C-85/78

THE COURT

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

Mannheim, applied on 16 January 1963, an import licence of 16 January on the in accordance with Article 16 (1) of ground of error. Regulation No 19/62/EEC of the On 3 July 1963, the intervention agency, Council of 4 April 1962 on the in accordance with Article 7 (1) of Regu progressive establishment of a common lation No 87/62/EEC of the organization of the market in cereals Commission of 25 July 1962 on the (Journal Officiel 1962, p. 933), to the adoption of detailed rules on import and Einfuhr-und Vorratsstelle für Getreide export licences for cereals and cereal und Futtermittel (Import and Storage products (Journal Officiel 1962, p. 1895) Agency for Cereals and Feeding-stuffs), declared forfeit the security lodged the predecessor of the Bundesanstalt pursuant to the second sentence of fur landwirtschaftliche Marktordnung Article 16 (2) of Regulation No 19/62/ (Federal Office for the Organization of EEC. the Agricultural Markets), having its On 22 August 1963 the intervention offices in Frankfurt am Main, for the agency rejected the objection lodged on grant of a licence authorizing it to 8 July 1963 by Hirsch against that import from France into the Federal decision. Republic of Germany 500 metric tonnes

The conditions fixed the levy at the rate applicable on laid down with regard to the validity of the day on which the application was cancellation on the ground of error are lodged. fulfilled in the present case. On 2 June 1976 the intervention agency This objection lodged by Hirsch was brought a further appeal against the rejected by the intervention agency on 15 judgment of the Hessjscher Verwaltungs February 1963, since no application for gerichtshof before the Bundesverwal advance fixing of the levy had been submitted to it.

JUDGMENT OF 12. 12. 1978 — CASE 85/78

mitted to the Court application for the grant of an import licence under the first sentence of Article 16 (1) of Regu The Bundesanstalt fur landwirtschaftliche lation No 19/62/EEC can be Marktordnung, the appellant on the cancelled and what the effects of further appeal, puts forward in substance such cancellation are be decided the following observations: according to national law? (a) The first question (2) In the event of Question 1 being answered in the negative: Can such The implementation of Community law an application be cancelled under does not in principle exclude the EEC law on the ground of error and application of national law to the extent if so can this be done even where the at least to which the Community legal error is the fault of the applicant? system contains lacunae and does not (3) In the event of Question 2 being definitively govern a specific situation. answered in the affirmative: What The application of principles of general legal consequences has such can

In accordance with Article 20 of the of Justice that the system of licences and Protocol on the Statute of the Court of of securities is intended to guarantee the Justice of the EEC, written observations actual carrying out of the imports (or were submitted on 30 May 1978 by the exports) for which licences have been Commission of the European requested, so as to enable exact Communities, on 6 June by the Bun knowledge of the transactions planned; desanstalt fur landwirtschaftliche Markt

BUNDESANSTALT FOR LANDWIRTSCHAFTLICHE MARKTORDNUNG v HIRSCH

of Article 16 (2) of Regulation No transactions guaranteed by a security and 19/62/EEC, so that it is impossible to is therefore a necessary and appropriate invoke on a supplementary basis rules of means of enabling the competent auth orities to choose the most effective national law relating to cancellation. action on the market in cereals. (b) The second question The instrument for the observation of the market which the licences represent Even supposing that Community law gives reliable results only if the permitted the possibility of the can exceptions to the obligation to import cellation on the ground of error of (or to export) to which the grant of a declarations of intent made by an licence gives rise remain as limited as individual to the authorities, that

As regards the import cannot be envisaged where the system of licences and securities, the importation was not carried out through Court of Justice has held that the importer's own fault as a result of an considerations based solely on the error on his part or by reason of purely interests and conduct of specific under commercial considerations. Thus the takings cannot take precedence over a Community system of licences and system introduced in the public interest securities exhaustively regulates the of the Community. Thus the possibility problems raised in the main action; in of cancellation on the ground of error particular it does not permit further which aims, in addition to the annulment

The reply given to the second question (b) The second question makes it superfluous to adopt a viewpoint on the third question. Although there are no provisions of Community law in this connexion, it is According to Firma Jacob Hirsch & Söhne however necessary to acknowledge that GmbH, the defendant on the further Community law does not exclude the appeal, the reiteration of the principal right of cancellation on the ground of points of fact and the examination of the error since that legal concept is known provisions applicable at that time confirm and applied in at least some of the that its intention was in fact to apply for Member States; the subsequent the grant of an import licence with revocation of a declaration of intent advance fixing of the amount of the levy made in error is a necessity in all legal and that it in no way intended to abuse systems. the right to cancel a declaration of intent made in error. The fact that Community law itself permits the possibility of the retroactive withdrawal of an application for the (a) The first question grant of a licence is confirmed by Article Community law itself requires, for the 5 (3) of Regulation (EEC) No 1373/70 purposes of the grant of an import of the Commission of 10 July 1970 on licence and the advance fixing of the common detailed rules for the

of the knowledge of the imports and depend on the problem of fault. In any exports actually carried out and, on the case the intervention agency cannot have other, of the forecast, based on the suffered any damage in the present case. licences applied for and granted, of It is necessary to reply to the second expected imports and exports. This question as follows: forecast is subject to certain fluctuations because, according to the law in force at An application for the grant of an import licence under the first sentence of Article the time, the licence could be used by 5 % more or less, in other words a 16 (1) of Regulation No 19/62/EEC margin of 10 % was permitted, and may, at least in Community law, be because it was not necessary to use the cancelled on the ground of error where licences in cases of force majeure. The at the same time notice is given of the forecast may also be altered at very short application for the grant of a fresh notice. Licences with advance fixing, licence with the same dates of impor­ which assume an increase in the levy tation, regardless of whether the error when the goods are imported, are usually was or was not the fault of the person drawn up in the long term whereas day cancelling the application, if the licences are applied for in the short term. intervention agency granting the licence The authorities are therefore required to thereby retains a general view of the market. alter their forecasts each day. The can­ cellation of an application for the grant of an import licence lodged in January (c) The third question for an importation planned for April The cancellation of the application has cannot therefore jeopardize the forecast retroactive effect: the situation is then as of the competent authorities as regards if no application at all had been lodged. the development of the market. Normal The application is an essential condition cancellation in good time of an for the grant of the licence so that the application for the grant of a day licence licence is therefore annulled retro­ for an importation planned for a much actively; the rights and duties arising later date is not contrary to the spirit and from it are non-existent. The objective of the objectives of the licence system. the lodging of the security is solely to This is a fortiori so where, as in the ensure that the undertaking to carry out present case, the importer not only the importation during the period of cancels the application for the grant of a validity of the licence is carried out; the day licence but at the same time obligation to lodge the security lapses expresses his intention of applying for a with the obligation to import or, if the licence with advance fixing of the levy security has already been lodged, it and of carrying out the importation at cannot be forfeit. the date originally planned. The grant of The third question must be answered as a licence with advance fixing of the levy follows: instead of a day licence does not affect either the general view of the market The result of the cancellation of an situation or the forecast of expected application for the grant of an import imports and exports. licence under the first sentence of Article

Community law applicable at the time of of the security where the importation the events in dispute and insists that a was not carried out other than those reliable general view of the expected listed by way of example in the second imports (or exports) cannot be achieved paragraph of that provision. The by means of the licence system unless it objective of Article 8 of Regulation No is guaranteed that licences are only 87/62/EEC was to enable fair balancing applied for in respect of transactions of interests in cases in which the per which the importer (or exporter) actually formance of the obligation within the carries out or intends to carry out. required time was prevented by circum As regards the questions referred to the stances which arose only after the grant Court of Justice by the Bundesverwal of the licence.

As this impor obtaining the licence; it invokes math tation was not carried out, the legal consequence was that after the expiry of ematical considerations which prompted it to apply for a licence at all; however, the period of validity of the licence the the licence does not depend on security lodged by Hirsch as a guarantee commercial motives and calculations for the performance of its obligation was forfeit. From the point of view of which caused it to be applied for. To Community law, the question is give an importer the possibility of therefore first whether the German choosing, after lodging the application, intervention agency could or even should

binding effect and the use of which was (a) Forfeiture of the security left entirely to the discretion of the licensee would not enable any reliable Under Article 8 of Regulation No general view to be obtained, even an 87/62/EEC, the German intervention approximate one, of the volume of agency had a margin of discretion, which imports actually expected. was, it is true, wide but in no way unlimited, to take into account, under (b) Cancellation on the ground of error the first paragraph, circumstances which might justify an exception to the The question of cancellation on the obligation to import and to the forfeiture ground of error has not been expressly

broached by Regulation No 87/62/EEC; by the Community rules to the Article 7 (2) of that regulation moreover competent national agencies and enables authorized the Member States to adopt the licensee to compel those agencies to the necessary implementing measures in release the security in cases in which it particular as regards forfeiture of the should, according to the purpose and security. According to the case-law of wording of Regulation No 87/62/EEC, the Court of Justice, however, the be declared forfeit. uniform application of provisions of Community law permits recourse to (c) The replies to the questions submitted national rules only to the extent to the Court for a preliminary ruling necessary for the implementation of the regulations; domestic provisions must not It is necessary to reply in the negative to jeopardize the scope of the authoritative the first two questions referred to the Community regulations. Court by the Bundesverwaltungsgericht. The application of the principles of The third question therefore becomes German law relating to cancellation on purposeless. the ground of error are incompatible with the wording, system and objective of Regulation No 87/62/EEC. III — Oral procedure A licence from which the licensee can The Bundesanstalt für landwirt­ release himself at will merely by claiming that he made a mistake is not likely to schaftliche Marktordnung, the appellant produce a forecast as regards expected on the further appeal, represented by imports which is even to some extent Albrecht Stockburger, Advocate in reliable. Frankfurt am Main, Firma Jacob Hirsch & Söhne GmbH, the respondent on the To attach to the grant of a licence an obligation to import the performance of further appeal, represented by Barbara which is guaranteed by a security would Festge and Fritz Modest, Advocates in only be an empty formality if the Hamburg, and the Commission of the licensee, in order to recover his security, European Communities, represented by needed merely to justify the fact that he its Legal Adviser, Peter Kalbe, presented had not carried out his obligation on the oral argument and replied to the ground that he made a mistake as to the questions put by the Court at the hearing on 11 October 1978. amount of the levies applicable when lodging his application. The Advocate General delivered his To permit cancellation on the ground of opinion at the hearing on 9 November error takes away the discretion granted 1978.

2 It appears from the order for reference that on 16 January 1963 Firma Jacob Hirsch & Söhne GmbH applied to the German intervention agency for a licence for the importation of a consignment of French barley, indicating in its application April 1963 as the date of delivery. In accordance with the applicable provisions laid down in the regulations, a bank guarantee ensured that the import licence applied for would be acted upon. The import licence was granted by the intervention agency on the day following the lodging of the application, in other words on 17 January 1963. Three weeks after obtaining the licence, the undertaking approached the intervention agency with a view to obtaining advance fixing of the levy at the rate in force on the date of its application of 16 January 1963, claiming that it had forgotten to do so at the time when it filled in the application form for the issue of the licence. The intervention agency rejected this request and the undertaking concerned declared by letter of 5 April 1963 that it contested the validity of its first application because of the error which it had made when lodging it. Consequently, it maintains that the import licence granted on the basis of that application is not valid and therefore claims the release of its security. For its part, the intervention agency declared the security forfeit on the date on which it was established that the importation which was the subject- matter of the licence granted had not been carried out within the prescribed period.

3 An application lodged by the undertaking concerned at the Verwaltungs­ gericht Frankfurt for repayment of the security was dismissed by judgment of 10 July 1974. The undertaking appealed to the Hessischer Verwaltungs­ gerichtshof and that court found in its favour on the basis essentially of an analogous application of the rules of German civil law on the cancellation of declarations of intent on the ground of error. The intervention agency brought a further appeal against that decision to the Bundesverwaltungs­ gericht; that court submitted to the Court of Justice the following questions:

6 Regulation No 130/62/EEC subsequently extended that option to imports of certain cereals in intra-Community trade. For this purpose, Article 2 of that regulation provides that the levy applicable where those cereals, including barley, are imported from Member States "is fixed in advance upon request to be made by the person concerned when the application for the licence is lodged in the case of an importation to be carried out during the period of validity of that licence".

7 It follows from a comparison of Article 17 of Regulation No 19/62/EEC, the basic regulation, with the above-mentioned provision of Regulation No 130/62/EEC that the general rule in this matter is the application of the levy in force on the date of the importation, whereas advance fixing appears to be a special benefit which an importer may only obtain at his express request. It

JUDGMENT OF 12. 12. 1978 — CASE 85/78

is therefore for the importer to take the necessary steps to obtain the grant of that benefit if it is in his commercial interests, and the authorities are not bound to grant the benefit of advance fixing unless there is an express request to that effect.

8 The fact that the application for any import licence must be accompanied by a bank guarantee emphasizes that the importer undertakes by his application to comply strictly with the terms of the import document applied for.

9 In view of the continual variations in the rate of the levy, if errors relied upon by traders were taken into consideration it would be possible to call in question unilaterally, on the basis of those fluctuations, the undertakings given by importers and the forecasts which are essential for the purpose of ensuring effective management of the common market in cereals would thus be made completely unreliable.

13 In view of the reply given to the second question, the third question is purposeless.

Costs

14 The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable. Since the proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the Bundesverwaltungsgericht, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundesverwaltungsgericht by Order of 27 January 1978 hereby rules:

Delivered in open court in Luxembourg on 12 December 1978.

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 9 NOVEMBER 1978 1

Mr President, Regulation No 19 provided for levies Members of the Court, even in intra-Community trade owing to The proceedings with which my obser­ the different price level in the Member vations today are concerned involve the States. A person who wished to import application of Regulation No 19 of 4 from other Member States required for April 1972 on the progressive this an import licence which was issued establishment of a common organization upon application and which was valid for of the market in cereals (Journal Officiel several months. In principle the rate of 1962, No 30, p. 933) and of provisions levy applicable on the date of impor­ issued in implementation thereof, in tation was determining. In derogation particular Regulation No 130 of the from this rule, Regulation No 130 Council providing for exceptions to provided for the advance fixing of the Article 17 of Regulation No 19 of the levy with regard to certain products — Council in the matter of advance fixing inter alia barley. If advance fixing of the of the levy on certain products (Journal levy was requested, the rate of levy in Officiel No 106 of 30 October 1962, p. force on the date of the lodging of the 2555) and Regulation No 87 of the application was applied. The licences Commission of 25 July 1962 on the issued not only authorized importation adoption of detailed rules on import and but also imposed an obligation to do so. export licences for cereals and cereal To guarantee this obligation the importer products (Journal Officiel No 66 of 28 had to lodge a security which was July 1962, p. 1895). forfeited if the obligation was not