61972J0061

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - TRADE WITH THIRD COUNTRIES - IMPORT OR EXPORT LICENCES - ISSUE - POWERS AND OBLIGATIONS OF MEMBER STATES

( REGULATION NO 1009/67/EEC, ARTICLE 11; REGULATION NO 1373/70/EEC, ARTICLES 8, 9 AND 15 )

THE PROVISIONS OF ARTICLE 11 ( 1 ) OF REGULATION NO 1009/67/EEC OF THE COUNCIL OF 18 DECEMBER 1967 ( OJ NO 308, P . 1 ) AND OF ARTICLE 8 ( 2 ), ARTICLE 9 ( 1 ), FIRST AND SECOND SUB-PARAGRAPHS, AND ARTICLE 15 ( 4 ) OF REGULATION NO 1373/70/EEC OF THE COMMISSION OF 10 JULY 1970 ( OJ NO L 158, P . 1 ) MUST BE INTERPRETED AS MEANING THAT, ALTHOUGH THEY LEAVE TO THE COMPETENT NATIONAL AUTHORITIES THE CHOICE OF THE WAYS AND MEANS TO BE ADOPTED FOR THE DISPATCH OF ADVANCE FIXING CERTIFICATES AND EXTRACTS THEREOF TO THE APPLICANT, THE REQUIREMENT OF ISSUING THE CERTIFICATE OR EXTRACTS INVOLVES AN OBLIGATION FOR THOSE AUTHORITIES TO ENSURE THAT THE DOCUMENTS ACTUALLY REACH THE APPLICANT .

THE COMPETENT NATIONAL AUTHORITY DID NOT FULFIL THIS OBLIGATION WHEN IT SENT SUCH DOCUMENTS BY POST AND THOSE DOCUMENTS FAILED TO REACH THE ADDRESSEE FOR REASONS FOR WHICH HE WAS NOT RESPONSIBLE .

IN CASE 61/72

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN AT THE HAGUE FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MIJ PPW INTERNATIONAL N.V ., OF BLADEL ( NETHERLANDS ),

AND

HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN, AT THE HAGUE,

ON THE INTERPRETATION OF ARTICLE 11 OF REGULATION NO 1009/67/EEC OF THE COUNCIL OF 18 DECEMBER 1967 ( OJ NO 308, P . 1 ), AND OF ARTICLES 8, 9 AND 15 OF REGULATION NO 1373/70/EEC OF THE COMMISSION OF 10 JULY 1970 ( OJ NO L 158, P . 1 ),

1 BY JUDGMENT OF 29 AUGUST 1972, RECEIVED AT THE COURT REGISTRY ON 31 AUGUST 1972, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED TO THE COURT THREE QUESTIONS, UNDER ARTICLE 177 OF THE EEC TREATY, ON THE INTERPRETATION OF REGULATION NO 1009/67/EEC OF THE COUNCIL OF 18 DECEMBER 1967 ( OJ NO 308, P . 1 ) AND REGULATION NO 1373/70/EEC OF THE COMMISSION OF 10 JULY 1970 ( OJ NO L 158, P . 1 ) AND CONCERNING THE CONDITIONS ACCORDING TO WHICH ADVANCE FIXING OF REFUND CERTIFICATES FOR PROCESSED PRODUCTS WITH A SUGAR BASE INTENDED FOR EXPORT TO THIRD COUNTRIES MUST BE " DELIVRE " ( ISSUED ) OR " REMISE " ( ISSUED ) TO THE TRADERS CONCERNED .

2 IN REGARD TO THE FIRST TWO QUESTIONS, THE COURT IS ASKED TO INTERPRET THE EXPRESSIONS " AFGEVEN " ( AT UDSTEDE, ERTEILEN, TO ISSUE OR SUPPLY WITH, DELIVRER, RILASCIARE ) AND " OVERHANDIGEN " ( AT UDLEVERE, AUSHAENDIGEN, TO ISSUE, DELIVRER OR REMETTRE, RILASCIARE ) APPEARING IN ARTICLE 11 ( 1 ) OF REGULATION NO 1009/67 AND IN ARTICLES 8 ( 2 ), 9 ( 1 ), FIRST AND SECOND SUBPARAGRAPHS, AND 15 ( 4 ) OF REGULATION NO 1373/70 .

3 THE THIRD QUESTION ASKS " IN PARTICULAR " WHETHER THE REQUIREMENT OF " OVERHANDIGING " ( UNLEVERING, AUSHAENDIGUNG, ISSUE, DELIVERANCE OR REMISE, RILASCIO ) OR OF " AFGIFTE " ( UDSTEDELSE, ERTEILUNG, ISSUE OR SUPPLY, DELIVRANCE OR REMISE, RILASCIO ), ESPECIALLY WITHIN THE MEANING OF ARTICLES 8 ( 2 ) AND 9 ( 1 ), SECOND SUBPARAGRAPH, OF REGULATION NO 1373/70, IS SATISFIED WHEN THE COMPETENT AUTHORITY RESTRICTS ITSELF TO DISPATCHING THE LICENCE OR CERTIFICATE AND EXTRACTS THEREOF BY POST WITHOUT REGISTERING THE ENVELOPE .

4 THESE QUESTIONS HAVE BEEN ASKED WITH REGARD TO THE FACT THAT ON PPW APPLYING FOR AN ADVANCE FIXING OF REFUND CERTIFICATE FROM THE HOOFDPRODUKTSCHAP, WITH A VIEW TO EXPORTING CERTAIN QUANTITIES OF SUGAR CONFECTIONERY NOT CONTAINING COCCA, THAT AUTHORITY SENT TWO EXTRACTS BY UNREGISTERED POST WHICH FAILED TO REACH THE ADDRESSEE IN CIRCUMSTANCES IN WHICH IT WAS IMPOSSIBLE TO ESTABLISH WHERE IT HAD GONE ASTRAY .

5 THE MAIN ACTION CONCERNS THE CONTESTED REFUSAL BY THE HOOFDPRODUKTSCHAP OF THE CLAIM BY PPW EITHER TO BE AUTHORIZED TO EXPORT THE PRODUCTS IN QUESTION ON THE BASIS OF THE RATE OF REFUND FIXED IN ADVANCE, OR TO BE INDEMNIFIED FOR THE LOSS IT HAD SUFFERED BY REASON OF THE LOWER RATE APPLICABLE TO THE DISPUTED EXPORTS IN THE ABSENCE OF SUCH AUTHORIZATION .

6 ARTICLE 11 ( 1 ) OF REGULATION NO 1009/67, CONCERNING THE IMPORT OR EXPORT LICENCES THE SUBMISSION OF WHICH IS A CONDITION FOR ALL IMPORT OR EXPORT OF BASIC PRODUCTS IN THE SUGAR SECTOR, LAYS DOWN THAT SUCH A LICENCE SHALL BE " ISSUED ( AFGEGEVEN ) BY MEMBER STATES TO ANY APPLICANT ".

7 FOLLOWING ARTICLE 17 ( 1 ) OF THE SAME REGULATION WHICH PROVIDED FOR REFUNDS ON EXPORTS, REGULATION NO 204/69/EEC OF THE COUNCIL OF 28 JANUARY 1969 ( OJ NO L 29, P . 1 ), WHICH ESTABLISHED THE RULES FOR GRANTING THOSE REFUNDS, STIPULATES, IN ARTICLE 5 THEREOF, THAT THE RATE OF REFUND SHALL BE THAT APPLYING ON THE DATE ON WHICH THE GOODS ARE EXPORTED; ARTICLE 5 ( 2 ), HOWEVER, PROVIDES FOR A SYSTEM OF ADVANCE FIXING OF THE RATE OF REFUND .

8 ARTICLE 6 ( 1 ) OF THE SAME REGULATION PROVIDES THAT " THE GRANTING OF THE REFUND UNDER THE SYSTEM OF ADVANCE FIXING PROVIDED FOR IN ARTICLE 5 ( 2 ) SHALL BE SUBJECT TO THE SUBMISSION OF AN ADVANCE FIXING CERTIFICATE WHICH MAY BE ISSUED ( AFGEGEVEN ) BY MEMBER STATES TO ANY APPLICANT . "

9 IN APPLICATION OF, INTER ALIA, REGULATION NO 1009/67, REGULATION NO 1373/70 PROVIDES, BY ARTICLE 8 ( 2 ), FIRST SUBPARAGRAPH, THAT " LICENCES AND CERTIFICATES SHALL BE DRAWN UP AT LEAST IN DUPLICATE, THE FIRST COPY OF WHICH, CALLED " TITULAR HOLDER' S COPY ", AND MARKED " NO 1 ", SHALL BE ISSUED ( OVERHANDIGD ) WITHOUT DELAY TO THE APPLICANT ".

10 ACCORDING TO ARTICLE 9 ( 1 ), FIRST SUBPARAGRAPH, " ON APPLICATION BY THE TITULAR HOLDER OF THE LICENCE OR CERTIFICATE ... AND ON SUBMISSION OF COPY NO 1 OF THE DOCUMENT, ONE OR MORE EXTRACTS FROM THAT DOCUMENT MAY BE ISSUED ( AFGEGEVEN ) BY THE COMPETENT AGENCIES OF MEMBER STATES ", AND SUCH EXTRACTS SHALL, UNDER THE TERMS OF THE SECOND SUBPARAGRAPH OF ARTICLE 9 ( 1 ), BE DRAWN UP IN AT LEAST TWO COPIES, THE FIRST OF WHICH, CALLED " TITULAR HOLDER' S COPY ", AND MARKET " NO 1 ", SHALL BE ISSUED ( OVERHANDIGD ) TO THE APPLICANT .

11 ARTICLE 15 ( 4 ) PROVIDES THAT WHERE A LICENCE OR CERTIFICATE OR EXTRACT FROM A LICENCE OR CERTIFICATE IS LOST, ISSUING AGENCIES MAY, EXCEPTIONALLY, SUPPLY ( AFGEVEN ) THE PARTY CONCERNED WITH A DUPLICATE THEREOF, CLEARLY MARKED WITH THE WORD " DUPLICATE ", BUT SUCH DUPLICATES MAY NOT BE SUBMITTED FOR THE PURPOSES OF EFFECTING IMPORT OR EXPORT TRANSACTIONS .

12 THE QUESTIONS RAISED CONCERN WHAT OBLIGATIONS ARISE FOR THE COMPETENT AUTHORITIES OF MEMBER STATES FROM THE PROVISIONS CITED BY THE NATIONAL COURT, RELATING TO THE DISPATCH OF ADVANCE FIXING CERTIFICATES OR EXTRACTS THEREOF TO THE ADDRESSEE .

13 THE PROVISIONS IN QUESTION CONTAIN NO EXPRESS RULES AS TO THE WAYS AND MEANS TO BE ADOPTED BY THOSE AUTHORITIES TO ENSURE THAT THE ABOVE MENTIONED DOCUMENTS REACH THE APPLICANT .

14 NO ARGUMENT CAN BE DRAWN EITHER FROM ANY LINGUISTIC DIVERGENCES BETWEEN THE VARIOUS LANGUAGE VERSIONS, OR FROM THE MULTIPLICITY OF THE VERBS USED IN ONE OR OTHER OF THOSE VERSIONS, AS THE MEANING OF THE PROVISIONS IN QUESTION MUST BE DETERMINED WITH RESPECT TO THEIR OBJECTIVE .

15 THE RULES REFERRED TO IN THE QUESTIONS ATTACH IMPORTANT CONSEQUENCES FOR TRADERS TO THE POSSESSION OF ADVANCE FIXING CERTIFICATES .

16 IN FACT, ON THE ONE HAND, THE GRANTING OF THE REFUND UNDER THE SYSTEM OF ADVANCE FIXING IS SUBJECT TO THE SUBMISSION OF THE CERTIFICATE ( ARTICLE 6 ( 1 ) OF REGULATION NO 204/69 ) AND, ON THE OTHER HAND, THE ISSUE OF THAT CERTIFICATE IS CONDITIONAL ON THE PRIOR LODGING OF A DEPOSIT WHICH IS RELEASED ONLY WHEN THE TRADER PRODUCES THE CERTIFICATE OR EXTRACTS THEREOF ( ARTICLES 8 ( 2 ) ( B ), 15 ( 2 ) ( B ), 15 ( 3 ) ( B ) AND 16 ( 1 ) OF REGULATION NO 1373/70 ).

17 FURTHERMORE, THE FACT THAT THE COMMUNITY AGRICULTURAL RULES INVOLVE SUBSTANTIAL FORMALITIES AND BURDENS FOR TRADERS DEMANDS A STRICT INTERPRETATION OF THE OBLIGATIONS IMPOSED ON NATIONAL AUTHORITIES .

18 THEREFORE, ALTHOUGH THE RULES IN QUESTION LEAVE TO THE NATIONAL AUTHORITIES THE WAYS AND MEANS TO BE ADOPTED FOR THE DISPATCH OF ADVANCE FIXING CERTIFICATES AND EXTRACTS THEREOF TO THE APPLICANT, THE REQUIREMENT OF ISSUING THE CERTIFICATE OR EXTRACTS THEREOF NONETHELESS INVOLVES THE OBLIGATION FOR THE COMPETENT AUTHORITY TO ENSURE THAT SUCH DOCUMENTS ACTUALLY REACH THE APPLICANT .

19 THE SAID AUTHORITY DID NOT FULFIL THIS OBLIGATION WHEN SENDING THE DOCUMENTS BY POST AS THEY FAILED TO REACH THE ADDRESSEE FOR REASONS FOR WHICH THE LATTER IS NOT RESPONSIBLE .

20 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, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, 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 QUESTION REFERRED TO IT BY THE COLLGE VAN BEROEP VOOR HET BEDRIJFSLEVEN, BY JUDGMENT OF THAT COURT DATED 29 AUGUST 1972, HEREBY RULES :

THE PROVISIONS OF ARTICLE 11 ( 1 ) OF REGULATION NO 1009/67/EEC OF THE COUNCIL OF 18 DECEMBER 1967 ( OJ NO 308, P . 1 ) AND OF ARTICLE 8 ( 2 ), ARTICLE 9 ( 1 ), FIRST AND SECOND SUBPARAGRAPHS, AND ARTICLE 15 ( 4 ) OF REGULATION NO 1373/70/EEC OF THE COMMISSION OF 10 JULY 1970 ( OJ NO L 158, P . 1 ) MUST BE INTERPRETED AS MEANING THAT, ALTHOUGH THEY LEAVE THE CHOICE TO THE COMPETENT NATIONAL AUTHORITIES OF THE WAYS AND MEANS TO BE ADOPTED FOR THE DISPATCH OF ADVANCE FIXING CERTIFICATES AND EXTRACTS THEREOF TO THE APPLICANT, THE REQUIREMENT OF ISSUING THE CERTIFICATE OR EXTRACTS INVOLVES AN OBLIGATION FOR THOSE AUTHORITIES TO ENSURE THAT THE DOCUMENTS ACTUALLY REACH THE APPLICANT .