Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

Before we consider the two references for a preliminary ruling (Cases 49/71 and 50/71) which were joined by order of the Court of 10 November 1971 for the purpose of the oral procedure, and with which I have to deal today, it is necessary to say the following.

As is known from other proceedings Regulation No 120/67 of the Council of 13 June 1967 (OJ No 117, 1967, p. 2269) created the final organization of the market in cereals with a uniform price system (common target prices, threshold prices and uniform intervention prices). According to Article 7 thereof throughout the cereal marketing year the State intervention agencies are obliged to buy in cereals which are offered to them and have been harvested in the Community (inter alia common wheat and barley). General rules for intervention are laid down in Regulation No 132/67 of the Council of 13 June 1967 (OJ No 120, 1967, p. 2364) and, so far as is relevant to the present proceedings, in Regulation No 1028/68 of the Commission of 19 July 1968 (JO L 176, 1968, p. 1) fixing the procedure and conditions for the taking over of cereals by intervention agencies for the 1968/69 marketing year. I shall deal more fully with these regulations later.

It need only be noted at present that early in 1969, owing to the devaluation of the French franc, which was expected at that time, a fall occurred in the rate of exchange of that currency. At that time, under- takings from other Member States which had exported goods to France under agreements which provided for long-term payment in French francs, sold their export credits in French currency at a reduced rate, that is below the official rate of exchange and thus made it possible for importers in other Member States, inter alia undertakings in the Federal Republic, to buy up French cereals at the intervention price and sell them to the German intervention agency (the Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Frankfurt am Main) obviously at a profit in spite of the costs involved in the transactions. As many transactions of this kind took place, the German intervention agency experienced difficulties with regard to storage. For this reason, on 2 May 1969, the Federal Government applied to the Commission of the European Communities for protective measures to be taken under Article 226 of the EEC Treaty. The Commission acceded to this request by a Decision of 8 May 1969.

This authorized the Federal Republic to restrict the purchase of common wheat and barley in accordance with Article 7(1) of Regulation No 120/67 to cereals harvested in this Member State. The German intervention agency was simply required still to accept for intervention foreign cereals which were offered to the intervention agency before this decision came into force. Similar authorizations were moreover given at the same time to the Kingdom of Belgium and the Kingdom of the Netherlands. As we have heard during the proceedings, the decision directed to the Federal Republic became effective in accordance with Article 191 of the EEC Treaty at 6.40 p.m. on 8 May 1969 by immediate publication. Thereupon the Einfuhr- und Vorratsstelle für Getreide und Futtermittel issued the following notice on 8 May 1969 which was published in the Bundesanzeiger of 10 May 1969: At the direction of the Federal Minister for Food, Agriculture and Forestry and in accordance with the decision of the European Communities of 8 May 1969, henceforth with immediate effect the Einfuhr- und Vorratsstelle für Getreide und Futtermittel will accept for intervention only common wheat and barley which has been harvested in the Federal Republic of Germany. Common wheat and barley offered for intervention to the Einfuhr- und Vorratsstelle before the said decision came into force (6.40 p.m. on 8 May 1969) is not affected by this notice. Later, namely on 17 June 1969, with the agreement of the Federal Minister for Economic Affairs a regulation of the Federal Minister for Food, Agriculture and Forestry was adopted, in Article 1 of which it is stated: Intervention in respect of common wheat and barley under Article 7(1) of Regulation No 120/67 … shall be limited to cereals harvested in the Federal Republic of Germany. In accordance with Article 3 of the said regulation this provision entered into force with effect from 8.45 a.m. on 9 May 1969.

The undertakings Hagen and Wünsche, the plaintiffs in the main actions (in future I shall call them the first and second plaintiffs) were affected by the said regulations.

The first plaintiff purchased summer barley and common wheat in January and February 1969 in France and offered them for intervention to the Einfuhr- und Vorratsstelle für Getreide in accordance with the Richtlinien (to which I shall return later) in an application form dated 5 May 1969 (received by the Einfuhr- und Vorratsstelle at about 11.00 a.m. on 6 May 1969). Mannheim was chosen as the marketing centre; no particulars were given of the place where the cereals (were) when the offer (was) made. In fact the consignments offered were at the time in transit. The barley was temporarily stored in Strasbourg and there was loaded on to a ship and reached Mannheim in the afternoon of 9 May. The wheat offered was on board ship which passed Strasbourg on 12 May and reached Mannheim on 14 May. On 12 and 14 May the plaintiff informed the Einfuhr- und Vorratsstelle of the arrival of the cereals in the Mannheim taking-over depot. By notices dated 10 and 11 June 1969, however, the Einfuhr- und Vorratsstelle refused to take over the cereals. It stated in this respect that as from 9 May it was no longer obliged to purchase foreign cereal and that it could not regard the offers made prior to that date as effective in the absence of particulars of the place where they were.

The same fate attended the second plaintiff who had purchased common wheat in France in February 1969. It had offered this wheat for intervention on three application forms dated 8 May 1969 (received by the Einfuhr- und Vorratsstelle at about noon on 9 May 1969). In the first application the premises of the Silo Kiel-Nord-hafen undertaking of Kiel-Wik were given as the place for taking over the cereals and it was mentioned in addition that the goods had been in process of shipment to this place since 6 May. In the second application the premises of Rhenus GmbH of Stuttgart were named as the place for taking over the cereals and it was noted that the goods had been in process of shipment to this place since 7 May. The particulars in the third application agree with those just given in the second application. On 12 May 1969 the cereal consignments were brought to the said depot for taking over. By letter dated 12 May 1969 the plaintiff informed the Einfuhr- und Vorratsstelle that the cereals offered were now at the depot referred to. Intervention was refused in these cases by telephone on 14 May 1969. Upon objection by the importing company the Einfuhr- und Vorratsstelle explained in a notice dated 28 May 1969 that as from 9 May 1969 it was no longer obliged to buy in foreign cereals. There had been no effective offers because the goods at the time of the offer had not been in a depot but afloat on the high seas or near Mannheim.

The two import companies consider this attitude of the Einfuhr- und Vorratsstelle to be unjustified. In their view the criterion is the despatch of the offers. Moreover they allege that offers are valid without particulars of the place where the goods are; it is sufficient that the goods should be brought to the depot during the month stated for delivery. The importers therefore brought the matter before the Verwaltungsgericht Frankfurt, and since they were unsuccessful or only partially successful there they appealed to the Hessischer Verwaltungsgerichtshof. Since questions of the interpretation of Community law arise in the cases and in the view of the court are material to the judgment, the Verwaltungsgerichtshof by order dated 19 July 1971 stayed the proceedings and submitted the following questions in both cases for a preliminary ruling:

The plaintiffs in the main actions, the Einfuhr- und Vorratstelle für Getreide und Futtermittel, Frankfurt, and the Commission of the European Communities have submitted written and oral observations on these questions. Let us now see what view we must take.

1 Translated from the German.