61973J0146

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1 . PRELIMINARY RULINGS - REFERENCE TO THE COURT - JURISDICTION OF NATIONAL COURTS - EXTENT

( EEC TREATY, ARTICLE 177 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - CEREALS - EXPORT - DOCUMENTS - COUNTRY OF DESTINATION - FALSE PARTICULARS - REFUND - AMOUNT - OBLIGATORY LIMITS - POWERS OF MEMBER STATES

( ARTICLE 20 ( 2 ) OF REGULATION NO 19 OF THE COUNCIL )

1 . A RULE OF NATIONAL LAW WHEREBY A COURT IS BOUND ON POINTS OF LAW BY THE RULINGS OF A SUPERIOR COURT CANNOT ON THIS GROUND ALONE DEPRIVE THE INFERIOR COURTS OF THEIR POWER, PROVIDED FOR UNDER ARTICLE 177, TO REFER QUESTIONS TO THE COURT FOR A PRELIMINARY RULING .

HOWEVER, IN THE CASE OF A COURT AGAINST WHOSE DECISIONS THERE IS A JUDICIAL REMEDY UNDER NATIONAL LAW, ARTICLE 177 DOES NOT PRECLUDE A DECISION OF SUCH A COURT REFERRING A QUESTION TO THIS COURT FOR A PRELIMINARY RULING FROM REMAINING SUBJECT TO THE REMEDIES NORMALLY AVAILABLE UNDER NATIONAL LAW .

NEVERTHELESS, IN THE INTERESTS OF CLARITY AND LEGAL CERTAINTY, THE COURT MUST ABIDE BY THE DECISION TO REFER, WHICH MUST HAVE ITS FULL EFFECT SO LONG AS IT HAS NOT BEEN REVOKED .

2 . IN THE CASE WHERE THE COUNTRY OF DESTINATION OF THE GOODS DOES NOT CORRESPOND TO THE PARTICULARS GIVEN IN THE EXPORT DOCUMENTS :

( A ) ARTICLE 20 ( 2 ) OF REGULATION NO 19/62 REQUIRES THE NATIONAL AUTHORITIES TO REDUCE THE REFUND GRANTED SO THAT IT DOES NOT EXCEED THE MAXIMUM LIMITS PROVIDED FOR SUCH COUNTRY OF DESTINATION;

( B ) SUBJECT TO THIS OBLIGATION, IT IS FOR THEM TO DECIDE ACCORDING TO THEIR NATIONAL LAW THE NECESSARY FURTHER CONSEQUENCES .

IN CASE 146/73

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

RHEINMUEHLEN-DUESSELDORF, DUESSELDORF-HOLTHAUSEN,

AND

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

ON THE INTERPRETATION OF THE SECOND PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY AND ARTICLES 19 ( 2 ) AND 20 ( 2 ) OF REGULATION NO 19/62 OF THE COUNCIL OF 4 APRIL 1962 ( OJ 1962, P . 933 ET SEQ .), IN CONJUNCTION WITH ARTICLES 14 AND 15 OF REGULATION NO 141/64 OF THE COUNCIL OF 21 OCTOBER 1964 ( OJ 1964, P . 2666 ),

1 BY ORDER DATED 7 MAY 1973, FILED AT THE REGISTRY ON 20 JUNE 1973, THE HESSISCHES FINANZGERICHT REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS RELATING RESPECTIVELY TO THE INTERPRETATION OF ARTICLE 177 OF THE TREATY AND TO THAT OF THE PROVISIONS OF EEC REGULATION NO 19/62 OF THE COUNCIL ( OJ 933/62 ).

ON THE FIRST QUESTION

2 THE FIRST QUESTION ASKS WHETHER A COURT AGAINST WHOSE DECISIONS THERE IS A JUDICIAL REMEDY UNDER NATIONAL LAW MAY REFER A DOUBTFUL QUESTION OF EUROPEAN LAW TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES FOR A PRELIMINARY RULING ONLY WHEN THE CASE COMES BEFORE IT FOR THE FIRST TIME, OR WHETHER A REFERENCE IS ALSO PERMISSIBLE WHEN THE CASE IS BEING RECONSIDERED AFTER A JUDGMENT GIVEN BY SUCH A COURT SITTING AT FIRST INSTANCE HAS BEEN QUASHED BY A SUPREME COURT .

3 THIS QUESTION IS SUBSTANTIALLY THE SAME AS A PRELIMINARY QUESTION PUT IN THE SAME CASE BY THE BUNDESFINANZHOF, WHICH WAS THE SUBJECT OF THE JUDGMENT BY THE COURT GIVEN ON 16 JANUARY 1974 IN CASE 166/73, TO WHICH REFERENCE SHOULD BE MADE .

ACCORDING TO THIS JUDGMENT A RULE OF NATIONAL LAW WHEREBY A COURT IS BOUND ON POINTS OF LAW BY THE RULINGS OF A SUPERIOR COURT CANNOT ON THIS GROUND ALONE DEPRIVE THE INFERIOR COURTS OF THEIR POWER, PROVIDED FOR UNDER ARTICLE 177, TO REFER QUESTIONS TO THE COURT FOR A PRELIMINARY RULING .

HOWEVER, IN THE CASE OF A COURT AGAINST WHOSE DECISIONS THERE IS A JUDICIAL REMEDY UNDER NATIONAL LAW, ARTICLE 177 DOES NOT PRECLUDE A DECISION OF SUCH A COURT REFERRING A QUESTION TO THIS COURT FOR A PRELIMINARY RULING FROM REMAINING SUBJECT TO THE REMEDIES NORMALLY AVAILABLE UNDER NATIONAL LAW .

NEVERTHELESS, IN THE INTERESTS OF CLARITY AND LEGAL CERTAINTY, THIS COURT MUST ABIDE BY THE DECISION TO REFER, WHICH MUST HAVE ITS FULL EFFECT SO LONG AS IT HAS NOT BEEN REVOKED .

ON THE SECOND AND THIRD QUESTIONS

4 THE SECOND QUESTION ASKS WHETHER ARTICLES 19 ( 2 ) AND 20 ( 2 ) OF REGULATION NO 19/62 IN CONJUNCTION WITH ARTICLES 14 AND 15 OF REGULATION NO 141/64 ( OJ 2666/64 ) MUST BE INTERPRETED AS MEANING THAT AN EXPORTER WHO HAS CLAIMED AND OBTAINED A THIRD COUNTRY REFUND FOR THE EXPORT OF PEARL BARLEY TO A SPECIFIC THIRD COUNTRY IS ENTITLED TO AT LEAST THE MEMBER COUNTRY REFUND IF A SUBSEQUENT INVESTIGATION REVEALS THAT, CONTRARY TO HIS STATEMENTS, HE HAS EXPORTED THE GOODS TO A MEMBER COUNTRY, OR WHETHER IN SUCH A CASE THE REFUND MUST BE REFUSED HIM .

5 THE THIRD QUESTION ASKS WHETHER ARTICLE 20 ( 2 ) OF REGULATION NO 19/62 IN CONJUNCTION WITH ARTICLE 15 OF REGULATION NO 141/64 MUST BE INTERPRETED AS MEANING THAT AN EXPORTER IS ENTITLED TO THE THIRD COUNTRY REFUND ONLY IF HE EXPORTS THE GOODS TO THE COUNTRY MENTIONED IN THE APPLICATION FOR A REFUND, OR WHETHER IT SUFFICES FOR THE GRANT OF A REFUND THAT THE GOODS ARE EXPORTED TO ANY OTHER THIRD COUNTRY WHATSOEVER .

6 REGULATION NO 19/62 AND THE MEASURES FOR ITS IMPLEMENTATION, IN PARTICULAR REGULATIONS NOS 55/62 ( OJ 1583/62 ) AND 141/64, LEAVE THE MEMBER STATES A DISCRETION AS TO WHETHER OR NOT TO GRANT REFUNDS FOR THE EXPORT OF AGRICULTURAL PRODUCTS .

HOWEVER IN FIXING THE CONDITIONS FOR THE GRANT OF THESE REFUNDS AND THEIR AMOUNTS, THE MEMBER STATES WERE REQUIRED TO ADHERE TO THE MAXIMUM LIMITS LAID DOWN BY THE COMMUNITY AND THE RULES NECESSARY FOR THE APPLICATION OF THE GENERAL SYSTEM PROVIDED FOR BY REGULATION NO 19/62 .

ON THE OTHER HAND, IT WAS OPEN TO THEM, IN PARTICULAR AS REGARDS EXPORTS TO THIRD COUNTRIES, TO ADOPT CRITERIA MORE RESTRICTIVE THAN THOSE PROVIDED FOR BY THE COMMUNITY RULES .

7 AS REGARDS REFUNDS ON EXPORT MEMBER STATES WERE CONSEQUENTLY BOUND TO TAKE INTO CONSIDERATION THE COUNTRY OF DESTINATION AND IN PARTICULAR WHETHER THIS WAS A THIRD COUNTRY OR ANOTHER MEMBER STATE .

HOWEVER, IN THE CASE WHERE THE COUNTRY OF DESTINATION WAS NOT A THIRD COUNTRY BUT ANOTHER MEMBER STATE, THE AUTHORITIES WERE OBLIGED AT THE VERY LEAST TO REDUCE THE REFUND SO THAT IT DID NOT EXCEED THE LIMIT LAID DOWN FOR EXPORT TO THE MEMBER STATE IN QUESTION .

IT WAS THE SAME IN THE CASE WHERE THE COUNTRY OF DESTINATION WAS A THIRD COUNTRY OTHER THAN THAT SHOWN DOCUMENTS RELATING TO THE REFUND .

SUBJECT TO THIS OBLIGATION, IT WAS FOR THE AUTHORITIES OF THE MEMBER STATES TO DECIDE ACCORDING TO THEIR NATIONAL LAW THE FURTHER CONSEQUENCES OF SUCH AN OCCURRENCE .

8 IT MUST THEREFORE BE CONCLUDED THAT IN THE CASE WHERE THE COUNTRY OF DESTINATION OF THE GOODS DID NOT CORRESPOND WITH THE PARTICULARS GIVEN IN THE EXPORT DOCUMENTS :

( A ) ARTICLE 20 ( 2 ) OF REGULATION NO 19/62 REQUIRED THE NATIONAL AUTHORITIES TO REDUCE THE REFUND GRANTED SO THAT IT DID NOT EXCEED THE MAXIMUM LIMITS PROVIDED FOR SUCH COUNTRY OF DESTINATION;

( B ) SUBJECT TO THIS OBLIGATION, IT WAS FOR THEM TO DECIDE ACCORDING TO THEIR NATIONAL LAW THE NECESSARY FURTHER CONSEQUENCES .

9 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND 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 A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHES FINANZGERICHT BY ORDER OF THAT COURT DATED 7 MAY 1973, HEREBY RULES :

1 . THE EXISTENCE OF A RULE OF NATIONAL LAW WHEREBY A COURT IS BOUND ON POINTS OF LAW BY THE RULINGS OF A SUPERIOR COURT CANNOT ON THIS GROUND ALONE DEPRIVE THE INFERIOR COURTS OF THEIR POWER, PROVIDED FOR UNDER ARTICLE 177, TO REFER QUESTIONS TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES FOR A PRELIMINARY RULING;

2 . IN THE CASE WHERE THE COUNTRY OF DESTINATION OF THE GOODS DOES NOT CORRESPOND WITH THE PARTICULARS GIVEN IN THE EXPORT DOCUMENTS :

( A ) ARTICLE 20 ( 2 ) OF REGULATION NO 19/62 REQUIRED THE NATIONAL AUTHORITIES TO REDUCE THE REFUND GRANTED SO THAT IT DID NOT EXCEED THE MAXIMUM LIMITS PROVIDED FOR SUCH COUNTRY OF DESTINATION;

( B ) SUBJECT TO THIS OBLIGATION, IT WAS FOR THEM TO DECIDE ACCORDING TO THEIR NATIONAL LAW THE NECESSARY FURTHER CONSEQUENCES .