FOR CERTAIN PRODUCTS , INCLUDING MALT AND BARLEY , THE REFUND THUS FIXED IN ADVANCE MAY BE PAID TO COMMUNITY EXPORTERS BEFORE THE PRODUCT ACTUALLY LEAVES THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY OR , IN THE CASE OF PROCESSED PRODUCTS , EVEN BEFORE THEY ARE PROCESSED .

7TO THAT END REGULATION NO 441/69 OF THE COUNCIL PROVIDED FOR THE EXPORTER TO PLACE THE PRODUCT UNDER CUSTOMS CONTROL BEFORE THE VALIDITY OF THE EXPORT LICENCE EXPIRED .

8IT THEREFORE LAID DOWN IN ARTICLES 2 AND 3 TWO PROCEDURES FOR BRINGING THE PRODUCT UNDER CUSTOMS CONTROL , FIRST , THE PROCEDURE FOR PROCESSING THE GOODS UNDER CUSTOMS CONTROL , WHICH APPLIES TO BASIC PRODUCTS INTENDED FOR EXPORT AFTER PROCESSING , AND , SECONDLY , THE BONDED WAREHOUSE OR FREE ZONE PROCEDURE FOR PRODUCTS INTENDED FOR EXPORT UNPROCESSED .

9REGULATION NO 1957/69 OF THE COMMISSION , WHICH LAYS DOWN THE DETAILED RULES FOR THE IMPLEMENTATION OF THE AFOREMENTIONED REGULATION NO 441/69 , FIXED AT SIX MONTHS THE PERIOD DURING WHICH THE PRODUCTS OR GOODS COULD REMAIN UNDER THE BONDED WAREHOUSE OR FREE ZONE PROCEDURE .

10AS REGARDS THE PROCEDURE FOR PROCESSING THE GOODS UNDER CUSTOMS CONTROL , THAT REGULATION LIMITED THE PERIOD DURING WHICH THE GOODS MIGHT REMAIN IN THE WAREHOUSE , AS REGARDS PRODUCTS SUBJECT TO AN EXPORT LICENCE , TO THE ' REMAINDER ' OF THE PERIOD OF VALIDITY OF THAT LICENCE ' AT THE DATE ON WHICH THE BASIC PRODUCTS CAME UNDER CUSTOMS CONTROL ' OR , IF THAT PERIOD IS LESS THAN THREE MONTHS , TO THREE MONTHS .

11AS REGARDS THE BONDED WAREHOUSE PROCEDURE FOR BOTH UNPROCESSED GOODS AND FOR PROCESSING UNDER CUSTOMS CONTROL , REGULATION NO 413/76 OF 25 FEBRUARY 1976 , WHICH ENTERED INTO FORCE ON 4 MARCH 1976 , REDUCED THOSE PERIODS BY LIMITING THEM , AS REGARDS CERTAIN CEREAL PRODUCTS SUCH AS THOSE AT ISSUE , TO THE PERIOD OF VALIDITY OF THE EXPORT LICENCE WHICH IS OUTSTANDING ON THE DATE ON WHICH THE PRODUCTS BECOME SUBJECT TO THE CUSTOMS CONTROL , OR TO ONE MONTH IF THE SAID PERIOD IS LESS THAN ONE MONTH .

12THE APPLICANTS MAINTAIN THAT BY REASON OF SEVERAL FACTORS OF A TECHNICAL AND ECONOMIC NATURE CONNECTED WITH THE PARTICULAR FEATURES OF THE MARKET IN BARLEY THE CONTRACTUAL UNDERTAKINGS ENTERED INTO BY THE MALT-PRODUCING UNDERTAKINGS GENERALLY LAST FOR 15 TO 18 MONTHS , FOR DELIVERIES TO BE CARRIED OUT WITHIN A PERIOD OF 12 MONTHS .

13THEY MAINTAIN THAT THE BONDED WAREHOUSE PROCEDURES FOR UNPROCESSED GOODS AND FOR PROCESSING UNDER CUSTOMS CONTROL , IN THE FORM IN WHICH THEY WERE ORGANIZED BEFORE THE ENTRY INTO FORCE OF REGULATION NO 413/76 , ENABLED THE FOUR TO SIX MONTHS WHICH GENERALLY PASSED BETWEEN THE PLACING OF THE ORDER AND THE BEGINNING OF DELIVERIES TO BE RECOUPED WHEN THE VALIDITY OF THE EXPORT LICENCE EXPIRED .

14BY REDUCING TO ONE MONTH THE PERIODS BY WHICH THE PERIOD OF VALIDITY OF THE EXPORT LICENCE COULD BE OVERRUN , WITHOUT PROVIDING FOR ANY TRANSITIONAL MEASURE FOR UNDERTAKINGS FINALLY ENTERED INTO AND IN THE COURSE OF PERFORMANCE WHEN IT ENTERED INTO FORCE , THAT REGULATION AMENDED RETROACTIVELY AND IN AN UNFORESEEABLE MANNER THE FINANCIAL STIPULATIONS ON THE BASIS OF WHICH THE UNDERTAKINGS WERE ENTERED INTO AND THUS CAUSED THE APPLICANTS A LOSS FOR WHICH COMPENSATION IS DUE .

15FOLLOWING THE ADOPTION OF THE AMENDMENT THE APPLICANTS FOUND IT IMPOSSIBLE TO PERFORM FULLY THE AFOREMENTIONED CONTRACTS OF SALE , THUS GOING BACK ON THE DECISIONS ADOPTED WITH REGARD TO THEIR CUSTOMERS AND RISKING THE LOSS OF THE SECURITIES RELATING TO THE UNUSED EXPORT LICENCES .

16IN ORDER TO AVOID THAT CONSEQUENCE THEY HAD EITHER , BY CARRYING OUT THE TERMS OF THE CONTRACTS , TO SUFFER LOSSES ON THE DIFFERENCE BETWEEN THE REFUNDS AND COMPENSATORY AMOUNTS APPLICABLE OR , BY ATTEMPTING TO OBTAIN AN APPROPRIATE MODIFICATION OF CERTAIN CONTRACTS , TO BEAR CONSIDERABLE EXPENSE , SUCH AS THE COSTS OF STORAGE AND OF WAREHOUSING THE GOODS .

17THE APPLICANTS CONCLUDE THAT BY ADOPTING REGULATION NO 413/76 THE COMMISSION VIOLATED THE PRINCIPLES OF RESPECT FOR ESTABLISHED RIGHTS AND FOR THE LEGITIMATE EXPECTATION OF TRADERS AS WELL AS THE PRINCIPLE THAT LAWS SHALL NOT BE RETROACTIVE AND THEREBY FLAGRANTLY VIOLATED A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL .

18SUCH A VIOLATION REPRESENTS IN A CONCRETE FORM A WRONGFUL ACT OF SUCH A NATURE AS TO IMPOSE A LIABILITY ON THE COMMUNITY TOWARDS THE PARTIES CONCERNED .

19IT IS FIRST NECESSARY TO DISTINGUISH THE RULES RELATING TO THE EXPORT LICENCES INVOLVING ADVANCE FIXING OF THE REFUNDS FROM THOSE RELATING TO THE ADVANCE PAYMENT OF THE REFUND FIXED IN ADVANCE , WHICH ARE COVERED BY REGULATION NO 413/76 .

20THE AIM OF THE RULES RELATING TO THE ADVANCE FIXING OF THE REFUNDS IS TO ENABLE COMMUNITY EXPORTERS TO BE CERTAIN OF THE AMOUNT OF THE REFUND FOR WHICH THEY MAY QUALIFY WHEN THE EXPORTS UNDER CONSIDERATION TAKE PLACE , IN SO FAR AS THEY ARE ACTUALLY CARRIED OUT BEFORE THE EXPIRY OF THE PERIOD OF VALIDITY OF THE LICENCE .

21AS IS SHOWN , IN PARTICULAR , BY THE SECOND , THIRD AND FIFTH RECITALS , THE SYSTEM FOR ADVANCE PAYMENT OF REFUNDS SET UP BY REGULATION NO 441/69 SEEKS TO ENSURE , BOTH AS REGARDS COMMUNITY BASIC PRODUCTS INTENDED FOR EXPORT TO THIRD COUNTRIES AFTER PROCESSING AND FOR COMMUNITY PRODUCTS INTENDED FOR EXPORT UNPROCESSED , EQUALITY OF TREATMENT WITH PRODUCTS ORIGINATING IN THIRD COUNTRIES AND ALLOWED TO BENEFIT FROM THE INWARD PROCESSING ARRANGEMENTS AND FROM THE BONDED WAREHOUSE OR FREE ZONE PROCEDURES .

22THE GRANT OF SUCH A BENEFIT IS NOT A NECESSARY ELEMENT OF THE SCHEME FOR THE ADVANCE FIXING OF THE REFUNDS , SINCE THE TWO GROUPS OF RULES IN QUESTION , THOSE DEALING WITH THE ADVANCE FIXING OF THE REFUNDS AND THOSE COVERING THEIR ADVANCE PAYMENT , PURSUE SEPARATE AIMS AND CANNOT BE ASSIMILATED TO ONE ANOTHER .

23HAVING REGARD TO THAT DISTINCTION , ALTHOUGH THE HOLDER OF AN EXPORT LICENCE FIXING THE REFUND IN ADVANCE HAS AN ESTABLISHED RIGHT TO RECEIVE THE REFUND FIXED IN ADVANCE WHEN THE EXPORT IS CARRIED OUT , IN SO FAR AS IT ACTUALLY TAKES PLACE UNDER THE CONDITIONS LAID DOWN BY THE COMMUNITY RULES , HE CANNOT ACQUIRE FROM THE ISSUE OF THAT LICENCE A RIGHT TO HAVE THE SYSTEM FOR ADVANCE PAYMENT OF THE REFUND APPLIED TO HIM IN ACCORDANCE WITH THE RULES IN FORCE ON THE DAY OF ISSUE OF THE LICENCE .

24IN PARTICULAR , THE SPECIAL OBJECTIVES OF THE SYSTEM FOR ADVANCE PAYMENT OF REFUNDS AND THE REASON FOR ITS EXISTENCE CANNOT JUSTIFY ITS BEING USED AS IF ITS PRINCIPAL AIM WERE TO OVERRUN THE PERIOD OF VALIDITY OF THE EXPORT LICENCES .

25THE PERIOD OF VALIDITY OF THOSE LICENCES IS FIXED IN THE CONTEXT OF THE RELEVANT RULES AND MAY ONLY BE AMENDED UNDER THE CONDITIONS PROVIDED FOR THEREIN , WITHOUT REGARD FOR THE RULES RELATING TO THE ADVANCE PAYMENT OF REFUNDS .

26IT RESULTS , IN FACT , FROM ANNEX II TO REGULATION NO 2042/75 OF THE COMMISSION OF 25 JULY 1975 ( OFFICIAL JOURNAL 1975 , L 213 , P . 5 ), WHICH PROVIDES THAT THE EXPORT LICENCE FOR MALT SHALL BE VALID UNTIL THE END OF THE ELEVENTH MONTH FOLLOWING ITS DATE OF ISSUE , EVEN THOUGH THE PERIOD OF VALIDITY FOR THE OTHER PRODUCTS LISTED IS SHORTER , THAT THE APPROPRIATE PLACE FOR THE SPECIAL CONSIDERATIONS INHERENT IN THE PARTICULAR FEATURES OF THE TRADE IN EACH PRODUCT IS IN THE RULES RELATING TO THE EXPORT LICENCES AND THAT THOSE CONSIDERATIONS CANNOT BE INVOKED WITHIN THE CONTEXT OF THE SYSTEM FOR ADVANCE PAYMENT OF REFUNDS IN ORDER TO OVERRUN THE PERIOD OF VALIDITY OF THE EXPORT LICENCES FIXED BY THE RULES RELATING THERETO .

27IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE COMPLAINT RELATING TO VIOLATION OF ESTABLISHED RIGHTS PUT FORWARD BY THE APPLICANTS IN RELATION TO THE AMENDMENT MADE BY REGULATION NO 314/76 TO REGULATION NO 1957/69 CANNOT BE UPHELD .

28IN ADDITION , THE SYSTEM INTRODUCED BY REGULATION NO 441/69 MUST BE APPLIED IN SUCH A WAY AS TO PREVENT , IN PARTICULAR IN THE CASE OF EXPORT LICENCES VALID FOR A LONG PERIOD , THE OPPORTUNITY OFFERED TO THE EXPORTER BUT THE SYSTEM FROM RESULTING IN AN EXCESSIVE ADVANTAGE , HAVING REGARD TO THE NEED TO ENSURE A BALANCE BETWEEN COMMUNITY PRODUCTS AND PRODUCTS ORIGINATING IN THIRD COUNTRIES , AND FROM LEADING TO SERIOUS DIFFICULTIES IN TRADE WITH THIRD COUNTRIES .

29TO THAT END ARTICLE 5 OF THE AFOREMENTIONED REGULATION NO 1957/69 PROVIDES THAT ' IN ORDER TO PREVENT DIFFICULTIES ARISING ON MARKETS ON ACCOUNT OF THE CHARACTERISTICS OF THE PRODUCTS OR GOODS ' THE PERIODS DURING WHICH THE GOODS MAY REMAIN UNDER ONE OF THE CUSTOMS CONTROL PROCEDURES ' MAY BE REDUCED , FOR A LIMITED OR UNLIMITED PERIOD AS CIRCUMSTANCES REQUIRE , IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 26 OF REGULATION NO 120/67/EEC OR IN THE CORRESPONDING ARTICLES OF THE OTHER REGULATIONS ON THE COMMON ORGANIZATION OF THE MARKETS ' .

30EVEN BEFORE THE ADOPTION OF REGULATION NO 413/76 THE COMMISSION MADE USE OF THAT PROVISION IN THE MILK SECTOR IN REGULATION NO 2182/69 OF 31 OCTOBER 1969 ( JOURNAL OFFICIEL 1969 , NO L 276 , P . 50 ) IN ORDER ' TO AVOID DIFFICULTIES IN INTERNATIONAL TRADE ' AND IN REGULATION NO 588/71 OF 19 MARCH 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION ( I ), P . 132 ), UNDER THE TERMS OF WHICH IT WAS NECESSARY TO REDUCE THE PERIODS DURING WHICH THE PRODUCTS COULD REMAIN UNDER CUSTOMS CONTROL ' TO MATCH THE PERIOD OF VALIDITY OF EXPORT LICENCES ' .

31IT IS ESTABLISHED THAT SINCE 1972/1973 THE NUMBER OF EXPORT LICENCES TAKEN OUT FOR MALT WITH ADVANCE FIXING OF THE REFUND HAD INCREASED CONSIDERABLY EACH YEAR AND THAT THAT INCREASE CREATED DIFFICULTIES IN THE MARKET OR ' IN THE INTERNATIONAL TRADE IN THE PRODUCTS IN QUESTION ' AS A RESULT OF THE CONSIDERABLE VARIATIONS IN THE LEVEL OF THE REFUND APPLICABLE AT THE SAME PERIOD .

32AS A RESULT OF THOSE FACTORS THE MAINTENANCE IN FORCE OF THE PERIODS DURING WHICH THE PRODUCTS COULD REMAIN UNDER CUSTOMS CONTROL PROVIDED FOR BY REGULATION NO 1957/69 PROVED TO BE NO LONGER COMPATIBLE WITH CONDITIONS IN THE MALT MARKET .

33THE CRISIS CAUSED ON THE SAME MARKET BY THE MASSIVE PURCHASES BY A THIRD COUNTRY IN JULY 1975 COULD ONLY INCREASE THE DIFFICULTIES AND RENDER IT HENCEFORTH IMPOSSIBLE FOR THE COMMISSION TO POSTPONE ACTION TO MODIFY THE CONDITIONS OF APPLICATION OF THE AFOREMENTIONED SYSTEM .

34THE TRADE CIRCLES CONCERNED COULD NOT , THEREFORE , BE UNAWARE WHEN THEY NEGOTIATED AND ENTERED INTO THEIR UNDERTAKINGS FOR THE YEAR 1975/1976 THAT IN THE LIGHT OF THE PARTICULAR DEVELOPMENT WHICH HAD TAKEN PLACE IN THE MALT MARKET SINCE 1972/1973 THE MAINTENANCE IN FORCE OF THE SYSTEM FOR ADVANCE PAYMENT OF THE REFUND , APPLIED IN ACCORDANCE WITH THE TIME-LIMIT LAID DOWN BY REGULATION NO 1957/69 , GAVE RISE TO VERY SERIOUS DIFFICULTIES AS REGARDS TRADE WITH THIRD COUNTRIES AND AN INCREASINGLY HEAVY FINANCIAL BURDEN FOR THE COMMUNITY .

35THOSE CIRCUMSTANCES SHOULD HAVE MADE THE APPLICANTS AWARE OF THE POSSIBILITY THAT IN THE LIGHT OF THE CONDITIONS ON THE MALT MARKET THE COMMISSION MIGHT BE LED DURING THE 1975/1976 CEREAL YEAR TO MAKE USE , AS REGARDS THAT PRODUCT , OF THE POSSIBILITY OFFERED BY ARTICLE 5 OF REGULATION NO 1957/69 OF REDUCING THE PERIODS DURING WHICH THE GOODS MAY REMAIN UNDER CUSTOMS CONTROL , IN ORDER TO RE-ESTABLISH A BALANCE BETWEEN THE ADVANCE-FIXING PROCEDURE AND THE SYSTEM FOR ADVANCE PAYMENT OF REFUNDS , IN ACCORDANCE WITH THE STATE OF THE MARKET .

36IN FACT , ON 5 FEBRUARY 1976 , THE COMMISSION , WHICH CONSIDERED THAT IT SHOULD NOT INTERFERE WITH THE ADVANCE-FIXING PROCEDURE , PRESENTED THE MANAGEMENT COMMITTEE FOR CEREALS PROVIDED FOR IN ARTICLE 25 OF REGULATION 2727/75 OF THE COUNCIL WITH THE ALTERNATIVE OF REDUCING EITHER THE PERIODS DURING WHICH THE GOODS REMAIN IN THE WAREHOUSE OR THE PERIODS OF VALIDITY OF THE EXPORT LICENCES .

37IN THOSE CIRCUMSTANCES THE REDUCTION IN THE PERIODS UNDER CUSTOMS CONTROL ADOPTED BY REGULATION NO 413/76 DOES NOT APPEAR TO BE SO UNFORESEEABLE AS TO HAVE ADVERSELY AFFECTED THE LEGITIMATE EXPECTATION OF THE TRADERS CONCERNED .

38MOREOVER , THE COMMISSION CANNOT BE CRITICIZED FOR HAVING FAILED , WHEN ADOPTING REGULATION NO 413/76 , TO PROVIDE FOR TRANSITIONAL MEASURES IN FAVOUR OF THE GOODS FOR WHICH EXPORT LICENCES HAD BEEN OBTAINED BUT WHICH WERE NOT YET PLACED UNDER ONE OF THE BONDED WAREHOUSE PROCEDURES .

39ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 3 OF THE REGULATION , IT ENTERED INTO FORCE ON THE SEVENTH DAY FOLLOWING ITS PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES .

40IN THE PARTICULAR CIRCUMSTANCES TO PROVIDE FOR A LONGER PERIOD FOR ITS ENTRY INTO FORCE WOULD HAVE LEFT THE REGULATION WITHOUT ANY PRACTICAL EFFECT .

41FINALLY , THE SECOND PARAGRAPH OF ARTICLE 3 OF THE REGULATION PROVIDES THAT IT ' SHALL NOT APPLY TO PRODUCTS WHICH , BEFORE ITS ENTRY INTO FORCE , WERE PLACED UNDER ONE OF THE SYSTEMS FOR ADVANCE PAYMENT OF REFUNDS INSTITUTED BY REGULATION ( EEC ) NO 441/69 ' .

42BY THAT PROVISION THE REGULATION ALLOWS GOODS BROUGHT BEFORE ITS ENTRY INTO FORCE UNDER THE BONDED WAREHOUSE PROCEDURES FOR UNPROCESSED GOODS OR FOR PROCESSING UNDER CUSTOMS CONTROL TO CONTINUE TO BENEFIT FROM THE PERIODS UNDER CUSTOMS CONTROL PROVIDED FOR BY REGULATION NO 1957/69 AND IS THEREFORE NOT RETROACTIVE IN EFFECT .

43ON THOSE GROUNDS IT DOES NOT APPEAR THAT WHEN IT ADOPTED REGULATION NO 413/76 THE COMMISSION ACTED IN FLAGRANT VIOLATION OF A SUPERIOR RULE OF LAW FOR THE PROTECTION OF THE INDIVIDUAL AND THEREBY IMPOSED A LIABILITY OF THE COMMUNITY TOWARDS THE APPLICANTS .

44THE APPLICATIONS ARE THEREFORE DISMISSED AS UNFOUNDED .

COSTS

45UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

46AS THE APPLICANTS HAVE BEEN UNSUCCESSFUL IN THEIR ACTION THEY MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATIONS AS UNFOUNDED ;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS .