JUDGMENT OF 1.2.1972 — CASE 50/71 WÜNSCHE v EINFUHR- UND VORRATSSTELLE GETREIDE

In Case 50/71 Reference to the Court under Article 177 of the EEC Treaty by the Hessischer Verwaltungsgerichtshof (VIth Senate) for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars (Rapporteur) and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Statute of the Court

A — Observations submitted by the Commission of the European Communities

B — Observations of Wünsche

C — Observations of the Einfuhr- und Vorratsstelle

Grounds of judgment

Question 1

Question 2

Question 3

Questions 4 and 5

Question 6

Question 7

Costs

I —. Facts and procedure

(1). Since Regulation No 120/67 of the Council of 13 June 1967 (OJ 2269/67) came into force, the intervention agencies of every Member State are obliged to buy in at intervention prices not only, as was previously the case, cereals which are offered to them and have been harvested in their own State, but also cereals harvested in the other Member States (Regulation No 120/67, Article 7).

(2). When the probability of a devaluation of the French franc arose in 1969, dealers offered increasingly large quantities of cereals harvested in France to German, Belgian or Dutch intervention agencies in order to profit from the rate of exchange.

(3). On forms dated 8 May 1969 which arrived about midday on 9 May, the Ludwig Wünsche undertaking the plaintiff in the main action, offered the Einfuhr- und Vorratsstelle in respect of the marketing centres at Kiel and Stuttgart cereals harvested in France which were in transit by water. The forms gave the vessel carrying the goods and the depots to which they were being sent.

(4). By decision of 14 May 1969, notified by telephone, the defendant in the main action rejected the three offers by the plaintiff on the ground that they had not been validly made because they did not state the marketing centre nearest to the place where the cereals were when the offer was made.

(5). The platintiff brought an action against this decision, first before the Verwaltungsgericht Frankfurt and then, by way of appeal, before the Hessischer Verwaltungsgerichtshof. The latter court took the view that the case depended on the interpretation of certain Community provisions and referred the following questions to the Court of Justice:

(6). The Commission of the European Communities, the plaintiff in the main action and the defendant in the main action submitted written observations.

II —. Observations submitted under Article 20 of the Statute of the Court

A —. Observations submitted by the Commission of the European Communities

(1). The Commission observes that according to the notice published in the Bundesanzeiger of 10 May the Decision of the Commission of 8 May 1969 was notified to the Federal Republic on the same day at 6.40 p.m. Under Article 1 (2) of the Decision, the Einfuhr- und Vorratsstelle was not obliged to accept foreign cereals save in so far as any offers were effective before the decision took effect and where such offers satisfied the conditions laid down in the detailed rules for implementation issued by the Council (Regulation No 132/67) by the Commission (Regulation No 1028/68) and by the Member States (Richtlinien zur Durchführung der Intervention in Getreidewirtschaftsjahr 1967/68 of 3 October 1967). Detailed rules for implementation could indeed be adopted by the Member States under Article 5 of Regulation (EEC) No 1028/68 which enabled them to issue supplementary provisions. In the present case the fact that the cereals offered were in transit gives rise to doubts as to the validity of the offer.

(2). Questions 1, 2 and 6

(3). As regards Questions 3 to 5, the Commission considers that Community law does not rule out the possibility that an offer of goods in transit may be valid provided that the goods offered are delivered to the place of taking-over indicated and those concerned show that their offer is still open by supplying the Einfuhr- und Vorratsstelle with the particulars, originally missing, of the exact place where the cereals are stored.

(4). Finally the Commission observes that the definition of an offer is binding on Member States. This mandatory nature arises from the fact that uniform intervention conditions have been created by Community regulations and in particular by Regulation No 132/67. Article 5 of Regulation No 1028/68 allows Member States to take only supplementary measures which it is expressly stated must be compatible with relevant Community law.

B —. Observations of Wünsche

1. Wünsche, the plaintiff in the main action, stresses first of all the special facts of the proceedings as presented to the national court. The question of the lawful nature of an offer for intervention of goods in transit arose more or less fortuitously, for, before the national court, the plaintiff contested the regularity with regard to German law of the notice (in the Bundesanzeiger of 10 May 1969) in which the Einfuhr- und Vorratsstelle implemented the authorization from the Commission of 8 May just as it contests, still from the point of view of national law, the legality of the Ministerial Regulation of 17 June 1969, with which this time the competent authority implemented the said authorization, in so far as the said regulation was declared retroactive to 9 May 1969. In its opinion its offer for intervention, which was in any case prior to 17 June 1969, is in any event lawful, but it does not contest the fact that the Court of Justice is not concerned with this aspect.

(2). In the view of the plaintiff in the main action the proceedings are concerned basically with two points :

(3). Having regard to these explanations the plaintiff proposes that the various questions should be answered as follows:

C —. Observations of the Einfuhr- und Vorratsstelle

(1). The Einfuhr- und Vorratsstelle, the defendant in the main action, observes as a preliminary that the system laid down by the Richtlinien implementing the Community rules provides an alternative: persons making an offer may comply with Regulation No 132/67 to the letter, that is to say by giving the exact place where the cereals are when the offer is made, choosing a marketing centre and waiting in reply for a place for taking over to be notified to them by the Einfuhr- und Vorratsstelle or, on the other hand, as the Richtlinien allow, offer the cereals from one of the places for taking over appointed in advance by the Einfuhr- und Vorratsstelle but subject to the cereals' being already there when the offer is made. Neither of these alternatives allows cereals in transit to be offered: if an offer of cereals in transit were to be made it would either be held in suspense until the depot for taking over was given or it would be refused.

(2). The Einfuhr- und Vorratsstelle then observes with regard to the first and sixth questions that Article 7 of Regulation No 120/67, Article 1 of Regulation No 132/67 and Article 3 of Regulation No 1028/68 have created their own concept of Offer which must be interpreted in the same way in all Member States. This may be inferred from the fact that the Community authorities have laid down very precisely what offer for intervention must contain. Such detailed rules imply that the concept of offer must everywhere have the same meaning. Further the fact that cereals produced in any Member State may be offered to the intervention agency of any other Member State likewise implies that all these agencies have the same requirements with regard to the concept of a valid offer.

(3). As regards the second question the Einfuhr- und Vorratsstelle maintains that there is a valid offer only from the time when the offer reaches the intervention agency. Offers constitute declarations of intention to do a legal act and cannot have a legal effect until they reach the addressee. It follows that the conditions on which Article 1 of Regulation No 132/67 makes the effectiveness of offers depend must be satisfied when they reach the intervention agencies and not solely when the offer is despatched. A decision by the intervention agencies on whether the offers which have been made to them are valid can relate only to the time at which the agencies have full knowledge of the offers.

(4). The defendant in the main action proposes that a reply should be given to the third question to the effect that in order for an offer to be valid and capable of being accepted it must always contain a statement of the place where the cereals offered are when the offer is made. Since Article 3 of Regulation No 1028/68/EEC requires intervention agencies to decide without delay on the acceptance or rejection of offers the agencies must be able to infer from the offers themselves the place where the cereals were when the offer was made. Having regard to the importance that the place where the cereals are has in determining whether there is a valid offer it is indispensable for the offer to contain a true statement of that place.

(5). With regard to the fourth question the Einfuhr- und Vorratsstelle is of the opinion that there is nothing to prevent an originally incomplete offer, that is to say an offer made without a statement of the place where the cereals are, from being subsequently completed on condition that when the originally incomplete offer is submitted it is clearly established between the person making the offer and the intervention agency that so long as the offer is incomplete it will not be treated as an offer for intervention within the meaning of Article 1 of Regulation No 132/67, but will be held in suspense without being taken into account until it is completed.

(6). With regard to the fifth question the defendant in the main action is of the opinion that when an offer has thus been made in successive stages it cannot be regarded as made within the meaning of Article 1 of Regulation No 132/67 until it has been completed by a statement of the place where the cereals are.

(7). With regard to the seventh question the defendant states that since the objective of the provisions laying down general rules for intervention was to establish a Community system of intervention applicable in the same way in all member countries and involving a uniform system of prices, those rules are of a binding nature.

4. Question 1 asks whether the words offer and offered contained in the aforesaid regulations must be interpreted in the same way in the various Member States.

5. Article 7 of Regulation No 120/67 obliges intervention agencies to buy in the cereals which are offered to them only if the offers comply with conditions, in particular in respect of quality and quantity, to be determined in accordance with paragraph (5) of that article. Where, in order to stabilize markets and to ensure a fair standard of living for the agricultural community concerned, intervention measures must be taken, then according to the fifth recital to that regulation, such measures must be standardized so as not to impede the free movement of cereals within the Community.

6. As the obligation to intervene depends decisively on a prior offer, it is important that the concept of a valid offer and the conditions thereby involved shall apply throughout the Community, in order that the desired standardization of the conditions for intervention may be achieved. This requirement appears indispensable, not only because the Community authorities themselves determine those conditions, but also inasmuch as it is necessary to ensure that the additional conditions, which in certain cases the intervention agencies of each Member State are authorized to lay down, are compatible with the objectives of the intervention system. Terms used in Community law must be uniformly interpreted and implemented throughout the Community, except when an express or implied reference is made to national law.

7. It follows, therefore, that although intervention agencies are empowered, under Article 5 of Regulation No 1028/68 to adopt additional procedures and conditions for taking over, they cannot however derogate from the Community concept of an offer as contained in particular in Regulations Nos 120/67 and 132/67.

8. It is appropriate therefore to reply that the terms Offer and offered, contained in Regulations Nos 120/67, 132/67 and 1028/68, must be uniformly interpreted in the Member States, in accordance with the objectives of the intervention system laid down by those regulations.

9. The Court is asked whether the word offer must be interpreted as meaning that an offer of cereals for intervention must be regarded as made as soon as the person making the offer despatches it or only when it is received by the intervention agency.

10. An offer for intervention, made in due form, automatically obliges the intervention agency to buy in the cereals offered. Save in exceptional circumstances, a legal transaction with such cogent consequences can become binding upon the addressee, on whom it purports to impose obligations, and can thus be regarded as complete, only when it comes to his knowledge.

11. It is appropriate therefore to reply that an offer within the meaning of the regulations referred to by the national court can be regarded as made when it is received in writing by the intervention agency.

12. The Court is asked further to say whether there is a valid offer capable of being accepted when it contains no indication of the place where the goods are or were when the offer was made.

13. Under Article 1 (1) of Regulation No 132/67 of the Council all offers for intervention shall be made to an intervention agency in respect of a marketing centre chosen from among the three centres nearest to the place where the cereals are when the offer is made and under Article 2(1) of the same regulation the intervention agency shall decide on the place where the cereals are to be taken over.

14. According to the defendant in the main action and the Commission these provisions necessarily imply that the person concerned must indicate the place where the goods are when the offer is made so as to allow the intervention agency to decide whether the condition in Article 1 of Regulation No 132/67 is satisfied and to appoint the place for taking over which appears the most advantageous to it.

15. The plaintiff in the main action, without denying that this information must as a rule be supplied, objects however that it has become superfluous in a case in which a Member State, in the present case the Federal Republic of Germany, has made use of the power conferred upon it by Article 5 of Regulation No 1028/68 to lay down additional conditions and has by a decision of general scope appointed in advance in respect of each marketing centre places for taking over where the intervention agencies undertake to take delivery of the cereals without the dealer's incurring any other costs. According to the plaintiff in the main action it would thus no longer be of any use to indicate the place where the goods are when the offer is made since there is no longer any need for the intervention agency either to verify whether the marketing centre indicated is one of the three referred to in Article 1 or to indicate a place for taking over, since this has been indicated and accepted in advance.

16. Such an interpretation of Article 1 of Regulation No 132/67 is incompatible both with the wording and the objective of this provision. This obliges intervention agencies, so that the organization of the intervention system may be as rational and as inexpensive as possible, to verify in any event whether the marketing centre indicated is one of the three nearest to the place where the cereals are when the offer is made. It is proper for the system of intervention, which is intended to guarantee that, having regard to the regional price differences, producers may sell their cereals at fair prices when they cannot be sold in normal conditions of profitability, to include precautions designed to ensure that there is no encouragement to transport the goods with the sole objective of obtaining a more advantageous intervention. The obligation to indicate the place where the goods are when the offer is made and to hold them there at the disposal of the intervention agency, by allowing the latter to check that the offer is in order and if so giving it the opportunity of itself indicating the place for taking over, contributes to the attainment of this objective.

17. This condition does not lose its significance and usefulness where the places for taking over are indicated in advance in a general way. Moreover, it is in this way that the authorities of the Federal Republic of Germany say they apply the additional measures which they have adopted.

18. It is therefore appropriate to reply that an offer for intervention, to be in order and to be binding on the intervention agency, must indicate the place where the goods offered are or will be when the offer is made, that is to say when it is received by the said agency.

19. The Court is asked whether, if the place where the cereals are is not stated in the offer, such an offer may subsequently be completed and if so whether it may be regarded as made at the date of the originally incomplete offer.

20. The proper functioning of the intervention system does not prevent an incomplete offer, otherwise in order as to form, from being subsequently completed by the indication of the place where the goods are. It is however only as from the time at which the offer is complete that it is capable of being effective.

21. It is appropriate therefore to reply that an offer which is originally incomplete may be subsequently completed but that it will be effective only when it satisfies all the conditions upon which its validity depends.

22. The Court is asked by the sixth question to rule whether the phrase are when the offer is made used in Article 1 of Regulation No 132/67 means that the offer is in order only when the goods offered are stored in a given place or whether the indication of one of the three marketing centres referred to in the said Article 1 may be made in relation to goods in transit.

23. It follows from the replies given to the previous questions that Article 1 of Regulation No 132/67 implies that when the offer is made the goods offered must be at the disposal of the intervention agency in order that any subsequent change of location may remain exclusively a matter for the agency. This is the meaning of the phrase are when the offer is made.

24. Finally the Court is asked whether the provisions contained in the aforesaid Community regulations are mandatory or whether the Member States may derogate therefrom.

25. The provisions, the interpretation of which is requested, relate to essential factors in the common organization of the market in cereals. If the objectives of the common organization of the market are to be attained, the introduction of the intervention machinery must follow rules which are as uniform as possible, so as not to impede the free movement of cereals within the Community under normal market conditions.

26. In the absence of any clearly expressed intention on the part of the draftsmen of the Community regulations it cannot be considered permissible for Member States to derogate therefrom.

27. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Hessischer Verwaltungsgerichtshof, costs are a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties to 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 38 to 47 and 177; Having regard to Regulation No 120/67 of 13 June 1967 and Regulation No 132/67 of 13 June 1967 both of the Council of the European Economic Community; Having regard to Regulation No 1028/68 of the Commission of the European Communities of 19 July 1968; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic 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 Hessischer Verwaltungsgerichtshof by order of that court dated 19 July 1971, hereby rules:

1 The terms Offer and offered, contained in Regulations Nos 120/67, 132/67 and 1028/68, must be uniformly interpreted in the Member States, in accordance with the objectives of the intervention system laid down by those regulations.

2 In accordance with the above regulations, an offer must be considered as effectively made when it is received in writing by the intervention agency.

3 (a) In order to be valid and binding upon the intervention agency, an offer for intervention must state where the goods offered are or will be at the time when the offer is made, that is, at the time when it is received by the agency. (b) An offer which is originally incomplete in this respect may subsequently be completed, but will be effective only when it satisfies all the conditions upon which its validity depends.

(a) In order to be valid and binding upon the intervention agency, an offer for intervention must state where the goods offered are or will be at the time when the offer is made, that is, at the time when it is received by the agency.

(b) An offer which is originally incomplete in this respect may subsequently be completed, but will be effective only when it satisfies all the conditions upon which its validity depends.

4 The phrase are when the offer is made contained in Article 1 of Regulation No 132/67 must be interpreted as meaning that the goods offered must, when the offer is made, be at the disposal of the intervention agency, so that any subsequent change of location remains exclusively a matter for the agency.

5 In the absence of clearly expressed provision Member States cannot derogate from the provisions contained in the aforesaid regulations.