OPINION OF MR REISCHL — CASE 134/78 DANHUBER v BUNDESANSTALT FÜR LANDWIRTSCHAFTLICHE MARKTORDNUNG

Mr President,

Members of the Court,

As you know there was a world-wide surplus on the beef and veal market after 1974 which led to a collapse of crisis proportions in market prices and thus put in jeopardy the aims of Regulation (EEC) No 805/68 of the Council of 27 June 1978 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187). The Commission therefore had recourse to protective measures in foreign trade and began suspending the issue of import licences and advance-fixing certificates for beef and veal products. After a tendency towards stabilization of the market became evident the Commission felt it had to allow some restoration of the flow of trade and this it did by Regulation (EEC) No 1090/75 of 23 April 1975 on the issue by way of protective measures of import licences for certain beef and veal products (EXIM) (Official Journal L 108 of 26 April 1975, p. 1). This regulation provided for quantitative control in such a way that import licences were issued only for those quantities which the importer had previously taken off the internal market by way of export.

This so-called EXIM procedure was at the same time intended as an alternative to the more usual cash refunds on export. Anyone exporting without a refund could apply for a licence to import an equivalent quantity of meat and the waiver of the claim to the refund was in addition financially compensated for by a reduction in the levies on import which, in view of the poor state of the market, were too high.

Import licences were issued monthly under Regulation No 1090/75 in a sort of tendering procedure which was formulated as follows: under Article 3 (1) (b) and Article 4 (1) applications for import licences had to be submitted at the beginning of each month, the applicants offering the rate of levy which they were prepared to pay. Under Article 3 (2) only those applications were accepted which related to a quantity of at least 10 tonnes and for which proof of export without refund was given by an accompanying certificate of the agency responsible for paying refunds. The Commission compared the offers with the market information available to it and under Article 4 (3) determined a minimum rate of levy in units of account per 100 kg of beef or veal in carcase. In accordance with Article 4 (4) the Member States then issued licences to those applicants who had offered at least the minimum rate fixed by the Commission. All applications showing a lower rate of levy were rejected whilst the applicants who had offered a higher rate of levy than the minimum rate fixed were bound to that higher rate.

Finally the Commission could decide under Article 4 (4) not to accept applications for licences or to issue them only in respect of a percentage of the quantity applied for.

In so far as import licences applied for were not issued, the applicant could renew his application later or elect to take the usual cash refund in accordance with Article 6 (2).

After it became apparent at the end of 1975 that the tendency towards stabilization of the market in beef and veal was continuing the Commission replaced the EXIM procedure set up by Regulation No 1090/75 as already outlined with Regulation (EEC) No 76/76 of 16 January 1976 setting up a system linking imports of beef and veal products effected by way of protective measures with the sale of beef held by intervention agencies (Official Journal L 10 of 17 January 1976, p. 21). Under this socalled linked-sales system all those applicants received an import licence who had previously bought an equivalent quantity of intervention meat, without regard to export.

Under Article 2 of Regulation No 3170/75 (Official Journal L 314 of 4 December 1975, p. 13) applications for import licences could be lodged under the EXIM procedure up to 15 December 1975. By Decision of 19 December 1975 (Official Journal L 5 of 10 January 1976, p. 35) the Commission determined a minimum rate of levy of 42.998 units of account per 100 kg of beef or veal in carcase for applications made until then.

Article 11 of Regulation No 76/76 made transitional arrangements for operators who had effected imports without refund under the EXIM arrangements before 16 December 1975 but had received no import licence on the basis of Regulation No 1090/75. Up to 2 February 1976 they could apply for an import licence which was to be issued to them upon their undertaking to pay the rate of levy fixed in advance of 50.320 units of account per 100 kg of beef or veal in carcase.

Firma E. Danhuber, Munich, which had previously taken part in the tendering procedure under the EXIM arrangements and on its last tender had received an import licence with a rate of levy of 43 units of account per 100 kg of beef or veal, availed itself of this transitional provision and on 29 December 1975 lodged applications, confirmed in writing on 30 December 1976, with the then competent Einfuhr- und Vorratsstelle für Schlachtvieh, Fleisch und Fleischerzeugnisse (Import and Storage Agency for Fatstock, Meat and Meat Products) for the issue of import licences for beef or veal under the EXIM arrangements along with the prescribed proof for exports which it had effected before 15 December 1975.

The Einfuhr- und Vorratsstelle satisfied this application by granting two import licences for boned or boneless frozen beef or veal and two import licences for live domestic bovine animals and by fixing the levy in accordance with the transitional provisions of Article 11 of Regulation No 76/76 on the basis of the rate of levy of 50.320 units of account per 100 kg at DM 309.74 and DM 95.44 per 100 kg respectively.

After objecting unsuccessfully, Danhuber brought an action before the Hessisches Finanzgericht against the Einfuhr- und Vorratsstelle claiming that the rates of levy fixed by the defendant and its decision dismissing the objection should be annulled and that the defendant should be ordered to refix the rates of levy in the import licences, keeping to a rate of levy of 43 units of account per 100 kg of beef or veal.

The grounds of the claim of the plaintiff in the main action were that it had been unable to lodge its applications within the stipulated time in respect of the exports effected before 15 December 1975 under the EXIM arrangements because the Hauptzollamt [Principal Customs Office] Hamburg-Jonas which was responsible for the issue of a certificate for export without refund had been dilatory in following the procedure for furnishing the necessary proof. This practice was known to the Commission and led it to insert the above-mentioned transitional provisions in Regulation No 76/76. The plaintiff was therefore compelled to accept the rate of levy of 50.320 units of account laid down in that regulation for exports effected before 16 December 1975. The minimum rate of levy for applications which exporters had submitted to the intervention agencies up to 15 December 1975 with documentary proof had however been fixed at 43 units of account per 100 kg. To this extent they were put at a disadvantage through no fault of their own in relation to exporters who had received the necessary proof in time and had therefore been able to make their applications by 15 December.

The fixing of the contested rates of levy indeed fell within Article 11 of Regulation No 76/76 but that provision infringes the prohibition of discrimination in that the plaintiff is treated less favourably than applicants who had been able to make their application before 15 December. The provision in question also offends against the principle of legal certainty because the Commission misused its discretionary power in fixing the amount of the levy; on the one hand it did not have regard to the close connexion in terms of figures and finance between export and import and on the other did not take account of the fact that in the meantime the linked-sales system had started and therefore the offers by those taking part therein, which in the nature of things could be less costly had competed in the Community market with offers arising out of exports under the EXIM arrangements. After the Commission had illegally failed to adopt a provision that exporters, if they had made their applications within the stipulated time, could lodge proof of export afterwards the Commission was in the opinion of the plaintiff obliged to fix the rate of levy in the transitional arrangements at 43 units of account per 100 kg of beef or veal in carcase. On those grounds the rule in question is invalid.

The defendant in the main action on the other hand took the view that Article 11 of Regulation No 76/76 was directly applicable and which had to be applied so long as it had not been expressly repealed.

By order of 17 May 1978 the VIIth Senate of the Hessisches Finanzgericht stayed the proceedings and referred the following question to the Court for a preliminary ruling under the second paragraph of Article 177 of the EEC Treaty:

My view on this is as follows:

1 Translated from the German.