C-61/72

In Case 61/72

Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven at the Hague for a preliminary ruling in the action pending before that court between

MIJ PPW INTERNATIONAL N.V., of Bladel (Netherlands),

and

HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN, at the Hague,

on the interpretation of Article 11 of Regulation No 1009/67/EEC of the Council of 18 December 1967 (OJ No 308, p. 1), and of Articles 8, 9 and 15

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure be exported in the natural state, or in the form of goods listed in the Annex to The facts and procedure may be this Regulation, on the basis of summarised as follows: quotations or prices for the products listed in Article 1 (1) (a) and (c) on the 1. (a) On 18 December 1967, the world market, the difference Setween Council adopted Regulation No 1009/67/EEC 'on the common organiza­ those quotations or prices and the prices within the Community may be covered tion of the market in sugar'. by an export refund.' Article 1 (1) of that Regulation lists the The above-mentioned Annex lists a products to which the Regulation applies (sugar, beet sugar, cane sugar and series of processed products with a sugar molasses). base, including 'sugar confectionery, not Under the terms of Article 11 (1), first containing cocoa' (No ex 17.04 of the subparagraph, 'Imports or exports into Common Customs Tariff), which is the or out of the Community of the product concerned in the main action. products listed in Article 1 (1) shall be Under the terms of Article 17 (2), first made conditional on the submission of and second subparagraphs, this refund an import or export licence issued by 'shall be granted on application by the Member States to any applicant'; in the party concerned'. The Council 'shall Dutch version, the expression 'issued' is adopt general rules for granting refunds, translated by 'afgeven'. for fixing the amounts of such refunds, Article 17 (1) provides that 'To the and for fixing such refunds in advance' extent necessary to enable the products (fifth subparagraph); refunds shall be listed in Article 1 (1) (a), (c) and (d) to fixed at regular intervals by the

Commission acting on the Opinion of subject to a single price system' (OJ No the Management Committee (sixth L 158, p. 1). Under the terms of Article 1 subparagraph). thereof, this Regulation lays down the common detailed rules for the (b) In application of, inter alia, Article application of the system of licences and 17 (2), fifth subparagraph, of Regulation certificates established, in particular, by No 1009/67, the Council, on 28 January Article 11 of Regulation No 1009/67 and 1969, adopted Regulation No 204/69/ Article 6 of Regulation No 204/69. EEC 'laying down general rules for granting export refunds on certain Under the terms of Article 8 (2), first agricultural products exported in the subparagraph, 'licences and certificates form of goods not covered by Annex II shall be drawn up at least in duplicate, to the Treaty, and the criteria for fixing the first copy of which, called "Titular the amount of such refunds' (OJ No L Holder's Copy", and marked " No 1", 29, p. 1). shall be issued (in the Dutch: 'overhandigd') without delay to the Under the terms of Article 5 (1) thereof, applicant and the second, called "Issuing 'the rate of the refund shall be that Agency's Copy", and marked "No 2", applying on the day on which the goods shall be retained by the issuing agency.' are exported.' However, except in Under the terms of the second respect of certain products, 'the rate of subparagraph of Article 8 (2) 'Copy No the refund may be fixed in advance at 1 of the licence or certificate shall be the request of the party concerned'; 'In submitted to the office responsible for that case, the rate of the refund

. .' subparagraphs, provides that: 'On (Article 6 (1)). 'The issue ('afgifte') of application by the titular holder of the advance fixing certificates shall be licence or certificates or by the conditional on the lodging of a deposit transferee, and on submission of Copy guaranteeing that exportation is effected No 1 of the document, one or more during the period of validity of the extracts from that document may be certificate; the deposit shall be forfeited issued (in the Dutch: 'worden in whole or in part if exportation is not afgegeven') by the competent agencies of effected, or is only partially effected, Member States. Extracts shall be drawn within that period' (Article 6 (2)). up in at least two copies, the first of (c) On 10 July 1970, the Commission, which, called "Titular Holder's Copy" acting on the basis, inter alia, of and marked "No 1", shall be issued (in Regulation No 1009/67, adopted the Dutch: 'overhandigd') to the Regulation No 1373/70/EEC 'on applicant and the second, called "Issuing common detailed rules for the Agency's Copy" and marked "No 2", application of the system of import and shall be retained by the issuing agency'. export licences and advance fixing Article 15 (2) provides that 'Release of certificates for agricultural products the security shall be subject to

production of proof ... (b) as regards Hoofdproduktschap drew up the exports, of completion of the customs certificate and sent by post a copy of it formalities referred to in (b) of the as the 'Titular Holder's Copy' within the second subparagraph of Article 8 (2)'. meaning of Article 8 (2) of Regulation Under the terms of Article 15 (3) (b), No 1373/70, together with two extracts. first subparagraph, this proof shall be The envelope was placed in a sack in the furnished 'by production of Copy No 1 messenger department of the Hoofdpro­ of the licence or certificate and, where duktschap and was then taken by an appropriate, of Copy No 1 of the extract employee of that organization to the or extracts of licences or certificates PTT office where it was sent by ordinary endorsed in accordance with the mail, that is without having been provisions of Article 8'. Under the terms registered. of Article 15 (4), 'Where a licence or At the beginning of January 1972, PPW certificate or extract from a licence or informed the Hoofdproduktschap that certificate is lost, issuing agencies may, these documents had not arrived. exceptionally, supply (in the Dutch: Enquiries made of the postal authorities 'afgeven') the party concerned with a failed to uncover the missing envelope. duplicate thereof, drawn up and In these circumstances and deeming endorsed in the same way as the original PPW to be acting in good faith, the documents and clearly marked with the Hoofdproduktschap considered that the word "Duplicate" on each copy'; deposit should not be forfeited. however, 'Duplicates may not be However, it refused a request by PPW of submitted for purposes of effecting 30 March 1972 either to authorize it to import or export transactions'. export the products in question on the (d) Regulations Nos 2565/71/EEC and basis of the rate of the refund fixed in 404/72/EEC of the Commission of 25 advance (34.39 florins), or to indemnify November 1971 and 8 February 1972 it for the loss it would suffer in the (OJ Nos L 264, p. 48 and L 51, p. 16) absence of such authorization arising fixed the rate of refund on 100 kg of from the difference between that amount white sugar exported in the form of and the amount applicable in March 'sugar confectionery, not containing 1972 (9.52 florins). The Hoofdpro­ cocoa' at 9.50 u.a. for December 1971 duktschap justified its stand, in regard to and at 2.81 u.a. for March 1972 the first alternative requested, by Article respectively. 15 (4) of Regulation No 1373/70. As to the second alternative, it alleged that the 2. (a) Mij PPW Internationaal N.V., the Community system in force did not plaintiff in the main action (hereinafter allow for compensation for such loss. called 'PPW') had requested the Hoofdproduktschap voor Akkerbouw­ (b) PPW brought an action for produkten, the defendant in the main annulment of that decision before the

By judgment dated 29 August 1972, the In the summary of the grounds of national court decided to refer the judgment, it is stated that a reply to following questions to the Court: these questions is necessary in order to be able to judge whether the '1. What is the meaning to be given to Hoofdproduktschap acted with all the term "afgegeven" (issued), requisite diligence and to what extent translated by "délivré" in the French PPW suffered loss. version and by "erteilt" in the German version, appearing in Article 3. The judgment referring the matter 11 (1) of Regulation No 1009/67/ was received at the Court Registry on 31 EEC ...? August 1972. The parties to the main action and the 2. What is the meaning to be given to Commission of the European Communi­ the term "overhandigd" (issued), ties submitted their written observations translated by "délivré" in the French in accordance with the provisions of version and by "ausgehandigt" in the Article 20 of the Statute of the Court of German version, appearing in Article the EEC. 8 (2); to the term "worden After hearing the report of the Judge afgegeven" (may be issued), Rapporteur and the opinion of the translated by "être délivrés" in the Advocate-General, the Court decided to French version and by "erteilen" in proceed without any preparatory the German version, appearing in inquiry. Article 9 (1), first subparagraph; to the term "overhandigd" (issued), PPW was represented by its director, F. translated by "remis" in the French J. van Tienen, the Hoofdproduktschap version and by "ausgehändigt" in the by A. W. F. Helmstrijd and the German version, appearing in Article Commission by its Legal Adviser, J. H. 9 (1), second subparagraph; also to J. Bourgeois. the term "afgeven" (supply), The oral observations of the translated by "délivrér" in the French Hoofdproduktschap and the Commis­ version and by "erteilen" in the sion were made at the hearing on 24 German version, appearing in Article January 1973. 15 (4), all being Articles of The Advocate-General presented his Regulation No 1373/70/EEC of the opinion at the hearing on 7 February Commission ...? 1973.

Beroep, Regulation No 204/69 should As to Community law, there are certain also be taken into consideration, as the regulations and other acts which call main action concerned products covered explicitly for registration. As the by that act. In order to obtain a clear Regulations concerned in this case are idea of the terminology used in these silent on this point, it must be concluded Regulations, one must look at all the that they do not impose such a provisions of those Regulations in which requirement. the expressions the interpretation of To sum up, the reply given to the which is requested by the national court national court should therefore be: appear; it happens that in Regulations Nos 1009/67 and 204/69 only the words — to the first and second questions, that 'afgeven' and 'afgifte' appear, while, the expressions 'afgeven' and apart from those words and the related 'overhandigen' have in view the word 'afleveren', Regulation No 1373/70 adoption of all means which may be contains in two places the word taken to be reasonably appropriate in 'overhandigen' (shall be issued) Article ensuring that the certificate reaches 8 (2) and Article 9 (1), second the party concerned; subparagraph).

At sense of 'placing in the hands of . . . first sight, one might deduce from the but in a more neutral sense, summary of the grounds of judgment corresponding to the expression that the College van Beroep wishes to 'afgeven' (issue). Consequently, one must have the interpretation requested in give a corresponding meaning to the order to rule on whether PPW may words 'délivrer' and 'remettre' as well as claim damages. However the possibility to the words 'aushändigen' and 'erteilen', does not appear to be excluded that the appearing in the French and German national court was further considering versions respectively of the Regulations the request by that company to be concerned. authorized to export the products in Netherlands law makes a distinction question on the basis of the rate of between, on the one hand, ordinary post, refund fixed in advance. In that case, the as in this case, and, on the other hand, judgment referring the matter involves registered post either with or without a the supplementary question of whether declaration as to value. Article 39 of the the Community rules, and in particular 'Postbeschikking' of 13 January 1972 Article 15 (4) of Regulation No contains a list of the categories of postal 1373/70, is opposed, in cases such as packets which must be registered; this, to the issuing agency supplying the Community certificates are not included. person concerned with a duplicate which Nor do the international conventions may, exceptionally, be used for an concerning postal services require that export transaction. In case it may be of such documents be sent by registered assistance, the Commission also letter. therefore examines this question.

The problems raised are restricted established by the Regulations in essentially to the difference between the question, these documents constitute the expressions 'afgeven' and 'overhandigen', sole means of proof and are the requirements to be satisfied on the indispensable if proof be required. When 'overhandiging' ('délivrance', 'remise') of it is a matter, as in this case, of an a certificate and the result when the export certificate relating to goods for certificate is lost. which the refund had been fixed in advance, this system involves in With regard to the expressions 'afgeven particular: and 'overhandigen' (first and second questions) — that the release of the deposit is subject to proof, to be furnished by The verbs 'afgeven' or 'afleveren' and production of Copy No 1 of the the substantive 'afgifte' (translated in licence or certificate, that exportation French each time by 'délivrer' and has taken place (cf. Article 15 (2) 'délivrance') are used frequently in the and (3) of Regulation No 1373/70); body of the clauses concerned in this case; cf. Article 11 (1), first and second — that payment of the refund is subject, subparagraphs, of Regulation No inter alia, to production of the same 1009/67; Articles 4 (1), 8 (1) and 9 (1) Copy on which the amount of of Regulation No 1373/70. On the other exports is endorsed by the customs hand, the expression 'overhandigd' authorities after completion of the appears in Articles 8 (2) and 9 (1), customs formalities (cf. Article 8 (2) second subparagraph, of that latter of Regulation No 1373/70 and Regulation; the French version of these Article 6 (1) of Regulation No provisions uses the words 'délivre' 204/69). (issued) and 'remis' (issued) respectively. It follows that the action described by The expression '(een certificaat) afgeven' the word 'overhandigen' forms an refers to the creation of the complex integral part of the whole series of legal relationship between the adminis actions described by the expression tration and the trader arising from the 'afgeven', in the sense that a licence or

In the effected on the basis of an advance absence of 'overhandiging', that decision, fixing certificate. although in existence, normally has no With regard to the 'overhandiging' effect in relation to the said trader. (délivrance, remise) of the licence or certificate or extracts thereof, the scope With regard to the requirements to be of this expression may be inferred from satisfied on the 'overhandiging' (third the fact that, under the system question)

Grounds of judgment

1 By judgment of 29 August 1972, received at the Court Registry on 31 August 1972, the College van Beroep voor het Bedrijfsleven referred to the Court three questions, under Article 177 of the EEC Treaty, on the interpretation of Regulation No 1009/67/EEC of the Council of 18 December 1967 (OJ No 308, p. 1) and Regulation No 1373/70/ECC of the Commission of 10 July 1970 (OJ No L 158, p. 1) and concerning the conditions according to which advance fixing of refund certificates for processed products with a sugar base intended for export to third countries must be 'délivre' (issued) or 'remise' (issued) to the traders concerned.

2 In regard to the first two questions, the Court is asked to interpret the expressions 'afgeven' (at udstede, erteilen, to issue or supply with, délivrer,

MIJ PPW INTERNATIONAAL N.V. v HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN

rilasciare) and 'overhandigen' (at udlevere, aushändigen, to issue, délivrer or remettre, rilasciare) appearing in Article 11 (1) of Regulation No 1009/67 and in Articles 8 (2), 9 (1), first and second subparagraphs, and 15 (4) of Regulation No 1373/70.

3 The third question asks 'in particular' whether the requirement of 'overhandiging' (unlevering, Aushändigung, issue, délivrance or remise, rilascio) or of 'afgifte' (udstedelse, Erteilung, issue or supply, délivrance or remise, rilascio), especially within the meaning of Articles 8 (2) and 9 (1), second subparagraph, of Regulation No 1373/70, is satisfied when the competent authority restricts itself to dispatching the licence or certificate and extracts thereof by post without registering the envelope.

JUDGMENT OF 13. 3. 1973 — CASE 61/72

subject to the submission of an advance fixing certificate which may be issued (afgegeven) by Member States to any applicant.'

9 In application of, inter alia, Regulation No 1009/67, Regulation No 1373/70 provides, by Article 8 (2), first subparagraph, that 'licences and certificates shall be drawn up at least in duplicate, the first copy of which, called 'Titular Holder's Copy', and marked 'No 1', shall be issued (overhandigd) without delay to the applicant'.

10 According to Article 9 (1), first subparagraph, 'on application by the titular holder of the licence or certificate ... and on submission of Copy No 1 of the document, one or more extracts from that document may be issued (afgegeven) by the competent agencies of Member States', and such extracts shall, under the terms of the second subparagraph of Article 9 (1), be drawn up in at least two copies, the first of which, called 'Titular Holder's Copy', and marked 'No 1', shall be issued (overhandigd) to the applicant.

11 Article 15 (4) provides that where a licence or certificate or extract from a licence or certificate is lost, issuing agencies may, exceptionally, supply (afgeven) the party concerned with a duplicate thereof, clearly marked with the word 'Duplicate', but such duplicates may not be submitted for the purposes of effecting import or export transactions.

12 The questions raised concern what obligations arise for the competent authorities of Member States from the provisions cited by the national court, relating to the dispatch of advance fixing certificates or extracts thereof to the addressee.

18 Therefore, although the rules in question leave to the national authorities the ways and means to be adopted for the dispatch of advance fixing certificates and extracts thereof to the applicant, the requirement of issuing the certificate or extracts thereof nonetheless involves the obligation for the competent authority to ensure that such documents actually reach the applicant.

19 The said authority did not fulfil this obligation when sending the documents by post as they failed to reach the addressee for reasons for which the latter is not responsible.

Costs

20 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable and as these proceedings are, insofar as the parties to the main action are concerned, 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 submissions of the parties to 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 Regulation No 1009/67/EEC of the Council, on the common organization of the market in sugar (OJ No 308, p. 1), especially Article 11;

Lecourt Monaco Pescatore

Donner Mertens de Wilmars Kutscher

Ó Dálaigh Sørensen Mackenzie Stuart

Delivered in open court in Luxembourg on 13 March 1973.

A. Van Houtte R. Lecourt

Registrar President