C-153/95

JUDGMENT OF 23. 1. 1997 — CASE C-153/95

J U D G M E N T O F T H E C O U R T (Fourth Chamber) 23 January 1997 *

In Case C-153/95,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Belgian Raad van State, Belgium, for a preliminary ruling in the proceedings pending before that court between

A N D R É en Co. N V

and

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after considering the written observations submitted on behalf of:

— A N D R É en Co. NV, by Jacques Steenbergen and Harold Nyssens, of the Brussels Bar,

— the Belgian Government, by Jan Devadder, Director of Administration in the Ministry of Foreign Affairs, External Trade and Cooperation with Developing Countries, acting as Agent,

— the Commission of the European Communities, by Hubertus van Vliet and Klaus-Dieter Borchardt, of its Legal Service, acting as Agents,

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ruling under Article 177 of the EC Treaty two questions on the interpretation of Article 8 of Commission Regulation (EEC) N o 926/80 of 15 April 1980 on exemp- tion from the application of monetary compensatory amounts in certain cases (OJ 1980 L 99, p. 15).

2 Those questions were raised in proceedings between A N D R É en Co. N V ('ANDRÉ'), a limited company having its registered office in Belgium, and the Belgian State concerning exemption from monetary compensatory amounts ('MCAs') for which A N D R É applied in 1982 pursuant to Regulation N o 926/80, following the exportation of various quantities of cereals.

3 Before Regulation N o 926/80, the Commission had adopted Regulation (EEC) N o 1608/74 of 26 June 1974 on special provisions in respect of monetary compensa- tory amounts (OJ 1974 L 170, p. 38), which concerned exemption from the pay- ment of MCAs in respect of imports or, as the case might be, exports carried out after those amounts were introduced or increased but made pursuant to contracts concluded before those amounts were introduced or increased ('existing con- tracts').

4 Since Regulation N o 1608/74 had established only a very general framework for waiving payment of MCAs, the Commission considered that it would be appro- priate, in the light of past experience, to draw up more detailed rules. Accordingly, it replaced Regulation N o 1608/74 with Regulation N o 926/80, which pursued the same objective of mitigating the disadvantages arising from existing contracts. Regulation N o 926/80 therefore lays down the criteria and conditions in accord- ance with which Member States may or may not grant exemption from payment of MCAs.

(b) where it is established that the product to which the new monetary compensa­ tory amount applies is re-exported or re-imported within six months of import or export.

(3) (...)’

6 Subsequently, Regulation N o 926/80 was repealed by Commission Regulation (EEC) N o 1084/84 of 18 April 1984 (OJ 1984 L 106, p. 26), and no new regulation has been adopted.

7 It is apparent from the order for reference that by eight contracts concluded between 15 January and 2 February 1982 A N D R E sold to companies having their registered offices in France and the Netherlands quantities of cereals which were exported and delivered between March and July 1982. Under those contracts, any MCAs to be paid on exportation were to be borne by the seller.

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ANDRÉ ν BELGIAN STATE

N o 926/80 permits exemption from MCAs to be refused also where goods in respect of which an M C A has been granted on prior importation are re-exported, that provision applies only where the beneficiary of the exemption is the same per­ son as the recipient of the MCAs on prior importation. The reason for this is that Regulation N o 926/80 is intended to grant exemption from MCAs to those who themselves bear additional expenses which they could not have avoided even though they had taken all the normal and necessary precautions. Consequently, a disadvantage suffered in this case by the exporter cannot be offset by an advantage accruing to another importer effecting importation, even in the six months preced­ ing exportation.

1 3 Having regard to the grounds set out above and to its own considerations, the Raad van State, uncertain as to the interpretation of that provision of Regulation N o 926/80, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'(1) Must Article 8(2)(b) of Commission Regulation (EEC) N o 926/80 of 15 April 1980 be interpreted as meaning that application of that regulation in respect of an export operation must be refused where the products to which the new monetary compensatory amount applies were imported less than six months before the export transaction?

(2) Must Article 8(2)(b) of Commission Regulation (EEC) N o 926/80 of 15 April 1980 be interpreted as meaning that application of that regulation must also be refused with regard to an export operation in respect of which monetary com­ pensatory amounts are due, where the export operation was preceded less than six months before by an import operation for which monetary compensatory amounts were received by a person other than the person who exported the products?'

17 In refusing to waive payment of MCAs where goods cross the frontiers of a Mem- ber State twice, Article 8(2)(b) is intended to provide a corrective mechanism for preventing a trader who is granted exemption from receiving an unfair advantage. Wherever frontiers are crossed twice in the circumstances referred to in Article 8(2)(b) of Regulation N o 926/80, MCAs are offset, so that the exemption provided for by the regulation is no longer justified.

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18 It follows that the objective of Regulation N o 926/80 is satisfied every time a fron­ tier is crossed twice in the circumstances set out in Article 8(2)(b); this twofold crossing of the frontier thus leads to neutralization of the charge. The charge would not be so neutralized if exemption were granted in respect of MCAs to be paid on exportation, despite the fact that an equivalent M C A had been received when the product was imported during the six months before exportation.

19 Consequently, the answer to the first question must be that Article 8(2)(b) of Regulation N o 926/80 is to be interpreted as applying also where the exported product had previously been imported within the six months preceding its expor­ tation.

Question 2

23 Furthermore, the objective of Regulation N o 926/80 is not to protect traders gen- erally from any disadvantage arising from existing contracts. As the Court noted in Case 152/80 Debayser and Others [1981] ECR 1291, paragraph 12, which con- cerned Regulation N o 1608/74, replaced by Regulation N o 926/80, the purpose which the provisions of Regulation N o 1608/74 were designed to fulfil was not to provide traders engaged in the performance of contracts containing predetermined conditions with full protection against the application of MCAs following a mon- etary measure.

24 Moreover, as stated in the sixth recital in the preamble to Regulation N o 926/80, the latter lays down certain fixed limits so as to prevent abuse and simplify admin- istration. It follows that, as the Commission has correctly observed, if exemption from payment of MCAs in respect of a product could be granted notwithstanding the fact that equivalent MCAs had been granted not long before, merely because those MCAs had been received by another trader, this would encourage those con- cerned to enter into agreements in order to circumvent the purpose of the regu- lation by receiving MCAs on importing a product without having to pay them on re-exporting it, on account of exemption having been granted.

25 It follows from the foregoing that, where it is established that the product exported is the same as that previously imported in the circumstances provided for in Article 8(2)(b) of Regulation N o 926/80, exemption must be refused, irrespec- tive of whether the product was imported by the same or another trader.

T H E C O U R T (Fourth Chamber),

in answer to the questions referred to it by the Belgian Raad van State, by order of 7 February 1995, hereby rules:

1. Article 8(2)(b) of Commission Regulation (EEC) N o 926/80 of 15 April 1980 on exemption from the application of monetary compensatory amounts in certain cases is to be interpreted as applying also where the exported product had previously been imported within the six months preceding its exporta­ tion.

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2. Article 8(2)(b) of Regulation N o 926/80 is to be interpreted as meaning that, in order to refuse exemption from payment of MCAs, it is sufficient for the same product to be exported within six months of its importation, irrespec- tive of whether it was imported by the same or another trader.