C-2/75

JUDGMENT OF THE COURT

OF 27 MAY 1975 1

Einfuhr- und Vorratsstelle fur Getreide und Futtermittel

v Firma C. Mackprang

(preliminary ruling requested by the Bundesgrichtsof)

Case 2/75

Reference to the Court for a preliminary ruling under Article 177 of the EEC

Treaty by the Bundesgerichtshof in a case pending before that court between

EINFUHR- GETREIDE FUTTERMITTEL , Frankfurt/ UND VORRATSSTELLE FÜR UND

Main

and

FIRMA C. MACKPRANG­ Hamburg ,

gives the following

JUDGMENT

Facts

The facts and procedure of the case and Federal Republic of Germany tempor­

the observations submitted pursuant to arily to limit its intervention in respect of

Article 20 of the Protocol on the Statute common wheat and of barley to cereals of the Court of Justice of the EEC may harvested in that Member State. be summarized as follows: Identical decisions were at the same time taken in the case of Belgium and the Netherlands. The authorization amounted to a

(OJ L 112 of 9. 5. 1969) authorized the regulation.

EINFUHR- UND VORRATSSTELLE GETREIDE v MACKPRANG

By decree of 17 June 1969, published in not made to the intervention agency 'Bundesanzeiger' the on 19 June 1969, until after that date? the competent Minister, the Federal 2. If so: Minister of Food, Agriculture and

Forestry, confirmed this measure, giving Is the abovementioned Decision of

it a retroactive effect to 9 May 1969 at the Commission valid in respect of

8.45 a.m. such cereals which were already in transit on 2 May 1969? On 6 May 1969 Firma Mackprang, who are cereal merchants, offered to the The order of the Bundesgerichtshof was Einfuhr- Vorratsstelle lots in und eight registered at the Court of Justice on 6 all of common wheat harvested in January 1975. France for intervention. At the same time In accordance with Article 20 of the Firma Mackprang stated that the wheat Protocol on the Statute of the Court of in question was at present at various Justice of the EEC, written observations places in the Federal Republic. In fact were submitted on behalf of the however all the lots were still in transit respondent and the appellant in the main from France to the Federal Republic. action and by the Commission of the

the European Communities of 8 May (OJ No 117 of 19. 6. 1967) according to which the national intervention agencies 1969 — 69/138/EEC set forth in the

Official Journal of the European are obliged to buy in at the intervention Communities 9 1969 price cereals originating in all the of May No L 1 Member States of the EEC. To be 112, p. —

concerning the

authorization granted to the Federal effective the German decree of 17. 6.

Republic limit 1969 would therefore have required a of Germany to

intervention on certain cereals valid valid basis in Community law. in harvested In the Einfuhr- respect of cereals the opinion of und

When previously faced with questions of protective measures having a retroactive effect. In this way the Commission Community law raised by the cessation showed that the confidence of of intervention measures the Court gave undertakings as to the validity and the judgments in Cases 50/71 (Rec. 1972, continuation of Articles 4 and 7 of p. 53) and 72/72 [1973] ECR 377 Regulation No 120/67 was entitled to interpreting in particular questions

for protection. Besides, on the basis of the concerning the term 'offer Courts' intervention' judgment in Case 13/63 [1963] and the conditions required ECR 165, the Commission had been for Article 226 of the EEC Treaty to aware of its obligation to limit its apply. intervention, in the event of the However, the Court has never as yet application of Article 226 of the EEC been faced with the question of Treaty, to measures that were strictly interpretation and validity of Article 1, necessary and preferably to adopt second of the said Decision paragraph, measures causing the least disturbance to of the Commission, according to which the functioning of the common market. the Decision does not apply to cereals Finally, the Commission cannot have offered for intervention before the lost sight of the fact that Regulation No coming into force of the Decision. Regulation No 120/67, which repealed

Accordingly, it will be necessary to 19/62, represents an important step determine whether the Commission towards a common market by abolishing intended also to allow the exclusion intra-Community barrriers. In order to

years later, gave to the term 'offer'. In measures to trade with third countries.

other words, it is necessary to determine Even if the lastmentioned treatment had whether the Decision of 8 May 1969 had not excluded the application of Article also provided that the goods must physi­ 226 of the Treaty, the link between the cally be in the warehouse accepting aforementioned regulations makes it responsibility at the time of the offer, or obvious that Regulation No 120/67 whether the Commission had considered could not authorize protective measures

it sufficient for the goods to be in transit within the Community which were wider to a warehouse accepting responsibility. than those permitted by the previous If the aforementioned provision had to regulation. Article 22 (2), second

be interpreted as meaning that the paragraph, of Regulation No 19/62, Commission had intended to exclude however, had in express terms from intervention goods that were in prohibited the application of protective

transit, this would give rise to another measures to goods in transit. Bearing in question, viz, whether so wide an mind the fact that Regulation No 120/67 authorization is compatible with the had not intended to create greater

principle of proportionality recognized possibilities of interference than the

in it the principle of proportionality. The exempting goods whilst transit, could not have understood the term aforementioned provisions must be 'offer' in in it interpreted and applied in a strict the sense which was

defined Court manner, all the more so at a time when subsequently by the of

Justice. For if 'offer' within the the principle of free movement of goods meaning of the Decision always presupposes the within the Community applies without

restriction to the goods in question. delivery of goods to the warehouse

in transit Under these circumstances if it were to accepting responsibility, goods 'offered' have been grant an authorization to take protection could never within

this The measures in relation to operations which the meaning of provision.

allow a posteriori conclusions to be French cereals in transit to the Federal drawn as to the Commission's intention. Republic from the benefit of intervention. On the contrary, one must proceed from At the time of coming into force of the

the fact that the Commission at that time said Decision the of cereals in quantity knew Einfuhr- the practice of the und question amounted at the most to 12 000 Vorratsstelle which consistently accepted metric tons. These quantities of cereals

goods in transit for intervention did not threaten the market since such

provided these were subsequently represents a minute frac­ quantity only delivered to warehouses accepting tion of the total amount of cereals which

responsibility which were determined each month arrive in the Federal Republic beforehand. Had the Commission from France. intended to prohibit this practice and to It is precisely in connexion with lots in maintain as the decisive criterion the transit that the confidence of traders is actual delivery of goods, than it ought to entitled to protection. They purchased have said so expressly in Article 1, cereals before the date of the Decision second paragraph, of its Decision. relying on the continued existence of

If one interprets the Decision as meaning Articles 4 and 7 of Regulation No that the Commission wanted to apply 120/67. The importers were therefore

are excessive in relation to the objects Since the respondent had consigned and

Einfuhr- pursued (Ubermaβverbot) and is not offered to the und Vorratsstelle

JUDGMENT OF 27. 5. 1975 — CASE 2/75

all the lots in question in this action Regulation No 120/67 wheat and barley before 8 May 1969 — certain lots were which had entered Germany in the

already in transit on 2 May 1969 — circumstances referred to (Official these lots cannot be affected by the Notice). From these facts alone one

protection measures. could already conclude that cereals

Einfuhr- compulsory intervention so as to prevent The und Vorratsstelle, the speculation on the difference in appellant in the national proceedings, intervention prices following upon the considers that two points, above all, are fall in the value of French currency. It is of importance when interpreting Article the raison d'etre of the intervention 1 of the Commission's Decision of 8 1969. system —

having regard to the May regionalization of prices — to provide

Firstly, one must bear in mind the producers with a market for their cereals economic background resulting in this at reasonable prices where there are no Decision. Secondly, one must know to markets available providing normal what extent one can speak of an profit margins. effective offer to intervention before the The appellant to the Court's coming into force of refers that Decision. Since the fall in the value of the French franc case-law on the interpretation of Article in 1 (1) of Regulation No 132/67 of the which took place Spring 1969 allowed French Council of 13 June 1967 (OJ No 120 of cereal merchants to re-sell their

in 21. 6. 1967). In Case 49/71 (Rec. 1972, cereals Germany with an appreciable

profit on this resulted in p. 23) the Court declared that exchange, massive of below intervention agencies must take offer cereals at prices

the intervention price expressed in precautions to ensure that there is no

to be to from difference francs and German Marks respectively. able profit the

between the intervention price expressed It therefore was necessary to release the in French francs German Marks and Federal Republic of Germany from the respectively. in obligation to purchase all those cases

In these circumstances the Commission where an effective offer to intervention authorized the Federal Republic of had not yet been made. The very Germany to take the necessary protective purpose of the Commission's Decision measures. In order to adopt a measure was to prevent French cereals being that would involve the least disturbance transported to Germany with a view the

to functioning of the Common solely to their being brought into Market the Commission granted intervention. Pursuant to Regulation No authorization to exclude from the 120/67 of the Council the purpose of

purchase: under Article 7 (1) of intervention is to stabilize the markets

EINFUHR- UND VORRATSSTELLE GETREIDE v MACKPRANG

that under normal conditions and question posed by the Bundesgerichtshof applying Regulation No 120/67, cannot be concerned with the validity of so-called floating 'goods are not allowed the Decision of 8 May 1969, this validity to be offered to intervention, given the not being in doubt since the judgment fact difficul­ that exceptional economic given by the Court of Justice in Case ties had brought about this Decision. 72/72. The present questions rather bear

In Case 49/71 it has already been stated on the correct interpretation of Article 1, second of the said Decision. by the Court that Regulation No 132/67 paragraph, imposes a binding duty upon It appears from this provision that it was

intervention agencies, for reasons intended to exclude from the limitation connected with as efficient and as on purchase those transactions in respect economical an organization of the of which the general obligation to

intervention system as possible, at any intervene and to purchase had already in rate to verify whether the marketing the case of the offeror crystallized into a

centre chosen is one of the three centres subjective right entitled to protection, to

nearest to the place where the cereals are have his goods purchased and taken in when the offer is made. Moreover, in the charge by the intervention agency.

Article provisions in force. conformity with 1, second

paragraph, of the Decision of 8 May The respondent as from 6 May 1969 1969 cereals which at the date of the offered to intervention lots of cereals not Decision were still in transit could not yet in the specified warehouses of the

JUDGMENT OF 27. 5. 1975 — CASE 2/75

intervention agency but in transit at an This guaranteed legal situation must

unknown place. At that moment the relate to infringements of a particularly offers did not bind the appellant since serious nature. A protection of legitimate they were contrary to the provisions expectation is not possible against

relating to the intervention system. The changes in the legal situation which are 'offer' definition of the term given by the to be expected in the light of the

not confer any legal position upon him. In draw the present case one can the Had the respondent maintained his following conclusions: offers these could have become effective Article 7 (1) of Regulation No 120/67 and bound the appellant at the moment imposes on intervention agencies when the lots of cereals in question throughout the marketing year the reached the prescribed warehouses. In obligation to buy in at fixed prices order to come within the provisions of cereals which comply with the conditions Article 1, second paragraph, of the laid down. The guaranteed market and Decision of 8 May 1969 this would price which this provision provides for necessarily have had to be before 8 May producers was not discontinued by the 1969 at 6.40 p.m. This is a question of authorizing Decision of the Commission. fact to be decided by the competent On the contrary, the Decision had the national courts. ef­ purpose and effect of restoring the The circumstances of the national ficacy of the intervention system in Ger­ proceedings give rise to the further many and continuing there the guarantee question whether, for reasons connected of intervention. The respondent in the with the 'protection of legitimate national was not deprived proceedings expectation'

one ought to treat the from of the possibility of benefiting respondent as if it had in fact offered the intervention. It have offered its could lots of cereals in question in good time, in France French cereals acquired to the so as not to be affected by the intervention agencies. limitations placed upon interventions. The possibility of offering to the Since the judgment given by the Court of intervention agencies in a Member State Justice in Case 1/73 [1973] ECR 723 wheat harvested in another Member there is no doubt that the principle of State in no amounts to an way protection of legitimate expectation may independent guarantee intended for the

by the guaranteed marketability sufficiently protected by the fact that the provided by the intervention system. It is Commission had to respect the

not reasonable to allow this system tc conditions provided for under Article 'intervention having 226 EEC in fact did trade'

guarantee an of the Treaty and

no other purpose than to exploit the so.

obligation to purchase so as to make a Accordingly, it is not necessary to extend profit on exchange rates. the exception under Article 1, second

After 2 May 1969 it was certain that a of the Decision paragraph, authorizing solution to the problems bearing down to invalid offers affecting cereals in on the cereal market in Germany was transit, and to do so would have been being sought at Community level and contrary to the terms of that provision. that a limitation of intervention in favour of home-grown cereals was being sought. Whoever continued in these

Bundesgerichtshof has referred to the Court under Article 177 of the EEC

Treaty the question whether Decision No 69/138/EEC of the Commission of 8 May 1969 authorizing the Federal Republic of Germany to limit its interventions (OJ L 112, p. 1) is valid in respect of cereals to certain cereals

harvested in other of the Community which on 8 May 1969 Member States were already in transit to the Federal Republic of Germany and in respect

of which an offer in proper form was not made to the intervention agency

until after that date.

The Bundesgerichtshof goes on to ask whether, if so, the abovementioned

3 The intervention system was set up with a view to guaranteeing to pro­

ducers, having regard to the regionalization of prices, a market for their

cereals at reasonable prices where there are no markets available providing normal profit margins.

Whilst Article 1 (1) of Regulation No 132/67 provides that all offers for intervention shall be made to an intervention agency in respect of a market­

ing centre chosen from among the three centres nearest to the place where

the cereals are when the offer is made, it assumes that at the place where

Community which at that time were in transit to the Federal Republic of Germany is in accordance with the purposes of the intervention system and does not, as was argued by the respondent in the national proceedings, constitute an infringement of the principle of protection of legitimate expecta­

tion of the individual, but a justified precaution against purely speculative

activities.

Besides, such an application does not withhold from the cereals in question

the benefits of the intervention system, since an offer to intervention at the

marketing centres of the Member State where the cereals were at the time

a step in the action pending before the national court, costs are a matter

for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Bundesgerichtshof by an

order of that court dated 31 October 1974, hereby rules:

A. Van Houtte R. Lecourt

Registrar President