C-276/82

In Case 276 / 82

REFERENCE to the Court of Justice under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry] for a preliminary ruling in the proceedings pending before that court between

1 — Language of the Case: Dutch.

JUDGMENT OF 27. 10. 1983 — CASE 276/82

Roomboterfabriek " DE beste boter " BV, Best,

and

JUDGMENT

Facts and Issues

The facts and procedure in the main duktschap voor Zuivel, the defendant in proceedings and the observations sub­ the main proceedings, for the issue of mitted under Article 20 of the Protocol export certificates and for the advance on the Statute of the Court of Justice of fixing of refunds in respect of invitations the EEC may be summarized as follows: to tender from:

The Soviet Union, for 10 000 tonnes of butter-fat (tariff heading No 04.03 ex b I — Facts and written procedure 11) and 25 000 tonnes of butter (tariff heading No 04.03 ex a lv); 1. Background and proceedings before the national court Cuba, for 9 000 tonnes of butter;

Portugal, for 400 tonnes of butter. The limited liability company Room- boterfabriek " De beste boter" BV, žhe plaintiff in the main proceedings, applied By circular No EEC 958 of 20 No­ on 17 November 1980 to the Pro- vember 1980, the defendant in the main

DE BESTE BOTER v PRODUKTSCHAP VOOR ZUIVEL

"The European Commission has decided It is also based on an interpretation to suspend the possibility of advance which is contrary to the principle of legal fixing in respect of refunds on exports of certainty, mainly on the ground that the butter and butteroil (tariff heading No possibility of advance fixing of refunds 04.03) to non-member countries for the assures exporters to a certain extent of period from 20 to 27 November 1980. stable refunds. That basic rule may be derogated from only in exceptional This means that applications for advance circumstances to which certain limits fixing submitted between 17 and 19 November 1980, which would, upon the have expressly been set.

2. Community legislation applicable January 1981 the plaintiff brought an action before the College van Beroep voor het Bedrijfsleven [administrative Regulation (EEC) No 804/68 of the court of last instance in matters of trade Council of 27 June 1968 on the common and industry] against the defendant's organization of the market in milk and refusal to grant its applications for the milk products (Official Journal, English advance fixing of the export refunds. Special Edition 1968 (I), p. 176) lays

Article 5 (2) provides that applications for certificates of the latter regulation provides that the accompanied by applications for advance amount of the export refund is to be that fixing lodged during the period of applicable on the day of exportation and, suspension are to be rejected; in order to assure exporters to a certain extent of stable refunds, the first and The contested decision is based on an second subparagraphs of Article 5 (3) interpretation of Regulation No 2044/75 provide as follows:

"It may be decided that the refund shall application of the system for the advance be fixed in advance. In such a case, the fixing of refunds in respect of milk and export refund applicable on the day on milk products, including butter and which the application for the export butter-oil. By way of exception to the certificate is lodged shall be applied, if general rule, according to which export the party concerned so requests at the certificates are issued at the time when same time as the application for the certi­ the application is lodged, Article 3 (3) of ficate is made (the request to be made that regulation provides that export certi­ not later than 13.00 hours), to exports ficates for the above-mentioned products effected during the period of validity of "shall be issued on the fifth working day the certificate." following that on which the application is lodged, unless special measures are Those general provisions on the advance taken in the intervening period". fixing of export refunds were supple­ mented by the general provisions gover­ ning the suspension of the application of 3. Taking the view that those argu­ the arrangements for advance fixing; ments raise several issues of Community those provisions are embodied in Article law, the national court referred to the 9 of Regulation (EEC) No 2429/72 of Court of Justice the following questions the Council of 21 November 1972 for a preliminary ruling: (Official Journal, English Special Edition 1972 (November), p. 48), which adds a " 1 . Must Article 3 (3) of Regulation further paragraph (4) to Article 5 of (EEC) No 2044/75 of the Regulation No 876/68 worded as Commission of 25 July 1975 be follows : interpreted as meaning that the expression 'special measures' in­ "When examination of the market cludes a decision suspending the situation shows that there are difficulties possibility of advance fixing of due to the application of the provisions refunds pursuant to the provisions of concerning the advance fixing of the Regulation (EEC) No 876/68 of export refund, or that such difficulties 28 June 1968. may occur, a decision may be taken, in accordance with the procedure laid down in Article 30 of Regulation (EEC) 2. If the first question is answered in No 804/68, to suspend the application of the affirmative, does a correct these provisions for the period strictly interpretation of Article 3 (3) entail necessary. the rejection of applications for advance fixing which were submitted In cases of extreme urgency, the before the period of suspension but Commission may, after examination of on which a decision must be taken the situation, decide on the basis of all during that period? the information available to it to suspend advance fixing for a maximum of three days. 3. If the second question is also answered in the affirmative, must the Applications for certificates accompanied view be taken that Article 3 (3) is in by applications for advance fixing lodged conflict with Community law, in during the period of suspension shall be particular with Article 5 (4) of Regu­ rejected." lation (EEC) No 876/68 of the Council of 28 June 1968, or with the Regulation (EEC) No 2044/75 lays principle of legal certainty which down special detailed rules for the forms part of Community law?"

By order of 4 May 1983, the Court As regards the first question, the plaintiff assigned the case to the Second Chamber is of the opinion that Community law pursuant to Article 95 (1) and (2) of the does not provide a definition of the Rules of Procedure. expression "special measures". In its view, therefore, reference must be made to the system comprising all the rules Upon hearing the report of the Judge- applicable to the agricultural sector and a Rapporteur and the views of the distinction must be drawn between Advocate General, the Court decided to those which concern the day-to-day open the oral procedure without any management of the organization of the preparatory inquiry. markets and those which are applicable in special circumstances, it being under­ stood that rules relating to the day- to-day management cannot in themselves II — Observations submitted be described as special measures within under Article 20 of the the meaning of Regulation No 2044/75. Protocol on the Statute of Management of the Community market the Court of Justice forms part of the Commission's normal day-to-day responsibilities. It involves not only the regular fixing of refunds but The plaintiff in the main proceedings also, in certain cases, the suspension of maintains in limine that in so far as this the option to have such refunds fixed in case concerns the advance fixing of advance when difficulties arise or refunds in connection with its parti­ threaten to arise. cipation in certain invitations to tender opened in a non-member country, Article 3 (3) of Regulation No 2044/75 The plaintiff therefore proposes that the is not the sole provision applicable and first question shuld be answered as that other provisions are relevant, in follows : particular Article 6 of Regulation No 2044/75 and Article 19 (1) and (2) of "Article 3 (3) of Regulation No 2044/75 Regulation (EEC) No 193/75 of the of the Commission of 25 June 1975 must Commission of 17 January 1975 laying be interpreted as meaning that a decision down common detailed rules for the suspending the possibility of advance application of the system of import and fixing of refunds pursuant to Regulation export licences and advance fixing certi­ No 876/68 of the Council of 28 June ficates for agricultural products (Official 1968 is not to be regarded as a 'special Journal 1975, L 25, p. 10). In its view, it measure'."

If the Court considers it appropriate to contrary to the third subparagraph of answer the second question, the plaintiff Article 5 (4) of Regulation No 876/68, maintains that the answer should be in which provides that applications for the negative on the ground that no advance fixing shall be rejected during express powers to reject applications for the period of suspension. advance fixing submitted before the period of suspension are vested in the The plaintiff observes, secondly, that Commission. Neither Regulation No such an interpretation of Article 3 (3) of 193/75 nor Regulations Nos 804/68 and Regulation No 2044/75 contravenes the 876/68 confer any such powers. On the principle of legal certainty. It points out contrary, the third subparagraph of that the issue of export licences imposes Article 5 (4) of Regulation No 876/68 an obligation on the exporter to export provides that ". . . applications for his goods on pain of forfeiting the advance fixing lodged during the period security provided. Furthermore, by of suspension shall be rejected". In order making it possible to fix refunds in for the defendant to be able to reject advance, Community law seeks to give the applications pending in the present exporters a degree of security as regards case it would have been necessary for the amounts which they will receive Community law to contain express upon exportation of their goods and provisions allowing applications pending exporters obviously conclude their during a suspension procedure to be transactions on the basis of the rate of rejected on the sole basis of such refund in force at the time when they suspension. lodge their application. Accordingly, it would be contrary to the principle of legal certainty if the Commission were If, therefore, the Court considers that able, in connection with the normal the first question must be answered in management' of the common organiz­ the affirmative, the plaintiff proposes ation of a market, to call in question that the second question should be refunds in reliance upon which exporters answered as follows: had assumed commitments. Such a possibility exists only in exceptional circumstances, in connection with the adoption of protective measures within "Article 3 (3) of Regulation No 2044/75 the meaning of Article 21 (1) of Regu­ must be interpreted as meaning that lation No 804/68. applications for the advance fixing of refunds which were submitted before the introduction of a period of suspension pursuant to measures based on Regu­ If, therefore, the Court considers that lation No 876/68 and on which a the second question must also be decision must be taken during that answered in the affirmative, the plaintiff period cannot be rejected." proposes that the third question should be answered as follows:

introduction of a period of suspension The Commission subsequently conducts pursuant to a measure adopted on the a detailed analysis of the Community basis of Regulation No 876/68 and on legislation at issue in this case. It which a decision must be taken during deduces, in particular from Article 5 (4) that period may be rejected." of Regulation No 876/68, that if the system of advance fixing is suspended, no advance-fixing certificates conferring The Commission begins by analysing the a right to receive the refund fixed in reasons underlying the decision to advance may be issued during the period suspend advance fixing. If points out that of suspension.

It is there submitted for a preliminary ruling calls fore quite plain that those applications for an answer in the affirmative. were highly speculative in nature and that to grant the applications pending would have led to totally unacceptable As regards the second question, the consequences both for the common agri Commission is of the opinion that, cultural policy and for the budget. according to the wording and the

obvious intent of the provision in pending in a large number of cases, or in question, applications for the advance most of those cases". fixing of a refund which were pending could not be accepted and had to be The Commission lays particular emphasis rejected altogether if, on the fifth on the purpose of the legislation in working day following that on which the question. It considers that the most application was lodged, the possibility of important argument in favour of its advance fixing had been suspended in suggested interpretation of Article 3 (3) conformity with the first or second of Regulation No 2044/75 and of Article subparagraph of Article 5 (4) of Regu 5 (4) of Regulation No 876/68 is lation No 876/68.

certainly. The Commission therefore concludes that the application of the provisions of (a) In the light of the answer proposed Regulation No 2993/80 in conjunction by it to the second question, the with those of Article 3 (3) of Regulation Commission takes the view the relevant No 2044/75 is not incompatible with part of the third question should in fact Article 5 (4) of Regulation No 876/68. be re-worded as follows: "Is the

It refers once again to the of the opinion that, in any event, there provisions which apply in the present are more important matters than such case and deduces therefrom that Regu problems of interpretation — which it lation No 876/68 determines only the describes as specious — on the ground substance of the right to have a refund that "if a measures is to be effective, it fixed in advance, whilst all other matters, must be possible for the protective in particular the manner in which and measure governed by Regulation No the time at which the right arises, are 876/68 to be extended to applications governed by the detailed implementing

Decision

1 By order dated 12 October 1982, which was received at the Court on 15 October 1982, the College van Beroep voor het Bedrijfsleven [ adminis­ trative court of last instance in matters of trade and industry ] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions as to the interpretation and , if appropriate , the validity of Article 3 (3) of Regulation ( EEC ) No 2044 / 75 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).

JUDGMENT OF 27. 10. 1983 — CASE 276/82

2 Those questions were raised in an action brought before that court by Roomboterfabriek " De beste boter" BV, the plaintiff in the main proceedings, for the annulment of a decision of the Produktschap voor Zuivel [Dairy Board], the defendant in the main proceedings, refusing an application made by the plaintiff on 17 November 1980 for the issue of export certificates with advance fixing of refunds in respect of several invitations to tender opened in non-member countries for the supply of large quantities of butter and butter-oil.

3 The refusal to issue the certificates followed a circular sent by the Produktschap to exporters of milk and milk products informing them that by Regulation (EEC) No 2993/80 of 19 November 1980 temporarily suspending advance fixing of the export refund for butter and butter-oil (Official Journal 1980, L 310, p. 18) the Commission had decided to suspend the advance fixing of refunds on exports of butter and butter-oil to non- member countries from 20 to 27 November 1980. The Produktschap also informed exporters that according to the same decision applications for advance fixing lodged between 17 and 19 November inclusive were also rejected.

3. If the second question is also answered in the affirmative, must the view be taken that Article 3 (3) is in conflict with Community law, in particular with Article 5 (4) of Regulation (EEC) No 876/68 of the Council of 28 June 1968, or with the principle of legal certainty which forms part of Community law?"

First question

6 Article 3 of Regulation No 2044/75 contained on 17 November 1980 a paragraph (3) inserted by Commission Regulation (EEC) No 445/77 of 2 March 1977 supplementing Regulation (EEC) No 2044/75 as regards the advance fixing of the refund for butter (Official Journal, L 58, p. 21) and last amended by Commission Regulation (EEC) No 203/80 of 30 January 1980 (Official Journal, L 24, p. 18) which provided that export certificates for products including butter and butter-oil were to be issued on "the fifth working day following that on which the application is lodged, unless special measures are taken in the intervening period".

7 Since the expression "special measures" is not expressly defined in that provision it is necessary in order to answer the question raised to consider first the purpose of the system of advance fixing of refunds. According to the first recital in the preamble to Regulation (EEC) No 2429/72 of 21 November 1972 concerning the suspension of the application of the provisions for the advance fixing of levies and export refunds in different sectors of the common organization of the market (Official Journal, English Special Edition 1972 (November), p. 48) the system was set up "in the interest of stable trading conditions". The possibility of adopting special measures tends, it is stated, to avoid, "in cases of abnormal resort to this system by the persons concerned, .. . difficulties on the market in question".

Second question

12 Since the first question has been answered in the affirmative it is necessary to consider whether Article 3 (3) of Regulation No 2044/75 also means that applications for advance fixing submitted before the period of suspension but on which a decision had to be taken during that period must be rejected.

13 As to that point it must be observed that it follows from the purpose for which a waiting period in Regulation No 445/77, as amended by Regulation No 203/80, was introduced that an application for advance fixing confers entitlement only if no appropriate measure is adopted during that period in relation to outstanding applications.

DE BESTE BOTER v PRODUCTSCHAP VOOR ZUIVEL

14 It is also clear from all the relevant rules that the main purpose of the decision to suspend advance fixing was to protect the operation of the system of advance fixing of the refund against sudden, massive and very often specu­ lative exports.

15 The effectiveness of such a measure would, however, be severely impaired if the effect of the suspension on applications for advance fixing submitted prior to the period of suspension were different from its effect on applications submitted during that period and if Article 5 (4) of Regulation No 876/68 did not apply to them.

outstanding applications for the issue of export licences may be rejected in the event of a serious disturbance of the market. Next, it should be pointed out that, although Article 5 (4) of Regulation No 876/68 refers only to applications for advance fixing lodged during the period of suspension, the effectiveness of the suspension would be severely impaired if the rule laid down by that provision could not be extended to outstanding applications. It follows that the rejection of such applications is not contrary to Article 5 (4) of Regulation No 876/68.

20 As regards the application of the principle of legal certainty, the first point to be made in this regard is that an application for advance fixing confers only a contingent entitlement since the rules contain the express proviso that "special measures" may be adopted during the waiting period.

21 Secondly, traders in the products in question could not have been unaware that during 1980 advance fixing had already been suspended five times.

22 It follows from those two observations that there were sufficient indications of the uncertainty of the situation on the market in butter and butter-oil in 1980 and that the rejection of outstanding applications is not contrary to the principle of legal certainty.

23 Consequently the answer to the third question should be that Article 3 (3) of Regulation No 2044/75, as interpreted above, is not contrary either to Article 5 (4) of Regulation No 876/68 or to the principle of legal certainty.

Costs

2044// 75 must be interpreted as 2. Article 3 (3) of Regulation No 2044 meaning that applications for advance fixing submitted before the period of suspension but on which a decision is to be taken during rejected;; that period must be rejected

2044// 75 3 . Article 3 (3) of Regulation No 2044 75,, as interpreted above above,, is not contrary either to Article 5 (4) of Regulation No 876 876// 68 or to the certainty.. principle of legal certainty

Bahlmann Pescatore Due

Delivered in open court in Luxembourg on 27 October 1983.

For the Registrar

H . A. Rühl K. Bahlmann Principal Administrator President of the Second Chamber