Judgment_paragraph 1. · Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Société Wilhelm Pfützenreuter (3/74)

1.The plaintiff in the main action notes that the Member States are not empowered to promulgate rules of interpretation of concepts relating to Community law. Nor are they competent to give a prescriptive interpretation of concepts of Community law in cases where there are no Community rules of interpretation.Given that the provisions of Regulation No 102/64 do not expressly empower the Member States to establish their own rules of interpretation, it is clear that the concept of importation contained in Article 7 (2) of that Regulation cannot be interpreted according to national law. This conclusion can be based upon the Judgments of the Court of 18 June 1970 in Case 74/69 (Krohn), Rec. p. 451, 17 December 1970, in Case 25/70 (Köster-Berodt), Rec. p. 1161 and 27 October 1971, in Case 6/71 (Rheinmühlen), Rec. p. 823.However, the question remains that of knowing whether the concept of importation contained in Article 7 (2) of Regulation No 102/64 corresponds to the interpretation traditionally put upon that concept by the Member States. In this connexion the plaintiff in the main action notes that Regulation No 102/64 forms part of the rules laid down for the transitional period. During this period national market organizations remained in force. At the time the Council and the Commission did not judge it necessary to define the concept of importation. It would in fact have been impossible to give a uniform Community definition, in view of the differences arising from the existence of separate national market organizations. It was only when the rules laid down for the final stage of the common agricultural policy came into force that Community rules for imports were established. Reference is made here to Regulations Nos 1496/68 of the Council of 25 September 1968 on the definition of the customs territory of the Community (OJ of 28 September 1968, L 238/1) and 542/69 of the Council of 18 May 1969 on Community transit (OJ of 29 March 1969, L 77/1).The case law of the Bundesfinanzhof shows that the latter has taken account of the details of the system laid down for the transitional period when applying national rules for the definition of the concept of exportation.It is in no way incompatible with the principle of the uniform application of Community law to ally the concept of importation as contained in Article 7 (2) of Regulation No 102/64 to the interpretations given to that concept in the laws of the various Member States. In applying this principle of uniformity, account must be taken of the level of integration of the national agricultural policies and markets during the transitional period. Under the system laid down in the basic Regulation No 19/62 of the Council of 4 April 1962 (OJ 1962, p. 965) the integration of markets principally concerned the unification and harmonization of customs duties, levies, Quantitative restrictions etc. The unification of customs procedures assumed a secondary importance. Accordingly, the principle of the uniform application of Community law is of significance only for the interpretation of concepts such as levies or quantitative restrictions. Viewed in this way, even the concept of discrimination as contained at Article 40 (3) has only a limited sphere of application during the transitional period. Finally, the objective of the licence system, instituted by Regulation No 102/64, does not require that the concept of importation in Article 7 (2) of the Regulation should be interpreted uniformly in all Member States. The objective of the Regulation is to make possible accurate forecasts as to future trade in agricultural products so that the competent authority should be able to plan such intervention as may prove necessary. Since, during the transitional period, trade forecasts could relate only to the various national markets, there was nothing to prevent the Member States applying national criteria for the definition of concepts relating to imports and exports. The plaintiff in the main action here refers to the Judgment of the Court of 11 July 1968 in Case 4/68 (Schwarzwaldmilch), Rec. 549. It concludes that the concept of importation in Article 7 (2) of Regulation No 102/64 should be defined according to normal administrative Dractice in the various Member States.Should the Court not adopt this theory, the plaintiff claims that question 1 (b) cannot be answered by reference to Regulation No 1373/70 of the Council of 10 July 1970 (OJ of 20 July 1970, L 151/1) and to the Judgment of the Court of 15 December 1971 in Case 35/71 (Schleswig-Holsteinische landwirtschaftliche Hauptgenossenschaft), Rec. 1083.The last-mentioned Judgment was concerned with the interpretation of Article 15 (1) of Regulation No 120/67 of the Council of 13 June 1967 (OJ No 117, p. 2269). The expression ‘day of importation’ contained in that provision was interpreted with regard to the objective of the levy system instituted by Regulation No 120/67.The concept of importation contained in Article 7 (2) of Regulation No 102/64 must be approached in the same fashion if a correct interpretation is to be obtained. In the words of the seventh recital of the preamble to that Regulation it is the purpose of the security ‘to avoid licences being put into circulation which are not then followed by import and export’ and, accordingly, could give ‘a mistaken view of the market situation’.The plaintiff concludes from this that the objectives of the levy system as laid down by Regulation No 120/67 on the one hand and those of the import-licence system on the other are not identical. A solution must therefore be found which takes account both of the particular objective of Regulation No 102/64 and of the legitimate interests of importers. The plaintiff refers to Article 41 of the Customs Law (Zollgesetz) and to the German doctrine of transport under customs bond and concludes that the declaration of imported goods with a view to their transport under customs bond constitutes an importation within the meaning of Article 7 (2) of Regulation No 102/64, provided that the goods are not re-exported before being put into free circulation.As to the second question, the plaintiff claims that the Court, in its Judgment of 11 July 1968 (Case 4/68) expressly laid down that the enumeration of cases of force majeure contained in Article 6 (3) of Regulation No 136/64 of the Council of 12 October 1964 (OJ 1964, p. 2601) is not exhaustive and that accordingly national courts are competent to recognize the existence of a case of force majeure in circumstances other than those set out in that provision. Given that the wording of Article 8 (2) and (3) of Regulation No 102/64 is almost identical to that of Article 6 (3) and (4) of Regulation No 136/64, it may justifiably be concluded that the case law of the Court cited above is equally valid in this case. This conclusion is supported by the Judgments of the Court of 17 December 1970(Case 25/70) and 16 December 1970 in Case 36/70 (Getreide-lmport), Rec. 1107.In its Judgment of 30 January 1974 in Case 158/73 (Kampffmeyer), not yet reported, the Court held that a request for the consideration of circumstances of force majeure may be submitted after the period of validity of the licence has expired. Although that case was concerned with the interpretation of Article 18 of Regulation No 1373/70, there is nothing to prevent this case law being applied by analogy here.Article 8 of Regulation No 102/64 lays down no time limit for the submission of the request. It follows from this that the submission of a request for consideration of circumstances of force majeure is not subject to any time limit, apart from the general limits applicable to the unlawful exercise of a right.

Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Société Wilhelm Pfützenreuter (3/74)

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