C-64/95

LUBELLA v HAUPTZOLLAMT COTTBUS

OPINION OF ADVOCATE GENERAL ELMER delivered on 4 July 1996 *

Introduction abnormal prices, reference prices valid for the whole Community are to be fixed each year. If the entry price of products imported from a third country is below the reference price, a countervailing charge may be levied in addition to the customs duties.

1. The Finanzgericht des Landes Branden­ burg (Finance Court of Land Brandenburg) has referred to the Court for a preliminary ruling a number of questions in relation to Commission Regulation (EEC) No 1932/93 of 16 July 1993 establishing protective mea­ Article 29 of the basic regulation deals with sures as regards the import of sour cherries. 1 protective measures in the event of serious disturbances of the market. It reads as fol­ lows:

The relevant Community rules

'1 . Appropriate measures may be applied in trade with third countries if:

Such measures may be applied only until, 3. Regulation (EEC) No 2707/72 of the depending on the case, either the disturbance Council of 19 December 1972 lays down or threatened disturbance disappears or the the conditions for applying protective mea­ quantities withdrawn or bought in have sures for fruit and vegetables (hereinafter decreased substantially. 'the protective measures regulation'). Article 1 lays down the criteria of which account is to be taken in order to determine whether the market situation is threatened (actual or probable volume of imports or exports, the availability of products on the Community market, the prices of domestic products recorded on the Community market or the 2. If the situation mentioned in paragraph 1 probable trend of those prices). arises, the Commission shall, at the request of a Member State or on its own initiative, decide upon the necessary measures; the measures shall be communicated to the Member States and shall be immediately applicable. If the Commission receives a request from a Member State, it shall take a The first indent of Article 3(1) of the protec­ decision thereon within twenty-four hours tive measures regulation lays down the mea­ following receipt of the request. sures which may be taken if the situation described in the first indent of Article 29(1) of the basic regulation exists. They involve the suspension of imports or exports or the levying of export taxes.

3. The measures decided upon by the Commission may be referred to the Council by any Member State within three working days following the date on which they were 4. Commission Regulation (EEC) communicated. The Council shall meet 4 No 1234/93 of 19 May 1993 (hereinafter without delay. It may amend or repeal the 'the reference price regulation') lays down measure in question in accordance with the reference prices for cherries for the 1993 voting procedure laid down in Article 43(2) of the Treaty.' marketing year.

6. By Regulation (EEC) No 1931/93 of 16 6 July 1993 the Commission decided to dis­ Regulation No 1932/93 came into force on continue the application of reference prices 18 July 1993, the day after publication (on 17 to sour cherries. July 1993) in the Official Journal of the European Communities. The German ver­ sion (and only that version) used, in the title, the recitals and the operative part of the regulation itself, the word 'Süßkirschen' (sweet cherries) instead of the correct word 'Sauerkirschen' (sour cherries). However, the 7. On the same day, 16 July 1993, by the German version referred to the correct CN said Regulation No 1932/93, the Commis­ code 0809 20 60, which covers sour cherries. sion, with reference to Article 29 of the basic A corrigendum to the German version of regulation, introduced a system of minimum Regulation No 1932/93 to the effect that the import prices and countervailing charges for minimum price system applied only to sour products below that price. cherries was printed in the German edition of OJ 1993 L 176 of 20 July 1993.

Thus Article 1 of Regulation No 1932/93 The facts of the case provides that:

'1 . The minimum price to be complied with 8. Konservenfabrik Lubella Friedrich Büker for imports into the Community of sour GmbH&Co. KG (hereinafter 'Lubella') cherries falling within CN codes 0809 20 20 manufactures preserves. On 19 and 20 July and 0809 20 60 shall be ECU 47.63/100 kg 1993 Lubella, represented by a forwarding net. agent, caused three lorry loads consisting of a total of 42 868 kg of fresh sour cherries from Poland (included in CN Code 5 — OJ 1993 L 163, p. 28. 0809 20 60) to be cleared for free circulation 6 — OJ 1993 L 174, p. 34. in the Community at the Forst Motorway

(b) Is the minimum price system a per­ missible, appropriate measure for eliminating the disturbance to the 10. By order of 21 February 1995 the market? national court stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

(c) Is the minimum price system com­ patible with the Interim Agreements '(1) Has Commission Regulation (EEC) of 25 February 1992 between the No 1932/93 of 16 July 1993 as rectified European Community and the

I-5110

LUBELLA v HAUPTZOLLAMT COTTBUS

I-5111

OPINION OF 4. 7. 1996 — CASE C-64/95

15. Article 3 of Council Decision 87/373 In accordance with that provision laying down the procedures for the exercise Article 29(3) of the basic regulation, for of the implementing powers conferred on which Regulation No 1932/93 constitutes the Commission is worded as follows: implementing provisions, introduces a rule to the effect that 'The measures decided upon by the Commission may be referred to the Council by any Member State within three working days following the date on which they were communicated'. That period applies to all protective measures 'The following procedure may be applied adopted in pursuance of Article 29 and there where the Council confers on the Commis­ is therefore no reason to repeat that period sion the power to decide on safeguard mea­ in any provisions which, like Regulation sures: 1932/93 for example, specifically implement the protective measures. The Member States could therefore, within three working days following the communication of the protec­ tive measures adopted by the Commission regarding importation of sour cherries, have — the Commission shall notify the Council referred the measures to the Council. and the Member States of any decision regarding safeguard measures.

16. My view is therefore that the circum­ stances surrounding the adoption of Regu­ lation No 1932/93 do not affect its validity. It may be stipulated that before adopting this Before I make my proposal for the answer to decision the Commission shall consult the be given to Question 1, I should like to deal Member States in accordance with proce­ with Question 3 which likewise concerns the dures to be determined in each case. validity of the regulation.

21. In its judgment in Case 55/87 Moksel v 8 BALM the Court stated that:

18. The national court doubts the validity of Regulation No 1932/93 on the ground that its content was imprecise since the (German) text of the regulation (as it appeared before '... the necessity for uniform application and rectification) refers only to sweet cherries, accordingly for uniform interpretation whereas the CN code mentioned undeniably makes it impossible to consider one version covers only sour cherries. of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve, in the light in particular of the versions in all ... languages'.

19. The Commission has stated that the validity of Regulation No 1932/93 is not affected by the error in the German version since the content of the regulation is clearly apparent. Thus in all the language versions The Court further declared in its judgment except the German the regulation refers to in Case C-30/93 AC-ATEL Electronics Ver- sour cherries. The German version contained triebs GmbH 9 that: an error which was rectified immediately on 20 July 1993.

'The Court has consistently held that, in interpreting a provision of Community law, 20. As the national court emphasizes, there it is necessary to consider not only its word- is an inconsistency in the German version of Regulation 1932/93 between the wording, which refers to sweet cherries, and the CN 8 — [1988] ECR 3845, at paragraph 15. code cited, which covers sour cherries. That 9 — [1994] ECR 1-2305, at paragraph 21.

23. A comparison of the German version of 25. Lubella has claimed that the condition Regulation 1932/93 with the other language that there should be a disturbance of the versions of the regulation makes it instantly market or a threat thereof was not met since clear that there is an error in the German the importation of sour cherries from third version as regards the reference to sweet countries into the Community was falling cherries and that the correct reference should and there was no reason to expect any have been to sour cherries, corresponding to abnormally large drop in prices for Commu­ the CN Code, which was correctly given in nity cherries. In addition Lubella has stated the German version also. that the introduction of a minimum price system was not permissible under the pro­ tective measures regulation, because it was an inappropriate means of eliminating a distur­ bance of the market in that it could not help to stabilize market prices.

24. It is further stated that on the market for cherries there had always been problems in relation only to imports of sour cherries, whereas imports of sweet cherries have never given rise to problems. Regulation No 1931/93, which was issued simulta­ neously with Regulation No 1932/93, dealt 26. The Spanish Government has stated that also with problems concerning imports of in cases like this the Commission has a wide sour cherries. From the context and aims discretion and that it is clear from the intro­ pursued by the series of rules of which ductory recitals in the preamble to Regu­ Regulation No 1932/93 forms a part there lation No 1932/93 in conjunction with the thus could not have been any doubt that it recitals to Regulation No 1931/93 that the

'...Where the evaluation of a complex econ­ omic situation is involved, the Commission and the Management Committee enjoy a 28. By way of introduction I should empha­ wide measure of discretion. In reviewing the size that according to Article 1 of the protec­ legality of the exercise of such discretion, the tive measures regulation the criteria to be Court must confine itself to examining taken into account for the application of whether it discloses manifest error or consti­ protective measures in the organization of tutes misuse of power or a clear disregard of the market in fruit and vegetables are the the limits of its discretion on the part of that actual or probable volume of imports or institution.' exports, the availability of products on the Community market and the prices of domes­ tic products recorded on the Community 10 — [1990] ECR I-435. market or the probable trend of those prices. 11 — [1996] ECR I-795.

I-5115

OPINION OF 4. 7. 1996 — CASE C-64/95

In those circumstances it is necessary to (Poland) remained at the same high level as enquire whether the Commission's evalua­ in 1991. The result was, as the figures set out tion of the situation on the market for sour above show, that the price fell by just under cherries was manifestly incorrect and 32% in 1992. whether the measure selected by the Com­ mission was manifestly inappropriate in rela­ tion to the purpose pursued.

31. It may be seen therefore from the Com­ The Commission has further explained that mission's explanations that it did take into the explosive trend in the volume of imports account the criteria which must, according to of sour cherries from 1990 to 1991 (they the protective measures regulation, be more than doubled) was due to the very applied as regards the laying down of protec­ poor sour cherry crop in the Community in tive measures in the organization of the mar­ 1991, which caused a great shortage of sour ket for fruit and vegetables. Regard being cherries and a relatively high price as com­ had to the information at the Commission's pared with earlier years. In 1992 the sour disposal on the situation of the market for cherry crop in the Community returned to sour cherries in 1993, my view is that the normal, but despite the good crop the import Commission had good grounds for thinking of sour cherries from third countries that the market was exposed to serious risks of disturbances and it was therefore right to adopt the necessary measures to counteract 12 — Source: Eurostat — Comext. them.

I-5116

LUBELLA v HAUPTZOLLAMT COTTBUS

These directly conflicting forms of words in the protective measures regulation must I think be interpreted as meaning that the 34. It may be seen from the Commission's complete suspension of imports from third statement that in 1993 it was necessary to countries mentioned in Article 3(1) of that reduce the considerable volume of imports regulation must be regarded as the most far- of sour cherries from Poland in order to pro­ reaching measure the Commission can adopt tect Community production. However, in

I-5117

OPINION OF 4. 7. 1996 — CASE C-64/95

the Commission's view a complete suspen­ 36. My view is that in those circumstances it sion of imports from Poland was unneces­ must be concluded that no facts have sary as that might have led to a scarcity of emerged to suggest that the Commission supplies for the processing industry. made an incorrect decision or exceeded the bounds of its discretion.

I-5118

LUBELLA v HAUPTZOLLAMT COTTBUS

sion, previously cited, the Court had occa­ situation. The Commission's powers must in sion to pronounce upon the principle of the addition be deemed to be known to those protection of legitimate expectation in rela­ operating in the sector in question, so that tion to traders in the agriculture sector. The every economically circumspect and prudent 1 Court thus declared: 3 undertaking must constantly expect that the rules will be adapted to the market situation.

'... whilst the protection of legitimate expec­ tation is one of the fundamental principles of the Community, traders cannot have a legiti­ 41. In those circumstances Lubella's argu­ mate expectation that an existing situation ment that the principle of the protection of which is capable of being altered by the legitimate expectation was disregarded when Community institutions in the exercise of Regulation No 1932/93 was issued cannot in their discretionary powers will be main­ my view be upheld. tained; this is particularly true in an area such as the common organization of markets which involves constant adjustments to meet changes in the economic situation ... Traders cannot therefore claim to have a vested right to maintain an advantage which establish­ Statement of reasons ment of a common market organization has given them and which they have at a given time enjoyed ...'.

44. According to Article 190 of the Treaty 45. The first recital in the preamble to Regu­ Community enactments are to state the rea­ lation No 1932/93 refers to the protective sons on which they are based. In its judg­ measures regulation containing the condi­ ment in Case C-350/88 Delacre and Others v tions for applying protective measures for 14 Commission the Court declared, with fruit and vegetables. The second recital in the regard to the requirements for such a state­ preamble to Regulation No 1932/93 refers to ment that: Regulation No 1931/93 of the same date, according to which reference prices for sour cherries were no longer to be applied in 1993. It is further stated that that might lead to the marketing of Community production being influenced by competition from third countries offering prices substantially lower than the prices at which Community prod­ '... the Court has consistently held that the ucts could be marketed. The third recital statement of grounds required by Article 190 introduces a system of minimum import of the EEC Treaty must disclose in a clear prices and countervailing charges as the most and unequivocal fashion the reasoning fol­ appropriate system for counteracting the dis­ lowed by the Community authority which turbance on the Community market. adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and the Court to exercise its supervisory jurisdiction ...

47. Finally Lubella has claimed that the introduction of the minimum price system is inconsistent with Articles 14 and 15 of the interim agreements on trade and trade- Article 15 of the agreements provides: related matters between the European Econ­ omic Community and the European Coal and Steel Community of the one part and each of the Republic of Poland, the Republic of Hungary and the Czech and Slovak Fed­ 15 eral Republic of the other part (hereinafter 'the interim agreements'), since after the 'Notwithstanding other provisions of this introduction of the system consultations Agreement and in particular Article 24, if, were not held with the Contracting States. given the particular sensitivity of the agricul­ tural markets, imports of products originat­ ing in one Party, which are the subject of concessions granted in Article 14, cause seri­ ous disturbance to the markets in the other Party, both Parties shall enter into consulta­ tions immediately to find an appropriate 48. The Commission has stated that the pro­ solution. Pending such solution, the Party visions of the interim agreement with the concerned may take the measures it deems Republic of Poland, which is the relevant necessary.' agreement in this case, were complied with.

51. It may thus be seen from Article 15 of lation, which was not rectified until 20 July the interim agreements that in the event of 1993, applies to such imports. serious disturbance of the market the party concerned may adopt the measures it deems necessary and it may further be seen from the information given that the Commission complied with the obligation to initiate con­ sultations immediately with a view to finding a solution to the problem. In those circum­ 55. The Commission and the Spanish Gov­ stances my view is that the introduction of ernment have expressed the view that Regu­ the minimum price scheme cannot be lation No 1932/93 cannot be interpreted regarded as inconsistent with Article 15 of solely in the light of the German version and the interim agreement with the Republic of that it therefore applied also to imports Poland. which took place on 19 and 20 July 1993. This is not a case of retroactive effect.

I-5122

LUBELLA v HAUPTZOLLAMT COTTBUS

relevant provisions of Community law as a aims pursued by the legislation of which it result of the rectification of the incorrect formed part. German version since, as previously men­ tioned, not only could Regulation No 1932/93 in its original version be inter­ 58. The second question must accordingly preted on the basis of any one of the various be answered to the effect that the provisions language versions, but it was necessary to of Regulation No 1932/93 apply also to interpret it in the light of all the language imports of sour cherries which took place on versions together with the context and the 19 and 20 July 1993.

Conclusion

59. I shall accordingly recommend the Court to answer the questions referred to it to the effect that:

(1) Consideration , in the light of the order for reference and the information forthcoming during the proceedings , has disclosed no factor of such a kind as to affect the validity of Commission Regulation ( EEC ) No 1932/93 of 16 July 1993 establishing protective measures as regards import of sour cherries.