C-50/71

JUDGMENT OF 1.2.1972 — CASE 50/71

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

In Case 50/71

Reference to the Court under Article 177 of the EEC Treaty by the Hessischer Verwaltungsgerichtshof (VIth Senate) for a preliminary ruling in the action pending before that court between

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

WÜNSCHE v EINFUHR- UND VORRATSSTELLE GETREIDE

JUDGMENT

Issues of fact and of law

The offered to them and have been harvested Decision states, however, (Article 1(2)) in their own State, but also cereals that it does not apply 'to cereals offered to harvested in the other Member States the intervention agency before the decision (Regulation No 120/67, Article 7). took effect'. The Einfuhr- und Vorratsstelle To be valid every offer for intervention für Getreide und Futtermittel published a must be made in writing (Regulation No notice dated 8 May 1969 in the Bundes- 1028/68 of the Commission of 19 July 1968, anzeiger of 10 May 1969 in which it stated Article 3) to an intervention agency (in the that it would no longer intervene in the Federal Republic of Germany, the Ein cereal market in respect of cereals offered fuhr- und Vorratsstelle für Getreide und after 6.40 p.m. on 8 May 1969.

effective as possible. Nevertheless it is the arrived about midday on 9 May, the intervention agency which decides 'the Ludwig Wünsche undertaking the plaintiff place where the cereals are to be taken in the main action, offered the Einfuhr- over', that is to say the place where they und Vorratsstelle in respect of the market must be delivered to it. If it takes them over ing centres at Kiel and Stuttgart cereals at the marketing centre indicated by the harvested in France which were in transit vendor, the price to be paid is the interven

tions. In three letters dated 12 May 1969 (2) When the probability of a devaluation the plaintiff in the main action informed of the French franc arose in 1969, dealers the Einfuhr- und Vorratsstelle that the offered increasingly large quantities of cereals offered were in the depots stated.

(4) By decision of 14 May 1969, notified (b) Does an offer become valid only at by telephone, the defendant in the main the time at which the offer is received action rejected the three offers by the by the intervention agency? plaintiff on the ground that they had not been validly made because they did not 3. In the case of 1 (b) : state the marketing centre nearest to the (a) Can an offer be valid and qualify place where the cereals were when the offer was made. for acceptance even if it contains no statement of the place where the On 14 May 1969 the plaintiff made an cereals offered are or were at the objection by telex (confirmed on 16 May time of the offer, or 1969 by letter) against this decision. The defendant rejected the objection by decision (b) Does an offer become valid and dated 28 May 1969 referring in particular qualify for acceptance only if it to the decision of the Commission of 8 contains also a statement of the May 1969 and its own notification No place where the cereals offered were 65-68/69 of 9 May 1969 on the implementa­ when the offer was made? tion of intervention measures in respect of foreign cereals. 4. In case of 3(b) : (a) Is an offer valid only if all the (5) The platintiff brought an action against necessary statements are made at this decision, first before the Verwaltungs­ the same time, including the state­ gericht Frankfurt and then, by way of ments of the place where the cereals appeal, before the Hessischer Verwaltungs­ offered were when the offer was gerichtshof. The latter court took the view made, or that the case depended on the interpretation of certain Community provisions and (b) In the case of an offer which does referred the following questions to the not initially contain the necessary Court of Justice: statement of the place where the cereals offered were when the offer 1. (a) Are the terms Offer' and Offered', was made, may such an offer be contained in the aforementioned subsequently completed by a later regulations, to be interpreted in statement to that effect? the various Member States of the European Economic Community in 5. In case of 4(b): accordance with the provisions and rules of national law? (a) Is an offer which is made succes­ sively in the manner described above or to be considered as having been 4 made at the time at which the first (b) Has the European Economic Com­ incomplete offer was made, or munity created its own concept of 'offer' which accordingly must be (b) Is such an offer to be considered as interpreted in the same way in all having been made only at the time Member States? of the subsequent statement of the place where the cereals offered were 2. In the case of 1(b): when the offer was made?

(b) May an offer be made in respect of A — Observations submitted by the Com cereals which are still in transit mission of the European Communities provided that the offer refers solely to a marketing centre chosen from (1) The Commission observes that ac among the three centres nearest to cording to the notice published in the the actual place where the cereals Bundesanzeiger of 10 May the Decision in transit are when the offer is made? of the Commission of 8 May 1969 was notified to the Federal Republic on the

a mandatory nature, or down in the detailed rules for implementa (b) May the individual Member States tion issued by the Council (Regulation No adopt different provisions or 132/67) by the Commission (Regulation develop different procedure which No 1028/68) and by the Member States would be legally admissible? (Richtlinien zur Durchführung der Inter vention in Getreidewirtschaftsjahr 1967/68 of 3 October 1967). Detailed rules for im (6) The Commission of the European plementation could indeed be adopted by Communities, the plaintiff in the main the Member States under Article 5 of action and the defendant in the main action Regulation (EEC) No 1028/68 which submitted written observations. enabled them to issue supplementary provi Having heard the report of the Judge- sions. In the present case the fact that the Rapporteur and the views of the Advocate- cereals offered were in transit gives rise to General, the Court decided to dispense doubts as to the validity of the offer. with any preparatory inquiry.

1969. Merely to despatch an offer to the Einfuhr- und Vorratsstelle does not in II — Observations submitted under itself create a subjective right capable of Article 20 of the Statute of justifying an exception to the application the Court of the protective measures taken by that decision. In several Community regula tions, moreover, and in particular in The observations submitted under Article Regulations Nos 120/67 (Articles 12, 15 20 of the Statute of the Court may be and 16), 1373/70 (Article 6) and 2591/69, summarized as follows: the grant of certain rights is subject to

applications being lodged by those con lege lata. A fixed place of offer is in cerned and this must be regarded as the dispensable to allow the intervention general rule. agencies of a Member State to know with The receipt of the offer is thus a condition absolute certainty whether it is for them of its validity and in particular the offer or for the agency of another Member for intervention does not become valid State to intervene and to put them in a until the declaration relating thereto position to examine whether the goods may reaches the Einfuhr- und Vorratsstelle. be accepted for intervention. In the present case the question of this By the exclusion of goods in transit the first condition of validity is not the rights of dealers would not be unreasonably essential feature, however, (since the offer restrained. The objective of the intervention reached the Einfuhr- und Vorratsstelle on system is to guarantee a minimum price to 9 May) if it is borne in mind that the anyone who has tried unsuccessfully to limitation of the obligation on the inter find a buyer on the market at an acceptable vention agency to purchase only domestic price. The prices paid in the various cereals took effect from 10 May 1969, marketing centres must be established in the date of the publication of Notice such a way that the differences between 65-68/69 in the Bundesanzeiger.

EEC. In particular the phrase in Article 1 accept offers relating to goods of which the of that regulation 'where the cereals are' location cannot be stated. refers to a precise geographical place in the The logic of the system of the plaintiff in Community. This localization is indis the main action would moreover lead to pensable for determining the competent accepting for intervention goods which, marketing centre for intervention and a when the offer is made, are not even recital in Regulation No 132/67 moreover harvested or purchased by the dealer.

As far as the intervention agency is unacceptable de intervention agency is concerned there

1. Wünsche, the plaintiff in the main (b) What from the point of view of action, stresses first of all the special facts German and Community law was the of the proceedings as presented to the scope of the 'general decision' of the Einfuhr- und Vorratsstelle? Was this national court. The question of the lawful nature of an offer for intervention of decision, which was prior to the offer goods in transit arose more or less for­ in question, compatible with Com­ tuitously, for, before the national court, munity law? the plaintiff contested the regularity with regard to German law of the notice (in the (a) As regards the first point the plaintiff Bundesanzeiger of 10 May 1969) in which observes that the intervention machinery the Einfuhr- und Vorratsstelle implemented as laid down by Regulation No 132/67 the authorization from the Commission of leaves the control of operations to the 8 May just as it contests, still from the seller, for it is he who freely determines the point of view of national law, the legality place from which he offers the cereals to of the Ministerial Regulation of 17 June the intervention agency. The power of the 1969, with which this time the competent intervention agencies to decide the place authority implemented the said authoriza­ for taking over the cereals is confined tion, in so far as the said regulation was within very narrow limits, for if they do declared retroactive to 9 May 1969. In not accept straight away the marketing its opinion its offer for intervention, which centre indicated as the place for taking was in any case prior to 17 June 1969, is over, they are forced to accept a place for in any event lawful, but it does not contest taking over situated in its immediate

proximity, for otherwise they would have under Article 2(1) of Regulation No 132/ to bear disproportionate transport costs. 67, for the said article is silent as to the This means that the place in which the time at which the decision must be taken cereals are when the offer is made cannot (before or after the offer). be given the function of regulating the Under this system it does not matter market. where the cereals offered are at the time The only significance of this place is for of the offer and whether the place has been the question whether and to what extent mentioned in the offer. transport costs must be taken into account If this information were contained in the when the intervention agency takes the offer the Einfuhr- und Vorratsstelle could cereals over at a depot other than that no longer have fixed another place for indicated by the seller in his offer.

No 132/67 and Article 3 of Regulation tion agency (which would only excep No 1028/68 must be interpreted according tionally be the case where it did not accept to the rules of national law in so far as the the marketing centre mentioned in the offer said provisions of Community law do not as the place for taking over). provide otherwise. It follows that the offer must be made in writing and it takes (b) As regards the second point the effect only as from the time at which the plaintiff observes that by a decision of a intervention agency has received it. general nature which is binding on it

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

WÜNSCHE ν EINFUHR- UND VORRATSSTELLE GETREIDE

Question 7 C — Observations of the Einfuhr- und Vorratsstelle The seventh question relates to the question whether No 5.11 of the Richt­ (1) The Einfuhr- und Vorratsstelle, the linien is compatible with Article 2(1) of defendant in the main action, observes as a Regulation No 132/67. Nothing in the preliminary that the system laid down by Community regulations prevents inter­ the Richtlinien implementing the Com­ vention agencies from deciding in advance munity rules provides an alternative: and in a general way the place for taking persons making an offer may comply with over especially since such a general Regulation No 132/67 to the letter, that is decision in advance allows intervention to to say by giving the exact place where the be carried out speedily. In this respect the cereals are when the offer is made, choosing Richtlinien comply with Regulation No a marketing centre and waiting in reply 132/67 since they are issued within the for a place for taking over to be notified scope of that regulation. to them by the Einfuhr- und Vorratsstelle

JUDGMENT OF 1.2.1972 — CASE 50/71

in all Member States. This may be inferred been made to them are valid can relate from the fact that the Community author only to the time at which the agencies ities have laid down very precisely what have full knowledge of the offers. offer for intervention must contain. Such detailed rules imply that the concept of (4) The defendant in the main action offer must everywhere have the same proposes that a reply should be given to meaning. Further the fact that cereals the third question to the effect that in produced in any Member State may be order for an offer to be valid and capable offered to the intervention agency of any of being accepted it must always contain a other Member State likewise implies that statement of the place where the cereals all these agencies have the same require offered are when the offer is made.

Having regard to the Only a fixed place allows it to be established importance that the place where the whether there is a valid offer for a specific cereals are has in determining whether place, for Article 1 of Regulation No 132/67 there is a valid offer it is indispensable for allows as a marketing centre only one of the offer to contain a true statement of that the three centres nearest to the place where place. the cereals are when the offer is made. The obligation imposed by Regulation No (5) With regard to the fourth question the 1028/68 on intervention agencies to take a Einfuhr- und Vorratsstelle is of the opinion speedy decision likewise prevents account that there is nothing to prevent an origi being taken of goods in transit for which it nally incomplete offer, that is to say an would be necessary to make a complicated offer made without a statement of the place inquiry as to the exact place of offer. where the cereals are, from being sub Finally Article 2 of Regulation No 132/67 sequently completed on condition that requires that intervention agencies shall be when the originally incomplete offer is able to determine with certitude what will submitted it is clearly established between be for them the least expensive place for the person making the offer and the taking over, that is to say in respect of intervention agency that so long as the

According to Article 7 of Regulation No 120/67 of the Council intervention agencies appointed by the Member States are obliged, subject to certain condi­ tions, to buy in cereals which are offered to them and have been harvested in the Community. Article 1 of Regulation No 132/67 of the Council states that all offers for intervention 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. Under Article 3 of Regulation No 1028/68 of the Commission all offers for intervention must be made in writing. Finally Article 5

JUDGMENT OF 1.2.1972 — CASE 50/71

of the same regulation empowers intervention agencies to adopt, as need may arise, supplementary procedures and conditions for taking over compatible with that regulation to take account of special conditions existing in each Member State.

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.

10 An offer for intervention, made in due form, automatically obliges the intervention agency to buy in the cereals offered. Save in exceptional circumstances, a legal transaction with such cogent consequences can become binding upon the ad­ dressee, on whom it purports to impose obligations, and can thus be regarded as complete, only when it comes to his knowledge.

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 interven­ tion 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 intervention 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 provi­ sions 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 oppor­ tunity of itself indicating the place for taking over, contributes to the attainment 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.

is 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 com­ mon organization of the market are to be attained, the introduction of the inter­ vention 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

WÜNSCHE ν EINFUHR- UND VORRATSSTELLE GETREIDE

time when the offer is made, that is, at the time when it is received by the agency.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER

(see Case 49/71, p. 39)