C-316/86

HAUPTZOLIAMT HAMBURG-JONAS v KRÜCKEN

OPINION OF MR ADVOCATE GENERAL MANCINI delivered o n 11 February 1 9 8 8 *

In May 1979 the company P. Krücken However, his decision was not upheld by ('Krücken') exported 1 250 tonnes of barley the customs authorities at a higher level. By

* Translated from the Italian.

OPINION OF MR MANCINI — CASE 316/86

(a) Does it follow from Community law As is well known, import and export (Article 2 (3) of Commission Regu- certificates — that is to say the documents lation (EEC) N o 243/78, Article 16 (4) relied upon by the Community authorities of Regulation (EEC) N o 2727/75 of the for precise details of patterns of trade in Council) that the advance fixing of an agricultural products — were introduced by export refund contained in a licence the various basic regulations on the common submitted at the time of export is not organization of the markets (in the case of

HAUPTZOLLAMT HAMBURG-JONAS v KRÜCKEN

The second subparagraph of Article 2 (1) of (b) if the export refund is fixed in advance, that regulation provides that the amount the amount thereof is indicated on the may be fixed in advance only if the export certificate (Article 12 (1) of Regulation refund is fixed at the same time. Moreover, No 2727/75; Article 2 (1) of Regu- in order to prevent speculative manoeuvres, lation N o 193/75; and Article 8 (2) of Article 2 (3) provides that 'where the Regulation No 3183/80; monetary compensatory amount is fixed in advance the certificate and . . . extracts therefrom shall be valid in only one (c) it is possible to obtain extracts from Member State' and that the Member State certificates: they produce the same legal must be designated 'by the applicant on effects as certificates but only in respect submission of the application for the of the quantity of goods for which they advance fixing . . . '. The problem of coordi- , are issued (Article 10 (2) of Regulation nation with other Community measures N o 193/75 and Article 10 of Regulation underlying the present case derives precisely N o 3183/80); from that provision.

OPINION OF MR MANCINI — CASE 316/86

That principle was laid down for the first time in the Court's judgment of 1 December Finally, in paragraph 7 of the judgment of 1965 in Case 16/65 C. Schwarze w Einfuhr- 15 October 1980 (in Case 145/79 Roquette und Vorratsstelle för Getreide und Futter- Frères v French State, Customs Administration mittel [1965] ECR 877: 'If it appears that [1980] ECR 2917), the Court stated the real purpose of the questions submitted 'Although, within the framework of the by the national court is concerned rather distribution of tasks between the national with the validity of Community measures, it courts and the Court of Jstice for the is appropriate for the Court to inform the implementation of Article 177 . . . it is for national court at once of its view without the national courts to decide the relevance compelling the national court to comply of the questions which are referred to the with purely formal requirements which Court of Justice, it is for the Court of would uselessly prolong the procedure Justice to extract from all the information under Article 177 and would be contrary to provided . . . those points of Community law its very nature. Although this type of which, having regard to the subject-matter adherence to formal requirements may be of the dispute, require interpretation or defended in the case of litigation between whose validity requires appraisal'. two parties whose mutual rights must be subject to strict rules, it would be inappro- priate to the special field of judicial Of the dicta to which I have referred, cooperation under Article 177 which perhaps the last is the most important, even requires the national court and the Court though it might perhaps be observed that it of J u s t i c e . . . to make direct and com- was anticipated twice, in the 'ud^ments of plementary contributions to the working out 18 February 1964 in Joined Cases 73 and of a decision' (p. 886). 74/63 NV Internationale Crediet — en Handelsverening Rotterdam and Others v Minister van Landbouw en Visserij [1964] ECR 1, and of 29 November 1978, in Case The Court's subsequent pronouncements 83/78 Pigs Marketing Board v Redmond were no less significant. Thus, in its [1978] ECR 2347 (paragraphs 25 and 26). judgment of 3 February 1977 in Case 62/76 The Court in fact no longer seeks in the Strehi v Nationaal Pensioenfonds voor wording of the question or the grounds Mijnwerkers [1977] ECR 211, the Court, thereof a reason for concluding that the although requested to interpret Article national court, although purporting to ask 46 (3) of Regulation No 1408/71 and merely interpretative questions, is in fact Decision N o 91 of the Administrative looking for a decision as to the validity of

the Community measure at issue. The two provisions: on the one hand, Article problem of validity is now examined on the 12 (2) of Regulation N o 2727/75 itself, Court's own initiative purely on the basis of which empowers it to fix the period of the documents before it. validity of licences and 'other detailed rules for the application' of the system under the Management Committee procedure (see Judgment of 26 June 1980 in Case 808/79 Pardini [1980] ECR 2103, paragraph 16); Let us now consider the present case. If the on the other hand, Article 6 (1) of Regu- Court were to decline to examine the lation N o 97 4/7 í, cited earlier. That validity of Article 2 (3) of Regulation N o provision too entrusted the Executive with 243/78 merely because the national court determination of the detailed rules for did not ask it to do so, Krücken, which implementation of the regulation under the raised the matter at the hearing, would Management Committee procedure; but it certainly raise it again before the same also provided that such authority may entail national court, and, being a court of last 'other derogations' from the regulations on instance, the latter would be obliged to the common agricultural policy. submit a question on it to the Court under the third paragraph of Article 177. From the formal point of view such a course of action would be beyond reproach, but it would also run counter to the principle that legal Of the two views put forward, I prefer that proceedings should not be needlessly of the Commission, at least in so far as it is prolonged and to the need to ensure the based on Regulation N o 974/71. The rules utility of the preliminary-rulings procedure. on MCMs, of which that regulation forms part, must in fact be regarded as consti- tuting a lex specialis in relation to the measures establishing the common market organizations: and, by referring to 'other So the question now is whether Article derogations', the provision relied upon by 2 (3) of Regulation N o 243/78 is valid. the Commission furnishes incontestable Krücken criticizes it on three counts, two of proof of its status as such. By limiting the which relate to the infringement of legal territorial validity of export certificates provisions (specifically, the third showing advance fixing of the M C M , the subparagraph of Article 12 (1) of Regu- Commission thus lawfully exercised the lation N o 2727/75 of the Council and power vested in it by Article 6 (1) of Regu- Article 16 of Commission Regulation No lation N o 974/71. 193/75) and the third relates to breach of the principle of proportionality.

In the third place, Krücken complains of Pardini judgment, that the Commission infringement of the principle of propor- exercised it for a purpose which might be tionality. The limitation imposed on the described as being required of it and in any validity of the certificate is, it contends, not event was in conformity with the principle strictly necessary for the attainment of the of proportionality. aims — in particular that of preventing speculation — which the Commisison intended to pursue. Having established the validity of Article 2 (3) of Regulation No 243/78 I must now consider the questions. It will be That complaint must likewise be rejected. remembered that the Bundesfinanzhof asks As is well known, the advance fixing of the Court first of all to establish whether the M C M s raises the problem — a new limitation imposed by that provision on the problem, but one which was soon noticed territorial validity of export certificates by the legislature (see the third and fifth showing advance fixing of the M C M recitals in the preamble to Regulation N o extends to the advance fixing of export 243/78) — of avoiding abuses for specu- refunds also recorded on them. lative ends; more specifically, that of ensuring that exporters in countries with weak currencies do not gamble on currency The answer suggested to the Court by fluctuations occurring after the issue of the Krücken is of course that it does not. certificate, by exporting from that Member Krücken starts by saying that it is necessary State which at the relevant time guarantees to distinguish between the export certificate the best exchange rate. Now it seems to me contemplated in the provision at issue, the that in order to satisfy that requirement certificate showing advance fixing of the there was only one possibility open to the refund and the certificate showing advance Commission: that of limiting the territorial fixing of the MCM. Particularly clear validity of certificates showing the advance support for that distinction is to be found in fixing of the M C M to a single Member the German text of that provision; and, State, although allowing the trader whilst it is undeniable that the third recital concerned to specify which. Furthermore, it in the preamble to the regulation allows the was recognized in the Pardini judgment to advance fixing of MCMs only where the which I referred earlier that 'the system of levy or refund has also been fixed in advance fixing.. . was created in the advance, it is also true that the fifth recital is interests of trade a n d . . . in normal cases concerned solely with limiting the 'Gültig- gives traders considerable benefits. If by keitsdauer' of a certificate to the territory of requesting advance fixing traders take a single Member State. Thai restriction advantage of those benefits, it is . . . just that relates therefore only to the period of they should bear the disadvantages which validity: that being inter alia the wording arise from the necessity, on the part of the used in the fourth recital in the French Community, of preventing any abuse' version of the measure. (paragraph 21).

subject to different rules and, in particular, versions use different words 'Lizenz' and there is nothing to prevent the limitation of 'Bescheinigung', 'licence' and 'certificate' territorial validity imposed with respect to and 'licence' and 'attest'). Moreover, whilst MCMs from not being applied to the export in the German and Danish versions the limi- refund system. Moreover, that view is tation of territorial validity is linked to the expressed in the judgment of 8 April 1976 'Lizenz' or 'licens', in the English version it (in Case 106/75 Merkur-Außenhandel is linked to the 'certificate'. It is thus under- GmbH [1976] ECR 531), according to standable why Krücken relies upon the which the entitlement to the refund subsists German version: that version makes it even if the product exported is not the one appear certain that the limitation does not for which the certificate was issued. relate to advance fixing of the refund. Underlying that principle is an acknowl- edgment of the difference between the aims pursued by the rules on certificates and the rules on refunds: the first seek to offer the Community a means of forecasting As I said earlier, however, that conclusion is movements of goods and the second is supported only by the Danish text. And it is intended to offset the difference between contradicted by a decisive observation made Community prices and those prevailing on by the Commission: Article 1 of Regulation the world market. No 193/75 (now 3183/80) gives a definition of 'licences' (in German 'Lizenzen') which covers both those relating to exports ('Ausfuhrlizenzen') and those relating to advance fixing ('Vorausfestsetzungsbe- scheinigungen'). The term thus has a The opposite view is taken by the Haupt- generic meaning: and that makes it possible zollamt and the Commission. In their without difficulty to interpret Article 2 (3) opinion the distinction advocated by of Regulation No 243/78 as meaning that, Krücken has no foundation: the three where the M C M is fixed in advance, the documents form a single and inseparable limit laid down thereby applies to all the administrative measure, and for that reason certificates contained in the customs the limitation imposed upon its validity must document. be taken to refer to all the effects which it is capable of producing.

And that is not all. The Commission is But the measure under review is seen to be certainly corrrect in its observation that the reasonable above all if account is taken of system's guarantee mechanisms are based on the fact that it facilitates avoidance of the the premiss that the certificates are unitary risk of speculation illustrated by the in character, as is proved by the fact that Commission in its replies to the questions the obligations to which they give rise are put to it by the Court. If a trader who had covered by a single security. If the applied for advance fixing of the MCM certificates could be separated into were free to disregard the fixing and export component parts the legislature would have from other Member States, there would be had to provide for a security for each of the nothing to prevent him from choosing in obligations deriving from them. every case the solution most favourable to him and the most onerous for the European Agricultural Guidance and Guarantee Fund Finally, it seems to me that Kriicken's (EAGGF). Consider the case where in a reference to the Merkur judgment is country with negative MCMs (as was the irrelevent. Admittedly, it is stated in that case in France where the certificate judgment that a trader is entitled to the concerned here was issued) there was a refund even when he has exported goods devaluation and, consequently, an increase other than those for which the licence was in the MCMs: the exporter would without issued. But in that case the difference doubt choose to pay the sums involved at between the goods exported and the the (lower) rate fixed in advance. product indicated on the certificate was Conversely, in the event of revaluation he minimal and there was certainly no specu- would prefer to abandon the amount fixed lative intent underlying the consequent in advance and pay the (lower) rate ruling change in the customs classification. on the day of export. And of course mutatis Furthermore, the refund was granted at the mutandis the same would happen in a State rate fixed for the product actually exported. where the MCMs were positive. In the second question the national court asks whether 'in certain circumstances' the principle of the protection of legitimate expectations makes it necessary also to Limitation of the territorial validity of the grant the refund at the rate fixed in certificate is therefore necessary in order to advance. The hypothesis to which the ensure that a facility designed to be in the question relates is based on the facts of the interests of trade does not have a case: an exporter whose invalid certificate boomerang effect on the EAGGF. This can was initially accepted by the national be illustrated by another example: a trader authority is in a position to prove that, had who had applied for and obtained advance he known that he would not receive a fixing of the MCM and of the refund at the refund of the amount fixed in advance, he same time could, if he perceived it to be to would have produced another certificate or his advantage, waive the MCM and export else would have effected the export: from

Krücken considers that the question should There is no doubt that in the present case be answered in the affirmative, whilst the the error (if there was one) was committed Hauptzollamt and the Commission observe by the German customs authorities, and the that, since Kriicken's representative conduct of the Community authorities is not contributed to the customs error, it is not at issue. Nor may it be objected that Article entitled to any protection. For my part, I 8 (2) of Regulation No 729/709 is not advocate a negative answer, but not on the applicable to this case. It is clear that there same grounds as those put forward by is a close analogy between the repayment of Kriicken's adversaries. sums due and the payment of a refund at a rate higher than normal, if only because in both cases the expenses of the operation are The company asks for the application of a to be paid out of the Community's own 'fairness clause' similar to those which, in resources. other areas of Community law, make it possible to limit the damage suffered by a person through an error for which he is not Finally, Kriicken's case is undermined by a responsible or to uphold the legitimate number of pronouncements of the Court, expectations engendered in him by a and in particular that of 13 November 1984 particular course of conduct on the part of in Joined Cases 98 and 230/83 Van Gend en the administration (see Article 5 of Council Loos [1984] ECR 3763, paragraph 20. The Regulation No 1697/79, Official Journal Court held that no protection was available 1979 197 p. 1, on the- post-clearance for a trader whose export certificates were recovery of duties and Article 13 of Council initially accepted by the customs officials Regulation No 1430/79 of 2 July 1979, and then, after more detailed investigations, Official Journal 1979 175, p. 1, on the were considered by the same authorities to repayment or remission of import or export be invalid (see also, with respect to aids, the duties). But Krücken is overlooking Article judgment of 24 February 1987 in Case 8 (2) of Regulation No 729/70 of the 310/85 Deufill[\987] ECR 901, paragraphs Council of 21 April 1970, Official Journal, 24 and 25). English Special Edition 1970 (I), p. 218, on the financing of the common agricultural policy, according to which 'in the absence The conclusion which I have reached does of total recovery [of sums lost by reason of not of course deprive the aggrieved party of irregularities or negligence], the financial the possibility of bringing an action before consequences shall be borne by the the national court for compensation to be Community, with the exception of the paid by the authorities responsible for the consequences of irregularities or negligence error which, in its view, caused it damage.