C-32/72

1. The time-limit laid down in Article 3 2. The power assigned to Member States of Regulation No 602/68/EEC of the by the Community regulations to adopt Commission for the submission of additional measures gives no authority applications for carry-over payments to adopt measures which create excep­ under Article 9 of Regulation No 120/ tions to a specific rule of common ap­ 67/EEC of the Council is an absolute plication which is essential for the limitation period. operation of a market organization mechanism.

In Case 32/72

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

Wasaknäcke Knäckebrotfabrik GmbH , now Wasa GmbH , Celle,

and

EINFUHR-und Vorratsstelle für Getreide und Futtermittel, Frankfurt am Main,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure sent not later than 7 June 1968, his intention to apply where appropriate The facts and procedure may be sum­ to be granted the carry-over payment marized as follows: and also the quantities of each of the Article 9 of Regulation No 120/67/EEC cereals referred to in Article 1 held by of the Council of 13 June 1967 (OJ, him on 31 May 1968, with details of Special Edition, p. 33) provides that a the agent and the warehouse where the carry-over payment may be granted in stocks may be inspected; respect of stocks remaining at the end of the marketing year of, among other things, — have submitted to the same competent common wheat and rye harvested in the authority, by registered letter, telex Community. For this purpose, Article 3 message or telegram sent not later than of Regulation No 602/68/EEC of the 5 August 1968, a request for compensa­ Commission of 16 May 1968 (OJ L 114) tion, giving details of the afore­ contains the following rules: mentioned stocks of cereals held by him on 31 July 1968. Such a request 'In order to benefit the carry-over pay­ must, at the least, contain the informa­ ment which is granted by the competent tion and declarations referred to in the authority of the Member State in whose Annex hereto.' territory the stocks are to be found, the applicant must: According to Article 5(l)of the said regulation, the competent authorities of — have declared to the aforementioned each Member State were entrusted with competent authority, by registered the task of carrying out the necessary letter, by telex message or by telegram inspection of stocks. This article provided

to be made on a form, could be validly lodged up to 12 August 1968 as regards Can account be taken of an application applications which had been submitted in sent three days after the expiry of the time- proper time by telex message or telegram. limit and received the following day when By letter of 6 June 1968, the applicant in despite its late submission it can be es­ the main action, which operates a flour­ tablished, by reason of the particular mill, had informed the Niedersächsische circumstances of the case, that this ap­ Landesverwaltungsamt of its intention to plication for the carry-over payment is apply for the carry-over payment. By justified and dealing with it causes no letter of 31 July 1968 it sent the said body difficulties for the Administration? Does the monthly report on the state of the consideration of a late application depend stocks in the wheat mills. On 7 August on whether the delay is due to fault?' 1968 it sent its applications for carry-over payments which reached the competent The order referring the matter to the Court authority on 9 August 1968. was received at the Registry on 13 June By decision of 15 November 1968 the 1972. defendant in the main action rejected In the grounds of its decision the German these applications on the ground that they court observes that the time-limit in had not been made within the period laid question is calculated very fairly if one down in Article 3 of Regulation No 602/­ takes account of the fact that the state 68/EEC. of the stocks existing on 31 July 1968 The Verwaltungsgericht upheld the ap­ should have been communicated before plicant's action for the annulment of this 5 August, in other words within the limits decision refusing the carry-over payment. of a period including a weekend. By judgment of 1 March 1971 the appeal Should the Court of Justice consider that court annulled that judgment and dis­ this period is not simply a procedural missed the action on the ground, in measure but an absolute limitation period, particular, that in making its application it is still necessary to ascertain in what for the carry-over payment, the firm cases it can be exceeded. In this connexion concerned had not observed the period the German judge states as follows: laid down by the said EEC Regulation, since the monthly report which it had sent 'It is beyond dispute that the claim of the on 31 July 1968 could not be regarded as applicant firm is justified on the merits an application for the payment in question. and that the application drawn up on the On appeal by the company for the reversal prescribed form was received 4 days after of the judgment obtained in the lower court, the expiry of the period although the the Bundesverwaltungsgericht decided, on defendant granted, so as to allow the form

time to arrive, a time-limit of up to 12 working days; otherwise, this period August 1968, which the applicant observed. would be contrary to good faith and It can therefore be inferred from this that should be considered to be invalid; the defendant had not yet examined the other applications at the time when the — the Community rules do not provide applicant's application was received.' expressly that non-observance of the period in question entails loss of rights In accordance with Article 20 of the in all cases and without exception.

limitation period prescribed by law is ber 1972. admissible when the other conditions The Advocate-General delivered his required for entitlement are satisfied opinion at the hearing on 8 November and when, by a short delay, the party 1972. concerned does not in any way affect the purpose for which the time-limit was established. It points out that, having II — Observations submitted in ac regard to the fact that on 12 August 1968 cordance with Article 20 of the defendant in the main action had not the Statute of the Court of begun to examine the applications referred Justice to in Article 3 of Regulation No 602/68/ EEC and that, a fortiori, it had not given a The observations submitted in accordance ruling on them, the exercise of its task with Article 20 of the Statute of the Court relating to the applications for carry- may be summarized as follows: over payments could not be compromised by the making of the application on 7

This proves that by is taken of the fact that here it com dint of experience it had been judged that prised only two or, at most, three the aim of the EEC rules could be fully

achieved only by an adequate extension July because at this time there are already of time-limits. cereals on the market which, coming from In this case, no fault is attached to the the new harvest, have consequently not fact that the time-limit was exceeded. In borne the costs of storage. fact, after the German Federal Minister In order, as far as possible, to avoid risks had, in his official notice of 22 May 1968, of abuse, which increase the greater the announced that in certain cases he was time from the day designated for fixing extending until 12 June 1968 the time- the level of stocks, it was necessary to limit for the declaration of intention pro inspect the stocks held on 31 July as soon vided for in the first paragraph of Article after that date as possible.

reasonable time. Since the applicant sub ment depends on whether the application mitted its application on 7 August 1968, is submitted within the time fixed. It is in other words the day following the therefore an absolute limitation period in publication of the decree, it would be respect of which there is no provision for wrong to consider it to have exceeded the derogation. Having regard to the require time-limit, all the more so because on 6 ment of uniformity of Community law, June 1968 it had informed the competent including the stage of its implementation, administrative authorities of its intention national authorities have the power to to apply for the carry-over payments in decide, unilaterally and in their discretion, respect of the quantities which it had men to derogate from Community rules only tioned in its declaration. where they are clearly authorized by Com The applicant in the main action main

warehouses. This right cannot be denied it relates exclusively to paragraph (1) of this because the German administrative author article which imposes on Member States ities did not promulgate within good time the obligation of carrying out the necessary the decree which they had expressly an inspections. nounced. It is also idle to maintain that a different interpretation is necessitated by higher constitutional principles. In fact, observ 2. Observations of the Commission ance of the time-limit in question does not in any way impose an insufferable burden The Commission first of all makes the point on undertakings.

JUDGMENT OF 30. 11. 1972 — CASE 32/72

subject only to this small effort on the part been exceeded in circumstances where of undertakings and since the grant thereof there has been no fault. The legal position does not depend on their offering any con­ of the applicant in the main action is not sideration, it is not possible to argue that altered by the fact that the competent fundamental legal principles require that German body was late in sending it the Article 3 should not apply where the time- forms since the validity of the applications limit for submitting the application has did not depend expressly on those forms.

Grounds of judgment

2 By providing that the grant of the carry-over payment shall be conditional upon the submission of the application within a predetermined time-limit, the wording of Article 3 tends to establish that this time-limit is strict. This interpretation is confirmed by the fiction attributed to this time-limit within the framework of the intervention machinery instituted by Regulation No 120/67 of the Council on the common organization of the market in cereals. In order to ensure that the price guarantee given to producers remains fully effective throughout the marketing year, Article 6 of that regulation provides that the intervention price shall be the subject of monthly increases phased over all or part of the marketing year. In order to avoid massive quantities of cereals being offered for intervention upon the expiry of the monthly increases in intervention prices at a time when a large part of the cereals in stock could be sold directly on the market before the beginning of the new marketing year, Article 9 of Regulation No 120/67 provides that a carry-over payment may be granted in respect of stocks of cereals harvested in the Community.

WASAKNACKE v EINFUHR-UND VORRATSSTELLE GETREIDE

Costs

5 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable and as the present 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, 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 applicant in the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General;

JUDGMENT OF 30. 11. 1972 — CASE 32/72

Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 120/67/EEC of the Council of 13 June 1967 and to Regulation No 602/68/EEC of the Commission of 16 May 1968; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

Delivered in open court in Luxembourg on 30 November 1972.

A. Van Houtte P. Pescatore

Registrar President (President of Chamber)