C-5/72
ECLI:EU:C:1972:54
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JUDGMENT OF THE COURT 15 JUNE 1972<apnote>1</apnote>
Fratelli Grassi fu Davide v Italian Finance Administration (Reference for a preliminary ruling by the Corte d'Appello, Brescia)<apnote>2</apnote>
Case 5/72
Summary
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 cereals to third countries. Where a it is for the national court and not the Member State exercised this power, the parties to the main action to bring a question of determining the period matter before the Court of Justice. within which the refunds were to be Since the power to formulate the ques paid was a matter for national law tions to be referred is vested in the alone.
national court alone the parties cannot alter the wording of those questions. 3. In so far as the system instituted by Regulation No 120/67/EEC of the 2. Under the system instituted by Regula Council concerning cereals differs from tion No 19 of the Council, that is, up to that resulting from Regulation No 19, and including 30 June 1967, the Mem the new rules relate solely to commercial ber States were free to decide whether transactions effected after 30 June 1967. or not to grant refunds on exports of
In Case 5/72
Reference to the Court under Article 177 of the EEC Treaty by the Corte d'Ap pello, Brescia, for a preliminary ruling in the action pending before that court between
1 — Language of the Case: Italian. 2 — CMLR.
JUDGMENT OF 15.6.1972 — CASE 5/72
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 estab lishment 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),
THE COURT
composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher (Rapporteur) Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore, Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure may be made good by a refund, on terms laid down in accordance with the provisions The facts and procedure may be sum of Article 26', namely by decision of the marized as follows: Commission after hearing the Manage ment Committee. 1. According to the first sentence of This regulation gave rise to a number of Article 20(2) of basic Regulation No 19 implementing measures, and in particular 'in order to permit of exports [of cereals] to Regulations Nos 90 and 91 of the Com to third countries on the basis of quota mission of 25 July 1962 on refunds payable tions ruling on the world market, the in respect of cereal exports and of certain difference between such quotations and kinds of flour, groats and meal (JO No 66 prices in the exporting Member State of 28 July 1962, pp. 1902, 1904).
GRASSI v ITALIAN FINANCE ADMINISTRATION
On 13 June 1967 the Council adopted the had not paid, within the stipulated period, basic Regulation No 120/67 which, by refunds relating to exports made after establishing from thenceforward a single 1 July 1967—had merely found that the market for cereals for the whole Com aforementioned rules 'involve a duty for munity, repealed Regulation No 19 with the States to make the payment within a effect from 1 July 1967 (at Article 33). reasonable period'. According to this provision, it was also with effect from that date that 'the system
3. Grassi appealed against this judgment established by this regulation shall apply'. to the Corte d'Appello, Brescia, which, by Article 16 of the new regulation provides judgment of 24 November 1971, dis that 'To the extent necessary to enable the tinguished between exports effected before products listed in Article 1 to be exported 1 July 1967, the date of entry»into force of [to third countries] . . . on the basis of Regulation No 120/67, and exports effected quotations or prices for those products on after that date. In fact, as regards imports the world market, the difference between of the former sort, it decided to ask the those quotations or prices and prices in the Court: Community may be covered by an export refund', which 'shall be granted on 'Whether, until 1 July 1967, the provisions application'.
of the Treaty and of Community Regula In implementation of Regulation No tions Nos 19 and 20 of 1962, in conjunc 120/67, the Council adopted, on 21 June tion with Article 16 of Regulation No 1967, Regulation No 139/67/EEC (OJ, 120/67, required the authorities of Member English Special Edition 1967, p. 88), States to grant refunds, or whether they Article 7 of which provides that the refund only authorized them to do so, and is to be paid upon proof that the products whether the said provisions of the Treaty have been exported from the Community. and of the regulations cited allowed the said authorities any right to delay pay
2. The Italian undertaking Fratelli Grassi ment'. fu Davide (hereinafter referred to as 'Grassi'), the appellant in the main action, exported several consignments of cereals to As for exports made after 1 July 1967, the third countries during the period between Corte d'Appello, overruling in part the October 1965 and August 1968. On 8 contested judgment, ordered the Italian November 1968 it brought an action before Republic to pay Grassi legal interest on the Tribunale di Brescia against the Finance the amounts owed, on the basis of broad Administration of the Italian Republic for principles of national law, without pre compensation for the damage which it, judice to the question of liability. Grassi, had suffered by reason of the delay in payment of the refunds which it had 4. The decision making the reference was claimed in respect of the aforementioned lodged at the Court Registry on 31 January exports under the Community rules. 1972. In accordance with Article 20 of the By judgment of 18 March 1971 the Protocol on the Statute of the Court of Tribunale di Brescia dismissed the action Justice of the EEC, Grassi, the Govern on the ground, inter alia, that the relevant ment of the Italian Republic and the Com Community regulations did not. oblige mission of the European Communities Member States to make the payments in filed written observations. question within a particular period but After hearing the report of the Judge- allowed them to exercise a discretion in this Rapporteur and the views of the Advocate-
regard. In this matter, the Tribunale held General, the Court decided that there was that the judgment of the Court of Justice no need for any preparatory inquiry. of 17 February 1970 (Case 31/69, Com Grassi, the Government of the Italian mission v Italy, [1970] ECR 25 et seq.) Republic and the Commission of the —which dismissed the Commission's action European Communities presented oral for a declaration that the Italian Republic argument at the hearing on 17 May 1972.'
JUDGMENT OF 15.6.1972 — CASE 5/72
The Advocate-General delivered his opin if the Community rules gave such a discre ion at the hearing on 6 June 1972. tion, they would conflict with the principle Grassi was represented by Antonio Astolfi of non-discrimination sanctioned by Article and Fausto Capelli, of the Milan Bar, the 40 of the Treaty. Italian Government by Adolfo Maresca, The judgment of the Court in Case 31/69, Minister Plenipotentiary, assisted by already cited, is not inconsistent with Giorgio Zagari, Deputy Awocato Generale these assertions.
In fact, that case, which dello Stato, and the Commission by its related to Article 169 of the Treaty, con Legal Adviser, Armando Toledano-Laredo. cerned the allegation that the Italian Republic had failed in its 'international' obligations, whereas in this case it is the II— Observations submitted under conduct of the State in the field of private Article 20 of the Protocol on law which is in point. The Tribunale and
the Statute of the Court of the Corte d'Appello, Brescia, have mis Justice of the EEC interpreted the reference contained in the said judgment to the 'reasonable period' within which the payment of the refunds The observations submitted under Article must be made. In the same judgment the 20 of the Protocol on the Statute of the Court declared that the relevant provisions Court of Justice of the EEC may be sum 'allow the Member States a certain area of marized as follows : discretion, inter alia, in fixing the docu
ments which constitute proof of the right Grassi submits first that the Corte to the refund'. The area of discretion is d'Appello, Brescia, was wrong in basing therefore very limited and it has, moreover, its decision, in respect of exports effected in this case, become inapplicable since after 1 July 1967, largely on national law, Grassi has supplied all the necessary and in interpreting the judgment of the documents. Court in Case 31/69 as laying down that Citing numerous provisions in support the Community rule did not, in regard to of its argument, Grassi states that accord those exports, prescribe specific time- ing to a principle common to all the systems limits for the payment of refunds. of private law of the Member States, The national court should have formulated where there is no provision for a specific its questions in a manner more suited to period within which a payment must be the true subject-matter of the dispute, by made, it is due immediately. requesting the Court to give a ruling on The Italian Government emphasizes first whether the systems introduced by Regula of all that the questions referred to the tions Nos 19 and 120/67 respectively, in Court of Justice by the Corte d'Appello, conjunction with Articles 5, 40 and 215 Brescia, concern exclusively the system of the Treaty, conferred on all exporters applicable prior to 1 July 1967. of cereals the individual right to require Under that system, Member States were the Member State in question to pay them not required, but merely empowered, to the refunds as soon as the prescribed grant refunds to exporters.
That emerges formalities have been completed. Despite clearly from Articles 19 (2) (a) and 20(2) the restrictive wording of the decision of Regulation No 19 and from the recitals making the reference, the Court is also in the preamble to and from Article 1 of entitled to reply to the question put in this Regulation No 90. The Italian legislature manner, so as to enable the national court has in fact exercised this power. to come to a proper decision.
It was only after 1 July 1967, when the It is clear from Article 7 of Regulation system provided for by Regulation No No 139/67 that the Member States have 120/67 entered into force, that the granting no discretion whatsoever as to the time- of refunds for exports to third countries limit for payment and are obliged to pay became compulsory. refunds as soon as the person concerned Since the Community provisions in force has supplied proof of export. Moreover, before that date did not create individual
GRASSI v ITALIAN FINANCE ADMINISTRATION
rights, the question of the Corte d'Appello, No 19, 'the Member States were free ... Brescia, as to whether the national to refrain from granting refunds, which authorities have the power to delay pay a fortiori included the right to add condi ment is 'thereby rendered nugatory'. tions for the grant of the refund to those The Commission shares, in substance, the prescribed by the Community regulations'. opinion expressed by the Italian Govern As for the period after 1 July 1967, the ment regarding the period before 1 July judgment of the Court in Case 31/69, 1967. Besides the legal provisions cited by already cited, should be interpreted as the Italian Government, the Commission meaning that exporters are entitled to mentions, in particular, Article 1 of require the payment of refunds 'within a Regulation No 91 and the judgment of the reasonable period', a term which refers to Court of 27 October 1971 (Case 6/71, the period strictly necessary for the Rheinmühlen Düsseldorf v Einfuhr- und accomplishment of the administrative Vorratsstelle für Getreide und Futtermittel, formalities intended to verify that the [1971] ECR 837) where it is stated that, requirements for payment have been under the system set up by Regulation satisfied.
Grounds of judgment
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 ap plicable 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
JUDGMENT OF 15.6.1972 — CASE 5/72
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 Corte 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 imple menting 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, accord ing 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 imple menting 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.
III — Costs
8 The costs incurred by the Government of the Italian Republic and by the Com mission 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.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur;
GRASSI ν ITALIAN FINANCE ADMINISTRATION
Upon hearing the oral observations of Grassi, the Government of the Italian Republic and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 19 of the Council of 4 April 1962 on the progres sive establishment of a common organization of the market in cereals and Regula tion No 120/67/EEC of the Council of 13 June 1967 on the common organization of the market in cereals ; Having regard to Regulation No 90 of the Commission of 25 July 1962 on refunds payable in respect of cereal exports; Having regard to the Protocol on the Statute of the Court of Justice of the Euro pean Communities, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT
in answer to the questions referred to it by the Corte d'Appello, Brescia, by judg ment 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.
Lecourt Mertens de Wilmars Kutscher
Donner Trabucchi Monaco Pescatore
Delivered in open court in Luxembourg on 15 June 1972.
A. Van Houtte R. Lecourt
Registrar President