Opinion of Mr advocate-general

Mr President,

Members of the Court,

In Case 38/70 the Verwaltungsgericht Frankfurt am Main has referred to you two questions, one relating to the validity of the system of deposits introduced by Regulation No 120/67 of the Council for imports of cereal products coming from third countries, the other subsidiary and concerning the detailed rules for the calculation of that deposit in cases where, as a result of a failure to effect the importation for which a licence was issued, the deposit is forfeited by the importer.

In Case 58/70 this second question relating to the calculation of the amount of the deposit has been referred to the Court practically in the same terms by a Netherlands court, the College van Beroep voor het Bedrijfsleven, but as a single question.

In these circumstances, Mr President, Members of the Court, I beg permission to deliver my opinion on both these cases together.

I

Concerning the first question put by the Verwaltungsgericht Frankfurt I shall confine myself to a few brief remarks.

In essence, it is the same question as that put to you by the same court in Case 11/70 and by the Hessischer Verwaltungsgerichtshof in Cases 25, 26 and 30/70, namely, that of the validity of the system of deposits introduced by Community regulations in relation to the principles of freedom of economic activity and proportionately enshrined both in the fundamental law of the Federal Republic of Germany and in unwritten Community law.

That is a problem which the Court has already examined very fully and settled with regard to the aforementioned cases.

In the present case no really new argument has been put forward.

Perhaps I should mention that counsel for the importer emphasized the fact that the system of deposit is of no use in the case of imports of products which do not compete with Community products, as for example durum wheat.

But that is an argument to which the Court has already in some sort replied in advance in its judgments of 17 December 1970, in so far as you accepted that the rules relating to the deposit and its forfeiture under certain circumstances were justified not only by the desire to protect Community finances but also by the necessity for the Community authorities to have a comprehensive prospective view of the market in cereals and cereal products. Allow me to add that certain Member States (for example Italy) produce durum wheat and that, in view of the possibilities of substitution or processing, it is not possible to isolate the market in durum wheat from the whole of the cereal market.

II

The reply to the subsidiary question referred by the Verwaltungsgericht Frankfurt and the main question put by the Netherlands court requires longer analysis.

In order fully to understand it we should, I think, replace it in its context.

As the Court is aware, importers, under Community regulations, are entitled, when applying for an import licence, to have the levy which will be imposed on them fixed in advance or pre-fixe, to use the current terminology.

This terminology is in truth somewhat ambiguous.

The expression advance-fixing should not be understood in its narrow sense. In fact the system is as follows:

III

In order to do so I must ask you to follow me some distance into the thicket of Community rules on this matter.

The two Regulations which you are requested to interpret, Nos 183/67 and 473/67, are both, as regards cereals, regulations adopted by the Commission in implementation of Regulation No 120/67 of the Council, which is the basic regulation for the period in question.

If the provisions of Regulation No 120/67 alone are taken into account, the reply to the question is dictated by its very wording.

Article 15 of the Regulation expressly provides that the levy fixed in advance shall be calculated with reference to the threshold price in force during the expected month of importation.

But the difficulties begin if account is taken not only of Regulation No 120/67 but also another regulation of the Council adopted a week later: Regulation No 140/67 which takes the form of a regulation in implementation of Regulation No 120/67.

Although, according to its title, that regulation relates to rules for the advance-fixing of the levies, it is in fact principally devoted to detailed rules for the calculation of what are known as premiums, that is to say, possible additions to the levy.

However, at Article 9, and almost in passing, it contains the following provision: If importation is not effected during the month indicated at the time of application … the levy applicable on the day on which the application for the licence was submitted shall be adjusted in accordance with the threshold price in force on the day of importation.

It is certain that these words apply only to importations effected and not to those which are not effected.

However, the Netherlands Government, its intervention agency, the Commission and the German importer are of the opinion that in addition to the case postulated expressly by these words they were aimed at and have the effect of abrogating the whole system whereby the levy was calculated on the basis of the threshold price in force during the expected month of importation.

They consider .that there is therefore no provision expressly governing the question in cases of failure to import, but that even in such a case Regulation No 140/67 should be applied since that was in any case the only provision applicable as regards calculation of the premiums. I do not share this view, for the following four reasons:

IV

If, contrary to the opinion I have just expressed, the Court should find that no Community provision requires the solution which I have just proposed, I think that it will still be that solution which you should adopt.

The argument adduced by the Commission whereby, the law being silent, you should choose the system of calculating the deposit on the basis of the levy applicable during the final month of the period of validity of the licence rests on a reasoning which may briefly be summarized as follows:

It is suggested that all these rules have the basic aim of dissuading the importer from failing to import the goods for which he requested an import licence.

But, you are told, since the threshold price is in general graduated upwards during the months of the marketing year the objective sought could only be attained if, in calculating the deposits, reference is made to the levy during the final month of the period of validity of the licence, which is probably the highest of the whole period under consideration.

I am not convinced either by certain premises or by the internal logic of this reasoning, or by certain of the general considerations, clearly discernible though not always expressed, on which it is based.

The premises and internal logic of the reasoning first:

However, as I have said, it is really my view that the relevant provisions require it and that is why I am of the opinion that you should rule that:

(1). examination of the questions referred has revealed no factor capable of affecting the validity of the last paragraph of Article 12 (1) of Regulation No 120/67 of the Council;

(2). the expression levy fixed in advance used in Article 8 (3) (b) of Regulation No 183/67 of the Commission and in Article 8 (3) (b) of Regulation No 473/67 in its version prior to Regulation No 638/70 of the Commission refers to the levy applicable during the month indicated by the importer at the time of issue of the licence as being ±at in which importation was to be effected.

1 Translated from the French.