C-20/72
ECLI:EU:C:1972:94
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JUDGMENT OF THE COURT NOVEMBER 1972 1
Belgian State v NV Cobelex2 (Reference for a preliminary ruling by the Rechtbank van Koophandel, Antwerp)
Case 20/72
Summary
Agriculture — Common organization of the markets — Cereals — Levies — Application by the importing Member State mandatory where refunds for third countries are granted by the exporting Member State — Methods (Regulation No. 19 of the Council, Article 19)
Article 19 (2) (a) of Regulation No 19 of for third countries. This provision is the Council requires the importing Mem immediately applicable in all the Member ber State to apply the prescribed levy to States and is binding upon those concerned all imports in respect of which the ex without the need for additional announce porting Member State has granted refunds ment by the importing Member State.
In Case 20/72
Reference to the Court under Article 177 of the EEC Treaty by the Rechtbank van Koophandel, Antwerp, for a preliminary ruling in the action pending before that court between
BELGIAN State, represented by the Minister for Economic Affairs whose offices are at 23 Square de Meeûs, Brussels,
and
Naamloze Vennootschap Cobelex, whose registered office is at 24 Groenendal straat, Antwerp,
on the interpretation of Article 19(2) of Regulation No 19 of the Council of 4 April 1962 (JO 1962, No 30, p. 933),
1 — Language of the Case: Dutch 2 — CMLR.
JUDGMENT OF 7.11.1972 — CASE 20/72
THE COURT
composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner (Rapporteur), A. Trabucchi, J. Mertens de Wilmars and H. Kutscher, Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of the facts and force whereby a system of single prices procedure valid throughout the Community was established while each Member State The facts giving rise to the case and the fixed within limits set by the Community procedure may be summarized as follows: (Article 6(1)) basic target prices (Article In January and February 1964, NV 5(2)), intervention prices (Article 7) and Cobelex, the defendant in the main action, threshold prices (Articles 4 and 8). imported maize from France into Belgium. In order to make up for the temporary The appropriate import certificates had difference between prices within the Com been issued by the Centrale Dienst voor munity, the market organization provided Contingenten en Vergunningen (herein for a system of intra-Community levies. after referred to as 'the CDCV') on 29 Each Member State fixed these levies ac November 1963 and 3 December 1963. cording to the rules laid down by Regula Under the headings 'duty' and 'charge' tion No 19, in particular Articles 2 and 3. the certificates were marked 'O'. By a The levies were calculated on the basis telex to the CDCV Cobelex had requested of two factors: (a) The free-at-frontier the fixing of the levy at zero. After sending price of the product from the exporting 'definitive statements of account' relating Member State on arrival at the importing to these imports in March 1964, the CDCV Member States (to be fixed regularly by sent Cobelex 'amended statements' in a the Commission, Article 3), (b) The letter of 6 July 1964 demanding a levy of threshold price of the importing Member BF 687 712 on the first importation and State. The amount of the levy was the a levy of BF 1 953 105 on the second im difference between these two factors portation. The two amended statements reduced by a flat-rate amount. The system stated: 'Certificate DD4 mentions refunds of intra-Community levies was applicable "to third countries". Levy on imports from to products harvested in a Member State. Member countries -BF 5.5 per 100 kg'. It follows from the system of Regulation The importations in question occurred at No 19, the definition and the aim of that the time when Regulation No 19 of the levy that only products purchased in the Council of 14 April 1962 on the progres exporting Member State under the price sive establishment of the common or conditions laid down in the rules could fall ganization of the market in cereals was in within the system provided for in Articles
BELGIUM v COBELEX
2 and 3 of the regulation. The particular or does it also ipso jure influence rules contained in Article 19 (2) (a) were relations between the importing Mem applicable to cases where the details set out ber State and the importer in that it is in Articles 2 and 3 were modified by the irrelevant whether the importer observed intervention of the exporting Member all the formalities in that respect for State. The purpose of that article was to the purposes of ascertaining and deter maintain the practice which exists in mining the amount of the levy at the certain countries whereby, as regards proper time if the Member State only exports to another Member State at subsequently discovers that the ex lower prices, the export price is reduced to porting country granted refunds? the level of the world market price.
Nevertheless it was necessary to prevent 3. Again, if the first hypothesis is correct, these products, the price of which was does the 'self-executing' nature of thus reduced to the level of the world Article 19(2) of Regulation No 19 go so far that apart from the notification market price, from affecting the level of prices in the importing country; for that provided for in the second subparagraph of Article 19(2), any announcement to reason these products had to be subject
the importers and exporters themselves to special intra-Community levies of an amount equal to the levy for third coun made in advance in the manner pre scribed by the national legislation of tries reduced by a flat-rate amount. the Member States concerned is superflu In this case the exporting Member Mate, ous? France, granted a refund to third countries on the export of maize: the DD4 move The decision referring the questions to the ment certificates stated that the refund Court for a preliminary ruling was entered granted by the French authorities was the in the Court Register on 8 May 1972. refund to third countries.
In these cir Cobelex, the Government of Belgium and cumstances the CDCV had to amend the Commission of the European Com the statements of account by applying the munities submitted written observations in levy for third countries to the maize accordance with Article 20 of the Protocol imported by Cobelex. on the Statute of the Court of Justice. The question at issue between the parties On hearing the report ot the Judge- in the case before the Rechtbank van Rapporteur and the views of the Advocate- Koophandel, Antwerp, is whether the General the Court decided to dispense levies may be justified in view of the rele with a preparatory inquiry. vant provisions in force, in particular Cobelex and the Commission presented Article 19 (2) (a) of Regulation No 19. oral argument at the hearing on 26 Sep By an order given on 26 April 1972 the tember 1972. Rechtbank van Koophandel decided to In the proceedings before the Court of ask the Court: Justice the defendant in the main action was presented by G. Van Hecke of the
1. Does Article 19(2) of Regulation No 19 Antwerp Bar and the Commission by its of the Council of 4 April 1962 mean Legal Adviser, J. Bourgeois. that where the exporting Member State The Advocate-General delivered his grants refunds, the importing Member opinion at the hearing on 5 October 1972. State is under a duty to apply levies on the importer immediately or is the II — Written observations submit importing Member State entitled to do ted in accordance with Article so merely from a later date which it 20 of the Protocol on the may determine?
Statute of the Court of Justice
2. If the first hypothesis is correct must it The observations submitted in accordance be considered that this duty only with Article 20 of the Protocol on the applies in respect of relations existing Statute of the Court of Justice may be between the Member States concerned summarized as follows:
JUDGMENT OF 7.11.1972 — CASE 20/72
1. The first question sought and therefore the objectives of Regulation No 19, that is, to approximate (a) Cobelex, the defendant in the main level of national prices to a common level. action, maintains that an answer to the The Commission suggests that the first first question cannot be elicited from the question should be answered as follows: wording of Article 19(2). Even if the Belgian State was under a duty to apply 'Article 19 (2) (a) of Regulation No 19 of the levies in question, such an obligation the Council of 4 April 1962 requires the must be reconciled with the legitimate importing Member State to apply the interest of the importers in the accuracy appropriate levies immediately and to all of official information given when they imports for which the exporting Member make importations. The delay of the State grants refunds to third countries'. Belgian government in applying the levies cannot have the consequence that im 2. The second question porters suffer financial loss because of this negligence. The answer must therefore be (a) Cobelex maintains that under the in the negative. general principle of legal certainty, the statements of account must be definitively (b) The Belgian Government states that fixed when the imports are completed. The while the exporting Member States are question must be answered in the negative. free to grant or not to grant the refund to third countries (Article 19(2)(b)) importing (b) The Belgian Government observes that Member States are under a duty to apply it follows from its opinion on the first the levy laid down in Article 19(2)(a) as question that the duties stemming directly soon as a refund has been granted. This from Article 19 (2) (a) of Regulation No 19 interpretation follows from the system for importers cannot be affected by the established by Regulation No 19 and application of national measures which from the wording of Article 19(2). derogate therefrom or made subject to Article 19(2)(a) forms part of the regula provisions of the domestic legal system. tion within the meaning of Article 189 The granting by the exporting Member of the EEC Treaty and is therefore directly States of refunds to third countries is the applicable (it does not depend for its only condition on which the importers' legal effect on a measure adopted by the duty to pay the levies provided for in national legal system). The precise and Article 19 (2) (a) depends. unconditional nature of the duty under this provision means that it ipso jure (c) The Commission states that in general affects relations between the importing any application of national measures Member State and the importer. Since the which are incompatible with directly importing Member State is obliged to applicable Community provisions is pro apply the levies in question the question hibited. This also applies to Community must therefore be answered in the negative. provisions which prescribe directly duties The Commission first elucidates the objec for business undertakines.
tives and the system of Regulation No 19 Article 19 (2) (a) lays down directly the and proceeds to examine the wording of duty for an importer, importing from Article 19 (2) (a) and reaches the same con another Member State products for which clusions as the Belgian Government. The that Member State granted a refund to consequence of the failure to apply the third countries, to pay the specific levy set levy provided for by Article 19 (2) (a) to out in that article. The duty to pay the products to which the exporting Member special intra-Community levy provided for State has granted the refund to non- in Article 19(2)(a) cannot be affected by member countries is that the importation the fact that the importing Member State is made below the threshold price of the wrongly applied the normal intra-Com importing Member State and thus jeop munity levy provided for in Article 2 of ardizes the attainment of the level of price Regulation No 19.
BELGIUM v COBELEX
On the one hand the Member State's duty of the direct applicability of Article to impose the appropriate levy cannot 19(2) (a) such prior notification is superflu adversely affect the actual existence of the ous.
debt of the levy by virtue of any national provision. (c) The Commission maintains that the On the other hand there is nothing in the application of the levy provided for in Community rules to show that the levy Article 19(2) (a) does not depend on any debt, which stems directly from a provision prior announcement. The announcement such as Article 19 (2) (a) of Regulation No of special intra-Community levies is 19, must be considered, by virtue of these superfluous since they result from a simple rules, as not existing when a Member calculation in which the abovementioned State actings an indirect agency of the flat-rate amount is deducted from the Community administration makes a mis amount levied by the importing Member take in applying that provision. State in respect of goods from third coun The question should be answered as tries which two factors have already been follows: published. The problem of publication can only be
'The existence of the duty which stems raised in respect of the granting of refunds for non-member countries by the exporting for the importer directly from this article is not affected by a misapplication of this Member States. In the exporting Member State in this case, France, the interested article by the importing Member State'. parties were informed in good time of this grant. The documents produced in the main action show that the Belgian under 3. The third question takings concerned should at the very least have known of the French decision. (a) Cobelex maintains that under Article Nevertheless the decisive factor is that the
15 of Regulation No 19 the amounts of the importers were under a duty at the time of levies are calculated by the Member importation to produce a movement State and notified to the other Member certificate DD4 wherein the nature of the States and to the Commission. It follows refund to be granted by the exporting that the notification of the levies to the Member State must be specified. It follows importers concerned must be laid down by that the grant of refunds to third countries each Member State itself. This is par by the exporting Member States for the ticularly so as the Commission was not amount in question should have been itself responsible for the notification of the known by the importer at the date of the levies which moreover varied from one importation. Moreover the importer could Member State to another in 1964. The and should have ascertained in good time question must therefore be answered in the the situation in respect of the levy system negative. with regard to the goods which he wanted to import. The Commission suggests that the third (b) The Belgian Government observes that question should be answered as follows: any national notification relating to the levy provided for by Article 19 (2) (a) is 'For the application of the levy provided merely of an informative nature and for in this article, the importing Member cannot therefore be regarded as a measure State does not need to give notice in conferring on individuals rights which advance that the exporting Member must be protected. In addition in view State grants refunds to third countries.'
JUDGMENT OF 7.11.1972 — CASE 20/72
Grounds of judgment
1 By judgment of 26 April 1972, received at the Court Registry on 8 May 1972, the Rechtbank van Koophandel, Antwerp, has referred to the Court for a pre liminary ruling pursuant to Article 177 of the EEC Treaty, three questions con cerning the interpretation of Article 19(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 (JO No 30, 1962).
2 That article provides that 'A Member State which, in accordance with the provi sions of this regulation, is entitled to apply levies vis-à-vis another Member State may, when exporting to such State, refund an amount equal to the refund granted in respect of exports to third countries'.
3 The article further provides that 'when a refund on export is granted, the amount of the levy charged by the importing Member State shall be equal to that charged vis-à-vis third countries in accordance with the provisions of this regulation, less the standard amount provided for in Article 2(1)'. 4 The first question asks whether Article 19(2) means that where the exporting Member State grants refunds in respect of third countries the importing Member State is under a duty to apply levies on the importer immediately, or whether the importing Member State is entitled to do so from a later date which it may determine.
5 Article 19 (2) provides that only the levy in question is applicable to imports carried out in the conditions specified.
6 The view that the Member State is free to apply or not to apply the levies provided for by Regulation No 19 is incompatible with the aim of this regulation which is the progressive establishment of a common organization of the markets.
7 In fact if the levies concerned including that set out in Article 19 (2) are not applied, imports would be made below the threshold price of the importing Member States and would thus jeopardize the attainment of the level of prices sought and the progressive approximation of national target prices to a common target price.
8 This conclusion is supported by the provisions of Article 15(3) the mandatory nature of which is evident from comparison with the provisions relating to refunds (Article 19(2) and Article 20) which are of an optional nature.
9 Consequently Article 19 (2) (a) requires the importing Member State to apply the prescribed levy to all imports in respect of which the exporting Member State has granted refunds for third countries.
BELGIUM v COBELEX
10 The second question asks whether the importing Member State's duty affects ipso jurejure relations between that State and the importer in that it is irrelevant that the latter observed all the formalities for the purposes of ascertaining and deter mining the amount of the levy at the proper time if the importing Member State only subsequently discovers that the exporting country granted refunds.
11 The third question asks in particular whether the direct effects of Article 19(2) go so far that apart from the notifications provided for in the second subparagraph of that paragraph any announcement to importers and exporters made in advance in the manner prescribed by the national legislation is superfluous.
12 Since they form part of a Community regulation the provisions of Article 19 are directly applicable in all Member States by virtue of Article 189 of the Treaty.
13 Moreover the nature and the aims of Regulation No 19 imply that its provisions are applicable with the same binding force in all the Member States in the context of the common organization of the markets thereby established.
14 It should first be noted that the provisions relating to the fixing of the levy in advance only concern by their very nature the intra-Community levies referred to in Article 2 of Regulation No 19.
15 Since the levy provided for in the second sentence of Article 19(2) (a) depends on whether or not the exporting Member State exercises the power to grant refunds to third countries, the fixing of that levy in advance entails risks which the import ing Member States cannot always forsee.
16 Moreover the condition imposed by Article 19 on the granting of refunds to third countries in intra-Community trade, namely that the exporting Member State is entitled to impose levies in respect of imports from the importing Member State implies that with regard to trade in the opposite direction the levy referred to in Article 2 of the regulation is fixed at zero.
17 Therefore only when the levy under Article 2 for imports from a Member State is zero need importers expect that the provisions of Article 19 at issue may be applied.
18 Finally the application of Article 19(2) (a) does not require any particular notifica tion or announcement to importers.
19 In fact the notifications to which the Rechtbank van Koophandel refers are set out in Article 19(2)(b) and relate to a case other than that referred to in subparagraph (a).
JUDGMENT OF 7.11.1972 — CASE 20/72
20 While the authorities of the importing country may usefully draw the attention of those concerned to the existence and the possible consequences of the provisions of Article 19 (2) (a) by means of additional information, the provision does not require such announcements for its application.
21 Moreover the Commission's decision establishing means of special administrative cooperation for the application of the intra-Community levies established within the context of the Common Agricultural Policy of 17 July 1962 (JO 1962, p. 2140), provides that a 'movement certificate DD4' in which the nature of the refund granted by the exporting Member State must be specified, is to be presented to the customs authorities of the importing Member State (Article 6); the importer may examine it.
22 Consequently the rule expressed in Article 19 (2) (a) is immediately applicable in all the Member States and is binding upon those concerned without the need for additional announcement by the importing Member State.
Costs
23 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Rechtbank van Koophandel, Antwerp, the decision on costs is a matter for that court.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties in the main action 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 the Protocol on the Statute of the Court of Justice of the Euro pean Economic Community, especially Article 20; Having regard to Regulation No 19 of the Council of 4 April 1962, especially Article 19(2); Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
BELGIUM v COBELEX
THE COURT
in answer to the questions referred to it by the Rechtbank van Koophandel, Antwerp, by judgment of that court of 26 April 1972 hereby rules:
1. Article 19(2) (a) of Regulation No 19 of the Council requires the importing Member State to apply the prescribed levy to all imports in respect of which the exporting Member State has granted refunds for third countries;
2. This provision is immediately applicable in all Member States and is binding upon individuals without the need for additional announcements by the importing Member State.
Lecourt Monaco Pescatore
Donner Trabucchi Mertens de Wilmars Kutscher
Delivered in open court in Luxembourg on 7 November 1972.
A. Van Houtte R. Lecourt
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 5 OCTOBER 1972 1
Mr President, Commissie (Belgian-Luxembourg Joint Members of the Court, Administrative Commission) and were valid until 29 February 1964 (first licence) and 31 March 1964 (second licence). It was The facts giving rise to the present case stated on the licences that they were only are as follows: valid on production of a movement The defendant and appellant in the main certificate on form DD4, that is, the proceedings, a trading company with its certificate introduced by the Decision of registered office in Antwerp, imported the Commission of 17 July 1962 with maize from France into Belgium on 11 regard to the application of the intra- January 1964 and between 1 and 29 Community levy for the common organiza February 1964. These operations were tion of the markets (JO 1962, p. 2140). carried out on the basis of import licences In addition in accordance with the in which were issued on 29 November 1963 formation given (nil levy) by the defendants and 3 December 1963 by the Belgisch- by telex messages sent on 28 and 29 Luxemburgse Gemengde Administratieve November 1963 (relating to the first
1 — Translated from the German.