C-217/87

KROHN v HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUCTEN

OPINION OF MR ADVOCATE GENERAL MISCHO delivered o n 15 J u n e 1 9 8 8 *

Mr President, Commission Regulation N o 3656/83 3 of 23 Members of the Court, December 1983, Article 2 of which, on the procedure for the issue of import licences, provides as follows:

1. Article 1 of Council Regulation N o 604/83 ' fixes the import levy for products ' 1 . Applications for import licences for each falling within subheading 07.06 A of the of the years 1984, 1985 and 1986 may be Common Customs Tariff (manioc and other lodged with the authorities of the Member similar roots) at a maximum of 6 % ad States from mid-December provided that valorem, within the limits of the quantities their period of validity commences during fixed for each third country of origin. For the following January. non-member countries which were not GATT contracting parties a tariff quota of 370 000 tonnes was provided for 1983 and 2. Member States shall notify the quotas for 1984, 1985 and 1986 were to be Commission by telex of the names of fixed by the Council, acting by qualified importers, the quantities applied for and majority on a proposal from the their origin, not later than the Thursday of Commission. the week following the week in which the application was made.

2. In November 1985 the Commission 3. Not later than the Friday of the week proposed that the tariff quota for 1986 following the week of notification referred should be fixed at 200 000 tonnes. It was to in paragraph 2 the Commission shall, only by Regulation N o 758/86 of 10 March where necessary in proportion to the 1986, 2 which entered into force on 16 applications, fix the quantities for which March 1986, that the Council adopted the licences are to be issued for each country or Commission's proposal. group of countries mentioned in Article 1 of Regulation (EEC) N o 604/83.

during the period from 1 January to 11 6. In a telex message of 25 March 1986 the February 1986 of import licences for a Commission informed the defendant that quantity of 130 000 tonnes. At the end of the applications which had been submitted the week from 12 to 20 February 1986 the to it and forwarded to the Commission Commission was faced with fresh during the period from 16 to 24 March applications for import licences for a 1986 could be met to the extent of quantity of 87 020.261 tonnes. Together 4.191315% of the amounts requested. with the 130 000 tonnes covered by licences Those applications included the two already authorized and issued since 1 applications from Krohn which had been January 1986 they therefore exceeded the rejected in February. The plaintiffs in the 200 000 tonnes proposed by the main proceedings brought action before the Commission to the Council. By a telex College van Beroep voor het Bedrijfsleven message of 20 February 1986 the against the decisions of the Hoofdpro- Commission accordingly informed the duktschap voor Akkerbouwprodukten competent national authorities, in answer to applying the abovementioned coefficient. applications made by them and still pending, The College van Beroep referred the that no licences could be issued until the following questions to the Court: Council had adopted the regulation fixing the tariff quota for 1986. In view of that message the Hoofdproduktschap voor Akkerbouwprodukten (the defendant in the '(1) Is the Commission's notice to the main proceedings) rejected two applications defendant of 20 February 1986 for licences submitted by the plaintiffs in the contrary to Community law, in main proceedings on 12 February (15 300 particular Regulation (EEC) No tonnes) and 20 February (5 000 tonnes). 3656/83, the prohibition of discrimi- The corresponding security was released nation laid down in Article 40 (3) of and refunded. The plaintiffs immediately the EEC Treaty and the principle of brought action against those decisions. legal certainty?

8. While sympathizing with the doubts of the national court, I do not think it possible to reproach the Commission for having 14. The Commission could therefore granted licences in respect of the 1986 consider itself entitled to grant import quota before its amount had been fixed by licences as and when applications were the Council. made by adopting the relevant decisions at the rate laid down in Article 2 (3) of Regu- lation N o 3656/83. That is what it did until 9. It is true the Commission was under no it observed that the total amount of obligation to do so and it could have applications which it had received exceeded allowed the applications to accumulate and what remained of the quota of 200 000 remain pending until the Council regulation tonnes which it had proposed. It was then entered into force. However, it must be that it sent its notice of 20 February 1986. recognized that there are several weighty arguments in favour of the course adopted by the Commission. 15. (a) In its first question the College van Beroep voor het Bedrijfsleven asks first of 10. There is first of all the fact that the all whether that notice is contrary to Regu- principle of annual quotas for 1983, 1984, lation No 3656/83. In its reasons for 1985 and 1986 had been adopted once and judgment it states that 'the question also for all by Council Regulation N o 604/83 of arises whether or not the Commission took 14 March 1983, and only the amount of the into account the time-limit laid down in quota for 1986 remained to be fixed. Article 2 (3)'.

21. I therefore think that the Commission 18. I think the Commission was right in not did not infringe Regulation No 3656/83 in wishing to exhaust the quota totally before deciding in its notice of 20 February 1986 it was formally adopted by Council Regu- 'that until the Council has adopted the lation N o 758/86 of 10 March 1986. It is regulation on the import system applicable true that this case is not really one of retro- in 1986 no import licences may be issued'. active application of a legal rule, since it Since the Commission had unilaterally and was provided in 1983 that there would be a without being obliged to do so authorized tariff quota for manioc roots in 1986 the grant of licences before the Council's (Council Regulation No 604/83 of 14 decision and now had good reasons for no March 1983). However, because of the longer continuing to do so, I think it was advance allocation of import licences the entitled to act accordingly. Council regulation fixing the quota for 1986 was necessarily going to be largely retro- active in effect. If the whole quota had been allocated before the regulation entered into 22. It is only in relation to the second force it would have served only to regu- question put by the College van Beroep that larize ex post facto decisions already taken, a I shall consider whether the Commission situation best avoided. was entitled subsequently to take the view that applications were to rank only from the date they were confirmed.

26. In that respect I should observe that strict observance of the principle of legal certainty would have led the Commission not to grant any application before the 30. On 25 March 1986 the Commission Council regulation entered into force. It ill authorized the Hoofdproduktschap to issue behoves the plaintiffs to rely on legal licences in respect of 4.191315% of the certainty when the Commission took quantities requested. It is this notice which liberties with that principle precisely in was the basis of the decisions of the Hoofd- order to satisfy their interests and those of produktschap to grant import licences only other importers. On the contrary, the notice in respect of 4.191315% of the quantities of 20 February helped to make the situation requested by Krohn on 12 and 20 February more clear from the point of view of legal and confirmed by it on 21 March and the certainty. 25 000 tonnes applied for on 24 March 1986. Consequently, in order properly to answer the second question of the College van Beroep voor het Bedrijfsleven I must 27. Moreover, it should be reiterated that also review the Commission's notice of 25 the Commission's notice of 20 February March 1986. 1986 did not in itself prejudge the eventual fate of the plaintiffs' applications.

28. My view therefore is, in relation to the 31. (a) Is the position adopted by the first question, that the Commission's notice Commission in March 1986 contrary to of 20 February 1986 did not infringe Regu- Article 2 of Regulation N o 3656/83? In its lation N o 3656/83, the prohibition of reasons for judgment the College van discrimination or the principle of legal Beroep voor het Bedrijfsleven states: certainty.

38. It is true that had that been done disap- pointed dealers might well have brought 33. On the other hand, I think the actions. However, that is only one of the Commission was wrong in treating possible consequences of the Commission's confirmed applications and fresh ap- decision to allocate the quota in advance plications in the same way and applying the and the risks which it thus assumed. There same percentage reduction to them all. was unfortunately no entirely satisfactory solution to the problems created by the Council's belated decision.

34. The Commission was bound by its own Regulation N o 3656/83, Article 2 (3) of which provides for licences to be issued on a weekly basis. 39. At the hearing the Commission argued that if it had given any priority to the original applications it would also have had 'artificially to reconstruct' the period of four 35. For the reasons set out above the weeks from 20 February to 21 March. Commission cannot be reproached for having interrupted the advance application of that regulation on 20 February 1986, but it was not entitled to disregard the fact that certain applications had already been 40. I am not convinced by that argument. forwarded to it by the national authorities There is a substantial difference between before it stopped advance allocation of applications such as those of the plaintiffs licences. which were submitted to the national auth-

KROHN v HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUCTEN

orities and forwarded to the Commission 45. It follows from the foregoing discussion before it decided to stop the advance issue that in making no distinction between the of licences and applications which dealers applications which merely confirmed might perhaps have wished to submit to the previous applications and fresh applications national authorities after that decision but made after 21 March 1986 the Commission which the national authorities had to refuse dealt in the same way with situations which to register and forward following the were not comparable. Commission's decision.

44. (b) Infringement of the prohibition of 5 — Judgment of 4 February 1982 in Case 817/79 Buyl v Commission [1982] ECR 245, at p. 266, and Case 1253/79 discrimination Battaglia v Commission [1982] ECR 297, at p. 322.

OPINION OF MR MISCHO — CASE 217/87

according to the date when they were 51. Under that regulation the defendant forwarded to the Commission. issued additional import licences to Krohn. 50. Before concluding I ought to say a word on the subject of a related problem raised by the College van Beroep, namely to 52. In my opinion that fact is of importance what extent Council Regulation No only in connection with the claim for 1898/86 of 17 June 1986 increasing the damages which the plaintiffs in the main tariff quota to 300 000 tonnes is relevant in proceedings have also brought before the this case. College van Beroep.

Conclusion

53. On the basis of the considerations set out above I propose the following answer to the College van Beroep voor het Bedrijfsleven:

'(1) Consideration of the first question has disclosed no factor of such a kind as to affect the validity of the Commission's notice of 20 February 1986.