C-94/91

WAGNER v FIRS

OPINION OF M R ADVOCATE GENERAL VAN GERVEN delivered on 20 February 1992 *

Mr President, Background Members of the Court,

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OPINION OF MR VAN GERVEN — CASE C-94/91

general rules for granting export refunds on quoted a rate of refund equal to or less than sugar. That regulation provides that the such maximum refund and to every tenderer purpose of the tender is to determine the who had tendered for an export levy amount of the refund (Article 4(1], that the (Article 9(3]. Every successful tenderer was terms of the invitation to tender must to have the right to claim in respect of the guarantee equal access for all persons estab- quantity awarded, an export licence indi- lished within the Community (Article 4(2] cating, as appropriate, the export levy or the and that the maximum amount of the export refund quoted in his tender (Article refund for the invitation in question is to be 12(a], Licences issued in connection with a fixed in accordance with the management partial invitation to tender were to be valid committee procedure in the light of the for a given period only. Export licences tenders received (Article 4(3]. issued in connection with partial invitations issued in the period from 17 October to 28 November 1984 could be used only from 1 December 1984 and were valid until 30 April 1985 (Article 13(2)(b].

4 — OJ 1984 L 221, p. 5. 5 — OJ 1984 C 218, p. 27.

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6 agricultural products, pursuant to which showing in DM the amount of the export the representative rate (also called the 'agri- refunds awarded to it (between DM 97.77 cultural conversion rate' or 'green rate') of a and DM 98.36 per 100 kilograms). number of currencies was amended. Thus the representative rate of the FF was devalued and the rate of the DM revalued in relation to the ECU, although those amendments became applicable on different dates according to the sectors concerned. Although the export licences in question Annex IV to Regulation No 855/84 could be used as from 1 December 1984 provides that the (devalued) representative (Article 13(2)(b) of Regulation rate of the FF (1 ECU = FF 6.86866) was No 2382/84), the 1 500 tonnes of sugar to apply as from 1 July 1984 for the sugar were not exported until April 1985 (in other and isoglucose sector. Annex III to that words, after the new representative rate of regulation provides that the (revalued) the DM as fixed in Regulation No 855/84 representative rate of the DM (ECU 1 = of 31 March 1984 had come into effect). DM 2.38516) is to apply as from 1 January Moreover, Wagner chose to export the 1985 without an exception for the sugar sugar from France. As the export refund is sector. to be paid by the Member State in whose territory customs export formalities were completed, 8 Wagner applied to the Fund for payment of the refunds, which, according to its calculations, came to a total of FF 4 196 946. It is apparent from the case file that Wagner determined that

In in FF resulting from that exchange calcu- accordance with Article 5(2)(d) of that lation by the monetary coefficient applicable regulation, Wagner expressed its tenders in DM. Pursuant to Article 9(1) of that regu- 7 — See Commission Regulations (EEC) No 2976/84 of 24 lation, after examining the tenders and in October 1984 and No 3067/84 of 31 October 1984 fixing accordance with the opinion of the the maximum export refund for white sugar for, respectively, the tenth and eleventh partial invitations to Management Committee for Sugar, the tender issued within the framework of the principal Commission fixed the maximum export standing invitation to tender provided for in Regulation No 2382/84 (OJ 1984 L 281, p. 22, and L 288, p. 65). refund for the tenth partial invitation at 8 — Article 30(1) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for tthe application of the system of export 6 — OJ 1984 L 90, p. 1. refunds on agricultural products (OJ 1979 L 317, p. 1).

7. Although the Fund raised no objection to the last two stages of Wagner's calculation (application of a monetary coefficient and of a rate by way of monetary compensatory Scope of the question referred amount), it considered that the refund expressed in DM on the export licences should have been converted into FF in accordance with Note 2 to Annex I to the Notice. It therefore first converted the 8. In order to assess the scope of the amount of the refund appearing on each question, it is necessary first of all to licence into ECU by applying the represen- determine the nature of the Notice and tative rate of the DM applicable at the time more particularly of Note 2 to Annex I of the invitations to tender (Note 2(a], that thereto. is to say before the revaluation of the green D M in relation to the ECU. It then converted the amounts in ECU so obtained into FF by applying the representative rate of the FF applicable at the time when In my view, there is no doubt that the customs formalities were completed (Note Notice, published in the Official Journal of 2(b]. The Fund therefore paid out a sum of the European Communities, C Series, does only FF 3 974 893, reducing the total not constitute a binding Community amount sought by Wagner by FF 222 113. 9 measure which, in itself, would allow the Fund to rely on the conversion rules set out in Note 2 as against exporters such as Wagner. It is a measure of good adminis- tration the purpose of which, as the Commission pointed out in its observations, is to make it easier for traders and customs authorities to complete the formalities laid Wagner claimed that the Notice was not down in the Community rules relating to applicable to it and, furthermore, that Note licences for trade in agricultural produce 2 was not valid at the material time. It between the Community and non-member therefore formally demanded payment from countries. The specific purpose of Note 2 to the Fund of the amount of FF 222 113 that Notice is to explain how, in accordance representing the difference between the with existing Community rules, a refund fixed in advance in the currency of one 9 — The parties are in agreement on the figures indicated in Member State is to be converted into the the order for reference, including the amount in FF corre- sponding to the reduction effected by the Fund, although currency of another Member State when the mathematically the difference between 4 196 946 and 3 974 893 comes to 222 053. export licences are used in that other State.

In view of the purely explanatory nature of currency in which the refund is expressed Note 2 to that Notice, there is no need to on the licence has been amended in relation examine its validity, as the national court to the representative rate of the currency of asks. However, regard being had to the the exporting Member State between the subject-matter of the dispute in the main date of issue of the licence and the use proceedings, the question referred must be thereof. understood as seeking to ascertain whether the Community provisions applicable at the material time are to be interpreted as imposing the use of the conversion rules referred to in Note 2. In order to provide the national court with an appropriate Each aspect of that situation is governed by answer, therefore, it is necessary to identify distinct Community rules. the Community provisions governing conversion into the currency of the exporting State of an export refund fixed in advance in the currency of another State and to examine whether they are to be interpreted in the manner specified in 10. With regard to point (i), the detailed Note 2. rules for granting and fixing the amount of the export refund are determined by regu- lations which, in accordance with Regu- lation No 1785/81 on the common organ- ization of the markets in the sugar sector and Regulation No 766/68 laying down Assessment general rules for granting export refunds on sugar, open a tendering procedure enabling export refunds to be fixed. The relevant provision for the purposes of this case is Regulation No 2382/84, which will be 9. A situation such as that in the main examined in paragraphs 14 to 16 below. It proceedings is characterized by the should be pointed out at this stage that, following circumstances: (i) an export pursuant to Article 5(2)(d) and Article 12 licence has been issued following a (a) of Regulation No 2382/84, the export tendering procedure to determine export licence expresses the amount of the refund refunds on white sugar, in which the in the currency of the Member State in amount of the refund awarded and which the tender is submitted, in this case in therefore fixed in advance 10 is expressed in DM. the currency of the Member State in which the holder has tendered (in this case in DM), although that licence does not include advance fixing of monetary compensatory amounts; (ii) the licence has been used in another Member State (namely France) 11. With regard to point (ii), as stated from which the sugar in question has been above (paragraph 6 and footnote 8), Article exported; (iii) the representative rate of the 30(1) of Regulation (EEC) No 2730/79 laying down common detailed rules for the 10 — Article2(2) of Commission Regulation (EEC) No 243/78 application of the system of export refunds of 1 February 1978 providing for the advance fixing of on agricultural products provides that the monetary compensatory amounts (OJ 1978 L 37, p. 5) provides that levies or refunds fixed under a tendering refund is to be paid by the Member State in procedure shall be considered to be fixed in advance. whose territory customs export formalities

12. As regards point (iii), in the words of Article 1 of Council Regulation (EEC) By laying down the representative rate No 1223/83 of 20 May 1983 on the applicable on the day the customs exchange rates to be applied in agri- formalities are completed, paragraph X of culture: 11 the Annex to Regulation No 3016/78 is simply applying a general principle, set out in the second recital of the preamble to the regulation, according to which the represen- tative rate to be applied is that applicable at the time when the event giving rise to the 'Where transactions to be carried out in transaction in question occurs, in this case pursuance of instruments relating to the the completion of customs export common agricultural policy . . . require the formalities. currencies... to be expressed in another currency or in ECU, the rate of exchange s h a l l . . . be that corresponding to the representative rate for that currency.' It follows that Note 2 to the Notice, assuming that the conversion set out under (a) is justified (that is to say the amount of the refund expressed in national currency on the licence must first be converted into ECU at the exchange rate applicable at the In accordance with Council Regulation time of the invitation to tender), correctly (EEC) No 878/77 of 26 April 1977 on the explains under (b) that the amount in ECU exchange rates to be applied in the agri- so obtained must subsequently be converted cultural sector, 12 which was subsequently into national currency 'at the exchange rate replaced by Regulation No 1223/83, the applicable on the day on which customs Commission adopted Regulation (EEC) formalities are completed in the Member No 3016/78 of 20 December 1978 laying down certain rules for applying conversion 13 — OJ 1978 L 359, p. 11. 14 — Council Regulation (EEC) No 3330/74 of 19 December 1974 on the common organization of the market in sugar 11 — OJ 1983 L 132, p. 33. (OJ 1974 L 359, p. 1). That regulation was repealed and 12 — OJ 1977 L 106, p. 27. replaced by Regulation No 1785/81.

It follows from those aims that the holder of 'in interpreting a provision of Community an export licence issued under a tendering law it is necessary to consider not only its procedure for export refunds has a vested wording but also the context in which it right to receive, upon exportation, the occurs and the objects of the rules of which amount of the refund awarded to him after it is part'. examination of the tenders submitted, provided export actually takes place under the conditions laid down by the Community rules. 17 It also follows that the amount to which the licence holder is entitled, having Like the French Government and the regard to the budgetary aim of the regu- Commission, I consider that the provisions lation and to the principle of equal of Regulation No 2382/84, and in treatment which must be observed in the particular Article 9 thereof, when inter- pursuit of that aim, may not be amended preted in the light of the context in which subsequently by, for example, adjusting it by they are set and of the object of the regu- reference to any monetary developments lation, do in fact require conversion, as which occurred after it was set. provided for in Note 2(a) to the Notice, for the reasons set out below.

14. The primary aim of Regulation No 2382/84, as of every other regulation 15. In the light of the foregoing it is opening a tendering procedure in order to possible to define the meaning of Article 9 determine export refunds, is to enable the of Regulation No 2382/84, according to Community to export its surplus sugar to which the Commission may fix 'a maximum non-member countries while paying the export refund' (paragraph 1) in which case least onerous export refunds by placing the 'a contract shall be awarded to every traders concerned in competition with each tenderer whose tender quotes a rate of other. In pursuing that budgetary aim, 16 — See die judgment in Joined Cases 44/77 to 51/77 Union Malt v Commission [1978] ECR 57. 15 — Judgment in Case 292/82 [1983] ECR 3781. 17 — Compare paragraph 23 of the Union Malt judgment.

'that the refunds in question were fixed in national currency and that their conversion into units of account constituted only an internal operation within the Commission in order to make tenders comparable'. 16. The Court, moreover, has already endorsed that interpretation in its judgment in Case 162/78 Wagner v Commission. 18 The dispute in that case also concerned the rules for calculating an export refund for It appears from a comparison of the two white sugar, awarded following a tendering judgments cited that although the amount procedure which had been opened under of the export refund is fixed in national Regulation (EEC) No 2101/75, 19similar to currency, its award to the tenderer under Regulation No 2382/84 under which the the tendering procedure is necessarily made in ECU. As the amount awarded must be 18 — Judgment in Case 162/78 [1979] ECR 3467. taken as the basis for payment of the refund 19 — Commission Regulation of 11 August 1975 on a standing invitation to tender in order to determine a levy and/or refund on exports of white sugar (OJ 1975 L 214, p. 5). 20 — Judgment in Case 108/77 [1978] ECR 1187.

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18. Moreover, the conversion rules advocated by Wagner could lead to deflection of trade since they encourage a tenderer systematically to export the products in question from a Member State 17. The arguments put forward by Wagner other than that in which he submitted a in favour of a 'cross' DM/FF rate applicable tender. If it chose to export from another at the time of export are not persuasive. Member State, the rules advocated by Since representative rates are always Wagner would allow it to take advantage of expressed in relation to the ECU, the the revaluation of the 'green' DM which application of the representative 'cross' came into effect after the amount of the D M / F F rate applicable at the time of export refund was set, while avoiding the corrective constitutes a twofold conversion (first from effect of the German monetary coefficient 21 DM into ECU, then from ECU into FF) which, in accordance with Article 6(1 )(c) of carried out each time at the representative Commission Regulation (EEC) No 1372/81 rate applicable at the time. That is of 19 May 1981 laying down detailed rules tantamount to allowing the tenderer to obtain a (higher) refund in FF calculated on 21 — The monetary coefficient applicable at the time when the sugar referred to in the licences was exported was set at the basis of an amount in ECU higher than 0.932 (and thus had a negative corrective effect) for exports from Germany and at 1.020 (thus having a positive that awarded to him, because it is obtained corrective effect) for exports from France (see Annex U to by converting the amount in DM set out in Commission Regulation (EEC) No 3719/84 of 27 December 1984 amending the monetary compensatory the tender at the (revalued) representative amounts (OJ 1984 L 342, p. 1].

19. Furthermore, Wagner does not dispute that the conversion method set out in Note 2 to the Notice must currently be followed in circumstances such as those of this case. That argument must also be rejected. Since It merely states that that method was the relevant provisions of Community law introduced for the first time by Council must be interpreted in the manner specified Regulation (EEC) No 1676/85 of 11 June in Note 2 to that Notice, the conversion 1985 on the value of the unit of account method referred to therein is binding even and the conversion rates to be applied for in the absence of an explanatory note.

22 — OJ 1981 L 138, p. 14. 24 — OJ 1985 L 164, p. 1. Wagner also refers to paragraph 7.1 23 — On the subject of the coefficient, see the judgment in of the General section of the Notice of 26 May 1987 Wagner v Commission, cited above, at paragraphs 18 to (OJ 1987 C 140, p. 2) which replaced the Notice of 11 21. March 1981 under consideration in this case.

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Conclusion

21. I propose that the Court rule as follows: