JUDGMENT OF 12. 2. 1974 — CASE 146/73 RHEINMÜHLEN-DÜSSELDORF v EINFUHR-UND VORRATSSTELLE GETREIDE
In Case 146/73 Reference to the Court under Article 177 of the EEC Treaty by the Hessisches Finanzgericht for a preliminary ruling in the action pending before that court between
THE COURT composed of: R. Lecourt, President, A. M. Donner (Rapporteur) and M. Sørensen, Presidents of Chambers, J. Mertens de Wilmars, P. Pescatore, H. Kutscher and C. Ó Dálaigh, Judges, Advocate-General: J. P. Warner 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 Protocol on the Statute of the Court of Justice of the EEC
1. First question
2. On the second question
3. On the third question
Grounds of judgment
On the first question
On the second and third questions
Costs
I —. Facts and procedure
1. … Moist. the second paragraph of Article 177 of the Treaty establishing the European Economic Community of 25 March 1957 be interpreted as meaning that a court against whose decisions there is a judicial remedy under national law may refer a doubtful question of European law to the Court of Justice of the European Communities for a preliminary ruling only when the case comes before it for the first time, or is a reference also permissible when the case is being reconsidered after a judgment of a court of first instance has been quashed by a supreme court?
2. Must Articles 19 (2) and 20 (2) of Regulation No 19/62 EEC (Official Journal of the European Communities, 933/62), in conjunction with Articles 14 and 15 of Regulation No 141/64 EEC (Official Journal 2666/64), be interpreted as meaning that an exporter who claims a third country refund for the export of pearl barley to a specific third country, when this refund has been granted and received by him, is entitled to at least the member country refund if a subsequent investigation reveals that, contrary to his statements, he has exported the goods to a member country, or must he in such a case forego the refund?
3. Must Article 20 (2) of Regulation No 19/62 EEC, in conjunction with Article 15 of Regulation No 141/64 EEC, be interpreted as meaning that an exporter is entitled to the third country refund only if he exports the goods to the country mentioned in the application for a refund, or does it suffice for the grant of a refund that the goods arc exported to any other third country whatsoever?
II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
1. First question
(a). The plaintiff in the main action maintains that Article 177 of the EEC Treaty should be interpreted as meaning that national courts, and in particular the final court, are bound to submit a case to the Court for a preliminary ruling only where there is objective doubt as to the validity or to the interpretation of the provision of Community law. When the final court feels no doubt as to the validity or the interpretation of a Community provision and applies it without referring the case to the Court for a preliminary ruling, the parties to the proceedings do not have any means of attacking the decision taken by the final court and having it annulled by means of Article 177 of the EEC Treaty. This argument is supported by two judgments of the Bundesverfas-sungsgericht (the German Constitutional Court), Bundesverfassungsgericht, E 29, 198 et seq. and E 29, 213 according to which an appeal to the Constitutional Court against a decision of a final court on the ground that the latter had not referred a case to the Court of Justice of the European Communities for a preliminary ruling is only possible if the final court arbitrarily failed to do so. The EEC Treaty has no provision permitting a case to be referred to the Court of Justice with the object of obtaining the revocation of a judgment given by a final national court which has the effect of res judicata.
(b). The defendant in the main action supports without reservation the arguments developed by the Finanzgericht in its order for a preliminary ruling. The provisions of Article 177 of the EEC Treaty have as objective to guarantee the principle of uniform application of Community law in all the Member States. This principle would be infringed if it were accepted that national courts were limited as regards the second paragraph of Article 177 by provisions of national procedure, provisions which are very diverse.
(c). The Commission argues that the first question in itself is to a certain extent superfluous since the Court is competent to consider of its own motion the admissibility of the second and third questions and, as a result, implicitly to reply also to the first question.
2. On the second question
3. On the third question
1. By Order dated 7 May 1973, filed at the Registry on 20 June 1973, the Hessisches Finanzgericht referred to the Court under Article 177 of the EEC Treaty three questions relating respectively to the interpretation of Article 177 of the Treaty and to that of the provisions of EEC Regulation No 19/62 of the Council (OJ 933/62).
2. The first question asks whether a court against whose decisions there is a judicial remedy under national law may refer a doubtful question of European law to the Court of Justice of the European Communities for a preliminary ruling only when the case comes before it for the first time, or whether a reference is also permissible when the case is being reconsidered after a judgment given by such a court sitting at first instance has been quashed by a supreme court.
3. This question is substantially the same as a preliminary question put in the same case by the Bundesfinanzhof, which was the subject of the judgment by the Court given on 16 January 1974 in Case 166/73, to which reference should be made.
4. The second question asks whether Articles 19 (2) and 20 (2) of Regulation No 19/62 in conjunction with Articles 14 and 15 of Regulation No 141/64 (OJ 2666/64) must be interpreted as meaning that an exporter who has claimed and obtained a third country refund for the export of pearl barley to a specific third country is entitled to at least the member country refund if a subsequent investigation reveals that, contrary to his statements, he has exported the goods to a member country, or whether in such a case the refund must be refused him.
5. The third question asks whether Article 20 (2) of Regulation No 19/62 in conjunction with Article 15 of Regulation No 141/64 must be interpreted as meaning that an exporter is entitled to the third country refund only if he exports the goods to the country mentioned in the application for a refund, or whether it suffices for the grant of a refund that the goods are exported to any other third country whatsoever.
6. Regulation No 19/62 and the measures for its implementation, in particular Regulations Nos 55/62 (OJ 1583/62) and 141/64, leave the Member States a discretion as to whether or not to grant refunds for the export of agricultural products.
7. As regards refunds on export Member States were consequently bound to take into consideration the country of destination and in particular whether this was a third country or another Member State.
8. It must therefore be concluded that in the case where the country of destination of the goods did not correspond with the particulars given in the export documents:
9. 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, in the nature of a step in the action pending before a national court, the decision on 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 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 Article 177: Having regard to EEC Regulation No 19/62 of the Council of 4 April 1962, especially Article 20; 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
1 The existence of a rule of national law whereby a court is bound on points of law by the rulings of a superior court cannot on this ground alone deprive the inferior courts of their power, provided for under Article 177, to refer questions to the Court of Justice of the European Communities for a preliminary ruling;
2 In the case where the country of destination of the goods does not correspond with the particulars given in the export documents:
(a) Article 20 (2) of Regulation No 19/62 required the national authorities to reduce the refund granted so that it did not exceed the maximum limits provided for such country of destination;
(b) Subject to this obligation, it was for them to decide according to their national law the necessary further consequences.