C-109/82

J U D G M E N T OF T H E C O U R T (THIRD CHAMBER) 27 J A N U A R Y 1 9 8 3 '

Interagra SA v Fonds d'Orientation et de Régularisation des Marchés Agricoles (FORMA) (reference for a preliminary ruling from the Tribunal Administratif, Paris) (Export certificates — Conditions of issue)

Case 109/82

Agriculture — Common organization of the markets — Milk and milk products — Export certificates with advance fixing of refunds — Day of issue — Concept — Exports in connection with invitations to tender opened in an importing non-member country — Date of issue — Concept (Regulation No 2044/75 of the Commission, Arts 3 (3) and 6)

It appears from the context in which the the day on which the export certificate is concepts of day of issue and date of issue granted and the second to the day from are used in Articles 3 (3) and 6 which the period of validity of the certi- respectively of Regulation No 2044/75 ficate granted must be calculated. on special detailed rules for the Consequently, there is no contradiction application of the system of import and between those two provisions and Article export licences and the advance fixing of 6 cannot be considered to be an refunds in respect of milk and milk exception to the rule laid down by products that the first concept relates to Article 3 (3).

In Case 109/82

o n the interpretation of Articles 3 (3) and 6 of Regulation ( E E C ) N o 2 0 4 4 / 7 5 of the Commission of 25 July 1975 on special detailed rules for the application of the system of import and export licences and the advance fixing of refunds in respect of milk and milk products,

T H E C O U R T (Third C h a m b e r )

composed of: U . Everling, President of C h a m b e r , Lord M a c k e n z i e Stuart and Y. Galmot, Judges,

Advocate General : P. V e r L o r e n van T h e m a a t Registrar: H . A. Rühi, Principal Administrator

gives the following

JUDGMENT

On 17 November 1980 Interagra In that action Interagra argued that in answered the invitation to tender by the case of applications for certificates submitting a tender for 25 000 tonnes of lodged in connection with an invitation butter in reliance on the refund fixed in to tender opened in a non-member advance by Commission Regulation No country it is not Article 3 (3) of Regu- 2943/80. On the same day Interagra lation No 2044/75 which is applicable submitted an application to the Fonds but Article 6 of that regulation which d'Orientation et de Régularisation des provides that the export certificate is to Marchés Agricoles [Agricultural Markets be valid from the day on which the Guidance and Stabilization Fund, here- application was lodged, which, according inafter referred to as "the Fund"] for an to Interagra, means that the certificates advance-fixing certificate for 25 000 ought to have been issued by the Fund tonnes of butter and indicated that its notwithstanding the Commission's de- application was to be considered in cision suspending advance fixing after its connection with Prodintorg's invitation application was lodged. to tender. Faced with those conflicting interpret- ations the Tribunal Administratif, Paris, On 19 November 1980 Interagra agreed decided, by judgment of 16 February to Prodintorg's request to extend the 1982, to reserve judgment and submit the validity of its tender to 20 December following question to the Court of 1980. Justice for a preliminary ruling:

Article 3 (3), so as to prevent the In Interagra's view, if Article 3 (3) does application of the 'special measures' indeed constitute an exception to the referred to in the latter provision?" general rules governing the issue of cer- -tificates for milk products, it must not be forgotten that Article 6 constitutes another exception, in the case of tenders, The order for reference was registered at to those general rules. In fact, it appears the Court on 24 March 1982. from the general scheme of Regulation No 2044/75 that the provisions relating to tenders (Articles 5 to 10) derogate in toto from Articles 1 to 5 laying down In accordance with Article 20 of the general rules on import and export Protocol on the Statute of the Court of licences and certificates and advance Justice of the European Economic fixing of refunds. Community written observations were lodged by Interagra SA, represented by Xavier de Roux and Charles-Henri As far as the Commission's interpretation Léger of the Paris Bar, by the Fund, is concerned, Interagra points out that represented by Philippe Villey of the the Court of Justice has consistently held Paris Bar, by the Commission of the that the interpretations which the European Communities, represented by Commission provides to national auth- François Lamoureux, a member of its orities are for guidance only and are not Legal Department, acting as Agent, and binding. by the French Government, represented by François Bersani, Deputy Secretary General at the Inter-Ministerial Interagra also contends that it is clear Committee for Matters of European from the spirit of Articles 3 (3) and 6 of Economic Cooperation. Regulation No 2Ö44/75 that Article 6 must prevail Over Article 3 (3) and that the Commission itself has confirmed this view in adopting Regulation No 3137/80 Upon hearing the report of the Judge- of 4 December 1980 (Official Journal, Rapporteur and the views of the 1980, L 329, p. 20). Advocate General the Court decided to open the oral procedure without any preparatory inquiry and to assign the As regards the spirit of those provisions, case to the Third Chamber. Interagra points out that the aim of Article 3 (3) of Regulation No 2044/75 is to enable the Commission to suspend the advance fixing of refunds in the· event of speculation or the threat of II — S u m m a r y of the obser- speculation, a risk which does not occur vations submitted to t h e in the case of tenders. In those cases the Court rule in Article 6, to the effect that certificates are always issued on the day on which the application is lodged, is particularly well-suited to invitations to Interagra disputes first of all that Article tender to which traders are often asked 3 (3) of Regulation No 2044/75 must to reply within a very short time, apply rather than Article 6 of that sometimes on the same day, which is regulation because it is à special rule incompatible with the obligation to wait derogating from that article and because for a period of five days, as Article 3 (3) that is the Commission's opinion. of that regulation requires.

In Interagra's view Regulation No As regards the substantive scope of those 3137/80 does not accord with the two articles, the Commission argues that Commission's aim at all. Instead, as the whereas Article 3 (3) deals with the "date of validity" of certificates, it waiting period for the export certificate substitutes for the day on which the Article 6 deals with how the period of application is lodged the fifth working validity of that certificate is determined. day thereafter. This confirms that until then the "date of validity" was that on which the application was lodged and The Commission sets out in detail the that by means of the new rules the rules on the period of validity and Commission wished to amend Regu- distinguishes between products which are lation No 2044/75 retroactively in order subject to the waiting period provided to impose its interpretation according to for in Article 3 and which are, or are which Article 3 (3) of that regulation not, to be exported in connection with prevails over Article 6. an invitation to tender and products which are not subject to the waiting period and which are, or are not, to be In conclusion Interagra proposes that the exported in connection with an invitation Court should reply to the question to tender. submitted by the Tribunal Administratif, Paris, as follows: In the Commission's view, Interagra is in fact confusing the preliminary question "In view of the wording of Regulation of the right to the issue of the certificate, No 2044/75 on 17 November 1980, in which is governed in particular by Article

3 (3) of the regulation, with that of the purposes of Article 3 (3) and Article 6 of period of validity of the certificate once Regulation No 2044/75 are different. it has actually been issued. According to the Fund, Article 3 (3) fixes the date on which the competent intervention agency must decide whether As regards the amendments made to the conditions for the issue of the export Regulation No 2944/75 by Regulation certificate fixing the refund in advance No 3137/80, the Commission adheres to are statisfied whereas Article 6 fixes the and repeats the explanations which it start of the period of validity of the provided in Case 217/81, according to certificate if, on the date stipulated in which the aims of the amendment were Article 3 (3), the conditions for the grant first to remove a difficulty of interpret- of the certificate are fulfilled. ation inherent in Regulation No 203/80 and secondly to provide for a transitional measure in connection with the In conclusion the Fund asks the Court of implementation of Regulation No Justice to answer the question submitted 3015/80. In the Commission's view, by the Tribunal Administratif, Paris, to there is no way in which that the effect that there is no contradiction amendment, which relates to the term of between the general rule contained in validity of a certificate, can be construed Article 6 of Regulation No 2044/75, as extending the waiting period for fixing, in the case of an invitation to applications for certificates lodged in tender opened in a non-member country, connection with invitations to tender as the start of the period of validity of the that period already applied to such certificate, and the specific rule, applications from the time when the applicable only to certain milk products, system of advance fixing was introduced including butter, laid down by Article 3 by Regulation No 445/77 of 2 March of the same regulation requiring account 1977 (Official Journal, 1977, L 58, to be taken of special measures (like the p. 21). suspending of the advance fixing of the refund) adopted by the Commission between the day on which the The Commission consequently proposes application for the export certificate was that the questions submitted by the lodged and the fifth working day Tribunal Administratif, Paris, should be thereafter. answered in the following manner:

Decision

1 By j u d g m e n t dated 16 February 1982 which was received at the C o u r t on 24 M a r c h 1982 the Tribunal Administratif [Administrative C o u r t ] , Paris, referred to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y a question on the interpretation of Articles 3 (3) and 6 of Regulation (EEC) N o 2 0 4 4 / 7 5 of the Commission of 25 July 1975 on special detailed rules for the application of the system of import and export licences and the advance fixing of refunds in respect of milk and milk products (Official Journal, 1975, L 213, p. 15).

2 T h e question was raised in an action brought by Interagra SA before the national court for the annulment, on the ground of misuse of powers, of the decision of the Fonds d'Orientation et de Régularisation des Marchés Agricoles [Agricultural Markets Guidance and Stabilization Fund, herein- after referred to as " t h e F u n d " ] of 28 N o v e m b e r 1980 by which the Fund declared that in view of Commission Regulation N o 2 9 9 3 / 8 0 of 19 N o v e m b e r 1980 suspending advance fixing of refunds on exports of butter and butter-oil (Official Journal, 1980, L 310, p. 18) the application for an advance-fixing certificate lodged by Interagra on 17 N o v e m b e r 1980 had become devoid of purpose by virtue of Article 3 (3) of Regulation N o 2044/75.

3 T h a t application of Regulation N o 2 0 4 4 / 7 5 was challenged by Interagra before the Tribunal Administratif, Paris, and prompted that court to submit the following question to the C o u r t of Justice:

6 Interagra contended, however, that the rule in Article 3 (3) of Regulation No 2044/75 does not apply in the case óf invitations to tender opened in an importing non-member country for which Article 6 of the same regulation lays down, so it contends, a special rule concerning the issue of' certificates.

7 Article 6 of Regulation N o 2044/75 provides that in the case of exports in connection with art invitation to tender opened in ä non-member country the export certificate is to be valid from its day of issue within the meaning of

INTERAGRA v FORMA

Article 9 (1) of Regulation (EEC) No 193/75. Article 9 (1) of Regulation No 193/75 states that for the purpose of determining their period of validity licences or certificates are to be considered to have been issued on the day on which the application for them was lodged, that day being included in the calculation of such period of validity.

s It is clear from the very words used in Article 9 (1) of Regulation No 193/75 that the date of issue used for the purpose of determining the period of validity of a certificate is deemed to be the date on which the application for a certificate was lodged and that that date may be different from the date on which the certificate was actually granted or that on which the certificate was physically delivered to the exporting undertaking.

9 It thus appears from the context in which the concepts of day of issue and date of issue are used in Articles 3 (3) and 6 respectively of Regulation No 2044/75 that the first concept relates to the day on which the export certi- ficate is granted and the second to the day from which the period of validity of the certificate granted must be calculated. Consequently, there is no contradiction between those two provisions and Article 6 cannot be considered to be an exception to the rule laid down by Article 3 (3).

On those grounds,

T H E C O U R T (Third Chamber),

in answer to the question submitted to it by the Tribunal Administratif, Paris, by judgment of 16 February 1982, hereby rules:

On 17 November 1980 Article 3 (3) of Regulation 2044/75 applied to all applications for export certificates fixing in advance the refund on the products falling under subheadings 04.02 A II (b) 1, 04.02 B I (b) 2 (aa) and 04.03 (skimmed-milk powder, butter and butter-oil), including applications for such certificates lodged in connection with an invitation to tender opened in an importing non-member country.

Everling Mackenzie Stuart Galmot

Delivered in open court in Luxembourg on 27 January 1983.