Roomboterfabriek "De beste boter" BV v Produktschap voor Zuivel (276/82)

Contents

II —Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

The plaintiff in the main proceedings maintains in limine that in so far as this case concerns the advance fixing of refunds in connection with its participation in certain invitations to tender opened in a nonmember country, Article 3 (3) of Regulation No 2044/75 is not the sole provision applicable and that other provisions are relevant, in particular Article 6 of Regulation No 2044/75 and Article 19 (1) and (2) of Regulation (EEC) No 193/75 of the Commission of 17 January 1975 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (Official Journal 1975, L 25, p. 10). In its view, it is necessary to ascertain whether the effect of those provisions is to preclude the application of Article 3 (3) of Regulation No 2044/75; that is the question to be resolved in Case 109/82 (Interagra). If the Court were to decide in Case 109/82 that, where an invitation to tender is opened in a nonmember country, Article 3 (3) of Regulation No 2044/75 does not apply, that decision might diminish the significance of the three questions raised by the national court.As regards the first question, the plaintiff is of the opinion that Community law does not provide a definition of the expression “special measures”. In its view, therefore, reference must be made to the system comprising all the rules applicable to the agricultural sector and a distinction must be drawn between those which concern the day-to-day management of the organization of the markets and those which are applicable in special circumstances, it being understood that rules relating to the day-to-day management cannot in themselves be described as special measures within the meaning of Regulation No 2044/75. Management of the Community market forms part of the Commission's normal day-to-day responsibilities. It involves not only the regular fixing of refunds but also, in certain cases, the suspension of the option to have such refunds fixed in advance when difficulties arise or threaten to arise.The plaintiff therefore proposes that the first question shuld be answered as follows :“Article 3 (3) of Regulation No 2044/75 of the Commission of 25 June 1975 must be interpreted as meaning that a decision suspending the possibility of advance fixing of refunds pursuant to Regulation No 876/68 of the Council of 28 June 1968 is not to be regarded as a ‘special measure’.”If the Court considers it appropriate to answer the second question, the plaintiff maintains that the answer should be in the negative on the ground that no express powers to reject applications for advance fixing submitted before the period of suspension are vested in the Commission. Neither Regulation No 193/75 nor Regulations Nos 804/68 and 876/68 confer any such powers. On the contrary, the third subparagraph of Article 5 (4) of Regulation No 876/68 provides that “... applications for advance fixing lodged during the period of suspension shall be rejected”. In order for the defendant to be able to reject the applications pending in the present case it would have been necessary for Community law to contain express provisions allowing applications pending during a suspension procedure to be rejected on the sole basis of such suspension.If, therefore, the Court considers that the first question must be answered in the affirmative, the plaintiff proposes that the second question should be answered as follows:“Article 3 (3) of Regulation No 2044/75 must be interpreted as meaning that applications for the advance fixing of refunds which were submitted before the introduction of a period of suspension pursuant to measures based on Regulation No 876/68 and on which a decision must be taken during that period cannot be rejected.”As regards the third question, which concerns the validity of the provision in question, the plaintiff observes in the first place that if Article 3 (3) of Regulation No 2044/75 is interpreted as meaning that even applications pending at the time when the suspension was decided upon can be rejected, that would be contrary to the third subparagraph of Article 5 (4) of Regulation No 876/68, which provides that applications for advance fixing shall be rejected during the period of suspension.The plaintiff observes, secondly, that such an interpretation of Article 3 (3) of Regulation No 2044/75 contravenes the principle of legal certainty. It points out that the issue of export licences imposes an obligation on the exporter to export his goods on pain of forfeiting the security provided. Furthermore, by making it possible to fix refunds in advance, Community law seeks to give exporters a degree of security as regards the amounts which they will receive upon exportation of their goods and exporters obviously conclude their transactions on the basis of the rate of refund in force at the time when they lodge their application. Accordingly, it would be contrary to the principle of legal certainty if the Commission were able, in connection with the normal management of the common organization of a market, to call in question refunds in reliance upon which exporters had assumed commitments. Such a possibility exists only in exceptional circumstances, in connection with the adoption of protective measures within the meaning of Article 21 (1) of Regulation No 804/68.If, therefore, the Court considers that the second question must also be answered in the affirmative, the plaintiff proposes that the third question should be answered as follows:“Article 3 (3) of Regulation No 2044/75 is contrary both to Article 5 (4) of Regulation No 876/68 and to the principle of legal certainty if the first-mentioned provision must be taken to mean that applications for the advance fixing of refunds which are lodged before the introduction of a period of suspension pursuant to a measure adopted on the basis of Regulation No 876/68 and on which a decision must be taken during that period may be rejected.”The Commission begins by analysing the reasons underlying the decision to suspend advance fixing. If points out that since in international trade no genuine price fixing takes place for dairy products, international prices are very unstable and that that disrupts to a considerable extent the smooth operation of the system of export refunds. Thus, excessively high refunds can lead to a sudden, notable — and sometimes purely speculative — increase in exports and, in particular, in applications for the advance fixing of export refunds. That is the reason why the Commission decided to tighten controls on exports, particularly of butter, in order to be able to adopt where necessaiy, appropriate measures in due time. That decision resulted in the adoption of the contested provision and of a number of measures, including Regulation No 2993/80, suspending the system of advance fixing.The Commission points out in that connection that in the three working days prior to that suspension it had received applications for advance fixing in respect of 352557.5 tonnes of butter. That quantity is almost ten times greater than the quantity in respect of which applications were lodged shortly before the first suspension from 12 to 14 November inclusive and it exceeds the Community's total exports of butter to nonmember countries in 1980, which amounted to 323219 tonnes. It is therefore quite plain that those applications were highly speculative in nature and that to grant the applications pending would have led to totally unacceptable consequences both for the common agricultural policy and for the budget.The Commission subsequently conducts a detailed analysis of the Community legislation at issue in this case. It deduces, in particular from Article 5 (4) of Regulation No 876/68, that if the system of advance fixing is suspended, no advance-fixing certificates conferring a right to receive the refund fixed in advance may be issued during the period of suspension. Thus, any applications pending, on which a decision must be taken during the period of suspension, must be rejected in view of the temporary abolition of their legal basis. The Commission also considers that, as a result of the introduction of a waiting period pursuant to Article 3 (3) of Regulation No 2044/75, the right to have the refund fixed in advance could not arise until the fifth working clay following that on which the application was lodged; that also permitted certain measures adopted in connection with advance fixing to be extended to applications pending, provided that those measures were in force on the last day of the waiting period. Finally, the Commission takes the view that the practice followed by the Community institutions and by the national authorities confirms that the special measures referred to in Article 3 (3) include suspension of the application of the system of advance fixing and that suspension also gives rise to legal consequences affecting applications for advance fixing which arc already pending.On the basis of its observations concerning the Community legislation applicable, the Commission considers it appropriate to conclude, without further comment, that the first question submitted for a preliminary ruling calls for an answer in the affirmative.As regards the second question, the Commission is of the opinion that, according to the wording and the obvious intent of the provision in question, applications for the advance fixing of a refund which were pending could not be accepted and had to be rejected altogether if, on the fifth working day following that on which the application was lodged, the possibility of advance fixing had been suspended in conformity with the first or second subparagraph of Article 5 (4) of Regulation No 876/68. In addition, the Commission points out that an affirmative answer to the second question can be deduced from the combined interpretation and application of Article 3 (3) of Regulation No 2044/75 and Regulation No 2993/80.As regards the third question, the Commission considers first of all whether the contested provision is compatible with (a) Article 5 (4) of Regulation No 876/68 (b) with the principle of legal certainly.

(a)In the light of the answer proposed by it to the second question, the Commission takes the view the relevant part of the third question should in fact be reworded as follows: “Is the application of the provisions of Regulation No 2993/80 in conjunction with those of Article 3 (3) of Regulation No 2044/75 compatible with Article 5 (4) of Regulation No 876/68?”In its answer to that question, the Commission again considers the contested provisions within the general context of Regulation No 804/68, which is the basic regulation; it rejects point by point all the arguments put forward by the plaintiff before the national court and is of the opinion that, in any event, there are more important matters than such problems of interpretation — which it describes as specious — on the ground that “if a measures is to be effective, it must be possible for the protective measure governed by Regulation No 876/68 to be extended to applications pending in a large number of cases, or in most of those cases”.The Commission lays particular emphasis on the purpose of the legislation in question. It considers that the most important argument in favour of its suggested interpretation of Article 3 (3) of Regulation No 2044/75 and of Article 5 (4) of Regulation No 876/68 is provided by the task which it performs, namely ensuring that the system of refunds functions properly; that task was entrusted to it by Regulation No 804/68 and confirmed by Regulation No 876/68. The Commission reiterates that, if it were impossible to extend suspension of the system of advance fixing to applications pending, the measure would lose much of its value and the Commission would find it virtually impossible to carry out its aforementioned task in the proper manner.The Commission therefore concludes that the application of the provisions of Regulation No 2993/80 in conjunction with those of Article 3 (3) of Regulation No 2044/75 is not incompatible with Article 5 (4) of Regulation No 876/68.

(b)In response to the plaintiff's view that the rejection of applications lodged before the period of suspension confers retroactive effect on decisions suspending advance fixing, the Commission considers that such criticism stems from a misconception of the nature and operation of the system for the advance fixing of refunds and, in particular, of the manner in which and the time at which the right to have a refund fixed in advance arises. It refers once again to the provisions which apply in the present case and deduces therefrom that Regulation No 876/68 determines only the substance of the right to have a refund fixed in advance, whilst all other matters, in particular the manner in which and the time at which the right arises, are governed by the detailed implementing rules adopted by the Commission. It is therefore pointless to contend that suspension of advance fixing operates retroactively and that acquired rights have been adversely affected since, in the present case, the lodging of an application for an advance-fixing certificate did not confer any right to the issue of such a certificate; that right could not arise until the fifth working day following that on which the application was lodged, provided that the application of the system of advance fixing was not suspended beforehand.Moreover, since firms cannot rely on the principle of the protection of legitimate expectation to demand the retention of existing legislation where it was foreseeable that such legislation might be amended, it is pointless for the plaintiff to contend, in the present case, that the rejection of the applications lodged before the period of suspension failed to meet its legitimate expectations.Finally, the Commission adds that if there are any lingering doubts concerning the compatibility of the contested measures with the principle of legal certainty, the validity of those measures should be recognized on the ground that the general interest in the proper functioning of the common organization of the market concerned and, in particular, of the system of refunds in that sector must obviously take precedence over the interests of the exporters concerned.Therefore, the Commission concludes that the answer to the third question should be that “there is no reason to suppose that Article 3 (3) of Regulation No 2044/75 is invalid on the ground that it is contrary to Community law”.