C-73/69

1. The regulations which provide, as to imports from third countries might regards imports of cereals from third have rendered a dealer engaged in intra- countries, for the possibility, designed to Community trade subject, in an excep­ protect those concerned from excessive tional case, to a smaller levy than that price fluctuations, of fixing the levy in actually applicable. advance, and lay down provisions in connexion therewith for cases of force 2. The rules set out in Article 9 of Regu­ majeure without doing the same for intra- lation No 87/62 of the Commission of the Community trade are not in breach of EEC of 25 July 1962, in conjunction with Community preference. Article 7 of Regulation No, 54/62 of the This conclusion is not invalidated merely Council of the EEC of 30 June 1962, can­ by the fact that the application of a not be applied by analogy to the importa­ particular provision of the rules relating tion of oats from a Member State.

In Case 73/69

Reference to the Court under Article 177 of the EEC Treaty by the Bundesfinanz­ hof for a preliminary ruling in the action pending before that court between

Firma H. Oehlmann and Co., Oldenburg,

1 — Language of the Case: German.

JUDGMENT OF 24. 6. 1970 — CASE 73/69

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure (hereinafter referred to as 'the defendant'). It maintained that the rate of levy applicable The facts and procedure may be summarized should be that in force on 9 January 1963, as follows; the date оn which the goods would have On 22 March 1963, Firma H. Oehlmann been cleared through customs, if the trans­ and Co. (hereinafter referred to as 'the port by waterway had not been delayed by plaintiff') asked the customs office, Mün­ ice. ster, to give customs clearance for 99 086 The plaintiff appealed against the dismissal kg of oats imported from the Netherlands. of its objection to the Finanzgericht In calculating the levy, payable by virtue (Finance Court), Münster. In particular it of the common organization of the market argued that Regulation No 19 of the in this sector (cereals) the customs office Council of the EEC of 4 April 1962, relating based itself on the rates applicable on the to the progressive establishment of a date given. common organization of markets in the The plaintiff lodged an objection against sector of cereals (OJ 1962, p. 933) reveals a this fixing of the levy before the Hauptzoll­ gap, in that it does not provide for the fixing amt (Principal Customs Office), Münster, of levies in advance for intra-Community

OEHLMANN ν HAUPTZOLLAMT MÜNSTER

'(a) Is it incompatible with the Treaty majeure. These rules are reasonable in that, establishing the European Economic from an economic point of view, the relevant Community that the rules laid down time for fixing the rate of the levy is the time by Article 17 (2) of Regulation No 19 at which the goods produce an effect on the of the Council of the European internal market of the country of their Economic Community of 4 April 1962, destination. In this case, that time is providing for the progressive establish

illegal. Further, Article 9 of Regulation No 87/62 in conjunction with Article 7 of (b) If Question (a) is answered in the Regulation No 54/62 is not capable of affirmative: application by analogy. Indeed it is a special Can it therefore be deduced that in a provision — moreover also legal — only case of the importation of oats from applicable to cases of fixing the levy in the Netherlands, where transport was advance. delayed by force majeure, before the The plaintiff brought an appeal against this entry into force of Regulation No 31 decision before the Bundesfinanzhof (Fed of the Council of the European eral Finance Court). It argued that cereals Economic Community of 2 April 1963 are generally bought and resold in the (OJ 1963, p. 1225), it is necessary to market of their destination long before they charge not the levy applicable on the are actually imported.

JUDGMENT OF 24. 6. 1970 — CASE 73/69

June 1962 (OJ 1962, p. 1581) has laid Article 7 of Regulation No 54/62 down in respect of imports from third countries? 'If the import' shall not have taken place during the month stated at the time of the (c) If Question (a) or (b) is answered in the request, and saving any exception the negative : definition and particulars of which shall be Are the rules laid down in Article 9 determined in accordance with the pro­ of Regulation No 87/62 in conjunction visions of Article 26 of Regulation No 19 of with Article 7 of Regulation No 54/62 the Council, which shall apply by analogy: — charge of the agreed levy where importation has been delayed by force (a) the levy which was applicable on the majeure — also applicable by analogy day on which the request for a certificate to the importation of oats from the was lodged, shall be adjusted in ratio Netherlands, that is, must the levy in with the threshold price in force at the force on the planned date of importa­ date of imports and tion be charged where the importation was delayed by force majeure, before the (b) the premium applicable shall be the entry into force of Regulation No 31/63 highest premium laid down for the which itself contains no analogous products in question in the scale of rules?' premiums in force on the day on which the request for a certificate was lodged.' The text of the provisions in question is as follows: Article 9 of Regulation No 87/62

Article 17 of Regulation No 19 "The provisions of Article 7 of Regulation No 54 of the Council shall not apply where the goods have not been imported during the month stated in the application for the '(1) The amount of the levy to be charged certificate for reasons which would justify between Member States vis-à-vis third a case being treated as exceptional under countries shall be the amount appli­ Article 8 (2) and (3) of this Regulation' cable on the day of importation. (force majeure).

II — Observations submitted in ac of fixing in advance, and, accordingly, of cordance with Article 20 of the Article 9 of Regulation No 87/62, to im Protocol on the Statute of the ports of cereals from third countries only, Court of Justice. the solution was based on a mistaken evaluation of economic necessities. How ever this restriction was in breach of the ' A — On the first question EEC Treaty in that it made intra-Commu nity trade more difficult, although the Treaty particularly states that intra-Com 1 — The observations of the plaintiff munity trade has priority over trade with third countries. The plaintiff states that, as a general rule, In fact the concept of 'Community prefer cereals are bought and resold in the country ence' means essentially that intra-Com of their destination long before they are munity trade should at least not be treated given customs clearance. It follows that a less favourably than comparable commer quantity of cereals exercises an influence on cial transactions with third countries. the market of its destination before it is in fact imported.

countries. It is sufficient if comparison of quested, the subsequent provisions (Article the two systems reveals that, as a whole, 9 of Regulation No 87/62 in conjunction trade between Member States has priority with Article 7 of Regulation No 54/62) over trade with third countries. If these provided that the levy applicable was at the considerations are accepted as a starting rate in force on the day originally planned point then there can be no doubt that there for the imports. is no breach of the concept of 'Community In contrast, for intra-Community trade, preference'. the levy was always payable at the rate in force at the date of actual importation. This (a) Regulation No 19 favours intra- difference in treatment seems to arise from Community trade, both by the effect of the the fact that, in intra-Community trade, fixed amount (set out in Article 2 of the only a short time elapses between the Regulation) by which intra-Community purchase and the importation, and that levies are reduced and by the fact that intra- price fluctuations are much smaller than on Community levies are calculated on the the world market. Nevertheless cases such basis of the market price in each of the as this one show clearly that the need for a Member States, thereby allowing exporters similar rule exists equally in intra-Com from all the Member States to sell under munity trade. Indeed since Regulation equal conditions on a given market.

Community price. From all this the applicant draws the conclusion that when the Community rules (b) The circumstances which make the first restricted the application of the system possibility of fixing levies in advance

The plaintiff recalls that Article 40 (2) of the Treaty provides that 'the common organiza­ C — On the third question tion ... may include all measures required to attain the objectives set out in Article 39 By adopting the concept of 'meas­ 1 — The observations of the plaintiff ures required' ['measures nécessaires'] the Treaty had recognized the applicability to The fact that the rules relating to force Community law of the principle of pro­ majeure only apply to imports from third portionality. This implies that the measures countries is on the one hand not 'required' taken must be necessary and appropriate in the sense of Article 40, nor, on the other in order to attain the objectives of the hand, the consequence of an intentional Treaty. The provisions of Article 9 of decision of the Council but resulted from Regulation No 87/62 in conjunction with an erroneous evaluation of the economic Article 7 of Regulation No 54/62 do not necessities ofintra-Community trade. There­ comply with these criteria inasmuch as they fore this was a genuine gap to be filled in only apply to trade with third countries. by an analogous application of the above- In fact instead of pursuing the objectives set mentioned rules. out in Article 39, the restriction to trade with third countries amounts to discrimination 2 — Observations of the Commission to the detriment of intra-Community trade, and it imposes on imports from Member The Commission believes that this question States risks, and, consequently, burdens should be answered in the negative. which are disproportionate and unneces­ The problem of a delay in imports because sary. In such a situation it is for the national of force majeure is well known to the administrations to repair the omissions of legislature as is shown by Regulations Nos

The first question

2 The first question referred by the Bundesfinanzhof asks whether it is compatible with the EEC Treaty that the provisions contained in Article 17 (2) of Regulation No 19 of the Council of 4 April 1962 on the progressive establishment of a common organization of the market in cereals (OJ 1962, p. 933) only apply to imports from third countries and not to imports from Member States.

3 This provision provides, in particular, for the possibility of fixing in advance the levy on imports from third countries.

4 As can be seen from the file submitted and the observations made by the plaintiff in the main action, this question concerns a possible incompatibility with the principle known as Community preference or with the spirit of Article 40 of the EEC Treaty. The dispute in the main action arises from the fact that the plaintiff imported from the Netherlands oats whose arrival in Germany is said to have been delayed by the freezing of canals. Because of this, it is alleged that the plaintiff had to pay a higher levy than it would have had to pay if the importation had taken place on the date originally planned. The plaintiff in the main action claims

JUDGMENT OF 24. 6. 1970 — CASE 73/69

that it would not have been subjected to such treatment if the Community rules governing delays in importation due to force majeure had been applicable to it, and contends that those rules were not applied to it because they were intended solely for the cases covered by Article 17. It therefore claims that this article is invalid. It alleges in particular that this provision on the one hand creates an advantage in favour of imports of cereals from third countries as «against intra- Community trade, which is contrary to the principle of Community preference, and on the other hand is more restrictive than necessary, which conflicts with the principle of proportionality enshrined, in its opinion, in Article 40 of the Treaty.

6 Although, in view of these differences, the regulations have provided, as regards imports from third countries, for the possibility, designed to protect those con­ cerned from excessive price fluctuations, of fixing the levy in advance, and have laid down provisions in connexion therewith relating to delays caused by force majeure, without doing the same for intra-Community trade, such a distinction cannot be considered as a breach of Community preference.

7 This conclusion cannot be invalidated merely by the fact that the application of a particular provision of the rules relating to imports from third countries might have rendered a dealer engaged in intra-Community subject, in an exceptional case, to a smaller levy than that actually applicable.

OEHLMANN ν HAUPTZOLLAMT MUNSTER

8 The plaintiff in the main action further seeks to deduce from the; fact that sub­ sequent regulations provided for the fixing of the levy in advance in the case of intra-Community imports also, that the limitation imposed by Article 17 (2) of Regulation No 19 to trade with third countries proved to be unnecessary, and is therefore contrary to the spirit of Article 40 of the Treaty which merely empowers the Council to issue the rules necessary for the functioning of a common agri­ cultural market.

9 However, with the risk of manipulation to which the right to fix the levies, in advance gives rise, and in view of the fact that this risk becomes greater the shorter transport distances are, it was permissible for the Council to withhold this facility from intra-Community trade until after experience of it had been obtained in trade with third countries, which is easier to verify and which, moreover, had greater need of it.

14 The articles mentioned govern the consequences of the fixing of the levy in advance, particularly where the importation has not taken place in the month stated at the

JUDGMENT OF 24. 6. 1970 — CASE 73/69

time of the application to fix the levy in advance (Article 7 of Regulation No 54/62) and where this delay is due to circumstances justifying exceptional treatment (Article 9 of Regulation No 87/62).

15 These provisions presuppose the existence of a certificate fixing the levy in advance which includes a counter-obligation to carry out the importation at a date also fixed in advance in the certificate, and the performance of this obligation must, moreover, be guaranteed by the deposit of security. It is not apparent how they could be applied to a completely different situation characterized merely by the fact that the importation took place at a date other than that originally intended. This situation is too different from the situation envisaged by the provisions in question to make it possible to justify their application by analogy.

16 The third question must therefore be answered in the negative.

Costs

THE COURT

in answer to the questions referred to it by the Bundesfinanzhof by its order of 21 October 1969, hereby rules;

1. Examination of the question referred to the Court by the Bundesfinanzhof has not revealed anything which could affect the validity of Article 17 (2) of Regulation No 19 of the Council of the EEC of 4 April 1962;

2. The rules set out in Article 9 of Regulation No 87/62 of the Commission of the EEC of 25 July 1962, in conjunction with Article 7 of Regulation No 54/62 of the Council of the EEC of 30 June 1962, cannot be applied by analogy to the importation of oats from the Netherlands.

Lecourt Monaco

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