61972J0005

++++

1 . QUESTIONS REFERRED TO THE COURT FOR A PRELIMINARY RULING - REFERENCE TO THE COURT - EXCLUSIVE JURISDICTION OF NATIONAL COURT

( EEC TREATY, ARTICLE 177 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - EXPORTS TO THIRD COUNTRIES - REFUNDS - PAYMENT - TIME-LIMIT - DETERMINATION ACCORDING TO NATIONAL LAW

( REGULATION NO 19 OF THE COUNCIL, ARTICLE 20 )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - REGULATIONS NOS 19 AND 120/67/EEC OF THE COUNCIL - SCOPE

1 . ACCORDING TO ARTICLE 177 OF THE TREATY IT IS FOR THE NATIONAL COURT AND NOT THE PARTIES TO THE MAIN ACTION TO BRING A MATTER BEFORE THE COURT OF JUSTICE .

SINCE THE POWER TO FORMULATE THE QUESTIONS TO BE REFERRED IS VESTED IN THE NATIONAL COURT ALONE THE PARTIES CANNOT ALTER THE WORDING OF THOSE QUESTIONS .

2 . UNDER THE SYSTEM INSTITUTED BY REGULATION NO 19 OF THE COUNCIL, THAT IS, UP TO AND INCLUDING 30 JUNE 1967, THE MEMBER STATES WERE FREE TO DECIDE WHETHER OR NOT TO GRANT REFUNDS ON EXPORTS OF CEREALS TO THIRD COUNTRIES . WHERE A MEMBER STATE EXERCISED THIS POWER, THE QUESTION OF DETERMINING THE PERIOD WITHIN WHICH THE REFUNDS WERE TO BE PAID WAS A MATTER FOR NATIONAL LAW ALONE .

3 . IN SO FAR AS THE SYSTEM INSTITUTED BY REGULATION NO 120/67/EEC OF THE COUNCIL CONCERNING CEREALS DIFFERS FROM THAT RESULTING FROM REGULATION NO 19, THE NEW RULES RELATE SOLELY TO COMMERCIAL TRANSACTIONS EFFECTED AFTER 30 JUNE 1967 .

IN CASE 5/72

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE D' APPELLO, BRESCIA, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FRATELLI GRASSI FU DAVIDE, HAVING ITS REGISTERED OFFICE IN CAVATIGOZZI ( PROVINCE OF CREMONA IN ITALY ), AND

ITALIAN FINANCE ADMINISTRATION,

ON THE INTERPRETATION

- OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( JO NO L 30 OF 20 APRIL 1962, P . 933 ET SEQ .);

- OF ARTICLE 16 OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ, ENGLISH SPECIAL EDITION 1967, P . 33 ),

1 BY JUDGMENT OF 24 NOVEMBER 1971, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 31 JANUARY 1972, THE CORTE D' APPELLO, BRESCIA, HAS REFERRED TO THE COURT OF JUSTICE TWO QUESTIONS ON THE INTERPRETATION OF, INTER ALIA, REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS AND OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 WHICH FINALLY ESTABLISHED SUCH AN ORGANIZATION .

2 THE FIRST QUESTION SEEKS TO ASCERTAIN WHETHER IN THE PERIOD BEFORE 1 JULY 1967 THE PROVISIONS OF THE TREATY AND OF REGULATION NO 19, IN CONJUNCTION WITH ARTICLE 16 OF REGULATION NO 120/67/EEC, OBLIGED, OR MERELY AUTHORIZED, MEMBER STATES TO GRANT REFUNDS ON EXPORTS TO THIRD COUNTRIES . BY THE SECOND QUESTION THE COURT IS REQUESTED TO RULE WHETHER THOSE PROVISIONS ALLOWED THE SAID MEMBER STATES " ANY RIGHT TO DELAY PAYMENT ".

I - THE JURISDICTION OF THE COURT

3 GRASSI CONSIDERS THAT ALTHOUGH THE QUESTIONS PUT RELATE SOLELY TO THE PERIOD PRIOR TO 1 JULY 1967, THE COURT SHOULD GIVE A RULING ALSO ON THE SYSTEM OF REFUNDS APPLICABLE SINCE THAT DATE SO AS TO ENABLE THE NATIONAL COURT TO COME TO A PROPER DECISION .

4 ACCORDING TO ARTICLE 177 OF THE TREATY IT IS FOR THE NATIONAL COURT AND NOT THE PARTIES TO THE MAIN ACTION TO BRING THE MATTER BEFORE THE COURT OF JUSTICE . SINCE THE POWER TO FORMULATE THE QUESTIONS TO BE REFERRED IS VESTED IN THE NATIONAL COURT ALONE THE PARTIES CANNOT ALTER THE WORDING OF THOSE QUESTIONS . IN THE PRESENT CASE, IT IS CLEAR FROM THE TEXT OF THE JUDGMENT IN WHICH THE COTE D' APPELLO, BRESCIA, DECIDED TO MAKE THE REFERENCE TO THE COURT OF JUSTICE THAT THE NATIONAL COURT HAS ITSELF REACHED A DECISION ON THE QUESTIONS RELATING TO THE PERIOD AFTER 30 JUNE 1967 . THERE IS THEREFORE NO REASON TO EXAMINE THE PROBLEMS RELATING TO THAT PERIOD .

II - THE QUESTIONS REFERRED TO THE COURT

5 ACCORDING TO ARTICLE 20 ( 2 ) OF REGULATION NO 19, A REFUND " MAY "BE GRANTED ON EXPORTS TO THIRD COUNTRIES . CONSEQUENTLY, MEMBER STATES WERE FREE TO REFRAIN ENTIRELY FROM GRANTING THE REFUND . THIS INTERPRETATION IS CONFIRMED BY ARTICLE 1 OF REGULATION NO 90 OF THE COMMISSION OF 25 JULY 1962 IMPLEMENTING REGULATION NO 19 WHICH PROVIDES THAT MEMBER STATES " MAY " ALLOW A REFUND ON EXPORTS TO THIRD COUNTRIES .

6 AS FOR THE SECOND QUESTION, NEITHER REGULATION NO 19 NOR THE PROVISIONS IMPLEMENTING IT INDICATE THE PERIOD WITHIN WHICH REFUNDS WERE TO BE PAID IN THE EVENT OF A MEMBER STATE' S EXERCISING THE POWER TO GRANT REFUNDS . THIS PROBLEM WAS THEREFORE A MATTER FOR NATIONAL LAW ALONE, SINCE COMMUNITY LAW IS NOT CONCERNED WITH THE PROCEDURE FOR A PAYMENT WHICH IT PERMITTED BUT DID NOT MAKE COMPULSORY .

7 ARTICLE 16 OF REGULATION NO 120/67, TO WHICH REFERENCE IS ALSO MADE BY THE NATIONAL COURT, HAS NO BEARING ON THE SYSTEM APPLICABLE BEFORE 1 JULY 1967 . IN FACT, ACCORDING TO ARTICLE 33 OF THE SAID REGULATION, THE SYSTEM WHICH IT PRESCRIBES IS APPLICABLE ONLY AS FROM 1 JULY 1967, THE DATE OF REPEAL OF REGULATION NO 19 AND ITS IMPLEMENTING PROVISIONS . CONSEQUENTLY, IN SO FAR AS THE SYSTEM INSTITUTED BY REGULATION NO 120/67 DIFFERS FROM THAT RESULTING FROM REGULATION NO 19, THE NEW RULES RELATE SOLELY TO COMMERCIAL TRANSACTIONS EFFECTED AFTER 30 JUNE 1967 .

8 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE 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 THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CORTE D' APPELLO, BRESCIA, BY JUDGMENT OF 24 NOVEMBER 1971, HEREBY RULES :

1 . UNDER THE SYSTEM INSTITUTED BY REGULATION NO 19, THAT IS, UP TO AND INCLUDING 30 JUNE 1967, THE MEMBER STATES WERE FREE TO DECIDE WHETHER OR NOT TO GRANT REFUNDS ON EXPORTS OF CEREALS TO THIRD COUNTRIES;

2 . WHERE A MEMBER STATE EXERCISED THIS POWER, THE QUESTION OF DETERMINING THE PERIOD WITHIN WHICH THE REFUNDS WERE TO BE PAID WAS A MATTER FOR NATIONAL LAW ALONE .