C-49/71

JUDGMENT OF 1. 2. 1972 — CASE 49/71

1. Terms used in Community law must be pleted, but will be effective only when uniformly interpreted and implemented it satisfies all the conditions upon which throughout the Community, except its validity depends. when an express or implied reference is made to national law. 5. The phrase 'are when the offer is made' contained in Article 1 of Regulation 2. The terms 'offer' and 'offered', con­ No 132/67 must be interpreted as tained in Regulations Nos 120/67, meaning that the goods offered must, 132/67 and 1028/68, must be uniformly when the offer is made, be at the disposal interpreted in the Member States, in of the intervention agency, so that any accordance with the objectives of the subsequent change of location remains intervention system laid down by those exclusively a matter for the agency. regulations. 6. If the objectives of the common 3. In accordance with the above regula­ organization of the market are to be tions, an offer must be considered as attained, the introduction of the inter­ effectively made when it is received in vention machinery must follow rules writing by the intervention agency. which are as uniform as possible, so as not to impede the free movement of 4. In order to be valid and binding upon products within the Community under the intervention agency, an offer for normal market conditions. In the intervention must state where the goods absence of any clearly expressed inten­ offered are or will be at the time when tion on the part of the draftsmen of the the offer is made, that is, at the time Community regulations it cannot be when it is received by the agency. An considered permissible for Member offer which is originally incomplete in States to derogate therefrom. this respect may subsequently be com-

HAGEN v EINFUHR- UND VORRATSSTELLE GETREIDE

THE COURT

composed of : R. Lecourt, President, J. Mertens de Wilmars (Rapporteur) and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

I — Facts and procedure as effective as possible. Nevertheless it is the intervention agency which decides 'the The facts and procedure may be sum­ place where the cereals are to be taken marized as follows: over', that is to say the place where they must be delivered to it. If it takes them over (1) Since Regulation No 120/67 of the at the marketing centre indicated by the Council of 13 June 1967 (OJ 2269/67) vendor, the price to be paid is the inter­ came into force, the intervention agencies vention price at this centre. If, on the other of every Member State are obliged to buy hand, it designates another place for taking in at intervention prices not only, as was over, the price will be increased or reduced, previously the case, cereals which are as the case may be, by the transport costs offered to them and have been harvested (Art. 2(2) and (3)). in their own State, but also cereals har­ vested in the other Member States (Regula­ (2) When in 1969 the probability of a tion No 120/67, Article 7). devaluation of the French franc arose, To be valid every offer for intervention dealers offered increasingly large quantities must be made in writing (Regulation No of cereals harvested in France to German, 1028/68 of the Commission of 19 July, Belgian or Dutch intervention agencies in 1968, Article 3) to an intervention agency order to profit from the rate of exchange. (in the Federal Republic of Germany, the Taking the view that this flood of offers to Einfuhr- und Vorratsstelle für Getreide certain Member States threatened to und Futtermittel) in respect of one of the disorganize the system, the Commission three marketing centres nearest the place by Decision No 89/138/EEC of 8 May where the cereals are when the offer is 1969 (JO L 112, p. 1) authorized the Federal made (Regulation No 132/67 of the Republic of Germany to limit purchases of Council, Article 1). The limitation on the common wheat and barley to cereals number of marketing centres in respect of harvested in Germany. The Decision which an offer may be made is due, ac­ states, however, (Article 1 (2)) that it does cording to the recitals in the preamble to not apply 'to cereals offered to the inter­ Regulation No 132/67, to the desire to vention agency before the decision took make the intervention system as simple and effect'. The Einfuhr- und Vorratsstelle für

Getreide und Futtermittel published a notice the view that the case depended on the dated 8 May 1969 in the Bundesanzeiger of interpretation of certain Community provi 10 May 1969 in which it stated that it sions and referred the following questions would no longer intervene in the cereal to the Court of Justice : market in respect of cereals offered after 6.40 p.m. on 8 May 1969. Subsequently a 1. (a) Are the terms 'offer' and 'offered', regulation of 17 June 1969 of the German contained in the aforementioned Minister for Agriculture based likewise on regulations, to be interpreted in the the Commission's decision of 8 May 1969 various Member States of the provided that there would no longer be European Economic Community in intervention in the cereal market save in accordance with the provisions and respect of cereals harvested in Germany; rules of national law? this regulation came into force at 8.45 a.m.

between Strasbourg and Mannheim. The (a) Is the term 'offer' to be understood forms contained no indication of the place as meaning that an offer for inter where the cereals were when the offer was vention of cereals is considered to made. have been made at the time at which Part of the cereals arrived at Mannheim on the offer is despatched by the maker 9 May and the other part on 14 May, on of the offer, even if it has not yet which date the plaintiff in the main action been received by the intervention informed the Einfuhr- und Vorratstelle in

Accord time of the offer, or ing to the defendant in the main action the offer of 5 May was not valid because it (b) Does an offer become valid and did not indicate the place where the goods qualify for acceptance only if it contains also a statement of the were, while at the time when this informa tion was supplied, that is on 14 May, place where the cereals offered were when the offer was made? there was no longer any obligation to accept the offer.

The latter court took made, or

(b) In the case of an offer which does Rapporteur and the views of the Advocate- not initially contain the necessary General, the Court decided to dispense statement of the place where the with any preparatory inquiry. cereals offered were when the offer The Commission of the European Com­ was made, may such an offer sub­ munities, the plaintiff in the main action sequently be completed by a later and the defendant in the main action made statement to that effect? their oral observations at the hearing on 1 December 1971. 5. In case of 4(b): The plaintiff in the main action was (a) Is an offer which is made succes­ represented by F. Modest of the Hamburg Bar. sively in the manner described above to be considered as having been The Commission was represented by its made at the time at which the first Legal Adviser, P. Kalbe. The defendant in the main action was incomplete offer was made, or represented by its Agent, A. Stockburger. (b) Is such an offer to be considered as The Advocate-General delivered his having been made only at the time opinion at the hearing on 18 January 1972. of the subsequent statement of the place where the cereals offered were when the offer was made? II — Observations submitted under Article 20 of the Statute of the Court 6. (a) Are the words 'are when the offer is made', contained in Article 1 (1) of Regulation No 132/67/EEC of the The observations submitted under Article Council, to be interpreted as mean­ ing that the cereals offered must be 20 of the Statute of the Court may be summarized as follows: warehoused at a specific place when the offer is made? A — Observations submitted by the Com­ (b) May an offer be made in respect of mission of the European Communities cereals which are still in transit, provided that the offer refers solely (1) The Commission observes that accord­ to a marketing centre chosen from ing to the notice published in the Bundes­ among the three centres nearest to anzeiger of 10 May the Decision of the the actual place where the cereals in Commission of 8 May 1969 was notified to transit are when the offer is made? the Federal Republic on the same day at 6.40 p.m. Under Article 1(2) of the 7. (a) Are the provisions contained in the Decision, the Einfuhr- und Vorratsstelle abovementioned regulations, which was not obliged to accept foreign cereals relate to the basic rules of interven­ save in so far as any offers were effective tion and particularly to the making before the decision took effect and where

that the cereals offered were in transit fully to find a buyer on the market at an gives rise to doubts as to the validity of acceptable price. The prices paid in the the offer. various marketing centres must be es tablished in such a way that the differences (2) Questions 1 and 6 between them reflect the disparities due, in the event of a normal harvest, to the The word 'offered', at least in the second usual market situation and to natural paragraph of Article 1 of the Commission conditions of price formation on the Decision of 8 May 1969 should, in the market. Since Community intervention Commission's view, be regarded as having prices under normal monetary circum a Community content of a mandatory stances offer no special attraction to a nature. dealer capable of encouraging him to This content may be inferred from the transport the goods from one place to provisions of Regulation No 132/67/EEC. another for purposes of intervention, there In particular the phrase in Article 1 of is no reason either to accept offers relating that Regulation 'where the cereals are' to goods of which the location cannot be refers to a precise geographical place in the stated.

lata. A fixed place of offer is indispensable were two offers or one offer which had to allow the intervention agencies of a become effective by being completed (either Member State to know with absolute ex tunc or ex nunc). As far as the interven certainty whether it is for them or for the tion agency is concerned there could in agency of another Member State to inter any event be a valid offer only ex nunc vene and to put them in a position to for before this it could not examine and examine whether the goods may be accept the offer. accepted for intervention. In the particular case of the Decision of By the exclusion of goods in transit the 8 May 1969 and in particular of the excep rights of dealers would not be unreason tion in Article 1(2), this question has how

HAGEN ν EINFUHR- UND VORRATSSTELLE GETREIDE

interest cannot be extended by means of advance and by a general measure a an offer whose validity has been completed certain number of places (stores) for taking- ex tunc, to dealers who have not made a over, and under it the Einfuhr- und Vor­ regular offer. The offer accordingly should ratsstelle constantly received offers of have been completed before the decision in goods in transit by water and far from question took effect and the Federal regarding these offers as irregular and Republic had used the authorization given. rejecting them it kept them pending until it received notice of the delivery of the (5) Finally the Commission observes that cereals into one of the 'stores for taking- the definition of an offer is binding on over' appointed in the annexes to the Member States. This mandatory nature Richtlinien above referred to. arises from the fact that uniform interven­ tion condition have been created by Com­ (2) In the view of the plaintiff in the main munity regulations and in particular by action the proceedings are concerned Regulation No 132/67. Article 5 of Regula­ basically with two points: tion No 1028/68 allows Member States to take only supplementary measures which (a) What is the importance of the place of it is expressly stated must be compatible storage of the cereals when the offer with relevant Community law. for intervention is made and of the statement of this place in the offer B — Observations of Hagen itself?

JUDGMENT OF 1.2.1972 — CASE 49/71

that is required is a written offer, since a statement of the place where the goods The word Offer' in Article 1 of Regulation are may be asked for subsequently by the No 132/67 and Article 3 of Regulation intervention agency (which would only No 1028/68 must be interpreted according exceptionally be the case where it did not to the rules of national law in so far as accept the marketing centre mentioned in the said provisions of Community law do the offer as the place for taking over). not provide otherwise.

seller who makes the offer bears the trans Community law or of national law adopted port costs to one of the said depots and for the execution of Community law that he makes an agreement in advance provides that the good faith of the person with the proprietor of the depot to be sure making the offer must be protected against of finding space available there. The agree the consequences of a change in the legal ment of the said proprietor should be position arising ex post facto the day on notified to the Einfuhr- und Vorratsstelle which the offer is despatched must be the who would keep the offers pending until it criterion. received such notification and evidence of delivery to the depot appointed for taking Question 3 over in the offer whereupon it would then accept the offer (Angebotsannahme or The offer is valid and capable of being Einkaufsschlußschein) (Richtlinien 5.11, accepted even when it does not indicate 5.12, 6.3 and 9.1 and Annex D). the place where the cereals offered are This general decision should be regarded when the offer is made.

HAGEN ν EINFUHR- UND VORRATSSTELLE GETREIDE

be supplied simultaneously in a single agencies to take the decision referred to in document. Information lacking may be Article 2(1) of Regulation No 132/67 in supplied in writing in supplemental docu­ such a way as to take proper account of ments. The statement of the place where the realities and so soon as the interven­ the cereals are when the offer is made does tion agency has made its decision taking not constitute one of the statements which proper account of the realities even before the offer must necessarily contain. the offer has been delivered it must be recognized that it accords with the spirit Question 5 of the provisions in question to admit that in such a case the statement of the place of The offer takes effect only as from the time storage is superfluous and as a result is not when all the information required is obligatory. supplied. But where it is necessary to The seventh question must therefore be protect the good faith of the person answered as follows : making the offer against consequences of a In principle the provisions laying down the change in the legal position, the date which general rules for intervention are binding. must be taken into account is that on It is not right however to interpret and which the offer is either despatched or apply them literally. For the purpose of completed. implementing the rules with regard to intervention Member States may in prin­ Question 6 ciple adopt supplementary provisions where they are compatible with the objec­ When the intervention agency has made tives of the intervention system. Interven­ the decision referred to in Article 2(1) tion agencies may take the decision referred of Regulation No 132/67 before delivery to in Article 2(1) of Regulation No 132/67 of the offer, the offer is valid even if the before the offer is made with the result that goods are not in a given place when the it is not necessary for the place of storage offer is made, for example where they are of the goods to be indicated in the offer in transit and where the offer contains no itself at the time when the offer is made. information with regard thereto. C — Observations of the Einfuhr- und Vor­ Question 7 ratsstelle

JUDGMENT OF 1.2.1972 — CASE 49/71

The obligation imposed by Regulation No (5) With regard to the fourth question the 1028/68 on intervention agencies to take Einfuhr- und Vorratsstelle is of the opinion a speedy decision likewise prevents account that there is nothing to prevent an origi­ being taken of goods in transit for which nally incomplete offer, that is to say an it would be necessary to make a com­ offer made without a statement of the place plicated inquiry as to the exact place of where the cereals are, from being sub­ offer. sequently completed on condition that Finally Article 2 of Regulation No 132/67 when the originally incomplete offer is requires that intervention agencies shall submitted it is clearly established between be able to determine with certitude what the person making the offer and the inter­ will be for them the least expensive place vention agency that so long as the offer is for taking over, that is to say in respect of incomplete it will not be treated as an which they will have the least transport offer for intervention within the meaning costs to pay. It is thus essential to know of Article 1 of Regulation No 132/67, but with certainty the place where the cereals will be held in suspense without being are when the offer is made. taken into account until it is completed.

(3) As regards the second question the (6) With regard to the fifth question the Einfuhr- und Vorratsstelle maintains that defendant in the main action is of the

HAGEN ν EINFUHR- UND VORRATSSTELLE GETREIDE

opinion that when an offer has thus been the defendant states that since the objec­ made in successive stages it cannot be tive of the provisions laying down general regarded as 'made' within the meaning of rules for intervention was to establish a Article 1 of Regulation No 132/67 until it Community system of intervention appli­ has been completed by a statement of the cable in the same way in all member place where the cereals are. countries and involving a uniform system of prices, those rules are of a binding (7) With regard to the seventh question nature.

JUDGMENT OF 1.2.1972 — CASE 49/71

Question 1

4 Question 1 asks whether the words 'offer' and 'offered' contained in the aforesaid regulations must be interpreted in the same way in the various Member States.

5 Article 7 of Regulation No 120/67 obliges intervention agencies to buy in the cereals which are offered to them only if the offers comply with conditions, in particular in respect of quality and quantity, to be determined in accordance with paragraph (5) of that article. Where, in order to stabilize markets and to ensure a fair standard of living for the agricultural community concerned, intervention measures must be taken, then according to the fifth recital to that regulation, such measures must be standardized so as not to impede the free movement of cereals within the Community.

6 As the obligation to intervene depends decisively on a prior offer, it is important that the concept of a valid offer and the conditions thereby involved shall apply throughout the Community, in order that the desired standardization of the con­ ditions for intervention may be achieved. This requirement appears indispensable, not only because the Community authorities themselves determine those condi­ tions, but also inasmuch as it is necessary to ensure that the additional conditions, which in certain cases the intervention agencies of each Member State are author­ ized to lay down, are compatible with the objectives of the intervention system. Terms used in Community law must be uniformly interpreted and implemented throughout the Community, except when an express or implied reference is made to national law.

11 It is appropriate therefore to reply that an offer within the meaning of the regula­ tions referred to by the national court can be regarded as made when it is received in writing by the intervention agency.

Question 3

12 The Court is asked further to say whether there is a valid offer capable of being accepted when it contains no indication of the place where the goods are or were when the offer was made.

13 Under Article 1(1) of Regulation No 132/67 of the Council all offers for inter­ vention shall be made to an intervention agency in respect of a marketing centre chosen from among the three centres nearest to the place where the cereals are when the offer is made and under Article 2(1) of the same regulation the inter­ vention agency shall decide on the place where the cereals are to be taken over.

14 According to the defendant in the main action and the Commission these pro­ visions necessarily imply that the person concerned must indicate the place where the goods are when the offer is made so as to allow the intervention agency to decide whether the condition in Article 1 of Regulation No 132/67 is satisfied and to appoint the place for taking over which appears the most advantageous to it.

16 Such an interpretation of Article 1 of Regulation No 132/67 is incompatible both with the wording and the objective of this provision. This obliges intervention agencies, so that the organization of the intervention system may be as rational and as inexpensive as possible, to verify in any event whether the marketing centre indicated is one of the three nearest to the place where the cereals are when the offer is made. It is proper for the system of intervention, which is intended to guarantee that, having regard to the regional price differences, producers may sell their cereals at fair prices when they cannot be sold in normal conditions of profit­ ability, to include precautions designed to ensure that there is no encouragement to transport the goods with the sole objective of obtaining a more advantageous intervention. The obligation to indicate the place where the goods are when the offer is made and to hold them there at the disposal of the intervention agency, by allowing the latter to check that the offer is in order and if so giving it the opportunity of itself indicating the place for taking over, contributes to the attain­ ment of this objective.

17 This condition does not lose its significance and usefulness where the places for taking over are indicated in advance in a general way. Moreover, it is in this way that the authorities of the Federal Republic of Germany say they apply the ad­ ditional measures which they have adopted.

18 It is therefore appropriate to reply that an offer for intervention, to be in order and to be binding on the intervention agency, must indicate the place where the goods offered are or will be when the offer is made, that is to say when it is received by the said agency.

22 The Court is asked by the sixth question to rule whether the phrase 'are when the offer is made' used in Article 1 of Regulation No 132/67 means that the offer is in order only when the goods offered are stored in a given place or whether the indication of one of the three marketing centres referred to in the said Article 1 may be made in relation to goods in transit.

23 It follows from the replies given to the previous questions that Article 1 of Regula­ tion No 132/67 implies that when the offer is made the goods offered must be at the disposal of the intervention agency in order that any subsequent change of location may remain exclusively a matter for the agency. This is the meaning of the phrase 'are when the offer is made'.

Question 7

24 Finally the Court is asked whether the provisions contained in the aforesaid Com­ munity regulations are mandatory or whether the Member States may derogate therefrom.

25 The provisions, the interpretation of which is requested, relate to essential factors in the common organization of the market in cereals. If the objectives of the common organization of the market are to be attained, the introduction of the intervention machinery must follow rules which are as uniform as possible, so as not to impede the free movement of cereals within the Community under normal market conditions.

26 In the absence of any clearly expressed intention on the part of the draftsmen of the Community regulations it cannot be considered permissible for Member States to derogate therefrom.

in answer to the questions referred to it by the Hessischer Verwaltungsgerichtshof by order of that court dated 19 July 1971, hereby rules:

1. The terms 'offer' and 'offered', contained in Regulations Nos 120/67,132/67 and 1028/68, must be uniformly interpreted in the Member States, in ac­ cordance with the objectives of the intervention system laid down by those regulations.

2. In accordance with the above regulations, an offer must be considered as effectively made when it is received in writing by the intervention agency.

3. (a) In order to be valid and binding upon the intervention agency, an offer for intervention must state where the goods offered are or will be at the time when the offer is made, that is, at the time when it is received by the agency.

(b) An offer which is originally incomplete in this respect may subsequently be completed, but will be effective only when it satisfies all the conditions upon which its validity depends.

4. The phrase 'are when the offer is made' contained in Article 1 of Regulation No 132/67 must be interpreted as meaning that the goods offered must, when

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 18 JANUARY 1972<apnote>1</apnote>

Mr President, tion agencies are obliged to buy in cereals Members of the Court, which are offered to them and have been harvested in the Community (inter alia Before we consider the two references for a common wheat and barley). General preliminary ruling (Cases 49/71 and 50/71) rules for intervention are laid down in which were joined by order of the Court of Regulation No 132/67 of the Council of 10 November 1971 for the purpose of the 13 June 1967 (OJ No 120, 1967, p. 2364) oral procedure, and with which I have to and, so far as is relevant to the present deal today, it is necessary to say the proceedings, in Regulation No 1028/68 of following. the Commission of 19 July 1968 (JO L As is known from other proceedings 176, 1968, p. 1) 'fixing the procedure and Regulation No 120/67 of the Council of conditions for the taking over of cereals 13 June 1967 (OJ No 117, 1967, p. 2269) by intervention agencies for the 1968/69 created the final organization of the market marketing year'. I shall deal more fully in cereals with a uniform price system with these regulations later. (common target prices, threshold prices It need only be noted at present that early and uniform intervention prices). Accord­ in 1969, owing to the devaluation of the ing to Article 7 thereof throughout the French franc, which was expected at that cereal marketing year the State interven- time, a fall occurred in the rate of exchange

1 — Translated from the German.