61991J0094

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1. Agriculture ° Common organization of the markets ° Import and export licences and advance ° fixing certificates ° Explanatory notice published by the Commission for the benefit of traders ° Document for information ° No binding effect

2. Agriculture ° Common organization of the markets ° Sugar ° Exports to non-member countries ° System of standing invitation to tender ° Advance fixing of the refund ° Refund set out on the export licence in the currency of a Member State ° Refund awarded in ECU ° Use of the export licence in another Member State ° Rules for conversion into the currency of that State ° Application to the amount in ECU of the representative rate applicable at the time of completion of customs export formalities

(Commission Regulations No 2382/84, No 2976/84 and No 3067/84)

1. The Commission' s Notice of 11 March 1981 on import and export licences and advance-fixing certificates for agricultural products, published in the C Series of the Official Journal of the European Communities and intended to make it easier for the customs authorities and for traders to complete the formalities laid down in the Community rules on trade in agricultural produce between the Community and non-member countries, is in the nature of a document for information and does not constitute a binding act which by itself would enable the national authorities to rely on the conversion rules set out therein as against traders.

2. Under the Community rules on export refunds for white sugar determined by means of a standing invitation to tender, the monetary conversion of an export refund fixed in advance and set out on the export licence in the currency of the Member State in which the tender is submitted but awarded in ECU is to be carried out, where the licence is used in another Member State, between that amount in ECU and the national currency of the exporting Member State at the representative rate applicable at the time of completion of customs export formalities.

In Case C-94/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal Administratif (Administrative Court), Paris, for a preliminary ruling in the proceedings pending before that court between

Hans-Otto Wagner GmbH

and

Fonds d' Intervention et de Régularisation du Marché du Sucre (FIRS),

on the validity of the Commission' s Notice of 11 March 1981 on import and export licences and advance-fixing certificates for agricultural products (Official Journal 1981 C 52, p. 2),

THE COURT (Fourth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, C.N. Kakouris and M. Díez de Velasco, Judges,

Advocate General: W. Van Gerven,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the plaintiff in the main proceedings, by Christian E. Roth, of the Paris Bar,

- the French Government, by P. Pouzoulet, Assistant Director in the Department of Legal Affairs at the Ministry of Foreign Affairs, and J.L. Falconi, Secretary for Foreign Affairs at the Ministry of Foreign Affairs, acting as Agents,

- the Commission of the European Communities, by P. Hetsch, a member of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the parties at the hearing on 17 January 1992,

after hearing the Opinion of the Advocate General at the sitting on 20 February 1992,

gives the following

Judgment

1 By order of 17 January 1991, which was received at the Court on 18 March 1991, 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 validity of Note 2 to Annex I to the Commission' s Notice of 11 March 1981 on import and export licences and advance-fixing certificates for agricultural products (hereinafter referred to as "the Notice").

2 That question was raised in proceedings between Wagner, a company dealing in agricultural produce, and the Fonds d' Intervention et de Régularisation du Marché du Sucre (Sugar Market Intervention and Stabilization Fund, hereinafter referred to as "the Fund") concerning the payment in French francs of export refunds fixed by means of an invitation to tender in German marks.

3 In order to facilitate Community exports in the sugar sector, Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector (Official Journal 1981 L 177, p. 4) provides, having regard to the differences between world market prices and prices within the Community, for the grant of export refunds on sugar which are intended to cover those differences.

4 By Regulation (EEC) No 2382/84 of 14 August 1984 (Official Journal 1984 L 221, p. 5), the Commission opened a principal standing invitation to tender, until 12 June 1985, in order to determine export refunds on white sugar. The maximum export refunds were to be fixed by the Commission on the basis of the tenders received.

5 According to the implementing provisions in the notice of invitation to tender in question (Official Journal 1984 C 218, p. 27), each tender was to indicate the amount of the export refund expressed in the currency of the Member State in which the tender was submitted. An award was to be made to the tenderer or tenderers who quoted either the same refund as the maximum refund fixed by the Commission or a lower figure. The successful tenderer was entitled to be issued, in respect of the quantity for which an award had been made, with an export licence specifying the amount of the refund quoted in the tender.

6 In 1984 Wagner took part in Germany in the tenth and eleventh partial invitations to tender held within the framework of the principal standing invitation to tender provided for in Regulation No 2382/84. In accordance with that regulation, it expressed its tenders in German marks.

7 Four of those tenders, indicating export refunds equal to or lower than the maximum refunds fixed by the Commission for those two invitations to tender and relating in total to the export of 1 500 tonnes of white sugar, were accepted and export licences were issued to Wagner.

8 In April 1985 the 1 500 tonnes of white sugar were exported by Wagner from France. As the export refunds are paid by the Member State in whose territory customs export formalities have been completed, Wagner applied to the Fund for payment of the refunds which, according to its calculations, amounted to FF 4 196 946.

9 Wagner determined that amount by applying to the amount of the export refunds set out in German marks on the export licences the representative exchange rate applicable at the time of export.

10 The Fund, on the other hand, considered that the refunds expressed in German marks on the export licences had to be converted into French francs in accordance with Note 2 to Annex I to the Notice. It therefore first converted the refunds set out on the export licences into ECU by applying the representative rate of the German mark applicable at the time of the invitations to tender, and then converted the amounts so obtained into French francs by applying the representative rate of the French franc applicable at the time when customs export formalities were completed. As a result of those calculations, the Fund paid out a sum of only FF 3 974 893, thereby reducing the amount sought by Wagner by FF 222 113.

11 Wagner challenged that decision, claiming that the Notice was not applicable to it and, furthermore, that the Notice was not valid at the material time. It therefore formally demanded payment from the Fund of the sum of FF 222 113.

12 As there was no response to that demand for payment, Wagner instituted proceedings before the Tribunal Administratif, Paris. Taking the view that the outcome of the proceedings depended on whether Note 2 to Annex I to the Notice could properly be applied by the Fund, the Tribunal Administratif requested the Court to give a preliminary ruling on the validity of that note.

13 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

14 Note 2 to Annex I to the Notice is worded as follows:

"Where, for one and the same product, the above representative rates become applicable on different dates in different Member States, the amounts fixed in advance and expressed in national currency as are shown on the certificates will have to be converted as follows when the certificates are used in another Member State:

(a) the amount expressed in national currency appearing on the certificate is to be converted into ECU at the exchange rate used to calculate that amount;

(b) the amount expressed in ECU and arrived at in the manner described in (a) is to be converted into national currency at the exchange rate applicable on the day on which customs formalities are completed in the Member State in which the certificate is used."

15 In order to determine the scope of the question submitted, it is appropriate first of all to define the legal status of the Notice, and more particularly that of Note 2 to Annex I thereto.

16 That Notice, which was published in the C Series of the Official Journal of the European Communities, does not constitute a binding act which by itself would enable the national authorities to rely on the conversion rules set out therein as against traders. The Notice is in the nature of a document for information aimed at making it easier for traders and the customs authorities to complete the formalities laid down in the Community rules on trade in agricultural produce between the Community and non-member countries. Note 2 to Annex I to the Notice explains how the amount of a refund fixed in advance and expressed in the currency of one State must be converted into the currency of another State where the export licence is used in that other State.

17 In view of the explanatory nature of Note 2 to Annex I to the Notice, there is no need to examine its validity; however, regard being had to the subject- matter of the dispute in the main proceedings, the question submitted must be construed as seeking to ascertain whether the abovementioned note complies with the criteria for monetary conversion laid down by the provisions of Community law applicable at the material time. In order to provide the national court with an appropriate answer, it is necessary to examine the Community provisions governing the rules for converting an export refund into the currency of the exporting State where the amount fixed in advance is expressed in the currency of another State.

18 In that regard, it must be borne in mind that the main purpose of a tendering procedure to determine export refunds is to enable the Community to sell its surplus sugar to non-member countries while ensuring equal treatment with regard to the amount of those refunds for all tenderers irrespective of the place where they are established within the Community.

19 In order to ensure compliance with that principle, the notice of invitation to tender at issue in this case specified in paragraph V.8 that in order to achieve comparability between tenders submitted in national currencies and for the making of awards by the Member States, the amounts proposed for the export refunds, expressed in national currency, would be converted into ECU by applying the representative rate applicable at the time when those tenders were examined.

20 After examining the tenders received, the Commission, by Regulations ((EEC) No 2976/84 of 24 October 1984 and No 3067/84 of 31 October 1984 (Official Journal 1984 L 281, p. 22, and Official Journal 1984 L 288, p. 65, respectively), fixed in ECU the maximum export refunds for white sugar for the tenth and eleventh partial invitations to tender held within the framework of the principal standing invitation to tender provided for in Regulation No 2382/84.

21 Consequently, the export refunds awarded to tenderers who submitted tenders equal to or lower than the maximum amount fixed by the Commission were expressed in ECU by applying to the amounts expressed in national currencies in the tenders the representative rate applicable at the time of the invitation to tender.

22 Such an arrangement confers on the holder of an export licence issued under a tendering procedure for export refunds a right to receive, upon exportation, the amount of the refund awarded to him on the basis of his tenders by preventing that amount from being altered subsequently as a result of, for example, monetary developments occurring after the award of the refund.

23 It follows from the foregoing that Note 2 to Annex I to the Notice correctly recapitulates the criteria laid down by the Community rules for the monetary conversions needed in connection with export refunds.

24 The conversion rules advocated by Wagner, on the other hand, are inconsistent with the rationale of the Community rules since they may lead to a refund greater or smaller than that awarded to Wagner at the time of the invitation to tender. The amount of the export refund granted under the tendering procedure would in effect be altered subsequently. That alteration could result, in a case such as this, in an amount which would have entailed the rejection of the tenders submitted by the undertaking concerned at the time of the invitations to tender in which it took part.

25 The answer to the question submitted to the Court must therefore be that, under the Community rules, the monetary conversion of an export refund set out on the export licence in the currency of the Member State in which the tender is submitted but awarded in ECU is to be carried out, where the licence is used in another Member State, between that amount in ECU and the national currency of the exporting Member State at the representative rate applicable at the time of completion of customs export formalities.

Costs

26 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fourth Chamber),

in answer to the question submitted to it by the Tribunal Administratif, Paris, by order of 17 January 1991, hereby rules:

Under the Community rules, the monetary conversion of an export refund set out on the export licence in the currency of the Member State in which the tender is submitted but awarded in ECU is to be carried out, where the licence is used in another Member State, between that amount in ECU and the national currency of the exporting Member State at the representative rate applicable at the time of completion of customs export formalities.