61978J0134

1 . MEASURES ADOPTED BY AN INSTITUTION - REGULATION - DUTY TO STATE REASONS - EXTENT

( EEC TREATY , ART . 190 )

2 . AGRICULTURE - COMMON ORGANIZATION OF MARKET - BEEF AND VEAL - IMPORTS FROM NON-MEMBER COUNTRIES - PROTECTIVE MEASURES - SUBSTITUTION FOR ' ' EXIM ' ' PROCEDURE OF SYSTEM LINKING IMPORTS WITH SALES FROM INTERVENTION - TRANSITIONAL PROVISIONS - VALIDITY

( COMMISSION REGULATION ( EEC ) NO 76/76 , ART . 11 )

1 . THE REQUIREMENTS OF ARTICLE 190 OF THE TREATY ARE SATISFIED WHEN THE STATEMENT OF THE REASONS ON WHICH A REGULATION ADOPTED BY AN INSTITUTION IS BASED EXPLAINS IN ESSENCE THE MEASURE IN QUESTION ; A STATEMENT OF THE REASONS ON WHICH A REGULATION IS BASED CANNOT BE REQUIRED TO COVER SPECIFICALLY ALL THE OFTEN VERY NUMEROUS DETAILS WHICH MAY BE CONTAINED IN SUCH A MEASURE .

2 . CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTORS OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 11 OF COMMISSION REGULATION ( EEC ) NO 76/76 SETTING UP A SYSTEM LINKING IMPORTS OF BEEF AND VEAL PRODUCTS EFFECTED BY WAY OF PROTECTIVE MEASURES WITH THE SALE OF BEEF HELD BY INTERVENTION AGENCIES .

IN CASE 134/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHES FINANZGERICHT ( FINANCE COURT , HESSE ) ( VIITH SENATE ) IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

FIRMA E . DANHUBER

AND

BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTFORSCHUNG ( FEDERAL BUREAU FOR REGULATING AGRICULTURAL MARKETS )

ON THE VALIDITY OF ARTICLE 11 OF COMMISSION REGULATION ( EEC ) NO 76/76 OF 16 JANUARY 1976 SETTING UP A SYSTEM LINKING IMPORTS OF BEEF AND VEAL PRODUCTS EFFECTED BY WAY OF PROTECTIVE MEASURES WITH THE SALE OF BEEF HELD BY INTERVENTION AGENCIES ( OFFICIAL JOURNAL 1976 , L10 , P . 21 ).

1BY ORDER OF 17 MAY 1978 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 12 JUNE 1978 , THE HESSISCHES FINANZGERICHT ( VIITH SENATE ) ASKED A QUESTION , UNDER ARTICLE 177 OF THE EEC TREATY , ON THE VALIDITY OF ARTICLE 11 OF COMMISSION REGULATION NO 76/76 OF 16 JANUARY 1976 SETTING UP A SYSTEM LINKING IMPORTS OF BEEF AND VEAL PRODUCTS EFFECTED BY WAY OF PROTECTIVE MEASURES WITH THE SALE OF BEEF HELD BY THE INTERVENTION AGENCIES ( OFFICIAL JOURNAL 1976 , L 10 , P . 21 ).

2THE QUESTION WAS RAISED IN THE CONTEXT OF PROCEEDINGS BROUGHT BEFORE THAT COURT BY THE PLAINTIFF IN THE MAIN ACTION , IN WHICH IT CONTESTED THE VALIDITY OF ARTICLE 11 OF REGULATION NO 76/76 IN SO FAR AS THAT PROVISION FIXES THE RATE OF LEVY TO BE PAID ON IMPORTATION INTO THE COMMUNITY AT 50.32 UNITS OF ACCOUNT PER 100 KILOGRAMS OF BEEF OR VEAL IN CARCASE INSTEAD OF 43 UNITS OF ACCOUNT PER 100 KILOGRAMS .

3BY DECISION OF 19 DECEMBER 1975 ( OFFICIAL JOURNAL 1976 , L 5 , P . 35 ) THE COMMISSION FIXED AT 42.998 UNITS OF ACCOUNT PER 100 KILOGRAMS OF BEEF OR VEAL IN CARCASE THE MINIMUM RATE OF LEVY APPLICABLE TO IMPORTS FOR WHICH IMPORT LICENCES HAD BEEN GRANTED WITHIN THE FRAMEWORK OF THE LAST ' ' EXIM ' ' TENDERING PROCEDURE ARRANGED UNDER REGULATION NO 1090/75 OF THE COMMISSION OF 23 APRIL 1975 ON THE ISSUE BY WAY OF PROTECTIVE MEASURES OF IMPORT LICENCES FOR CERTAIN BEEF AND VEAL PRODUCTS ( EXIM ) ( OFFICIAL JOURNAL 1975 , L 108 , P . 1 ).

WITH A VIEW TO ALLOWING OPERATORS WHO HAD NOT OBTAINED IMPORT LICENCES AT THE TIME OF THE LAST ' ' EXIM ' ' TENDERING PROCEDURE TO SUBMIT APPLICATIONS FOR LICENCES , ARTICLE 11 OF COMMISSION REGULATION NO 76/76 AUTHORIZED , AS A TRANSITIONAL MEASURE , UNDER CERTAIN CONDITIONS , THE GRANTING OF IMPORT LICENCES TO OPERATORS WHO HAD EXPORTED BEEF OR VEAL BEFORE 16 DECEMBER 1975 PROVIDED THAT THEY UNDERTOOK TO PAY AT THE TIME OF IMPORTATION A RATE OF LEVY OF 50.32 UNITS OF ACCOUNT PER 100 KILOGRAMS OF BEEF OR VEAL IN CARCASE .

4THE PLAINTIFF IN THE MAIN ACTION , WHICH ALLEGES THAT IT WAS PREVENTED FROM SUBMITTING THE APPLICATION FOR IMPORT LICENCES WITHIN THE STIPULATED PERIOD SO AS TO ALLOW IT TO TAKE PART IN THE LAST ' ' EXIM ' ' TENDERING PROCEDURE BECAUSE THE COMPETENT NATIONAL AUTHORITIES DELAYED SUPPLYING THE REQUIRED EXPORT CERTIFICATES , CONTESTED BEFORE THE NATIONAL COURT THE RATE OF LEVY FIXED BY ARTICLE 11 OF REGULATION NO 76/76 AND THUS THE VALIDITY OF THAT PROVISION .

5IT IS ALLEGED , FIRST , THAT REGULATION NO 76/76 DOES NOT MAKE CLEAR THE REASONS FOR WHICH THE RATE OF LEVY WAS FIXED BY ARTICLE 11 THEREOF AT 50.32 UNITS OF ACCOUNT AND THAT THE REGULATION IN QUESTION THEREFORE CONTAINS ON THIS POINT NO STATEMENT OF THE REASONS ON WHICH IT IS BASED , AS REQUIRED BY ARTICLE 190 OF THE EEC TREATY .

6THE REQUIREMENTS OF ARTICLE 190 OF THE TREATY ARE SATISFIED WHEN THE SAID STATEMENT OF REASONS EXPLAINS IN ESSENCE THE MEASURE TAKEN IN REGULATIONS BY THE INSTITUTIONS .

A STATEMENT OF REASONS FOR A REGULATION CANNOT BE REQUIRED TO COVER SPECIFICALLY ALL THE OFTEN VERY NUMEROUS DETAILS WHICH MAY BE CONTAINED IN SUCH A MEASURE .

THE VALIDITY OF REGULATION NO 76/76 CANNOT THEREFORE BE DOUBTED BY REASON OF ANY DEFECT IN THE STATEMENT OF REASONS SINCE IT APPEARS , AND IN THIS CASE IT IS NOT CONTESTED , THAT THE STATEMENT OF REASONS IN THE SAID REGULATION SETS OUT AS A WHOLE THE SITUATION WHICH LED TO ITS ADOPTION AND THE GENERAL OBJECTIVES WHICH IT SEEKS TO ATTAIN .

7IT IS ALLEGED , SECONDLY , THAT THE COMMISSION BY FIXING IN THE PROVISION AT ISSUE A RATE OF LEVY HIGHER THAN THE MINIMUM RATE OF LEVY FIXED BY ITS DECISION OF 19 DECEMBER 1975 DISCRIMINATED AGAINST INTER ALIOS OPERATORS WHO THROUGH NO FAULT OF THEIR OWN WERE UNABLE TO TAKE PART IN THE LAST ' ' EXIM ' ' TENDERING PROCEDURE .

8UNDER ARTICLE 3 ( 3 ) READ IN CONJUNCTION WITH ARTICLE 4 ( 4 ) OF REGULATION NO 1090/75 THE RATE OF LEVY APPLICABLE TO IMPORTS EFFECTED UNDER THE ' ' EXIM ' ' SYSTEM IS THE RATE WHICH THE OPERATOR CONCERNED HAS OFFERED TO PAY IN HIS APPLICATION FOR AN IMPORT LICENCE PROVIDED THAT IT IS EQUAL TO OR GREATER THAN THE MINIMUM RATE AFTERWARDS DETERMINED BY THE COMMISSION .

IT FOLLOWS THEREFORE FROM THE ABOVE-MENTIONED PROVISIONS THAT THE FIXING OF A MINIMUM RATE IN NO WAY INDICATED THAT OPERATORS TO WHOM IMPORT LICENCES WERE GRANTED HAVE ONLY TO PAY THAT RATE AND NOT A HIGHER RATE .

IF THE COMMISSION HAD FIXED THE RATE AT ISSUE , AS THE PLAINTIFF IN THE MAIN ACTION CLAIMS , AT THE MINIMUM LEVEL AS DETERMINED IN ITS DECISION OF 19 DECEMBER 1975 IT WOULD HAVE GIVEN OPERATORS WHO BENEFITED BY THE APPLICATION OF THE PROVISION AT ISSUE FAVOURED TREATMENT IN RELATION TO THOSE WHO OFFERED AT THE TIME OF THE LAST ' ' EXIM ' ' TENDERING PROCEDURE TO PAY A HIGHER LEVY THAN THE MINIMUM LEVY .

THEREFORE IN FIXING THE LEVY AT ISSUE AS IT DID AT A RATE EQUIVALENT TO THAT OF THE HIGHEST OFFER SUBMITTED AT THE TIME OF THE LAST ' ' EXIM ' ' TENDERING PROCEDURE THE COMMISSION DID NOT ACT IN A DISCRIMINATORY MANNER .

9THE CIRCUMSTANCE RELIED ON BY THE PLAINTIFF IN THE MAIN ACTION THAT IT WAS PREVENTED FROM TAKING PART IN THE ' ' EXIM ' ' TENDERING PROCEDURE THROUGH NO FAULT OF ITS OWN IS NOT SUCH A KIND AS TO AFFECT THE VALIDITY OF THE PROVISION AT ISSUE SINCE IT APPEARS THAT THE COMMISSION IN ADOPTING THAT PROVISION KEPT WITHIN THE LIMITS OF A PROPER EXERCISE OF ITS DISCRETION IN THE MATTER .

10THE REPLY MUST THEREFORE BE THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTORS OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 11 OF REGULATION NO 76/76 .

COSTS

11THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH 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

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHES FINANZGERICHT HEREBY RULES :

CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTORS OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 11 OF REGULATION NO 76/76 .