Wyrok

z dnia 17 grudnia 1970 r.

Trybunał Sprawiedliwo

ś

ci

11/70

1. THE VALIDITY OF MEASURES ADOPTED BY THE INSTITUTIONS OF THE COMMUNITY CAN

ONLY BE JUDGED IN THE LIGHT OF COMMUNITY LAW. THE LAW STEMMING FROM THE TREATY,
AN INDEPENDENT SOURCE OF LAW, CANNOT BECAUSE OF ITS VERY NATURE BE OVERRIDDEN
BY RULES OF NATIONAL LAW, HOWEVER FRAMED, WITHOUT BEING DEPRIVED OF ITS
CHARACTER AS COMMUNITY LAW AND WITHOUT THE LEGAL BASIS OF THE COMMUNITY
ITSELF BEING CALLED IN QUESTION. THEREFORE THE VALIDITY OF A COMMUNITY MEASURE
OR ITS EFFECT WITHIN A MEMBER STATE CANNOT BE AFFECTED BY ALLEGATIONS THAT IT
RUNS COUNTER TO EITHER FUNDAMENTAL RIGHTS AS FORMULATED BY THE CONSTITUTION
OF THAT STATE OR THE PRINCIPLES OF ITS CONSTITUTIONAL STRUCTURE.

(JUDGMENT OF 15 JULY 1964, CASE 6/64 (1964) E. C. R., P. 594)
2. RESPECT FOR FUNDAMENTAL RIGHTS FORMS AN INTEGRAL PART OF THE GENERAL

PRINCIPLES OF LAW PROTECTED BY THE COURT OF JUSTICE. THE PROTECTION OF SUCH
RIGHTS, WHILST INSPIRED BY THE CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER
STATES, MUST BE ENSURED WITHIN THE FRAMEWORK OF THE STRUCTURE AND OBJECTIVES
OF THE COMMUNITY.

(JUDGMENT OF 12 NOVEMBER 1969, CASE 29/69, REC. 1969, P. 425)
3. THE REQUIREMENT BY THE AGRICULTURAL REGULATIONS OF THE COMMUNITY OF

IMPORT AND EXPORT LICENCES INVOLVING FOR THE LICENSEES AN UNDERTAKING TO
EFFECT THE PROPOSED TRANSACTIONS UNDER THE GUARANTEE OF A DEPOSIT
CONSTITUTES A METHOD WHICH IS BOTH NECESSARY AND APPROPRIATE, FOR THE
PURPOSES OF ARTICLES 40 (3) AND 43 OF THE EEC TREATY, TO ENABLE THE COMPETENT
AUTHORITIES TO DETERMINE IN THE MOST EFFECTIVE MANNER THEIR INTERVENTIONS ON
THE MARKET IN CEREALS. THE SYSTEM OF DEPOSITS VIOLATES NO FUNDAMENTAL RIGHT.

4. THE CONCEPT OF FORCE MAJEURE ADOPTED BY THE AGRICULTURAL REGULATIONS IS

NOT LIMITED TO ABSOLUTE IMPOSSIBILITY BUT MUST BE UNDERSTOOD IN THE SENSE OF
UNUSUAL CIRCUMSTANCES, OUTSIDE THE CONTROL OF THE IMPORTER OR EXPORTER, THE
CONSEQUENCES OF WHICH, IN SPITE OF THE EXERCISE OF ALL DUE CARE, COULD NOT HAVE
BEEN AVOIDED EXCEPT AT THE COST OF EXCESSIVE SACRIFICE.

(JUDGMENT OF 11 JULY 1968, CASE 4/68, REC. 1968, P. 563)
5. BY LIMITING THE CANCELLATION OF THE UNDERTAKING TO EXPORT AND THE RELEASE

OF THE DEPOSIT TO CASES OF FORCE MAJEURE THE COMMUNITY LEGISLATURE ADOPTED A
PROVISION WHICH, WITHOUT IMPOSING AN UNDUE BURDEN ON IMPORTERS OR EXPORTERS,
IS APPROPRIATE FOR ENSURING THE NORMAL FUNCTIONING OF THE ORGANIZATION OF THE
MARKET IN CEREALS, IN THE GENERAL INTEREST AS DEFINED IN ARTICLE 39 OF THE TREATY.

ECR 1970/2/01125

139317

Dz.U.2004.90.864/2: art. 34; art. 37

omówienie: Mi

ą

sik D. EPS 2005/2/58

Summary of the Judgment

1. MEASURES ADOPTED BY INSTITUTIONS - VALIDITY - ASSESSMENT IN TERMS OF

COMMUNITY LAW - INDEPENDENCE, UNIFORMITY AND EFFICACY OF COMMUNITY LAW -
RECOURSE TO THE RULES OF NATIONAL CONSTITUTIONAL LAW EXCLUDED

2. COMMUNITY LAW - GENERAL PRINCIPLES - FUNDAMENTAL RIGHTS - RESPECT FOR

SUCH RIGHTS ENSURED BY THE COURT IN TERMS OF THE STRUCTURE AND OBJECTIVES OF
THE COMMUNITY

3. AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - IMPORT AND EXPORT

LICENCES GUARANTEED BY A DEPOSIT - NECESSARY AND APPROPRIATE NATURE OF THAT
SYSTEM - ABSENCE OF VIOLATION OF FUNDAMENTAL RIGHTS

(EEC TREATY, ARTICLES 40 AND 43)

4. AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - IMPORT AND EXPORT

LICENCES - PERIOD OF VALIDITY - EXPIRATION OF SUCH PERIOD - CASE OF FORCE MAJEURE -
CONCEPT

(REGULATION NO 120/67 OF THE COUNCIL)

5. AGRICULTURE - COMMON ORGANIZATION OF MARKETS - IMPORT AND EXPORT

LICENCES - CANCELLATION OF THE UNDERTAKING TO IMPORT OR EXPORT - LIMITATION TO
CASES OF FORCE MAJEURE - PERMISSIBILITY

1. THE VALIDITY OF MEASURES ADOPTED BY THE INSTITUTIONS OF THE COMMUNITY CAN

ONLY BE JUDGED IN THE LIGHT OF COMMUNITY LAW. THE LAW STEMMING FROM THE TREATY,
AN INDEPENDENT SOURCE OF LAW, CANNOT BECAUSE OF ITS VERY NATURE BE OVERRIDDEN
BY RULES OF NATIONAL LAW, HOWEVER FRAMED, WITHOUT BEING DEPRIVED OF ITS
CHARACTER AS COMMUNITY LAW AND WITHOUT THE LEGAL BASIS OF THE COMMUNITY
ITSELF BEING CALLED IN QUESTION. THEREFORE THE VALIDITY OF A COMMUNITY MEASURE
OR ITS EFFECT WITHIN A MEMBER STATE CANNOT BE AFFECTED BY ALLEGATIONS THAT IT
RUNS COUNTER TO EITHER FUNDAMENTAL RIGHTS AS FORMULATED BY THE CONSTITUTION
OF THAT STATE OR THE PRINCIPLES OF ITS CONSTITUTIONAL STRUCTURE.

(JUDGMENT OF 15 JULY 1964, CASE 6/64 (1964) E. C. R., P. 594)

2. RESPECT FOR FUNDAMENTAL RIGHTS FORMS AN INTEGRAL PART OF THE GENERAL

PRINCIPLES OF LAW PROTECTED BY THE COURT OF JUSTICE. THE PROTECTION OF SUCH
RIGHTS, WHILST INSPIRED BY THE CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER
STATES, MUST BE ENSURED WITHIN THE FRAMEWORK OF THE STRUCTURE AND OBJECTIVES
OF THE COMMUNITY.

(JUDGMENT OF 12 NOVEMBER 1969, CASE 29/69, REC. 1969, P. 425)

3. THE REQUIREMENT BY THE AGRICULTURAL REGULATIONS OF THE COMMUNITY OF

IMPORT AND EXPORT LICENCES INVOLVING FOR THE LICENSEES AN UNDERTAKING TO
EFFECT THE PROPOSED TRANSACTIONS UNDER THE GUARANTEE OF A DEPOSIT
CONSTITUTES A METHOD WHICH IS BOTH NECESSARY AND APPROPRIATE, FOR THE
PURPOSES OF ARTICLES 40 (3) AND 43 OF THE EEC TREATY, TO ENABLE THE COMPETENT
AUTHORITIES TO DETERMINE IN THE MOST EFFECTIVE MANNER THEIR INTERVENTIONS ON
THE MARKET IN CEREALS. THE SYSTEM OF DEPOSITS VIOLATES NO FUNDAMENTAL RIGHT.

4. THE CONCEPT OF FORCE MAJEURE ADOPTED BY THE AGRICULTURAL REGULATIONS IS

NOT LIMITED TO ABSOLUTE IMPOSSIBILITY BUT MUST BE UNDERSTOOD IN THE SENSE OF
UNUSUAL CIRCUMSTANCES, OUTSIDE THE CONTROL OF THE IMPORTER OR EXPORTER, THE
CONSEQUENCES OF WHICH, IN SPITE OF THE EXERCISE OF ALL DUE CARE, COULD NOT HAVE
BEEN AVOIDED EXCEPT AT THE COST OF EXCESSIVE SACRIFICE.

(JUDGMENT OF 11 JULY 1968, CASE 4/68, REC. 1968, P. 563)

5. BY LIMITING THE CANCELLATION OF THE UNDERTAKING TO EXPORT AND THE RELEASE

OF THE DEPOSIT TO CASES OF FORCE MAJEURE THE COMMUNITY LEGISLATURE ADOPTED A
PROVISION WHICH, WITHOUT IMPOSING AN UNDUE BURDEN ON IMPORTERS OR EXPORTERS,

IS APPROPRIATE FOR ENSURING THE NORMAL FUNCTIONING OF THE ORGANIZATION OF THE
MARKET IN CEREALS, IN THE GENERAL INTEREST AS DEFINED IN ARTICLE 39 OF THE TREATY.

IN CASE 11/70

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE

VERWALTUNGSGERICHT

(ADMINISTRATIVE

COURT)

FRANKFURT-AM-MAIN,

FOR

A

PRELIMINARY RULING IN THE CASE PENDING BEFORE THAT COURT BETWEEN

INTERNATIONALE HANDELSGESELLSCHAFT MBH, THE REGISTERED OFFICE OF WHICH IS

AT FRANKFURT-AM-MAIN,

AND

EINFUHR- UND VORRATSSTELLE FÜR GETREIDE UND FUTTERMITTEL, FRANKFURT-AM-

MAIN,

ON THE VALIDITY OF THE THIRD SUBPARAGRAPH OF ARTICLE 12 (1) OF REGULATION NO

120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE
MARKET IN CEREALS AND ARTICLE 9 OF REGULATION NO 473/67/EEC OF THE COMMISSION OF
21 AUGUST 1967 ON IMPORT AND EXPORT LICENCES FOR CEREALS AND PROCESSED CEREAL
PRODUCTS, RICE, BROKEN RICE AND PROCESSED RICE PRODUCTS,

THE COURT

COMPOSED OF: R. LECOURT, PRESIDENT, A. M. DONNER AND A. TRABUCCHI, PRESIDENTS

OF CHAMBERS, R. MONACO, J. MERTENS DE WILMARS, P. PESCATORE (RAPPORTEUR) AND H.
KUTSCHER, JUDGES,

ADVOCATE-GENERAL: A. DUTHEILLET DE LAMOTHE

REGISTRAR: A. VAN HOUTTE

GIVES THE FOLLOWING

Judgment

Issues of fact and of law

I - Facts and procedure

On 7 August 1967 Internationale Handelsgesellschaft mbH, an import-export undertaking based at

Frankfurt-am-Main, obtained an export licence in respect of 20 000 metric tons of maize meal, the validity
of which expired on 31 December 1967.

In accordance with the third subparagraph of Article 12 (1) of Regulation No 120/67/EEC of the

Council of 13 June 1967 on the common organization of the market in cereals (OJ Special Edition 1967, p.
33) the issue of the licence was conditional on the lodging of a deposit, amounting to 0.5 units of account
per metric ton, guaranteeing that exportation would be effected during the period of validity of the licence.
As exportation was only partially effected (11 486.764 metric tons) during the period of validity of the said
licence, the Einfuhr- und Vorratsstelle für Getreide und Futtermittel declared DM 17 026.47 of the deposit
to be forfeited, in accordance with Regulation No 473/67/EEC of the Commission of 21 August 1967 on
import and export licences for cereals and processed cereal products, rice, broken rice and processed rice
products (OJ 1967, No 204, p. 16).

On the Einfuhr- und Vorratsstelles failure to come to a decision on the objections of Internationale

Handelsgesellschaft mbH, that undertaking on 18 November 1969 brought an action before the
Verwaltungsgericht (Administrative Court) Frankfurt-am-Main.

By order of 18 March 1970, received at the Court Registry on 26 March, the Verwaltungsgericht

Frankfurt-am-Main, asked the Court under Article 177 of the EEC Treaty for a preliminary ruling on the
following questions:

1. Are the obligation to export, laid down in the third subparagraph of Article 12 (1) of Regulation No

120/67/EEC of the Council of 13 June 1967, the lodging of a deposit, upon which such obligation is made
conditional, and forfeiture of the deposit, where exportation is not effected during the period of validity of
the export licence, legal?

2. In the event of the Courts confirming the legal validity of the said provision, is Article 9 of

Regulation No 473/67/EEC of the Commission of 21 August 1967, adopted in implementation of
Regulation No 120/67, legal in that it excludes forfeiture of the deposit only in cases of force majeure?

In its order the Verwaltungsgericht emphasized the following considerations in particular:

As the court has refused, by reason of established case-law, to accept the legality of the provisions

cited, it appears to it essential to put an end to the resultant legal uncertainty.

Although Community regulations are not German national laws, but legal rules pertaining to the

Community, they must respect the elementary, fundamental rights guaranteed by the German Constitution
and the essential structural principles of national law. In the event of contradiction with those principles,
the primacy of supranational law conflicts with the principles of the German Basic Law.

The system of deposits instituted by Regulation No 120/67 is contrary to the principles of freedom of

action and disposition, of economic liberty and of proportionality stemming in particular from Articles 2 (1)
and 14 of the German Basic Law. More particularly, the adverse effects of the system of deposits on the
interests of trade appear disproportionate to the objective sought by the regulation, which is to ensure for
the competent authorities as precise and comprehensive a view as possible of market trends. The same
result could in fact be obtained by less radical means.

Even if the Court of Justice were to confirm the validity of the system of deposits, the court of

reference still has doubts as to the validity of Article 9 of Regulation No 473/67, by reason of the fact that
forfeiture of the deposit is excluded only in cases of force majeure and not in other cases in which
exportation has not been effected without nevertheless any fault being attributable to the persons
concerned.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written

observations were submitted on 15 June 1970 by the Government of the Kingdom of The Netherlands, the
defendant in the main action and the Commission of the European Communities, on 17 June by the
plaintiff in the main action and on 18 June by the Government of the Federal Republic of Germany.

After hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court

decided to open the oral procedure without any preparatory inquiry. The plaintiff in the main action and the
Commission submitted their oral observations at the hearing on 11 November 1970.

The Advocate-General delivered his opinion at the hearing on 2 December 1970.

For the procedure before the Court Fritz Modest, Advocate, of Hamburg, appeared for the plaintiff in

the main action, Albrecht Stockburger, Advocate, of Frankfurt-am-Main, for the defendant in the main
action, W. Riphagen, Legal Adviser to the Ministry for Foreign Affairs, for the Government of the Kingdom
of The Netherlands, Rudolf Morawitz, Ministerialrat to the Ministry for Economic Affairs, for the

Government of the Federal Republic of Germany and Claus-Dieter Ehlermann, the Commissions Legal
Adviser, for the Commission of the European Communities.

II - Observations submitted to the Court

The written and oral observations submitted to the Court may be summarized as follows:

Internationale Handelsgesellschaft mbH, the plaintiff in the main action, after pointing out the factual
reasons for which it did not during the period of its validity fully utilize the export licence granted to it,
disputes the validity of the system of deposits as instituted by the third subparagraph of Article 12 (1) of
Regulation No 120/67 and Article 9 of Regulation No 473/67, for the following reasons:

(a) Forfeiture of the deposit, which is the consequence of failure to carry out the obligation to import

or export, in reality constitutes a fine or a penalty. The provisions of the Treaty concerning the organization
of the agricultural markets contain no provision enabling the Council or the Commission to impose
sanctions of a penal nature.

(b) The system of deposits, as it is instituted by the provisions criticized, is contrary to the principle of

proportionality which forms part of the general principles of law, recognition of which is essential in the
framework of any structure based on respect for the law. As these principles are recognized by all the
Member States, the principle of proportionality forms an integral part of the EEC Treaty.

The plaintiff in the main action points out more particularly in this connexion that the agricultural

regulations of the Community, in particular Regulation No 120/67, are limited in principle to the formation
of market policy by means of prices. The regulation of prices has an automatic sluice-gate effect on
quantitative movements in the Community market and avoids any disturbance to it. Consequently, the
point of prime importance in the assessment of the market and market trends is the observance and
checking first, of the prices on the internal market and, secondly, of the situation on the world market. On
the other hand, a quantitative check, such as arises from the system of import and export licences, the
implementation of which must be guaranteed by means of a deposit, is only of secondary importance.

It appears therefore that the system of deposits is ineffectual in attaining the objective sought by the

regulation and is therefore contrary to the scheme of the regulation.

Moreover, it is also ineffectual in view of the fact that it can neither guarantee that the obligation to

import or export is actually carried out, nor enable the competent authorities in good time to have a sure
view of the state of the market, much less future market trends.

This is all the more true as the Commissions departments are not technically in a position to exploit

the information provided by the system criticized.

Lastly, the amount of the deposit, particularly in cases of advance fixing of levies or refunds, is

excessive when compared to trade profit margins.

It follows from these findings that a substantial charge is imposed without any necessity on importers

and exporters. Any measure constituting a charge, whether or not it is in itself tolerable, infringes the
principle between the charge and the result which it may or must endeavour to achieve, when that
objective cannot be attained by the method employed or when, in order to attain it, there are other
methods which may be more conveniently applied.

(c) The plaintiff in the main action casts doubt on the validity of Article 9 of Regulation No 473/67,

which allows importers and exporters to be relieved of their obligations and of forfeiture of the deposit in
cases of force majeure, for the following reasons:

- the system of Article 9 infringes the principle of proportionality in that it refuses, otherwise than in

cases of force majeure, to take into consideration situations in which the authorization to import or export
has not been utilized for justifiable commercial reasons;

- the provision in dispute does not take into account the peculiarities of the inward processing trade, a

system to which the goods concerned in the main action are subject;

- the whole of Regulation No 473/67, including Article 9 thereof, was adopted, by virtue of Article 26

of Regulation No 120/67, according to the Management Committee procedure; the application of that
procedure is incompatible with the institutional st

the refund fixed in advance, it was obviously necessary to fix the amount of the deposit at a higher figure,
as the deposit must forestall the risk of more serious speculation on the fixed rate of refund, which could
lead to the non-utilization of the licence.

periods. Moreover, the policy of the markets would find itself paralysed by it, as it would be several months
behind events Finally, such a solution would promote speculation.

The Commission of the European Communities makes the preliminary observation that the

Community institutions are bound by Community law alone and that in their regard the protection
conferred by the fundamental rights of national constitutions flows only from Community law, written or
unwritten. Further, even according to German constitutional law, the system of deposits is only capable of
infringing the provisions concerning free development of the person, freedom of action and economic
freedom if, at the same time, it runs counter to the principle of proportionality.

This principle is in no way put in issue by the system in dispute, as that system is indispensable to

the proper functioning of the common organization of the market in cereals.

(a) The common organization of the market in cereals involves essentially the regulation of prices,

the object of which is to stabilize the price of cereals in the Community at a level higher than that on the
world markets. Such regulation protects the internal market from falls in prices provoked either by over-
production by the Community or by imports from third countries. It can only function if the regulatory
mechanisms are used in a rational manner; it is therefore essential that data be available indicating not
only the imports and exports already effected but also enabling a valid assessment of future market trends
to be made. This prospective comprehensive view of the market is essential not only for the possible
application of protective measures in the face of a threat of serious disturbances to the market but also for
the fixing of export refunds and denaturing premiums.

The system of deposits is a necessary instrument for such a prospective comprehensive view of the

market.

Such a view requires sure data on future imports and exports; the licence only provides such

information if it can be expected with sufficient certainty that the issue of the licence will actually lead to
importation or exportation. This is only the case if non-utilization of the licence involves some
disadvantage for the licensee; such is the object of the deposit which is forfeited in cases where the
licence is not used. The obligation to import or export involves no disadvantage for the licensee other than
forfeiture of the deposit; thus it in no way has a particularly adverse effect on the rights of the individual.

In the absence of a deposit, the licence is not capable of providing sure data as to future imports or

exports. In fact, there are several reasons for a trader to apply for more licences than he needs.

It is not possible to obtain a valid comprehensive view of the market by obliging the licensee to report

non-utilization of his licence and by penalizing any failure to fulfil that obligation by the imposition of a fine;
in fact, in order to acquire a prospective comprehensive view of the market it is necessary that at the time
when the licence is issued there should be sufficient certainty that the quantity mentioned in the licence
will be imported or exported during the period of its validity. Notice of non-utilization would merely lead to
piecemeal correction of the initially false image of the future state of the market.

A reduction in the duration of the validity of licences is not an adequate solution: it runs counter to the

objectives of the common organization of the market in cereals and is incompatible with the principle that
trade must be taxed as lightly as possible. The cases in which the licences remain unused are the
exception and do not prevent the system of deposits from attaining its objective.

The complaint that the system of deposits transforms the economy of the market into a planned or

directed economy is not justified. The common organization of the market in cereals cannot dispense with
all intervention on the market; it is characterized, however, by the concern to make such intervention
conform as much as possible to the rules of the market and to allow the widest scope for competition.

To sum up, the Commission considers that with regard to the first question posed by the

Verwaltungsgericht Frankfurt it should be held that the functioning of the common organization of the
market in cereals requires a prospective comprehensive view of the market and therefore demands

sufficiently certain knowledge of future imports and exports; only a licence subject to the risk of forfeiture
of the deposit is capable of giving such knowledge. The system complained of not only conforms to the
objective sought but is necessary to its attainment; thus it does not run counter to the principle of
proportionality of the method to the objective sought.

(b) With regard to the second question, the Commission repeats that the system of deposits must

ensure that utilization of the licence remains the general rule and its non-utilization the exception; this is
only possible if, where the licence is not used, the deposit is forfeited as a general rule and the release of
the deposit is limited to exceptional cases.

Limitation by Article 9 of Regulation No 473/67 of the release of the deposit 563 0 Tdł[(e)-1.35771( c)-7.81517(11.4423(s)-71(e)-1.35771(p)11.021.028(n)-1.91.35771( )-(i)-0.94344(s)-7.8151711.4423(c)-)-19.2575(i)11.81669( )-3(t)-6.87324.87324(6)-1-9.23034(i)-0.943445(t)-6..17208(t)-6.8743445(o)11.0pof s s -7.81669(i)11.4423(t)U-9.230341( )-19.2576.87173(e)-1.35771(r)-1.9706(f)-ts1.35771(e)-1.35771(d)-1.4423(t)-19.2575(e)11.028(e)-1.35771(r)-1.41009( )-2547173(t)-19.7173(o)-1.028( )5.51401(t)-6.82575(h)-1.35771( )-7173(o)-1.028(o)-1.41007(s)41.4423(n)-1.35771(m)37.81517(i)-0.943445(e)11.35771(l)11.943445(e)11.028( )-105.575(o)11.35771(f)-6.87173( )-6.87173(R)-1.35771(r)-1.41517(i)-1.36074( )-1.35771(o)-1.35771(s)-1.41517(t)-6.87173(i)-0.943445(o)11.35771(n)-1.4351.00-1.3Sh6.1.35771(l)-0.93292(i)11.4423(t)-6.81669( )6.9548(s)-19.259(5631.35771(o)-1.028(r)-13.8009( )-2514015533 0 Tdł[(e)-1.35771( c)-7125( )-19.259(h)-1.35771(e)11.028( )-19.7324(t)-6.87324(a)-1.35771(e)-1.35771( 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THE PROTECTION OF FUNDAMENTAL RIGHTS IN THE COMMUNITY LEGAL SYSTEM

3

RECOURSE TO THE LEGAL RULES OR CONCEPTS OF NATIONAL LAW IN ORDER TO
JUDGE THE VALIDITY OF MEASURES ADOPTED BY THE INSTITUTIONS OF THE
COMMUNITY WOULD HAVE AN ADVERSE EFFECT ON THE UNIFORMITY AND EFFICACY OF
COMMUNITY LAW. THE VALIDITY OF SUCH MEASURES CAN ONLY BE JUDGED IN THE
LIGHT OF COMMUNITY LAW. IN FACT, THE LAW STEMMING FROM THE TREATY, AN
INDEPENDENT SOURCE OF LAW, CANNOT BECAUSE OF ITS VERY NATURE BE
OVERRIDDEN BY RULES OF NATIONAL LAW, HOWEVER FRAMED, WITHOUT BEING
DEPRIVED OF ITS CHARACTER AS COMMUNITY LAW AND WITHOUT THE LEGAL BASIS OF
THE COMMUNITY ITSELF BEING CALLED IN QUESTION. THEREFORE THE VALIDITY OF A
COMMUNITY MEASURE OR ITS EFFECT WITHIN A MEMBER STATE CANNOT BE AFFECTED
BY ALLEGATIONS THAT IT RUNS COUNTER TO EITHER FUNDAMENTAL RIGHTS AS
FORMULATED BY THE CONSTITUTION OF THAT STATE OR THE PRINCIPLES OF A
NATIONAL CONSTITUTIONAL STRUCTURE.

4

HOWEVER, AN EXAMINATION SHOULD BE MADE AS TO WHETHER OR NOT ANY
ANALOGOUS GUARANTEE INHERENT IN COMMUNITY LAW HAS BEEN DISREGARDED. IN
FACT, RESPECT FOR FUNDAMENTAL RIGHTS FORMS AN INTEGRAL PART OF THE
GENERAL PRINCIPLES OF LAW PROTECTED BY THE COURT OF JUSTICE. THE
PROTECTION OF SUCH RIGHTS, WHILST INSPIRED BY THE CONSTITUTIONAL TRADITIONS
COMMON TO THE MEMBER STATES, MUST BE ENSURED WITHIN THE FRAMEWORK OF
THE STRUCTURE AND OBJECTIVES OF THE COMMUNITY. IT MUST THEREFORE BE
ASCERTAINED,

IN

THE

LIGHT

OF

THE

DOUBTS

EXPRESSED

BY

THE

VERWALTUNGSGERICHT, WHETHER THE SYSTEM OF DEPOSITS HAS INFRINGED RIGHTS
OF A FUNDAMENTAL NATURE, RESPECT FOR WHICH MUST BE ENSURED IN THE
COMMUNITY LEGAL SYSTEM.

THE FIRST QUESTION (LEGALITY OF THE SYSTEM OF DEPOSITS)

5

BY THE FIRST QUESTION THE VERWALTUNGSGERICHT ASKS WHETHER THE
UNDERTAKING TO EXPORT BASED ON THE THIRD SUBPARAGRAPH OF ARTICLE 12 (1) OF
REGULATION NO 120/67, THE LODGING OF A DEPOSIT WHICH ACCOMPANIES THAT
UNDERTAKING AND FORFEITURE OF THE DEPOSIT SHOULD EXPORTATION NOT OCCUR
DURING THE PERIOD OF VALIDITY OF THE EXPORT LICENCE COMPLY WITH THE LAW.

6

ACCORDING TO THE TERMS OF THE THIRTEENTH RECITAL OF THE PREAMBLE TO
REGULATION NO 120/67, THE COMPETENT AUTHORITIES MUST BE IN A POSITION
CONSTANTLY TO FOLLOW TRADE MOVEMENTS IN ORDER TO ASSESS MARKET TRENDS
AND TO APPLY THE MEASURES ... AS NECESSARY AND TO THAT END, PROVISION
SHOULD BE MADE FOR THE ISSUE OF IMPORT AND EXPORT LICENCES ACCOMPANIED BY
THE LODGING OF A DEPOSIT GUARANTEEING THAT THE TRANSACTIONS FOR WHICH
SUCH LICENCES ARE REQUESTED ARE EFFECTED. IT FOLLOWS FROM THESE
CONSIDERATIONS AND FROM THE GENERAL SCHEME OF THE REGULATION THAT THE
SYSTEM OF DEPOSITS IS INTENDED TO GUARANTEE THAT THE IMPORTS AND EXPORTS
FOR WHICH THE LICENCES ARE REQUESTED ARE ACTUALLY EFFECTED IN ORDER TO
ENSURE BOTH FOR THE COMMUNITY AND FOR THE MEMBER STATES PRECISE
KNOWLEDGE OF THE INTENDED TRANSACTIONS.

7

THIS KNOWLEDGE, TOGETHER WITH OTHER AVAILABLE INFORMATION ON THE STATE OF
THE MARKET, IS ESSENTIAL TO ENABLE THE COMPETENT AUTHORITIES TO MAKE

JUDICIOUS USE OF THE INSTRUMENTS OF INTERVENTION, BOTH ORDINARY AND
EXCEPTIONAL, WHICH ARE AT THEIR DISPOSAL FOR GUARANTEEING THE FUNCTIONING
OF THE SYSTEM OF PRICES INSTITUTED BY THE REGULATION, SUCH AS PURCHASING,
STORING AND DISTRIBUTING, FIXING DENATURING PREMIUMS AND EXPORT REFUNDS,
APPLYING PROTECTIVE MEASURES AND CHOOSING MEASURES INTENDED TO AVOID
DEFLECTIONS OF TRADE. THIS IS ALL THE MORE IMPERATIVE IN THAT THE
IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY INVOLVES HEAVY FINANCIAL
RESPONSIBILITIES FOR THE COMMUNITY AND THE MEMBER STATES.

8

IT IS NECESSARY, THEREFORE, FOR THE COMPETENT AUTHORITIES TO HAVE AVAILABLE
NOT ONLY STATISTICAL INFORMATION ON THE STATE OF THE MARKET BUT ALSO
PRECISE FORECASTS ON FUTURE IMPORTS AND EXPORTS. SINCE THE MEMBER STATES
ARE OBLIGED BY ARTICLE 12 OF REGULATION NO 120/67 TO ISSUE IMPORT AND EXPORT
LICENCES TO ANY APPLICANT, A FORECASE WOULD LOSE ALL SIGNIFICANCE IF THE
LICENCES DID NOT INVOLVE THE RECIPIENTS IN AN UNDERTAKING TO ACT ON THEM.
AND THE UNDERTAKING WOULD BE INEFFECTUAL IF OBSERVANCE OF IT WERE NOT
ENSURED BY APPROPRIATE MEANS.

9

THE CHOICE FOR THAT PURPOSE BY THE COMMUNITY LEGISLATURE OF THE DEPOSIT
CANNOT BE CRITICIZED IN VIEW OF THE FACT THAT THAT MACHINERY IS ADAPTED TO
THE VOLUNTARY NATURE OF REQUESTS FOR LICENCES AND THAT IT HAS THE DUAL
ADVANTAGE OVER OTHER POSSIBLE SYSTEMS OF SIMPLICITY AND EFFICACY.

10

A SYSTEM OF MERE DECLARATION OF EXPORTS EFFECTED AND OF UNUSED LICENCES,
AS PROPOSED BY THE PLAINTIFF IN THE MAIN ACTION, WOULD, BY REASON OF ITS
RETROSPECTIVE NATURE AND LACK OF ANY GUARANTEE OF APPLICATION, BE
INCAPABLE OF PROVIDING THE COMPETENT AUTHORITIES WITH SURE DATA ON TRENDS
IN THE MOVEMENT OF GOODS.

11

LIKEWISE, A SYSTEM OF FINES IMPOSED A POSTERIORI WOULD INVOLVE
CONSIDERABLE ADMINISTRATIVE AND LEGAL COMPLICATIONS AT THE STAGE OF
DECISION AND OF EXECUTION, AGGRAVATED BY THE FACT THAT THE TRADERS
CONCERNED MAY BE BEYOND THE REACH OF THE INTERVENTION AGENCIES BY
REASON OF THEIR RESIDENCE IN ANOTHER MEMBER STATE, SINCE ARTICLE 12 OF THE
REGULATION IMPOSES ON MEMBER STATES THE OBLIGATION TO ISSUE THE LICENCES
TO ANY APPLICANT IRRESPECTIVE OF THE PLACE OF HIS ESTABLISHMENT IN THE
COMMUNITY.

12

IT THEREFORE APPEARS THAT THE REQUIREMENT OF IMPORT AND EXPORT LICENCES
INVOLVING FOR THE LICENSEES AN UNDERTAKING TO EFFECT THE PROPOSED
TRANSACTIONS UNDER THE GUARANTEE OF A DEPOSIT CONSTITUTES A METHOD
WHICH IS BOTH NECESSARY AND APPROPRIATE TO ENABLE THE COMPETENT
AUTHORITIES TO DETERMINE IN THE MOST EFFECTIVE MANNER THEIR INTERVENTIONS
ON THE MARKET IN CEREALS.

13

THE PRINCIPLE OF THE SYSTEM OF DEPOSITS CANNOT THEREFORE BE DISPUTED.

14

HOWEVER, EXAMINATION SHOULD BE MADE AS TO WHETHER OR NOT CERTAIN
DETAILED RULES OF THE SYSTEM OF DEPOSITS MIGHT BE CONTESTED IN THE LIGHT OF

THE PRINCIPLES ENOUNCED BY THE VERWALTUNGSGERICHT, ESPECIALLY IN VIEW OF
THE ALLEGATION OF THE PLAINTIFF IN THE MAIN ACTION THAT THE BURDEN OF THE
DEPOSIT IS EXCESSIVE FOR TRADE, TO THE EXTENT OF VIOLATING FUNDAMENTAL
RIGHTS.

15

IN ORDER TO ASSESS THE REAL BURDEN OF THE DEPOSIT ON TRADE, ACCOUNT
SHOULD BE TAKEN NOT SO MUCH OF THE AMOUNT OF THE DEPOSIT WHICH IS
REPAYABLE - NAMELY 0.5 UNIT OF ACCOUNT PER 1 000 KG - AS OF THE COSTS AND
CHARGES INVOLVED IN LODGING IT. IN ASSESSING THIS BURDEN, ACCOUNT CANNOT BE
TAKEN OF FORFEITURE OF THE DEPOSIT ITSELF, SINCE TRADERS ARE ADEQUATELY
PROTECTED BY THE PROVISIONS OF THE REGULATION RELATING TO CIRCUMSTANCES
RECOGNIZED AS CONSTITUTING FORCE MAJEURE.

16

THE COSTS INVOLVED IN THE DEPOSIT DO NOT CONSTITUTE AN AMOUNT
DISPROPORTIONATE TO THE TOTAL VALUE OF THE GOODS IN QUESTION AND OF THE
OTHER TRADING COSTS. IT APPEARS THEREFORE THAT THE BURDENS RESULTING
FROM THE SYSTEM OF DEPOSITS ARE NOT EXCESSIVE AND ARE THE NORMAL
CONSEQUENCE OF A SYSTEM OF ORGANIZATION OF THE MARKETS CONCEIVED TO
MEET THE REQUIREMENTS OF THE GENERAL INTEREST, DEFINED IN ARTICLE 39 OF THE
TREATY, WHICH AIMS AT ENSURING A FAIR STANDARD OF LIVING FOR THE
AGRICULTURAL COMMUNITY WHILE ENSURING THAT SUPPLIES REACH CONSUMERS AT
REASONABLE PRICES.

17

THE PLAINTIFF IN THE MAIN ACTION ALSO POINTS OUT THAT FORFEITURE OF THE
DEPOSIT IN THE EVENT OF THE UNDERTAKING TO IMPORT OR EXPORT NOT BEING
FULFILLED REALLY CONSTITUTES A FINE OR A PENALTY WHICH THE TREATY HAS NOT
AUTHORIZED THE COUNCIL AND THE COMMISSION TO INSTITUTE.

18

THIS ARGUMENT IS BASED ON A FALSE ANALYSIS OF THE SYSTEM OF DEPOSITS WHICH
CANNOT BE EQUATED WITH A PENAL SANCTION, SINCE IT IS MERELY THE GUARANTEE
THAT AN UNDERTAKING VOLUNTARILY ASSUMED WILL BE CARRIED OUT.

19

FINALLY, THE ARGUMENTS RELIED UPON BY THE PLAINTIFF IN THE MAIN ACTION BASED
FIRST ON THE FACT THAT THE DEPARTMENTS OF THE COMMISSION ARE NOT
TECHNICALLY IN A POSITION TO EXPLOIT THE INFORMATION SUPPLIED BY THE SYSTEM
CRITICIZED, SO THAT IT IS DEVOID OF ALL PRACTICAL USEFULNESS, AND SECONDLY ON
THE FACT THAT THE GOODS WITH WHICH THE DISPUTE IS CONCERNED ARE SUBJECT
TO THE SYSTEM OF INWARD PROCESSING ARE IRRELEVANT. THESE ARGUMENTS
CANNOT PUT IN ISSUE THE ACTUAL PRINCIPLE OF THE SYSTEM OF DEPOSITS.

20

IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE FACT THAT THE SYSTEM OF
LICENCES INVOLVING AN UNDERTAKING, BY THOSE WHO APPLY FOR THEM, TO IMPORT
OR EXPORT, GUARANTEED BY A DEPOSIT, DOES NOT VIOLATE ANY RIGHT OF A
FUNDAMENTAL NATURE. THE MACHINERY OF DEPOSITS CONSTITUTES AN APPROPRIATE
METHOD, FOR THE PURPOSES OF ARTICLE 40 (3) OF THE TREATY, FOR CARRYING OUT
THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS AND ALSO CONFORMS
TO THE REQUIREMENTS OF ARTICLE 43.

THE SECOND QUESTION (CONCEPT OF FORCE MAJEURE)

21

BY THE SECOND QUESTION THE VERWALTUNGSGERICHT ASKS WHETHER, IN THE EVENT
OF THE COURTs CONFIRMING THE VALIDITY OF THE DISPUTED PROVISION OF
REGULATION NO 120/67, ARTICLE 9 OF REGULATION NO 473/67 OF THE COMMISSION,
ADOPTED IN IMPLEMENTATION OF THE FIRST REGULATION, IS IN CONFORMITY WITH THE
LAW, IN THAT IT ONLY EXCLUDES FORFEITURE OF THE DEPOSIT IN CASES OF FORCE
MAJEURE.

22

IT APPEARS FROM THE GROUNDS OF THE ORDER REFERRING THE MATTER THAT THE
COURT CONSIDERS EXCESSIVE AND CONTRARY TO THE ABOVEMENTIONED PRINCIPLES
THE PROVISION IN ARTICLE 1 (SIC) OF REGULATION NO 473/67, THE EFFECT OF WHICH IS
TO LIMIT THE CANCELLATION OF THE OBLIGATION TO IMPORT OR EXPORT AND RELEASE
OF THE DEPOSIT ONLY TO CIRCUMSTANCES WHICH MAY BE CONSIDERED TO BE A CASE
OF FORCE MAJEURE. IN THE LIGHT OF ITS EXPERIENCE, THE VERWALTUNGSGERICHT
CONSIDERS THAT PROVISION TO BE TOO NARROW, LEAVING EXPORTERS OPEN TO
FORFEITURE OF THE DEPOSIT IN CIRCUMSTANCES IN WHICH EXPORTATION WOULD NOT
HAVE TAKEN PLACE FOR REASONS WHICH WERE JUSTIFIABLE BUT NOT ASSIMILABLE TO
A CASE OF FORCE MAJEURE IN THE STRICT MEANING OF THE TERM. FOR ITS PART, THE
PLAINTIFF IN THE MAIN ACTION CONSIDERS THIS PROVISION TO BE TOO SEVERE
BECAUSE IT LIMITS THE RELEASE OF THE DEPOSIT TO CASES OF FORCE MAJEURE
WITHOUT TAKING INTO ACCOUNT THE ARRANGEMENTS OF IMPORTERS OR EXPORTERS
WHICH ARE JUSTIFIED BY CONSIDERATIONS OF A COMMERCIAL NATURE.

23

THE CONCEPT OF FORCE MAJEURE ADOPTED BY THE AGRICULTURAL REGULATIONS
TAKES INTO ACCOUNT THE PARTICULAR NATURE OF THE RELATIONSHIPS IN PUBLIC
LAW BETWEEN TRADERS AND THE NATIONAL ADMINISTRATION, AS WELL AS THE
OBJECTIVES OF THOSE REGULATIONS. IT FOLLOWS FROM THOSE OBJECTIVES AS WELL
AS FROM THE POSITIVE PROVISIONS OF THE REGULATIONS IN QUESTION THAT THE
CONCEPT OF FORCE MAJEURE IS NOT LIMITED TO ABSOLUTE IMPOSSIBILITY BUT MUST
BE UNDERSTOOD IN THE SENSE OF UNUSUAL CIRCUMSTANCES, OUTSIDE THE CONTROL
OF THE IMPORTER OR EXPORTER, THE CONSEQUENCES OF WHICH, IN SPITE OF THE
EXERCISE OF ALL DUE CARE, COULD NOT HAVE BEEN AVOIDED EXCEPT AT THE COST
OF EXCESSIVE SACRIFICE. THIS CONCEPT IMPLIES A SUFFICIENT FLEXIBILITY
REGARDING NOT ONLY THE NATURE OF THE OCCURRENCE RELIED UPON BUT ALSO THE
CARE WHICH THE EXPORTER SHOULD HAVE EXERCISED IN ORDER TO MEET IT AND THE
EXTENT OF THE SACRIFICES WHICH HE SHOULD HAVE ACCEPTED TO THAT END.

24

THE CASES OF FORFEITURE CITED BY THE COURT AS IMPOSING AN UNJUSTIFIED AND
EXCESSIVE BURDEN ON THE EXPORTER APPEAR TO CONCERN SITUATIONS IN WHICH
EXPORTATION HAS NOT TAKEN PLACE EITHER THROUGH THE FAULT OF THE EXPORTER
HIMSELF OR AS A RESULT OF AN ERROR ON HIS PART OR FOR PURELY COMMERCIAL
CONSIDERATIONS. THE CRITICISMS MADE AGAINST ARTICLE 9 OF REGULATION NO
473/67 LEAD THEREFORE IN REALITY TO THE SUBSTITUTION OF CONSIDERATIONS
BASED SOLELY ON THE INTEREST AND BEHAVIOUR OF CERTAIN TRADERS FOR A
SYSTEM LAID DOWN IN THE PUBLIC INTEREST OF THE COMMUNITY. THE SYSTEM
ESTABLISHED, UNDER THE PRINCIPLES OF REGULATION NO 120/67, BY IMPLEMENTING
REGULATION NO 473/67 IS INTENDED TO RELEASE TRADERS FROM THEIR UNDERTAKING
ONLY IN CASES IN WHICH THE IMPORT OR EXPORT TRANSACTION WAS NOT ABLE TO BE
CARRIED OUT DURING THE PERIOD OF VALIDITY OF THE LICENCE AS A RESULT OF THE
OCCURRENCES

REFERRED

TO

BY

THE

SAID

PROVISIONS.

BEYOND

SUCH

OCCURRENCES, FOR WHICH THEY CANNOT BE HELD RESPONSIBLE, IMPORTERS AND
EXPORTERS ARE OBLIGED TO COMPLY WITH THE PROVISIONS OF THE AGRICULTURAL
REGULATIONS AND MAY NOT SUBSTITUTE FOR THEM CONSIDERATIONS BASED UPON
THEIR OWN INTERESTS.

25

IT THEREFORE APPEARS THAT BY LIMITING THE CANCELLATION OF THE UNDERTAKING
TO EXPORT AND THE RELEASE OF THE DEPOSIT TO CASES OF FORCE MAJEURE THE
COMMUNITY LEGISLATURE ADOPTED A PROVISION WHICH, WITHOUT IMPOSING AN
UNDUE BURDEN ON IMPORTERS OR EXPORTERS, IS APPROPRIATE FOR ENSURING THE
NORMAL FUNCTIONING OF THE ORGANIZATION OF THE MARKET IN CEREALS, IN THE
GENERAL INTEREST AS DEFINED IN ARTICLE 39 OF THE TREATY. IT FOLLOWS THAT NO
ARGUMENT AGAINST THE VALIDITY OF THE SYSTEM OF DEPOSITS CAN BE BASED ON
THE PROVISIONS LIMITING RELEASE OF THE DEPOSIT TO CASES OF FORCE MAJEURE.

COSTS

26

THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS,
THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF
THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE
COURT, ARE NOT RECOVERABLE.

27

AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE
CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE
VERWALTUNGSGERICHT FRANKFURT-AM-MAIN, THE DECISION AS TO COSTS IS A
MATTER FOR THAT COURT.

ON THOSE GROUNDS,

UPON READING THE PLEADINGS;

UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;

UPON HEARING THE ORAL OBSERVATIONS OF THE PLAINTIFF IN THE MAIN ACTION AND

THE COMMISSION OF THE EUROPEAN COMMUNITIES;

UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;

HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY,

ESPECIALLY ARTICLES 2, 39, 40, 43 AND 177;

HAVING REGARD TO REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 AND

REGULATION NO 473/67/EEC OF THE COMMISSION OF 21 AUGUST 1967;

HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF

THE EUROPEAN COMMUNITY, ESPECIALLY ARTICLE 20;

HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE

EUROPEAN COMMUNITIES,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE VERWALTUNGSGERICHT

FRANKFURT-AM-MAIN, BY ORDER OF THAT COURT OF 18 MARCH 1970, HEREBY RULES:

EXAMINATION OF THE QUESTIONS PUT REVEALS NO FACTOR CAPABLE OF AFFECTING

THE VALIDITY OF:

(1) THE THIRD SUBPARAGRAPH OF ARTICLE 12 (1) OF REGULATION NO 120/67/EEC OF THE

COUNCIL OF 13 JUNE 1967 MAKING THE ISSUE OF IMPORT AND EXPORT LICENCES
CONDITIONAL ON THE LODGING OF A DEPOSIT GUARANTEEING PERFORMANCE OF THE
UNDERTAKING TO IMPORT OR EXPORT DURING THE PERIOD OF VALIDITY OF THE LICENCE;

(2) ARTICLE 9 OF REGULATION NO 473/67/EEC OF THE COMMISSION OF 21 AUGUST 1967,

THE EFFECT OF WHICH IS TO LIMIT THE CANCELLATION OF THE UNDERTAKING TO IMPORT OR
EXPORT AND THE RELEASE OF THE DEPOSIT ONLY TO CIRCUMSTANCES WHICH MAY BE
CONSIDERED TO BE A CASE OF FORCE MAJEURE.

Mertens de Wilmars

Pescatore

Lecourt

Donner

Trabucchi

Monaco

Kutscher

Delivered in open court in Luxembourg on 17 December 1970.

A. Van Houtte

R. Lecourt

Registrar

President

ź

ródło: System Informacji Prawnej Lex; stan prawny na dzie

ń

13.05.2009 r.

uwaga: Wył

ą

cznie prawodawstwo Wspólnot Europejskich opublikowane w drukowanej wersji Dziennika

Urz

ę

dowego Unii Europejskiej uznawane jest za autentyczne.