C-199/86
ECLI:EU:C:1987:496
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RAIFFEISEN v BALM
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 18 November 1987 *
Mr President, (b) has been challenged in accordance with Members of the Court, national law and has therefore not become definitive
1. The Bundesverwaltungsgericht has may not be annulled although it would be referred to the Court six questions on the annulled under the provisions of national consequences of the Court's declaration that law on the ground that Council Regulation Council Regulation No 563/76 of 15 March No 563/76 is invalid. 1976 on the compulsory purchase of skimmed-milk powder held by intervention agencies for use in feedingstuffs (Official 5. I share the view of the plaintiff in the Journal, L 67, p. 18) is invalid, especially in main proceedings and the Commission, who relation to the annulment of a demand for propose that that question should be the provision of security made on the basis answered in the negative. of the regulation declared invalid and the release of the security. 6. There is no such rule under either the general principles of Community law or 2. In its request for a preliminary ruling the Regulation No 563/76. The judgment in national court makes several references to International Chemical Corporation is silent the judgment of the Court of 13 May 1981 on the question whether demands for the in Case 66/80 International Chemical provision of security made on the basis of Corporation v Amministrazione delle Finanze Regulation No 563/76, which has been dello Stato [1981] ECR 1191. declared to be invalid, may be annulled.
7. B — The Bundesverwaltungsgericht's 3. With regard to the answer to be given to second question seeks to determine whether the first three questions I agree to such an there is a rule of Community law to the extent with the Commission that I should effect that security lodged pursuant to a like to make only three brief observations and otherwise refer to the Commission's demand which arguments. (a) was made on the basis of Council Regu lation No 563/76, and 4. A — The first question seeks to determine whether there is a rule of Community law to the effect that a demand for the provision (b) has been challenged in accordance with of security which national law and annulled on the ground that Council Regulation No 563/76 is invalid (a) was made pursuant to Council Regu lation (EEC) No 563/76 of 15 March 1976, and should nevertheless not be released.
* Translated from the French.
OPINION OF MR MISCHO —CASE 199/86
8. The Court has held (see the judgment of in so far as the demand for its provision, as 12 June 1980 in Case 130/79 Express Dairy in the International Chemical Corporation Foods v Intervention Board for Agricultural case, was not challenged in the competent Produce [1980] ECR 1887) that disputes national courts before the judgments of this relating to the recovery of sums levied on Court declaring the regulation invalid. behalf of the Community under invalid Community regulations
'come within the jurisdiction of national 12. However, no such assumption that the courts and must be settled by those courts in burden was passed on can be made in application of their national law as regards relation to contracts made after 19 March both procedure and substance to the extent 1976 in respect of which the demand for the to which Community law has not made provision of security was challenged within other provisions in the matter.' (paragraph a brief period in accordance with national law.
That must logically apply also to the release of security the demand for which has not 13. I accordingly propose to adopt the become definitive. distinction based on the date the contracts were made, as proposed by the Commission, but to alter slightly the second part of the 9. In the present case Community law, answer by holding with regard to 'new' namely Article 5 of Regulation No 563/76, contracts that if the demand for security had expressly provided that 'in the case of was challenged in accordance with national contracts concluded before the date of entry law and annulled on the ground that Regu into force of this regulation, the successive lation No 563/76 is invalid there is no buyers of the products referred to in Articles principle of Community law to prevent 2 and 3, or of protein products processed release of the security. therefrom, shall bear the burden of the costs arising under the arrangements laid down in this regulation.'
14. C — As regards the third question I 10. The Court could thus legitimately also share the Commission's opinion that assume in the judgment in the International from the point of view of Community law it Chemical Corporation case that as regards is irrelevant for the purposes of the release old contracts the burden had already been of the security whether it became forfeit passed on and that any refund of the before or after the judgments of the Court security would accordingly lead to unjust of 5 July 1977 holding Regulation No enrichment of the importers. 563/76 to be invalid were delivered. What is important is the date on which the contract was entered into. 11. As regards contracts concluded after 19 March 1976, in respect of which there was no legal obligation to pass on the burden of the security, it may nevertheless be assumed 15. It seems to me, moreover, that in a case that the system set up by Regulation No such as that before the Bundesverwaltungs 563/76 affected the distribution of the gericht the problem with which the third economic effects of the payment of security question is concerned cannot arise.
RAIFFEISEN v BALM
16. Article 1 (2) of Commission Regulation 20. If it is accepted that the nine-month No 677/76 of 26 March 1976 laying down time-limit is automatic in its effects, it detailed rules for the application of the follows that no security lodged under Regu system for compulsory purchase of lation No 563/76 could become forfeit after skimmed-milk powder provided for in 31 July 1977, since according to Article 11 Council Regulation (EEC) No 563/76 the regulation was applicable only to (Official Journal 1976, L 81, p. 23) provides products imported before 31 October 1976. that the 'protein certificate' is valid for three The normal period of validity of Regulation months from its date of issue. Moreover, No 563/76 thus expired well before the according to Article 10 (4) (b) of Regulation judgments of the Court of 5 July 1977 No 677/76 'the security shall be forfeit declared it invalid. where the party concerned ... has not furnished proof of one of the matters referred to in paragraph 1 (b), (c), (d), (e) and (f) within six months following the 21. For the reasons set out above I prefer to expiry of the "protein certificate".' alter slightly the answer to the third question proposed by the Commission by referring to the security as 'forfeit' rather than 'declared forfeit'. The proposed wording is thus as follows:
17. Consequently, security lodged on 24 March 1976 would have had to be regarded as 'forfeit' as from 24 September 1976, that From the point of view of Community law it is to say, prior to the judgments of the is irrelevant to the release of security Court of 5 July 1977. whether it became forfeit before or after delivery of the judgments of the Court of Justice of 5 July 1977 declaring Regulation (EEC) No 563/76 to be invalid.
18. I think it may be inferred from Article 10 that the security was automatically forfeit where the period of nine months had 22. D — Questions 4 and 5 were asked only expired and the conditions for its release in the event that Question 3 (a) should be had not been fulfilled. answered in the affirmative. Since that is not the case it is unnecessary to answer the following questions, including Question 6.
19. I am also led to that conclusion by the 23. Alternatively and in so far as it may be principle that Community law should be of help I should like to indicate that it applied uniformly throughout the follows from my observations in section B Community. It cannot therefore be accepted that Questions 4 (b) and 5 (b) should in my that the competent authority of a Member opinion be answered in the affirmative. In State should extend the time-limits under a other words: Commission regulation by 'declaring the security forfeit' from a date subsequent to the end of the time-limit under the regu lation. Any such declaration can thus be The security may become forfeit even while only by way of information that the security legal proceedings concerning the lawfulness is already forfeit. of the demand for security are pending;
OPINION OF MR MISCHO — CASE 199/86
As soon as the conditions laid down in the rule of Community law determining the relevant provisions for the forfeiture of legal consequences which follow if the security are satisfied the resulting legal demand pursuant to which a security that consequences arise automatically, and no has already become forfeit was lodged is formal administrative decision declaring the subsequently annulled as being unlawful, security forfeit is necessary. reference should be made once again to the aforementioned judgment of the Court of 12 June 1980 in Case 130/79 Express Dairy 24. Finally, with regard to Question 6, Foods v Intervention Board for Agricultural which seeks to determine whether there is a Produce.
Opinion
25. To summarize, I propose that the Court should answer the questions put by the Bundesverwaltungsgericht as follows:
(1) There is no provision of Community law to prevent the annulment in accordance with the rules of national law of a demand for security made on the basis of Regulation (EEC) No 563/76 (declared invalid by the Court of Justice) which was challenged in good time by an action brought in accordance with the national rules of procedure.
(2) Where protein products acquired under Regulation (EEC) No 563/76 have been resold on the basis of contracts made before that regulation entered into force, for the reasons set out in the judgment of 13 May 1981 in Case 66/80 there is no right to the release of security lodged under that regulation.
Where, on the other hand, protein products bought subject to the provision of security have been resold under contracts made after the entry into force of Regulation (EEC) No 563/76 and the demand for security was challenged in accordance with national law and annulled on the ground that Regulation No 563/76 was invalid, no principle of Community law prevents release of the security.
(3) From the point of view of Community law it is irrelevant to the release of security whether it became forfeit before or after delivery of the judgments of the Court of Justice of 5 July 1977 which held Regulation (EEC) No 563/76 to be invalid.