C-153/95

ANDRÉ ν BELGIAN STATE

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 19 September 1996 *

1. By judgment of 7 February 1995, the Bel­ 2. The facts of the case may be briefly gian Council of State referred the following described as follows. N V A N D R E en Co. questions to the Court for a preliminary rul­ ('ANDRE'), a company having its registered ing: office in Belgium, concluded eight contracts with a number of French and Dutch compa­ nies for the sale by A N D R E of various quantities of cereals. The terms of the con­ tracts provided that any monetary compen­ satory amounts ('MCAs') payable were to be borne by the seller. At the same time, in '(1) Must Article 8(2)(b) of Commission order to obtain the goods to be delivered to Regulation (EEC) N o 926/80 of the purchasers, A N D R E concluded various 15 April 1980 be interpreted as meaning contracts with companies established in that application of that regulation in Belgium for the purchase, this time by respect of an export operation must be ANDRE, of the amount of cereals it refused where the products to which the required. According to the order for refer­ new monetary compensatory amount ence, the goods in question were imported applies were imported less than six into Belgium by those companies. In essence, months before the export transaction? A N D R E concluded a contract for the export of goods which had in their turn been imported into Belgium by others.

Contingenten en Vergunningen (Central may therefore be considered together. The Quotas and Licences Agency, 'the CDCV') Court is called upon to ascertain whether the for exemption from payment of MCAs in prohibition of exemption laid down in respect of its exports to the Netherlands and Article 8(2)(b) of Regulation N o 926/80 France. That regulation provides that the applies even where the goods are imported Member State concerned is authorized to and subsequently exported within six waive 'monetary compensatory amounts (...) months by different traders. on imports or exports effected pursuant to contracts concluded before those amounts were increased or introduced'. 2 However, the CDCV rejected the application. Accord- ing to the competent authority, the reason for the rejection was to be found in Article 8(2)(b) of Regulation N o 926/80, which pro- vides that exemption may not be granted 'where it is established that the product to The Commission and the Belgian Govern- which the monetary compensatory amount ment propose that the answer should be in applies is re-exported or re-imported within the affirmative, essentially on the basis of the six months of import or export.' According consideration that Article 8(2)(b) refers to to the CDCV, that condition was not satis- the fact that the product is 're-exported or fied in the circumstances of the case, since re-imported within six months of import or the goods exported by A N D R E had in their export'. That is, therefore, an event which turn been imported into Belgium, albeit by a occurs when the same product crosses the different trader, before that period of six frontier twice and which the legislature con- months began to run. sidered it should take into account 'on objec- tive grounds', that is to say irrespective of whether it is the same person who re-imports or re-exports the product. In their view, that is fully justified: the advan- tage consisting of the grant of an MCA on import is offset by the disadvantage repre- sented by the obligation to pay an equivalent A N D R E brought an action before the MCA on the export of the same product. Council of State, in which it challenged the The provision in question is specifically rejection of its application for exemption. designed to ensure that balance. The national court accordingly referred the questions set out above to the Court of Jus- tice for a preliminary ruling.

but it is far from evident 3— that Article amounts or from an increase in such 8(2)(b) prohibits the grant of exemption amounts following a particular monetary whenever the product to be exported has in measure affecting import or export opera­ its turn been imported into the State con­ tions carried out under contracts concluded 4 cerned within the period of six months, the prior to the monetary measure in question'. question whether the prior import was car­ For that reason, the exemption provided for ried out by someone other than the exporter by that regulation is defined as an 'equity would still remain to be settled. This, to my clause'. 5 That, and nothing else, is the objec­ mind, is the crux of the matter. That article tive of the regulation under consideration, as does not expressly provide one way or the is confirmed by Article 8(1) which provides: other. The solution must therefore be sought 'Exemption may be granted only where the in the ratio, in the reasons underlying the applicant, or the contracting party on whose system introduced by Regulation N o 926/80. behalf he acts, is subject, by virtue of the new monetary compensatory amount, to an additional expense which he could not have avoided by taking all the necessary and nor­ mal precautions.' Article 8(3) provides to the same effect: 'Where movements on exchange markets yield an advantage to the operator concerned, (...) the advantage shall be deducted from the additional expense'. That, The purpose of the regulation is to prevent in my view, confirms that exemption is justi­ the exporter from suffering loss as a result of fied precisely inasmuch as the intention was having to pay an MCA introduced after the to prevent traders from bearing additional contract was concluded. That is why the expense unforeseen when the contract was regulation provides that the State in question concluded, as a result of a subsequent mon­ may exempt such traders from the applica­ etary measure. tion of the new MCA. This is an incontro­ vertible fact and one already evident in the recitals in the preamble to the regulation: 'the basic criterion warranting such exemp­ tion must be to protect the operator against unavoidable disadvantages arising from the introduction of new monetary compensatory

export'. In such a case the trader is not denied the benefit of exemption simply exposed to any disadvantage whatsoever: the because the loss he has incurred as a result of re-export or re-import by the same trader a monetary measure is, as it were, counter- offsets the disadvantage arising from the fail- balanced by the advantage derived by ure to grant exemption. It is clear, however, another trader from that same measure. that such offsetting can take place only if the trader involved is one and the same person, operating on the market first as importer and then as exporter. If the product concerned, when it is imported into the relevant State, gives rise to the payment of an MCA, it is the importer alone who will benefit by that advantage. The other person, the exporter, bears for his part only the unfavourable con- sequences of having to pay an MCA when the goods leave the country. In short, it does 5. The Commission objects, however, that not seem to me to be possible to speak of the above solution would easily lend itself to offsetting the advantage of one against the abuse. O n import, the trader would receive a disadvantage of the other, as the Commission sum of money by way of MCA; the product does. In view of the MCA mechanism, as could then be exported at once by another envisaged by the regulation, the advantage person who, relying upon Article 8(2)(b), enjoyed and the corresponding disadvantage would not be required to pay the MCA on suffered must be assessed solely by reference export. The importer and exporter could to one and the same person: the trader secretly agree to share the advantage consist- involved. ing, on the one hand, of the receipt of the MCA when the goods enter the Member State and, on the other, of exemption from the obligation to pay an MCA of equal amount when those same goods leave the State. However, I am not swayed by that argument either. I do not deny that the sys- tem is open to abuse. Indeed, I agree that it was for that very reason that the legislature abolished it by Regulation N o 1084/84 6 and did not replace it with an equivalent system. The fact remains, however, that at the mate- rial time Regulation N o 926/80 was still in force and the risk of abuse does not justify its provisions being altered by judicial Having said that, I consider that Article decision. The provision to be applied leaves 8(2)(b) must be interpreted as meaning that no room for doubt: exemption may be exemption may be refused only if the prod- granted only where payment of the new uct is re-exported or re-imported by the MCA renders the applicant subject 'to an same person. If that were not the case, the clear intention of the regulation — that of protecting the position of the individual trader, as I pointed out — would be 6 — Commission Regulation (EEC) No 1084/84 of 18 April 1984 thwarted. According to the Commission, repealing Regulation (EEC) No 926/80 on exemption from monetary compensatory amounts in certain cases (OJ 1984 however, the person concerned would be L 106, p. 26).

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