Interagra SA v Fonds d'orientation et de régularisation des marchés agricoles (FORMA) (109/82)

II —Summary of the observations submitted to the Court

Interagra disputes first of all that Article 3 (3) of Regulation No 2044/75 must apply rather than Article 6 of that regulation because it is à special rule derogating from that article and because that is the Commission's opinion.In Interagra's view, if Article 3 (3) does indeed constitute an exception to the general rules governing the issue of certificates for milk products, it must not be forgotten that Article 6 constitutes another exception, in the case of tenders, to those general rules. In fact, it appears from the general scheme of Regulation No 2044/75 that the provisions relating to tenders (Articles 5 to 10) derogate in toto from Articles 1 to 5 laying down general rules on import and export licences and certificates and advance fixing of refunds.As far as the Commission's interpretation is concerned, Interagra points out that the Court of Justice has consistently held that the interpretations which the Commission provides to national authorities are for guidance only and are not binding.Interagra also contends that it is clear from the spirit of Articles 3 (3) and 6 of Regulation No 2Ö44/75 that Article 6 must prevail Over Article 3 (3) and that the Commission itself has confirmed this view in adopting Regulation No 3137/80 of 4 December 1980 (Official Journal, 1980, L 329, p. 20).As regards the spirit of those provisions, Interagra points out that the aim of Article 3 (3) of Regulation No 2044/75 is to enable the Commission to suspend the advance fixing of refunds in the event of speculation or the threat of speculation, a risk which does not occur in the case of tenders. In those cases the rule in Article 6, to the effect that certificates are always issued on the day on which the application is lodged, is particularly well-suited to invitations to tender to which traders are often asked to reply within a very short time, sometimes on the same day, which is incompatible with the obligation to wait for a period of five days, as Article 3 (3) of that regulation requires.As far as Regulation No 3137/80 is concerned, Interagra takes the view that by that regulation the Commission amended Regulation No 2044/75 in the sense that Article 3 (3) was extended to invitations to tender. It challenges the Commission's argument that the amendment simply clarified the rules. The very language of that regulation and the fact that the Commission believed that it had to make it retroactive demonstrate that the aim of the regulation was not to clarify the rules in force but to amend them.More specifically, Interagra rejects the arguments advanced by the Commission in Case 217/81 to the effect that the aim of Regulation No 3137/80 was to clarify the conditions for the application of amendments made to Regulation No 2044/75 by Regulations Nos 203/80 and 3015/80, especially on the concept of “issue”.In Interagra's view Regulation No 3137/80 does not accord with the Commission's aim at all. Instead, as the “date of validity” of certificates, it substitutes for the day on which the application is lodged the fifth working day thereafter. This confirms that until then the “date of validity” was that on which the application was lodged and that by means of the new rules the Commission wished to amend Regulation No 2044/75 retroactively in order to impose its interpretation according to which Article 3 (3) of that regulation prevails over Article 6.In conclusion Interagra proposes that the Court should reply to the question submitted by the Tribunal Administratif, Paris, as follows:“In view of the wording of Regulation No 2044/75 on 17 November 1980, in the case of export certificates fixing refunds in advance issued for the purpose of a tender concerning products referred to in Article 3 (3) of Regulation No 2044/75 Article 6 of that regulation prevails over Article 3 (3) inasmuch as the exporter's right to the issue of the certificates exists from the date on which his application was lodged.”In its observations the Commission sets out the facts and legislative context in which they occurred and then attempts to show, first, that Articles 3 (3) and 6 of Regulation No 2044/75 do not in fact have the same substantive scope and secondly that the amendment made to Regulation No 2044/75 by Regulation No 3137/80 concerns the question of the period of validity and not the question of the waiting period and it cannot therefore be considered as retroactively extending that period to applications for certificates submitted in connection with invitations to tender.As regards the substantive scope of those two articles, the Commission argues that whereas Article 3 (3) deals with the waiting period for the export certificate Article 6 deals with how the period of validity of that certificate is determined.The Commission sets out in detail the rules on the period of validity and distinguishes between products which are subject to the waiting period provided for in Article 3 and which are, or are not, to be exported in connection with an invitation to tender and products which are not subject to the waiting period and which are, or are not, to be exported in connection with an invitation to tender.In the Commission's view, Interagra is in fact confusing the preliminary question of the right to the issue of the certificate, which is governed in particular by Article 3 (3) of the regulation, with that of the period of validity of the certificate once it has actually been issued.As regards the amendments made to Regulation No 2944/75 by Regulation No 3137/80, the Commission adheres to and repeats the explanations which it provided in Case 217/81, according to which the aims of the amendment were first to remove a difficulty of interpretation inherent in Regulation No 203/80 and secondly to provide for a transitional measure in connection with the implementation of Regulation No 3015/80. In the Commission's view, there is no way in which that amendment, which relates to the term of validity of a certificate, can be construed as extending the waiting period for applications for certificates lodged in connection with invitations to tender as that period already applied to such applications from the time when the system of advance fixing was introduced by Regulation No 445/77 of 2 March 1977 (Official Journal, 1977, L 58, p. 21).The Commission consequently proposes that the questions submitted by the Tribunal Administratif, Paris, should be answered in the following manner:“On 17 November 1980 Article 3 (3) of Regulation No 2044/75 applied to all applications for export certificates fixing in advance the refund on the products falling under subheadings 04.02 A II (b) . 1, 04.02 B I (b) 2 (aa) and 04.03 (skimmed-milk powder, butter and butter-oil), including applications for such certificates lodged in connection with an invitation to tender opened in an importing nonmember country.”In its observations the Fund points out, as the Commission does, that the purposes of Article 3 (3) and Article 6 of Regulation No 2044/75 are different. According to the Fund, Article 3 (3) fixes the date on which the competent intervention agency must decide whether the conditions for the issue of the export certificate fixing the refund in advance are statisfied whereas Article 6 fixes the start of the period of validity of the certificate if, on the date stipulated in Article 3 (3), the conditions for the grant of the certificate are fulfilled.In conclusion the Fund asks the Court of Justice to answer the question submitted by the Tribunal Administratif, Paris, to the effect that there is no contradiction between the general rule contained in Article 6 of Regulation No 2044/75, fixing, in the case of an invitation to tender opened in a nonmember country, the start of the period of validity of the certificate, and the specific rule, applicable only to certain milk products, including butter, laid down by Article 3 of the same regulation requiring account to be taken of special measures (like the suspending of the advance fixing of the refund) adopted by the Commission between the day on which the application for the export certificate was lodged and the fifth working day thereafter.The French Government also takes the view that the question submitted to the Court does not involve any contradiction existing in Regulation No 2044/75 between two provisions or the relationship ratione materiae between a general rule and an exception. On the contrary, it is a question of the temporal relationship between a provision relating to the right to and detailed rules on the issue of a certificate (Article 3 (3)) and a provision concerning the period a validity of the certificate (Article 6). The French Government asks the Court to construe the provisions of Regulation No 2044/75 to that effect.