C-1/73
ECLI:EU:C:1973:78
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JUDGMENT OF THE COURT
4 JULY 1973 <apnote>1</apnote>
Westzucker GmbH
v Einfuhr- und Vorratsstelle für Zucker
(preliminary ruling requested by the Hessisch Finanzgericht)
'Transitional law: fixing certificates'
advance
Case 1/73
Summary
1. Acts of an institution Amendment of a former provision — Situation arising —
under the latter provision Future consequences — Application of the amending —
rule
2. Agriculture — Common organization of the market — Sugar — Export refunds — Article 12 of Regulation No 766/68 — Amendment — Sphere of application
(Regulation No 1048/71 of the Council)
1. The laws amending a legislative Regulation No 1048/71 of the
provision apply, unless otherwise Council of 25 May 1971, applies not provided, to the future consequences only to advance fixing certificates
of situations which arose under the issued after its entry into force, but former law. also to those issued before such date if exportation had not yet taken place 2. The amendment to Article 12 of and an adjustment of the intervention Regulation No 766/68 of the Council price had not been made. of 18 June 1968, effected by
In Case 1/73
Reference to the Court of Justice under Article 177 of the EEC Treaty by the Hessisches Finanzgericht, VIIth Senate, for a preliminary ruling in the action pending before that court between
Westzucker GMBH , of Dortmund,
and
Einfuhr- und Vorratsstelle fur Zucker , of Frankfurt,
1 — Language of the Case: German.
JUDGMENT OF 4. 7. 1973 — CASE 1/73
on the interpretation of Regulation No 766/68 of the Council of 18 June 1968
(OJ L 143, 25. 6. 1968, p. 6) and Regulation No 1048/71 of the Council of
25 May 1971 (OJ L 114, 26. 5. 1971, p. 10),
THE COURT
composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents Kut of Chambers, A. M. Donner (Rapporteur), J. Mertens de Wilmars, H. scher, C. Ó Dálaigh, M. Sørensen and A. J. Mackenzie Stuart, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure invitation to tender and exportation is carried out, there has been an alteration
The facts and procedure may be in the intervention price for white sugar
summarized as follows: in the Community area with the largest surplus, the refund shall be adjusted on By the combined provisions of Article 17 the basis of such alteration. By Article 1 (1) and Article 1 (1) (a) of Regulation No 1009/67 of the Council of 18 of Regulation No 1048/71 of the
December Council of 25 May 1971 (OJ L 114, 1967, on the common
in 26. 5. 1971, p. 10) amending Article 12 organization of the market sugar (OJ of Regulation No 766/68/EEC, the 308, 18.12. 1967, p. 1), refunds may be granted on the export of white sugar adjustment of the amount of refund is from the Community to cover the no longer obligatory, but may be difference between the prices on the provided. Article 2 of Regulation No
world market and those within the 1048/71/EEC provides that this
Community. provision shall enter into force on 27 May 1971. Article 12 ot Regulation NO 766/68 ot
the Council of 18 June 1968 (OJ L 143, Under Regulation No 1061/71 of the
25. 6. 1968, p. 6), laying down general Council of 25 May 1971 (OJ L 115, rules for granting export refunds on 27. 5.1971, p. 17), fixing the prices for sugar, provides in its original wording sugar for the 1971/72 marketing year, as
that if, during the period between the well as the standard qualities for white
time the refund is fixed by virtue of an sugar and sugar beet, and the coefficient
WESTZUCKER v EINFUHR- UND VORRATSSTELLE ZUCKER
referred to in Article 24 of Regulation declaration of increase and an export
No 1009/67 (OJ 308, 18. 12. 1967, p. 1), licence and where the sugar was
the price of sugar was raised from 1 July exported after 1 July 1971? 1971. If question 1 is answered in the The plaintiff in the main action had affirmative:
obtained from Einfuhr- und Vorratsstelle (hereinafter called EVSt) three export 2. If the above interpretation is to be licences for white sugar valid variously followed, do Articles 1 and 2 of
until 30 July and 31 August 1971. In Regulation No 1048/71/EEC of the
respect of permanent tenders Nos 6/1970 Council of 25 May 1971 infringe the and 4/1971, these export licences principle of legal certainty, a general contained an advance fixing of the principle which applies equally in
refunds on the export of white sugar at Community law, as well as the
either 37·14 DM or 39·34 DM per 100 principle deriving from it which
kgs. The licences contained the phrase prescribes that the confidence of
'subject to Article 12 of Regulation No persons concerned deserves protection 766/68'. ('Vertrauensschutz') ? Relying on this phrase, the plaintiff in In the event that question 1 is the main action requested an increase in answered in the negative or that
the refunds corresponding to the questions 1 and 2 are answered in the increase in the intervention prices, as affirmative:
provided bv Regulation No 1061/71 3. Does the adjustment of the amount (abovementioned) for exports made after of refund, as provided in the original 1 July 1971. EVSt (the defendant in the text of Article 12 of the Regulation main action) rejected this claim on two No 766/68/EEC, following the grounds: alteration in the intervention price for (a) it was not empowered to grant such sugar, require a prior decision by the an increase; Commission?
(b) from 27 May 1971 the new wording The order of the Finanzgericht of Hesse of Article 12 of Regulation No was received at the Court Registry on 2 766/68/EEC was to be applied, January 1973. which meant that the increase was
longer obligatory. Westzucker, represented by Gabrielle no Rauschning of the Hamburg bar and
The Finanzgericht of Hesse, considering the Commission of the European that the outcome of the dispute Communities, represented by its legal depended on the interpretation of the adviser Peter Gilsdorf submitted their Commu abovementioned provisions of written observations in accordance with
nity law, decided, by order dated 18 the provisions of Article 20 of the December 1972, to refer the following Protocol on the Statute of the Court of
preliminary questions to the Court: Justice.
1. Must Articles 1 and 2 of Regulation Alter hearing the report or the
No 1048/71/EEC of the Council of Judge-Rapporteur and the opinion of the
25 Mav 1971 (OJ L 114, 26. 5.1971, Advocate-General, the Court decided to
p. 10) be interpreted as meaning that open the oral procedure without any Article 12 of Regulation No 766/68 preparatory inquiry. of the Council of 18 June 1968 (OJ L The oral observations of Westzucker and 143, 25. 6.1968, p. 6), as it is to be the Commission were made at the applied from 27 May 1971, must be in the same manner where the hearing on 15 May 1973. applied
Einfuhr- und Vorratsstelle fur Zucker The Advocate-General presented his issued before 27 May 1971 a opinion at the hearing on 6 June 1973.
JUDGMENT OF 4. 7. 1973 — CASE 1/73
II — Observations submit Regulation only applies to transactions
ted under Article 20 of for which export licences were issued the Statute after the date of its entry into force. One might further question whether the
The observations presented Article objectives of Regulation No 1048/71 under
Protocol Statute necessitated a wide interpretation by 20 of the on the of the
Court of Justice of the European which the Community interest required
be the application of the amended rules in Communities may summerized as
follows: cases where export licences were issued under the old rules. It can be seen from westzucker (the plaintiff in the main the recitals in the Preamble to action) submits that the first question Regulation No 1048/71 that the should be answered in the negative. The attainment of its objectives did not amendment to Article 12 of Regulation depend on its application to transactions No 766/68, providing that the begun under the old rules: 'such a adjustment shall longer be obligatory no provision (Article 12 of Regulation No but merely optional, has weakened the be 766/68) proves to too rigid; legal position of individuals in relation to consequently there are grounds for the administration because they no amending the provisions of Article 12 to longer have a right to the increase of allow for an appropriate adjustment refunds. The application of this where necessary'. uncom provision, amended as regards If the Court does not agree with the pleted transactions, has a materially plaintiff on the reply to be given to the retroactive effect on the legal position first question, the latter submits that the acquired by the individuals concerned second question requires a reply in the under the former rules. Such a affirmative. retroactive effect should be explicitly provided for in the of In the case in question the persons wording Regulation No 1048/71. The plaintiff concerned have acquired by the issue of refers to the Court's Judgment of 28 an export licence a legal position by October in Case 16/70 (Necomout v which they have the right to an
Akkerbouw fixed Hoofdproduktschap voor adjustment of the refunds in producten, Rec. 1970, p. 921) dealing advance corresponding to the movement
with the interpretation of Article 7, first of the intervention prices for white sugar. paragraph, of Regulation No 1134/68 The principle of the protection of which stated specifically that 'this confidence of persons concerned can Regulation shall apply to all transactions only admit of an infringement of those carried out from the date of its entry rights already acquired where the into force'. In order to avoid the unfair Community interest renders an treatment of those who previously alteration in their existing legal position obtained advance fixing, the second
Article 7 indispensable. It follows from its paragraph of the said allowed
them to obtain cancellation of such observations on the first question that
advance fixing. The Court admitted that such a situation did not exist. such a transitional provision was with regard to the third question, the
inspired 'by essentially legal considera plaintiff in the main action makes the
tions relating to the effects of a change observation that the old of wording of legislation on contracts already Regulation No 766/68/CEE does not
subsisting'. only contain the obligation to adjust
Since provisions such as those of Article refunds, but also the criteria for putting 7 of Regulation No 1134/68 are not this operation into effect. A prior
found in Regulation No 1048/71/EEC, it decision by the Commission is must be concluded that the latter consequently superfluous.
WESTZUCKER v EINFUHR- UND VORRATSSTELLE ZUCKER
The Commission begins its observations licences. The prospect of the plaintiff in with an outline of the economic grounds the main action being able to profit from for the rules in question. Given that the an adjustment of the fixed in advance
intervention price for white sugar is refund was not yet reality at the time a
altered on the basis of changes in the Regulation No 1048/71 was adopted, economic conditions applying to its but only on the entry into force of
production, it is unwarranted that stocks Regulation No 1061/71 on 16 June 1971 produced or acquired before this did a possible right of expectation arise
alteration at a time when other economic with regard to an adjustment of the
conditions existed should profit by it. refund. Previously, there was only a
The amendment of the original wording vague prospect of additional benefit. of Article 12 of Regulation No 766/68 is T ne fact tnar. me export licences due to the practical difficulties of contained the phrase 'Subject to Article application of Article 37, paragraph 2, 766/68' 12 of Regulation No cannot which was originally intended to prevent further be the basis of a right of the raising of the intervention price expectation to an adjustment of the resulting in economically unjustifiable refund, as the sole object of this phrase is profits for operators. draw holder to the attention of the to
the fact that he could not consider it As to the first and second questions, the certain that the refund fixed in advance Commission maintains that it follows would not be reduced in pursuance of from the wording of Regulation No Article 12 of Regulation No 1048/71 that from 27 May 1971 the new 766/68/EEC. This interpretation is in wording of Article 12 of Regulation No 'reservation' line with the spirit of any 766/68 replaced the original text. In usually found in national administrative other words from that date the new text measures. must by applied in calculating export
refunds. Thus, if the amendment made by Regulation No 1048/71 has affected The Commission does not agree with the neither an already existing right nor an plaintiff in the main action on the expectation to the increase of the question whether the new rules apply to refunds fixed in advance, there cannot uncompleted transactions. In the either be an 'indirect (or material) Commission's opinion there is no retroactive effect'. question in this case of any 'indirect retroactive effect'. Such a concept applies This interpretation corresponds to the
infringes economic considerations outlined above. to situations where a provision
the principle of the 'protection of The refund must enable sugar to be from the Community in spite confidence', by attaching to transactions, exported
whether accomplished or in of the differences between the level of progress, consequences which differ from and are domestic prices in the Community and
more unfavourable than those for which those on the world market. In this
the person had his respect the decisive price level was the concerned made
arrangements. The old intervention price for which the new rules must
therefore to plaintiff in the main action was able to apply an already existing legal position. But the in question obtain the sugar. If the calculation of the rules
in refunds was made on the basis of a no way affect any such legal position
of the plaintiff in the main action. At the higher intervention price than that at
date of the entry into force of Regulation which the plaintiff had actually obtained No Westzucker had the sugar, it would have made an 1048/71, only unjustifiable profit from the economic acquired a sole legally enforceable right before the administrative courts: that is, point of view.
the right to the payment of export The first question thererore requires an
refunds fixed in advance in the export affirmative reply, and the second a reply
JUDGMENT OF 4. 7. 1973 — CASE 1/73
in the negative. As to the third question, prior intervention on the part of the
the Commission observes as an Commission. alternative point that under the original
system of Article 12 of Regulation No However, under the new system the
766/68/EEC, there was no margin of Commission is given a real power of
assessment for the adjustment of the assessment. Its prior intervention is refund. Consequently uniformity of required in order to guarantee the
application could be ensured by the uniform application of the rules in competent national bodies without any question.
Grounds of judgment
1 By order dated 18 December 1972, received at the Court Registry on 2 January 1973, the Finanzgericht of Hesse referred to the Court of Justice, under Article 177 of the Treaty, for a preliminary ruling on three questions
relating to the interpretation of Article 12 of Regulation No 766/68 of the
Council of 18 June 1968, laying down general rules for granting export
refunds on sugar (OJ L 143, 25. 6. 1968, p. 6) and to the interpretation of
Regulation No 1048/71 of the Council of 25 May 1971 (OJ L 114, 26.5. 1971, p. 10), amending the abovementioned Regulation and. especially
Article 12.
2 The rules on the common organization of the market in sugar provide for the
grant of export refunds for white sugar to cover the difference between the
prices on the world market and those within the Community, and the advance fixing, for a specified period, of the refund to be paid equal to that valid on the day of the application for advance fixing.
In its original wording, Article 12 provided that, if an alteration in the
intervention price occured during the interval between the fixing of the refund
under a tender and the actual exportation, the amount fixed for the refund
was to be adjusted on the basis of that alteration.
The said Regulation No 1048/71, which entered into force on 27 May 1971, amended the said Article 12 to the extent that, if during the said period the prices for sugar or molasses were altered, 'an adjustment of the amount of the refund may be made'.
3 It can be seen from the file that the plaintiff in the main action obtained on 1 February and 5 May 1971 three advance fixing certificates for the exportation
WESTZUCKER v EINFUHR- UND VORRATSSTELLE ZUCKER
of white sugar, valid variously until 31 July and 31 August 1971 and
containing the phrase 'subject to Article 12 of Regulation No 766/68', and
requested that the refund fixed in advance be increased on the basis of the
increase in the intervention price brought in on 1 July 1971 under Regulation No 1061/71 of the Council of 25 May 1971 (OJ L 115, 27. 5. 1971, p. 17).
On this action being brought before it, the Finanzgericht drew up the three questions which it has referred.
As to the first and second questions
4 It is asked whether Regulation No 1048/71 must be interpreted as meaning that the new Article 12 of Regulation 766/68 applies to the case where an
export licence has been issued before 27 May 1971 (the date of the entry into force of the new wording), and also where exportation has been carried out
after 1 July (the date of the entry into force of the increase in the intervention prices).
5 According to a generally accepted principle, the laws amending a legislative provision apply, unless otherwise provided, to the future consequences of
situations which arose under the former law.
Consequently the amendment to Article 12 of Regulation No 766/68 applies notonly to advance fixing certificates issued after its entry into force, but also to those certificates issued before such date inasmuch as the intended
exportation had not yet taken place and an adjustment of the intervention
price had not been made.
6 It is asked in the second question whether Regulation No 1048/71, thus
interpreted, infringes a principle of legal certainty by which the confidence of persons concerned deserves to be protected (Vertrauensschutz).
7 It can be seen from the recitals in the Preamble to the Regulation that the
Council, considering the provision for a strict adjustment of the export
refund fixed in advance to be too rigid, replaced the obligatory provision of
the old Article 12 by an optional provision permitting the fixing of an
appropriate adjustment.
JUDGMENT OF 4. 7. 1973 — CASE 1/73
In fact the old Article 12, by providing for an automatic adjustment of the refund fixed in advance to accord with possible increases or reduction.1 s, involved the risk as much of inflicting an unjustifiable loss on exporters, when there was a reduction in the intervention price, as of granting them
there increase in the inter unjustifiable advantages when was an equally vention price.
Subject to certain exceptions, it can be presumed that tenders and
applications for export licences are based, in the first instance, on the goods available to the exporter and the state of the Community market at the time of the tender and the application.
An automatic adjustment as provided for in the old Article 12 was thus liable
to upset both the forecasts which governed the advance fixing of the refund and the calculations of the exporters who were holders of an export licence.
8 Consequently, if it is true that in the case of an alteration of the intervention price between the time when the refund is fixed and exportation is carried out adjustments may be necessary, it is no less true that the optional provision of
the new Article 12 has more regard for the need for stability in trade and in the functioning of the market.
It seems difficult to consider the amendment of a provision, which was
capable, because of its inflexibility, of causing losses or gains for those
concerned, as adversely affecting any established position which they hold.
9 Moreover, in the case particularly of an increase in the intervention price, one cannot claim, as does the plaintiff in the main action, that the old Article 12 conferred on the persons concerned the certainty of profiting from such
increase.
That Article did not exclude a possible application of Article 37 (2) of
Regulation No 1009/67 of the Council, on the common organization of the
market in sugar, which allows the adoption of the requisite provisions to
prevent the sugar market being disturbed as a result of an alteration in the
price levels at the change-over from one marketing year to the next.
It can be seen from the outline given by the Commission that on the adoption of Regulation No 766/68 it was provided that this provision should be applied where necessary to the owners of stock left over from the previous
marketing year in order to deduct in advance the profit resulting from the
increase.
WESTZUCKER v EINFUHR- UND VORRATSSTELLE ZUCKER
The holders of advance fixing certificates had therefore to take into account the possibility that under Article 37 of Regulation No 1009/67 the anticipated
benefits under the old Article 12 would be taken away from them.
10 It must be concluded from this that the Council, by amending Article 12
instead of resorting to the more complex remedy of an application of the said Article 37, did not change intrinsically the position of the persons concerned and there is no reason to consider that Regulation No 1048/71 infringes the
protection of confidence of persons concerned.
11 These conclusions are further confirmed by the circumstances of the case.
In fact, according to the plaintiff in the main action, the export licences which it obtained related to stocks of the Einfuhr- und Vorratsstelle, i.e. to so-called
intervention sugar, subject to the old intervention price, and that, as the
plaintiff could not dispose of this sugar within the prescribed time because of the Einfuhr- und Vorratsstelle, it had to obtain supplies from elsewhere under more disadvantageous conditions, including the obligation to pay for the
sugar delivered after 1 July 1971 on the basis of the new intervention price.
12 If these facts are correct, it follows that the loss claimed to have been suffered
was not caused by reliance on the old Article 12, but by other circumstances.
13 Examination of the second question has therefore revealed no factors leading one to conclude that, by amending Article 12 of Regulation No 766/68, Regulation No 1048/71 has failed to recognize a principle of legal certainty by deserves (Vertrauens which the confidence of persons concerned protection
schutz).
As to the third question
14 There is no need to deal with this question as it is only to be considered in the
case of either a reply in the negative to the first question or a reply in the
affirmative to questions 1 and 2, neither of which is the case.
JUDGMENT OF A. 7. 1973 — CASE 1/73
Costs
15 The costs incurred by the Commission, 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 oral observations of the plaintiff 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 Regulation No 1009/67 of the Council of 18 December
1967, especially Article 37; Having regard to Regulation No 766/68 of the Council of 18 June 1968, especially Article 12; Having regard to Regulation No 1048/71 of the Council of 25 May 1971; Having regard to Regulation No 1061/71 of the Council of 25 May 1971; 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;
THE COURT
in answer to the questions referred to it by the Finanzgericht of Hesse, by order of that Court dated 27 December 1972, hereby rules:
1. The amendment of Article 12 of Regulation No 766/68 of the Council
of 18 June 1968 by Regulation No 1048/71 of the Council of 25 May 1971 applies not only to advance fixing certificates issued after its
entry into force, but also to those issued before that date to the extent that the exportation in question had not yet taken place.
2. Examination of the second question posed has not revealed any factors leading one to conclude that, in so doing, Regulation No
WESTZUCKER v EINFUHR- UND VORRATSSTELLE ZUCKER
1048/71 has failed to recognize a principle of legal certainty by which the confidence of persons concerned deserves protection.
Lecourt Monaco Pescatore
Donner Mertens de Wilmars Kutscher
Ó Dálaigh Sørensen Mackenzie Stuart
Delivered in open court in Luxembourg on 4 July 1973.
A. Van Houtte R. Lecourt
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 6 JUNE 1973 <apnote>1</apnote>
Mr President, in the field of sugar are laid down in Regulation No 766/68 of the Council Members of the Court, (OJ L 143, 25. 6. 1968, p. 6). Of these
In the reference for a Article 4 must be first mentioned. It preliminary ruling I provides that the refund may be fixed case, on which shall comment today, we are dealing with the question of grant by a tender. Such a tender is invited by of refunds on exports of white sugar to the competent authorities of the Member
third countries. States in accordance with an instrument binding in law in all Member States It will help in understanding the case if I which lays down all relevant terms (inter make the following preliminary remarks: alia time limits for the submission of As is known, Article 17 of Regulation tenders). On the basis of the tenders No 1009/67 on the common filed, the maximum amount of the organization of the market in sugar (OJ refund is fixed by the Management com
308, 18.12.1967, p. 1) provides that in mittee procedure known to already us
order to facilitate the export of'inter alia' from other cases. If the refund indicated white sugar on the basis of the world in the tender does not exceed the market prices, the difference between then the refund fixed maximum, these prices and prices within this (pursuant to Article 4 of Regulation Community may be covered by a refund. 766/68) shall be equal to the refund
The general rules for refunds on exports indicated in the tender in question.
1 — Translated from the German.