Report for the Hearing delivered in Case 338/85
I — Facts and written procedure
1. The Community legislation on the common agricultural policy includes rules on the adjustment of amounts fixed in advance and, in particular, the following two provisions:
2. In the course of a meeting concerned with agricultural questions held in Brussels on 16 and 17 May 1983, the Council reached an agreement, which was accepted by the Italian delegation subject to confirmation which inter alia altered the representative rates for green currencies. The meeting came to an end on 17 May towards 5 o'clock in the morning and was immediately followed by a press conference and a press communiqué. Italy withdrew its reservations on 20 May.
3. On 17 May 1983 at 12.39 p. m. Fratelli Pardini SpA applied to the Ministry of Foreign Trade for an import licence for the importation from nonmember countries of 21000 tonnes of common wheat with advance fixing on the day of the application of both the levy and the monetary compensatory amounts. The application was accompanied by security of LIT 98280000 in the form of a guarantee furnished by the Lucca branch of Banca toscana. The monetary compensatory amount applicable at that time was LIT 6403 per tonne of imported wheat in favour of the importer; that amount would have been deductable from the amount of the levy payable on importation.
4. The order seeking a preliminary ruling was received at the Court Registry on 14 November 1985.
II — Written observations
Admissibility of the reference for a preliminary ruling
The Commission expresses doubts regarding the admissibility of the reference to the Court on the ground that the Pretore has asked the Court to give a preliminary ruling whilst at the same time granting the interim measure sought which was the sole object of the proceedings instituted before him. Consequently, the interpretation of Community law cannot be of any use to the Pretore, who did not, moreover, claim that such an interpretation could be useful for the purposes of the interlocutory proceedings, which have been concluded. Instead the Pretore brought the matter before the Court because he considered that such a step could be useful for the purposes of the proceedings on the substance of the case, which have, however, not yet been commenced and must, moreover, be brought before a court or tribunal other than his own.
The first and second questions
The plaintiff in the main proceedings and the Italian Government submit that the reply to the first and second questions should be that the adjustment of monetary compensatory amounts fixed in advance is applicable only in cases where the advance fixing was effected after the date on which the new representative rate was published in the Official Journal. The Commission, on the other hand, considers that the adjustment may cover all amounts fixed in advance after the substantive Council decision to amend the representative rate.
1. Pardini maintains that monetary compensatory amounts may be adjusted only after new representative rates (green rates) are already actually in force, not merely after they have been the subject of a Council agreement. That follows from Article 7 of Commission Regulation No 1160/82, which provides that monetary compensatory amounts fixed in advance are to be adjusted if a new representative rate comes into effect.
2. The Italian Government refers first of all to the fact that under Article 6 (1) of Regulation No 1160/82 monetary compensatory amounts fixed in advance are not affected by changes occurring during the period of validity of the import licence or certificate. There is, however, one exception to that rule, which is intended to protect the legitimate expectations of traders. Under Article 7 (1) of the regulation monetary compensatory amounts fixed in advance are to be adjusted if a new representative rate, decided on before the application for advance fixing was lodged, comes into effect.
3. The Commission considers that the first and second questions seek to ascertain whether the expression decided on in Article 7 (1) of Regulation No 1160/82 refers to the publication in the Official Journal of the regulation fixing new representative rates or merely to the substantive decision of the Council which has not yet been formalized in the form of a regulation.
The third and fourth questions
The plaintiff in the main proceedings and the Italian Government submit that the reply to the third and fourth questions should be that advance fixing carried out between 17 May and 20 May 1983 may be cancelled upon application within the prescribed period, so that the provisions of Regulation No 1244/83 which provide to the contrary are inapplicable. The Commission, on the other hand, considers that such advance fixing cannot be cancelled and that the fact that it cannot be cancelled is compatible with the principle of the protection of legitimate expectations.
1. Pardini points out that in so far as the levy or the refund and the monetary compensatory amounts are adjusted in the light of new representative rates, traders for whom the terms of a transaction have changed are able to cancel it under the final subparagraph of Article 4 (1) of Regulation No 1134/68. That provision is contained in a measure adopted by the Council and therefore occupies a higher position in the hierarchy of sources of Community law than legislative measures adopted by the Commission.
2. The Italian Government observes that by virtue of the rule laid down in Article 4 (1) of Regulation No 1134/68 of the Council the person concerned is entitled to have the advance fixing cancelled and his security returned to him if the monetary adjustment affects the transaction in question. That provision gives effect to the principle of the protection of legitimate expectations. Nevertheless, the final subparagraph of Article 1 of Commission Regulation No 1244/83 limits the possibility of cancellation in this case to certificates or titles issued before 17 May 1983.
3. The Commission states that the third and fourth questions seek to ascertain in substance whether the legal provisions which make it possible to apply for the cancellation of import certificates following an alteration of the representative rates are contrary to the principle of the protection of legitimate expectations in so far as they must be interpreted as meaning that cancellation cannot be obtained in the instant case.
III — Replies to the questions put by the Court
The summary procedure in cases of urgency under Article 700 of the Codice di Procedura Civile
The Italian Government observes that where the substance of the case is not yet pending {ante causam) the Pretore may order the necessary measures either immediately (ex parte) by a decree (decreto) or by an order (ordinanza) after having summoned the interested parties. In the former situation, which is that of the instant case, the Pretore must set a date for a hearing; at that hearing he may, by an order (ordinanza), confirm, vary or discharge the measures previously ordered (Article 670 of the Codice di Procedura Civile). In such a case, the summary procedure must be regarded as terminated once the Pretore has set a date for a hearing at which all the parties are to appear and once, at that hearing, he has, by order, confirmed, varied or discharged the measure previously ordered.
The instant case is, however, a special one in that, contrary to the rules of procedure, the Pretore ordered an interim measure ex parte but failed to set a date for a hearing. In such a case, according to the case-law of the Corte Suprema di Cassazione (Supreme Court of Cassation), the summary procedure cannot be regarded as terminated since the Pretore has the power to summon the parties at any time — as long as proceedings on the substance of the case have not been instituted — for the purpose of confirming, varying or discharging the interim measure.
Both the courts and legal literature are in agreement that interim measures ordered under Article 700 of the Codice di Procedura Civile cannot be challenged since they are not in the nature of decisions but are precautionary measures which have no further raison d'être once judgment has been given on the substance of the case.
On the other hand, the courts and academic writers accept that an interim measure ordered by the Pretore may be varied or discharged by him as long as the proceedings on the substance of the case have not been instituted. Interim measures are ordered rebus sic stantibus and must therefore be capable of being varied or discharged, even by the Pretore, if there is a change in the factual or legal circumstances.
The Italian Government adds that when the Pretore who has ordered an interim measure has no jurisdiction to hear the merits of the case he must in any event set a mandatory period within which the substantive proceedings must be instituted. An interim measure ordered ante causam ceases to be effective if the substantive proceedings are not instituted within the period laid down or if those proceedings, although instituted within the period laid down, lapse before judgment.
The Court's jurisdiction to reply to the questions referred to it for a preliminary ruling
1. Pardini maintains that the precautionary measure ordered by the Pretore ante causam and ex parte may be discharged or varied solely by the same judge, at least until the substantive proceedings have been commenced; in addition, according to one line of cases the Pretore may even discharge the interim measure after the substantive proceedings have been commenced as long as the court hearing the merits has not given a collegiate judgment on the whole of the case.
2. The Italian Government considers that the Pretore, Lucca, who has not yet set a date for a hearing, may do so, in order to make an order varying or discharging the measure previously ordered, at any time until the substantive proceedings are commenced.
The advance fixing mechanism
(a) The scope of Regulation No 1134/68 in comparison with that of Reguktion No 1160/82
1. The Italian Government takes the view that the scope of Regulation No 1134/68 of the Council of 30 July 1968 and that of Commission Regulation No 1160/82 of 14 May 1982 are analogous as regards adjustment in the event of monetary fluctuations.
2. The Commission states that Article 4 of Regulation No 1134/68 concerns possible alterations in the relationship between the parity of the currency of a Member State and the value of the unit of account. In its view, Article 7 (1) of Regulation No 1160/82 concerns the possible entry into force of a new representative rate (green currency).
(b) The scope of Regulation No 1244183 in comparison with that of Article 4 of Regu-Ution No 1223/83
1. The Italian Government considers that Commission Regulation No 1244/83 of 20 May 1983 seems to be intended to implement Article 4 of Council Regulation No 1223/83 of 20 May 1983.
2. The Commission confirms that Regulation No 1244/83 is in fact intended to implement Article 4 of Council Regulation No 1223/83.
(c) The possibility of cancelling advance fixings of monetary compensatory amounts
1. In the opinion of the Italian Government it follows from the arguments set out above that advance fixings of monetary compensatory amounts may be cancelled in the event of an alteration of the representative rates. Moreover, the second subparagraph of Article 2 (1) of Regulation No 1160/82 provides that the monetary compensatory amount may be fixed in advance only if the levy or refund is fixed in advance.
2. The Commission points out that traders' expectations that representative rates will be maintained is taken into account in the same manner as regards the advance fixing of both levies and refunds on the one hand and of monetary compensatory amounts on the other. The difference relates solely to the mechanisms used and is due to the fact that levies and refunds are fixed in units of account whereas monetary compensatory amounts are fixed directly in national currency.
1 Language of the Case: Italian.