Bundesanstalt für landwirtschaftliche Marktordnung v Jacob Hirsch & Söhne GmbH (85/78)

(b)The second question

Although there are no provisions of Community law in this connexion, it is however necessary to acknowledge that Community law does not exclude the right of cancellation on the ground of error since that legal concept is known and applied in at least some of the Member States; the subsequent revocation of a declaration of intent made in error is a necessity in all legal systems.The fact that Community law itself permits the possibility of the retroactive withdrawal of an application for the grant of a licence is confirmed by Article 5 (3) of Regulation (EEC) No 1373/70 of the Commission of 10 July 1970 on common detailed rules for the application of the system for import and export licences and advance fixing certificates for agricultural products subject to a single price system (Official Journal, English Special Edition 1970 (II), p. 439) and by Article 5 (3) of Regulation No 173/75 of the Commission of 17 January 1975 (Official Journal 1975, No L 25, p. 10).The Community legislature therefore does not consider that the cancellation of an application for the grant of an import licence is contrary to the spirit and objectives of the system of licences.The general view of the market situation which the system of licences is intended to achieve is the result on the one hand of the knowledge of the imports and exports actually carried out and, on the other, of the forecast, based on the licences applied for and granted, of expected imports and exports. This forecast is subject to certain fluctuations because, according to the law in force at the time, the licence could be used by 5 % more or less, in other words a margin of 10 % was permitted, and because it was not necessary to use the licences in cases of force majeure. The forecast may also be altered at very short notice. Licences with advance fixing, which assume an increase in the levy when the goods are imported, are usually drawn up in the long term whereas day licences are applied for in the short term. The authorities are therefore required to alter their forecasts each day. The cancellation of an application for the grant of an import licence lodged in January for an importation planned for April cannot therefore jeopardize the forecast of the competent authorities as regards the development of the market. Normal cancellation in good time of an application for the grant of a day licence for an importation planned for a much later date is not contrary to the spirit and the objectives of the licence system.This is a fortiori so where, as in the present case, the importer not only cancels the application for the grant of a day licence but at the same time expresses his intention of applying for a licence with advance fixing of the levy and of carrying out the importation at the date originally planned. The grant of a licence with advance fixing of the levy instead of a day licence does not affect either the general view of the market situation or the forecast of expected imports and exports.Having regard to the spirit and objectives of the licence system it is also of little importance whether or not the error is the fault of the person cancelling the application; the question whether an application for the grant of a licence once lodged may be cancelled does not depend on the problem of fault. In any case the intervention agency cannot have suffered any damage in the present case.It is necessary to reply to the second question as follows:An application for the grant of an import licence under the first sentence of Article 16 (1) of Regulation No 19/62/EEC may, at least in Community law, be cancelled on the ground of error where at the same time notice is given of the application for the grant of a fresh licence with the same dates of importation, regardless of whether the error was or was not the fault of the person cancelling the application, if the intervention agency granting the licence thereby retains a general view of the market.