JUDGMENT OF 22. 3. 1979 — CASE 134/78 DANHUBER v BUNDESANSTALT FÜR LANDWIRTSCHAFTLICHE MARKTORDNUNG

In Case 134/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Hessisches Finanzgericht (Finance Court, Hesse) (VIIth Senate) in the proceedings pending before that court between

THE COURT, composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

III — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. That provision infringes Article 190 of the EEC Treaty. The recitals in the preamble to Regulation No 76/76 (cf. the penultimate paragraph of that preamble) do not make it clear, and do not allow the Court of Justice to check, why the rate of levy was fixed at 50.320 units of account per 100 kilograms of beef or veal in carcase within the framework of the arrangements described as transitional. This absence of a statement of reasons make it appear that the fixing of the levy at that rate was arbitrary.

2. In the plaintiff's submission, having acknowledged the need to adopt provisions apt to protect from any damage applicants who through no fault of their own did not possess the certificate concerning exportation without refund, the Commission should have treated those applicants on the same footing as those who had been able to submit their application within the stipulated period, that is to say by 15 December 1975. Article 11 reinstates applicants who on that date did not have the certificate in question in statu quo ante. This means that they should be treated in all respects as if they had submitted their application within the stipulated period.

III —. Oral procedure

1. By order of 17 May 1978 which was received at the Court Registry on 12 June 1978, the Hessisches Finanzgericht (VIIth Senate) asked a question, under Article 177 of the EEC Treaty, on the validity of Article 11 of Commission Regulation 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 the intervention agencies (Official Journal 1976, L 10, p. 21).

2. The question was raised in the context of proceedings brought before that court by the plaintiff in the main action, in which it contested the validity of Article 11 of Regulation No 76/76 in so far as that provision fixes the rate of levy to be paid on importation into the Community at 50.32 units of account per 100 kilograms of beef or veal in carcase instead of 43 units of account per 100 kilograms.

3. By Decision of 19 December 1975 (Official Journal 1976, L 5, p. 35) the Commission fixed at 42.998 units of account per 100 kilograms of beef or veal in carcase the minimum rate of levy applicable to imports for which import licences had been granted within the framework of the last EXIM tendering procedure arranged under Regulation No 1090/75 of the Commission of 23 April 1975 on the issue by way of protective measures of import licences for certain beef and veal products (EXIM) (Official Journal 1975, L 108, p. 1).

4. The plaintiff in the main action, which alleges that it was prevented from submitting the application for import licences within the stipulated period so as to allow it to take part in the last EXIM tendering procedure because the competent national authorities delayed supplying the required export certificates, contested before the national court the rate of levy fixed by Article 11 of Regulation No 76/76 and thus the validity of that provision.

5. It is alleged, first, that Regulation No 76/76 does not make clear the reasons for which the rate of levy was fixed by Article 11 thereof at 50.32 units of account and that the regulation in question therefore contains on this point no statement of the reasons on which it is based, as required by Article 190 of the EEC Treaty.

6. The requirements of Article 190 of the Treaty are satisfied when the said statement of reasons explains in essence the measure taken in regulations by the institutions.

7. It is alleged, secondly, that the Commission by fixing in the provision at issue a rate of levy higher than the minimum rate of levy fixed by its Decision of19 December 1975 discriminated against inter alios operators who through no fault of their own were unable to take pan in the last EXIM tendering procedure.

8. Under Article 3 (3) read in conjunction with Article 4 (4) of Regulation No 1090/75 the rate of levy applicable to imports effected under the EXIM system is the rate which the operator concerned has offered to pay in his application for an import licence provided that it is equal to or greater than the minimum rate afterwards determined by the Commission.

9. The circumstance relied on by the plaintiff in the main action that it was prevented from taking part in the EXIM tendering procedure through no fault of its own is not such a kind as to affect the validity of the provision at issue since it appears that the Commission in adopting that provision kept within the limits of a proper exercise of its discretion in the matter.

10. The reply must therefore be that consideration of the question raised has disclosed no factors of such a kind as to affect the validity of Article 11 of Regulation No 76/76.

11. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.

On those grounds, THE COURT in answer to the questions referred to it by the Hessisches Finanzgericht hereby rules: