C-334/01

GLENCORE GRAIN ROTTERDAM

OPINION OF ADVOCATE GENERAL MISCHO delivered on 23 January 2003 1

1. This reference for a preliminary ruling common organisation of the market in from the Verwaltungsgericht Frankfurt am cereals 2 provides that the intervention Main (Germany) concerns cereals sold by agencies designated by the Member States an agricultural intervention agency by are to buy in certain types of cereals, means of a tendering procedure for export including common wheat, which are to signatory States of the Convention offered to them and have been harvested between the Community and the African, in the Community, provided that the offers Caribbean and Pacific States ('the ACP comply with conditions laid down, in States'). The question for the Court is what particular in respect of quality and quan- is the event which causes the 12-month tity. period to begin to run during which exporters must produce proof of the entry of products for consumption in the States of destination. 3. Article 5 authorises the Commission, in the framework of the Management Com- mittee procedure, to lay down the pro- cedures and conditions for the sale of cereals by the intervention agencies of the Member States.

I — Legal context: Community legislation

B — Regulation (EEC) No 2131/93

A — Regulation (EEC) No 1766/92 4. Commission Regulation (EEC) No 2131/93 of 28 July 1993 laying down the procedures and conditions for the sale of cereals held by intervention agencies 3 2. Article 4 of Council Regulation (EEC) provides for two different tendering pro- No 1766/92 of 30 June 1992 on the

'1. The securities referred to in this Regu- lation shall be lodged in accordance with — the proof referred to in Article 18 of Title II of Commission Regulation (EEC) Regulation (EEC) No 3665/87 has No 2220/85. been provided. However, the security shall be released where the operator provides proof that a quantity of at 4 — OJ 1994 L 21, p. 1. least 1 500 tonnes of cereals products I - 6772

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has left the customs territory of the 8. Article 2 provides that, '[sļubject to the Community on a vessel suitable for sea provisions of this Regulation, the sales of transport. common wheat of breadmaking quality referred to in Article 1 shall take place in accordance with the procedure and con­ ditions laid down by Regulation (EEC) No 2131/93'.

9. Article 8 provides:

5. Except in cases of force majeure, the security provided for in the second indent of paragraph 2 shall be forfeited in respect ' 1 . The security lodged p u r s u a n t to of quantities for which the proof referred to Article 13(4) of R e g u l a t i o n (EEC) in the second indent of paragraph 3 has not No 2131/93 must be released once the been provided within the period'' laid export licences have been issued to the down in Article 47 of Regulation (EEC) successful tenderers. No 3665/87.'

2. The obligation to export and import into one of the countries of destination listed in Annex I shall be covered by a security amounting to ECU 60 per tonne of which C — Regulation (EC) No 2372/95 ECU 20 per tonne shall be lodged upon issue of the export licence, with the balance of ECU 40 being lodged before removal of the cereals.

D — Regulation (EEC) No 3665/87 (b) the customs entry certificate made out in accordance with the specimen in Annex II; this certificate must be com- pleted in one or more official languages 10. The specific regulation in the present of the Community and in a language in case refers, from the viewpoint of the current use in the non-member country production of proof, to Commission Regu- concerned; lation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products. 7

7—OJ 1987 L 351, p. 1. or I - 6774

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(c) any other document endorsed by the 2. Except in cases of force majeure, the customs authorities of the non-member documents relating to payment of the country concerned which identifies the refund or release of the security must be products and shows that they have submitted within 12 months following the been released for consumption in that date on which the... export declaration was country.' accepted. 9

12. However, it is clear from paragraph 2 of the same article that if, owing to circumstances beyond the control of the exporter, none of the documents specified in paragraph 1 can be produced, or they are considered inadequate, proof of clearance through customs for release for consump- 4. Where the documents required under tion may be deemed to be furnished by the Article 18 cannot be submitted within the production of seven other types of docu- period referred to in paragraph 2, although ments. the exporter has acted with all due dili- gence to obtain them and communicate them within such period, he may be granted further time 10 for the production of the documents. 13. With regard to the procedure to be followed and the periods prescribed for payment of the export refund, Article 47 of Regulation No 3665/87, as amended by Commission Regulation (EC) No 1829/94 ...' of 26 July 1994, 8provides as follows:

15. Article 3 reads as follows: Once the evidence laid down by the specific Regulation has been furnished that all primary, secondary and subordinate requirements have been fulfilled, the secur- ity shall be released.

'For the purposes of this Regulation:

Article 22

(a) A "security" is an assurance that a sum of money will be paid or forfeited to a competent authority if a particular 1. A security shall be forfeit in full for the obligation is not met. quantity for which a primary requirement is not fulfilled, unless force majeure pre- vented fulfilment.

2. A primary requirement shall be con- sidered to have been breached if the relevant evidence is not produced within the time-limit set for the production of that evidence unless force majeure prevented production of such evidence within that 16. Articles 21, 22 and 28 of Regulation time-limit. The procedure in Article 29 for No 2220/85, as amended by Commission recovering the sum forfeited shall immedi- ately be followed.

11—OJ 1985 L 205, p. 5. 12 — Emphasis added. 13 — OJ 1987 L 113, p. 31.

2. The period laid down in paragraph 1 shall not exceed three years from the time 1. Where no period is laid down for the security was assigned to a particular producing the evidence needed to release obligation, except in cases of force a sum secured, such period shall be: majeure.''

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II — Main proceedings and question no ports, the wheat was unloaded at referred to the Court Durban, a port in the Republic of South Africa, where it was at first stored and then transported to the three ACP countries in question as soon as transport became available.

A — Background to the main proceedings

20. Pursuant to the first indent of the second subparagraph of Article 8(2) of 17. Glencore Grain Rotterdam BV ('Glen- Regulation No 2372/95, the security of core'), the plaintiff in the main proceedings, ECU 20 per tonne was released by the took part in the invitation to tender issued defendant in the main proceedings follow- by Regulation No 2372/95. It was awarded ing production of proof that the goods a total amount of 102 359 tonnes of removed had left the customs territory of common wheat and it then provided the the Community. security of ECU 60 per tonne pursuant to Article 8(2) of Regulation No 2372/95.

23. The plaintiff in the main proceedings 26. It is apparent from the order for contested that decision without success and reference that the Verwaltungsgericht is on 3 April 1998 brought an action before inclined to share the plaintiff's opinion that the Verwaltungsgericht against the partial the reference in the second indent of the forfeiture of its security. second subparagraph of Article 8(2) of Regulation No 2372/95 to Article 47 of Regulation (EEC) No 3665/87, and thus to the time-limit in Article 47(2), is a drafting error on the part of the legislature. It considers that Regulation No 2372/95 does 24. Before the national court, the plaintiff not lay down a time-limit for compliance in the main proceedings claimed primarily with the primary obligation, namely the that the 12-month time-limit laid down by importation of common wheat of bread- Article 47(2) of Regulation No 3665/87 did making quality into an ACP State. not apply in the context of the second subparagraph of Article 8(2) of Regulation No 2372/95. It maintains that the 12-month period in Article 28(1 )(b) of Regulation No 2220/85 should be applied. That provision, unlike Article 47(2) of Regulation No 3665/87, does not cause time to run from the day following accept- B — The question referred ance of the export declaration, but merely provided that the evidence needed to release of the security should be furnished 12 months from the date on which the 27. Being of the view that the outcome of primary requirement was met. the dispute before it required an interpre- tation of the second indent of the second subparagraph of Article 8(2) of Regulation No 2372/95 and of Article 47(2) of Regu- lation No 3665/87, the Verwaltungsgericht Franfurt am Main decided to stay proceed- 25. On the other hand, the defendant in the ings and to refer the following question to main proceedings considers that the second the Court for a preliminary ruling: indent of the second subparagraph of Article 8(2) of Regulation No 2372/95 constitutes the legal basis of the contested decision declaring the security forfeit. According to those provisions, the security of ECU 40 per tonne must be released 'Must the second indent of the second within 15 working days of the date on subparagraph of Article 8(2) of Commis- which the successful tenderer supplies sion Regulation (EC) No 2372/95 of proof of entry for consumption in the 10 October 1995 be interpreted as meaning ACP State or States referred to in that Article 47(2) of Commission Regu- Article 5(3) of that Regulation. This evi- lation (EEC) No 3665/87 of 27 November dence must be supplied in accordance with 1987 must be simply applied by analogy, so Articles 18 and 47 of Regulation (EEC) that the 12-month time-limit for supplying No 3665/87. proof of importation into the ACP State

28. In essence, the national court is asking the Court to rule on whether the combined 30. On this point, Glencore contends, first, provisions of the second indent of the that Regulation No 2372/95, unlike Regu- second subparagraph of Article 8(2) of lation No 3665/87 on export refunds, Regulation No 2372/95 and Article 47(2) prescribes only one period within which of Regulation No 3665/87 may be inter- the goods must be exported, but does not preted as meaning that the 12-month time- expressly provide for a period within which limit for proving importation into the ACP they must be imported into the ACP State State concerned does not begin to run until of destination. In those rules, which relate the primary obligation imposed by those only to exports to ACP States, the legis- provisions, namely, according to the lature intentionally refrained from setting a national court, importation into the ACP time-limit for completion of the import- State, has been fulfilled. ation of the goods into the ACP State concerned because it was often impossible to adhere to the 12-month period. As the goods come from Europe by ship, they have initially to be stored temporarily, for logis- tical reasons, before they can be loaded on to lorries or trains. They are then trans- ported across Africa under conditions A — The wording and interpretation of which are often very difficult. As no time- the provision in question limit was laid down for importation in the ACP State, that necessarily implies that a time-limit cannot be imposed for furnishing proof either. 1. Glencore's submissions

34. In so far as a time-limit is not laid down for fulfilling the primary requirement either, the time-limit for producing proof of importation into the Member State of destination is, according to Article 28(1)(b) of Regulation No 2220/85, 12 months from fulfilment of the primary requirement, namely importation into the ACP States of destination. In order to ensure that that p e r i o d does not b e c o m e t o o long, Article 28(2) provides for an absolute 32. Finally, the foregoing interpretation of maximum of three years from the date on the second indent of the second subpara- which the security was provided. graph of Article 8(2) of Regulation No 2372/95 is also justified, in Glencore's submission, by the fact that Regulation No 2220/85 is applicable. The security to be provided in connection with exports under the former regulation is a security within the meaning of Article 3(a) of Regulation No 2220/85. The importation 35. The plaintiff in the main proceedings of cereals into the recipient ACP States is a concludes that the second indent of the

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second subparagraph of Article 8(2) of 38. In the Commission's submission, the Regulation No 2372/95 does not prescribe wording of the second indent of the second any period for producing proof of import- subparagraph of Article 8(2) of Regulation ation and that the reference to Article 47 of No 2372/95 is clear and unambiguous: Regulation No 3665/87 can only be inter- there is no suggestion in that provision that preted as meaning that that provision may the reference to Article 47 of Regulation be given an interpretation by analogy suited No 3665/87 should not also extend to the to Regulation No 2372/95. time-limit provision in Article 47(2). If that provision were not taken into account, the reference would be wholly ineffective.

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sion or to amend it accordingly. No such 43. Thus, Regulation No 2372/95 would rectification or amendment was made, not have been unduly lengthened if the although the Commission amended Commission had stated in Article 8(2): a n o t h e r provision of Regulation No 2372/95 in November 1995.

'This proof shall be supplied, within 12 months of the date of acceptance of the export declaration, in accordance with one of the methods of proof laid down in 41. Furthermore, Article 17 of Regulation Article 18 of Commission Regulation No 2131/93 also refers to Article 47 of (EEC) No 3665/87, save in cases of force Regulation No 3665/87 in relation to the majeure. However, where the documents time-limit for releasing the security. Con- required under Article 18 have not been sequently, Article 8 of Regulation produced within that period, although the No 2372/95 forms part of the detailed exporter has taken steps to obtain and rules applying to the procedures for placing produce them within that period, further on sale cereals from intervention stocks. It time may be allowed for production of the makes no difference that the wording of the documents.' 15 reference varies slightly from one provision to another. Had the legislature intended to depart from the general detailed rules relating to time-limits, it would have made its intention clear. 44. That said, there is no doubt to my mind that the provisions in question are not ambiguous. The reference to Article 47 of Regulation No 3665/87 cannot be inter- preted as applying to all the provisions of Article 47 with the exception of paragraph (2), which prescribes a period of 12 months beginning on the date of 3. Assessment acceptance of the export declaration, and paragraph (4), which provides for further time.

47. In that opinion, Advocate General Léger considers that 'we should prefer the interpretation that is most consistent with 51. As this conclusion enables me to give a the principle of legal certainty, that is, the definitive answer to the question put by the interpretation required by the actual word- national court, it is purely as an ancillary ing' 17 of the provision in question. matter that I shall turn to the other arguments raised in this case.

16 — See the Opinion in Case C-63/00 Schilling and Nehring [2002] ECR I-4483, point 24. 18 —See, in particular, Case C-74/98 DAT-SCHAUB [1999] 17 — Ibid., point 32. ECR I-8759, paragraphs 31 and 44.

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B — The ratio legis of the mechanism and 55. Therefore, if the reference in the detailed rules relating to time-limits laid Article 8(2) of Regulation No 2372/95 to down in Regulation No 2372/95 in the Article 47 of Regulation No 3665/87 was light of the specific nature of that regu- not a drafting error, the former regulation lation and the circumstances of the par- would have the effect of placing the ticular case exporter in a worse situation by compari- son with the obligations imposed on him by Regulation No 2131/93, which would be contrary to the spirit and purpose 19 of the regulation. 52. On this point, I think it appropriate to set out the national court's observations, which are more detailed than Glencore's while having the same impact.

58. Thus more is required from an exporter defendant's argument that Regulation who has been awarded a tender under No 2131/93 always applies unless Regu- Regulation No 2372/95 than from an lation No 2372/95 provides otherwise exporter referred to in Regulation cannot therefore succeed. No 2131/93.

62. Article 17(5) of Regulation No 2131/93 59. Furthermore, whereas an exporter cannot constitute the legal basis for the under the latter regulation has 12 months security provided for in Regulation in which to prove that the goods had been No 2372/95 because that security repre- loaded on to a vessel (such proof being sents neither a guarantee of supply nor a relatively simple because it can be issued by security designed to cover the difference the authorities of the Member States of the between the world market price and the Community), an exporter under Regulation Community price. No 2372/95 must prove that the goods have been released for consumption in an ACP State (which is more difficult to prove) and he has the same 12-month period for that purpose. This takes no account of the fact that Regulation No 2372/95 was 2. The Commission's viewpoint intended to avoid excessive costs for oper- ators, which made it necessary to derogate from certain provisions of Regulation No 2131/93.

63. In its observations, the Commission first of all emphasises, purely by way of precaution, that an interpretation based on the objective of the provision, far from 60. The national court further observes refuting the arguments raised in support of that under Regulation No 2372/95 an its theory, rather supports them. exporter must lodge a significantly higher security (ECU 60 per tonne) than he is required to provide under Regulation No 2131/93.

therefore indeed the primary obligation refer, first of all, to the Opinion of Advo- imposed on successful tenderers and the cate General Léger which I have already performance of that obligation was ensured cited above, 20 which states: by the provision of the security provided for in Article 8(2). Had a longer period been set than the comparable period appli- cable in the framework of the general scheme of Article 17(5) of Regulation No 2131/93 for producing proof of the importation of the goods into the ACP 'A careful examination of the case-law of States in question, which was necessary for this Court shows that "teleological" inter- the release of the second part of the pretation is not used by the Court on every security, that would have detracted from occasion. the importance of the role which that obligation plays in ensuring the success of the measure as a whole. That, however, would have been the consequence of apply- ing the time-limit provisions of Article 28(1 )(b) of Regulation No 2220/85, as proposed by Glencore.

65. Finally, the Commission notes that that Reference is often made to the purpose of conclusion is not precluded by the fact that Community legislation in order to confirm the purpose of the security required by the wording of the provision concerned. Article 8(2) of Regulation No 2372/95 was, This is intended to support the meaning of according to the fourth recital to the a provision which, although not always regulation, to avoid excessive costs for totally clear and unambiguous, generally operators. That statement relates merely leaves little room for doubt. Recourse to to the amount of the security to be lodged, the wording and recourse to the purpose of not to the conditions for its release, which, Community rules are thus complementary rather, are dealt with in the fifth recital. with the process of interpretation.

71. Secondly, the second recital to Regu- lation No 2372/95 states that 'it is... 68. I readily accept that the Commission necessary to issue a specific invitation to has not explained how Regulation tender to ensure that users in these coun- No 2372/95 introduced 'greater flexibility tries have access to common wheat of in the mechanisms and obligations govern- breadmaking quality under conditions ing the resale of intervention stocks' (fourth appropriate to the highly competitive situ- recital), nor has it shown what the 'excess- ation on the world market'. The prices at ive costs' were which the security arrange- which the lots were awarded therefore ment put in place ensured would not be came within a specific economic context imposed on operators. The example of the and deliveries therefore had to take place in amount of the security amount is clearly the period during which that context per- unconvincing, since it is higher than for sisted. ordinary exports.

72. I consider that those are valid reasons 69. That said, it must be noted that the which legitimately led the Commission to main purpose of Regulation No 2372/95 is make '[t]he obligation to export and import not to make certain mechanisms more into one of the countries of destination' flexible or to enable certain costs to be (Article 8(2) of Regulation No 2372/95) subject to a strict time-limit and to ensure compliance with that time-limit by the 21 — Ibid., paragraphs 23 to 28. lodging of a relatively high security.

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Thus, in accordance with the provisions of further time. As the Commission observed Regulation No 3665/87, payment of at the hearing, the use of the plural refunds is conditional, in the case of indicates that more than one extension differentiated refunds, on the product hav- could be granted in succession. ing been imported into a non-member country and on the formalities for its release for consumption having been com- pleted.' 24

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IV — Conclusion

84. In the light of the foregoing observations, I propose that the Court reply as follows to the question from the Verwaltungsgericht Frankfurt am Main:

The second indent of the second subparagraph of Article 8(2) of Commission Regulation (EC) No 2372/95 of 10 October 1995 on the issuing of standing invitations to tender for the sale of common wheat of breadmaking quality held by the French and German intervention agencies for export to certain ACP countries in the 1995/96 marketing year must be interpreted as meaning that proof of the importation of goods into the ACP States concerned, which is necessary for the release of the security in the amount of ECU 40 per tonne, must be produced, in accordance with Article 47(2) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, within a period of 12 months following the date of acceptance of the export declaration, unless the exporter has obtained further time within which to produce the requisite proof or in a case of force majeure, in accordance with Article 47(4) and (5) of the Regulation No 3665/87.

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