OPINION OF MR REISCHL — CASE 85/78 BUNDESANSTALT FÜR LANDWIRTSCHAFTLICHE MARKTORDNUNC v HIRSCH

Mr President,

Members of the Court,

The proceedings with which my observations today are concerned involve the application of Regulation No 19 of 4 April 1972 on the progressive establishment of a common organization of the market in cereals (Journal Officiel 1962, No 30, p. 933) and of provisions issued in implementation thereof, in particular Regulation No 130 of the Council providing for exceptions to Article 17 of Regulation No 19 of the Council in the matter of advance fixing of the levy on certain products (Journal Officiel No 106 of 30 October 1962, p. 2555) and Regulation No 87 of the Commission of 25 July 1962 on the adoption of detailed rules on import and export licences for cereals and cereal products (Journal Officiel No 66 of 28 July 1962, p. 1895).

Regulation No 19 provided for levies even in intra-Community trade owing to the different price level in the Member States. A person who wished to import from other Member States required for this an import licence which was issued upon application and which was valid for several months. In principle the rate of levy applicable on the date of importation was determining. In derogation from this rule, Regulation No 130 provided for the advance fixing of the levy with regard to certain products — inter alia barley. If advance fixing of the levy was requested, the rate of levy in force on the date of the lodging of the application was applied. The licences issued not only authorized importation but also imposed an obligation to do so. To guarantee this obligation the importer had to lodge a security which was forfeited if the obligation was not fulfilled, Only in specific cases was the security not forfeited. In this connexion Article 8 of Regulation No 87 of the Commission provides in detail as follows:

In accordance with these provisions Jacob Hirsch & Sohne GmbH, the defendant in the main action, applied on 16 January 1963 for the issue of a licence for the importation of malt barley from France. The application form stated: Delivery up to April 1963; an accompanying letter also spoke of Delivery up to April 1963. The legal predecessor of the plaintiff in the main action, the Einfuhr- und Vorratsstelle für Getreide und Futtermittel (German intervention agency for cereals and feeding-stuffs) issued the requested licence on 17 January 1963. It did not contain an advance fixing of the levy; it was therefore a so-called day licence, according to which the rate of levy applicable on the date of importation was to be determining.

When the defendant discovered this, only later, it telephoned the plaintiff and afterwards also wrote to it on 8 February 1963. It claimed that its application related to a forward transaction and that the licence should be amended accordingly and the rate of the levy at the date of the lodging of the application should be entered on it. The plaintiff refused this request on 15 February 1963 on the ground that an application had not been made for a forward transaction.

The defendant however would not be satisfied with this but approached the plaintiff once more on 20 February, 4 March and 19 March. It declared that it maintained its objection to the licence; however in order to co-operate with the plaintiff it also suggested on 19 March that the rate of levy applicable between 1 and 11 February should be accepted for the purposes of the licence. Since this suggestion was likewise refused on 21 March 1963, the defendant stated in a fresh application on 5 April 1963 — in addition to maintaining the objection — that it was cancelling its application of 16 January 1963. In this connexion it claimed an analogous application of the provisions of civil law relating to the revocation of declarations of intent on the ground of error and pleaded that its intention had always been a forward transaction and not to obtain a day licence. At the same time it declared that it would in no circumstances act upon the licence which it had been granted but maintained its application for the grant of an import licence with advance fixing of the levy (import month April 1963).

Apparently the goods were then in fact imported in April 1963 by means of a fresh import licence. Since however the licence which had originally been issued was not acted upon and since the Einfuhr- und Vorratsstelle für Getreide und Futtermittel was unwilling to allow cancellation on the ground of mistake with the result that the original licence was annulled, it declared in July 1963 that the security which had been lodged was forfeit.

Hirsch appealed against this action first of all unsuccessfully before the Verwaltungsgericht (Administrative Court), which gabe judgment against it in July 1974 and subsequently before the Hessisches Verwaltungsgerichtshof (Higher Administrative Court). The latter court decided essentially in favour of Hirsch in a judgment of 15 March 1976. It considered that it was possible to cancel the application for the grant of a licence on the ground or error but not for reasons connected with the system and the requirements of the common organization of the market in cereals. It reached the view that the requirements for cancellation had obtained, that Hirsch had made a mistake as to the contents of the application and had actually wished to apply for a forward licence and had omitted to do this merely in error. In addition it had cancelled the application on 5 April 1963 in time, in other words immediately after becoming aware of the ground for cancellation. The application lodged however became null and void upon cancellation and therefore, because an application is indispensable for the grant of a licence, the licence itself also, together with the obligation to import to which it gives rise, the fulfilment of which the security is intended to guarantee.

The case subsequently came before the Bundesverwaltungsgericht (Federal Administrative Court) on further appeal. The Bundesanstalt fur landwirtschaftliche Marktordnung, the successor of the Einfuhr- und Vorratsstelle für Getreide und Futtermittel, considers that the legal viewpoint adopted by the Verwaltungsgerichtshof is incorrect because it is necessary to assume that Community law contains definitive rules with regard to cases in which an import licence is not acted upon. It must accordingly be regarded as impossible for an application for a licence to be cancelled after the licence has been granted in reliance upon an error when the application was lodged. The respondent on the further appeal considers on the other hand that it is possible to cancel the application and thus to annul the import licence. It claims that it is acting basically in accordance with German law because the implementation of Community law is left to the national authorities. It is impossible in any case to raise the objection thereto that the forecast of the movement of goods which the licences enable is jeopardized in this way since it would have been possible also to lodge an application for a day licence shortly before the date of the importation, in other words at a date on which the earlier application had long been cancelled.

In appraising the case the Bundesverwaltungsgericht reached the finding that the findings of the Verwaltungsgerichtshof were binding upon it in so far as that court accepted that the application for a day licence was lodged in error and that it was cancelled in time. In addition it commented on cancellation on the ground of error in German administrative law, in other words on the possibility of an analogous application of provisions of civil law in this field. It stated that it was accordingly impossible to speak as yet of complete clarification of the problem but that it was however impossible to deny restrictions on the right of annulment so as to take into account the requirements of public law. Since the Bundesverwaltungsgericht was moreover confronted with the problem of the situation as regards cancellation on the ground of error in Community law, it stayed the proceedings by order of 27 January 1978 and submitted to the Court of Justice under Article 177 of the EEC Treaty the following questions for a preliminary ruling:

I adopt the following viewpoint with regard to these questions.

1 Translated from the German.