Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. In the present proceedings the national court seeks a ruling on:
2. Before I examine the two questions raised by the national court, it is appropriate to consider the following matters.
3. On 22 March 1985 the Netherlands undertaking Cargill BV submitted to the national intervention agency (the Produktschap) two applications for advance fixing of the subsidy in respect of an aggregate amount of 10000 tonnes of sunflower seeds purchased in France.
4. To remedy that situation the Commission adopted two regulations on the same day, 22 March 1985. By means of the first, Regulation No 755/85, the Commission changed as from 22 March 1985 the amount of the subsidy laid down in the previous regulation, Regulation No 735/85. By means of the second regulation, Regulation No 756/85, it suspended the advance fixing of the subsidy in respect of certificates applied for on 22 March 1985. In issuing the latter regulation, the Commission relied on Article 8 of Council Regulation No 1594/83, which allows the Commission to amend the amount of the subsidy and suspend advance fixing where an abnormal situation arises on the Community oilseeds market.
The first question
5. In its first question, the national court seeks a ruling on the validity of Regulation No 756/85. It asks in particular whether that regulation is in conformity with the conditions laid down in the provision on the basis of which it was adopted: Article 8 of Council Regulation No 1594/83.
6. Cargill BV pointed out that that provision does not allow the Commission to take — as it in fact did in this case — preventive measures, that is to say suspension of the advance fixing of the subsidy where there is merely a risk of an imbalance in the markets. In other words, the Commission can exercise the power of suspension granted to it by Article 8 only where the number of applications for advance fixing submitted by undertakings has already exceeded the volume corresponding to normal outlets for seeds harvested in the Community. Since in the present case the applications submitted on 22 March 1985 related to quantities of oilseeds not exceeding the normal throughput of the market, it must be concluded that the Commission did not comply with the limitations imposed by Article 8.
7. I do not believe that that objection can be upheld. The reason for this is eminently textual. Article 8 of Regulation No 1594/83 clearly indicates, by using the expression in particular, that the eventuality of an abnormally high number of applications for advance fixing being lodged is only one of the situations in which the Commission may intervene by suspending advance fixing of the subsidy. The reason for which an example is thus given in Article 8 seems moreover to be clear. It is obvious that if the applications lodged have attained a level disproportionate to the normal throughput of seeds on the market a particularly serious situation has arisen, indicative of movements attributable essentially to speculation, thus calling for prompt action by the Commission.
8. However, that does not mean that even when the number of applications is not so high the Commission cannot likewise suspend advance fixing. The power of suspension is vested in the Commission in order to enable it to remedy an abnormal situation on the oilseeds market. And it is precisely in order to facilitate monitoring of the state of the market that, under Regulation No 1594/83, the certificate showing advance fixing is issued only after a specified period — albeit a short one (expiring on the afternoon of the following working day) — has elapsed since lodgment of the application.
9. Cargill BV also stated that the Commission was not entitled in this case to decide to suspend advance fixing on the basis of Article 8, since that provision allows it to intervene only in order to remedy abnormal market situations attributable to the impact of factors of an economic nature. Article 8, it contends, does not allow the Commission to suspend advance fixing in order to remedy the consequences of an error which it has itself committed in calculating the amount of the subsidy.
10. Two arguments are put forward in support of that view. First, it is observed that Regulation No 1594/83 does not expressly provide that an error in the determination of the subsidy will justify exercise of the power to suspend advance fixing. It was only as a result of a later amendment to Article 8, made by the Council in Regulation No 935/86 of 25 March 1986, that such a possibility was envisaged.
11. In that regard I must observe that it does not seem to me that in fact the committing of an error by the Commission in fixing the amount of the subsidy falls within the scope of Article 8 of Regulation No 1594/83. I think that there is a fairly clear difference between an error and a situation on the... market which is abnormal envisaged by that provision. The latter situation should in fact be seen as an adverse development in the economic situation in which the subsidy is intended to operate, a development brought about by abnormal evolution of the variables affecting the market, such as, in particular, the balance of supply and demand and price levels.
12. On the basis of those considerations it seems to me that, if a strict approach is adopted, it must be concluded that the Commission, by basing Regulation No 756/85 on Article 8 of Regulation No 1594/83, did not choose an appropriate legal basis. Having said that, however, I must also point out that I am not altogether sure that such a defect is capable of rendering Regulation No 756/85 invalid.
13. I must also add that intervention of that kind appears to be closely connected with the action envisaged in Article 8. In both cases, the same objective is pursued: that of ensuring that a subsidy is not granted which is not in conformity with the basic provision and is therefore likely to cause distortion. It is true that the power of suspension under Article 8 relates, as we have seen, to a specific eventuality (a change in the economic situation); and it is also true that in such an eventuality the expectations of the traders must be considered with greater care, in so far as the applications for advance-fixing certificates are nevertheless based on a proper rule, which explains why Article 8 makes the exercise of the power of suspension subject to precise conditions.
14. However, if only to dispel any uncertainty on this point, the matter must be considered from another standpoint, which I see as decisive. I refer to the Commission's statement of the reasons on which Regulation No 756/85 is based. It is to be noted in the first place that reference is made to Article 8 in the first recital in the preamble to that regulation in the part relating to the possibility of suspension if the volume of applications for advance fixing of the subsidy does not appear to be related to normal outlets for seeds harvested in the Community; that reference is not only not pertinent, as has been stated, but is even misleading in so far as it gives the impression that the Commission's intervention was in fact prompted by the lodgment of an abnormally large number of applications, whereas it is undisputed that in this case that did not happen.
The second question
15. In its second question the national court essentially asks the Court of Justice to state whether, in the event of Regulation No 756/85, which suspended the advance fixing of the subsidy at issue, being declared invalid, the national intervention agency is obliged to accede to the application for advance fixing lodged by the undertaking concerned, applying the provisions of the earlier Regulation No 735/85.
16. In any event, it must also be borne in mind that the national intervention agency, in adopting a fresh decision on the application for advance fixing at issue, must take account of the jus supervenient. It must therefore take its decision having regard to the de jure (and de facto) situation obtaining when it does so and may not therefore accede to an application if it relates to an amount of subsidy which is no longer applicable, like in fact those envisaged in Regulation No 735/85. Moreover, the issue of a certificate with advance fixing relating to an amount of subsidy not provided for in the legislation in force would give rise to transactions causing distortion and would therefore infringe the rules on the common organization of the market.
1 Original language: Italian.
2 OJ 1985, L 81, p. 38.
3 OJ 1985, L 80, p. 18.
4 OJ, English Special Edition 1966, p. 221.
5 OJ 1983, L 266, p. 1.
6 OJ 1985, L 81, p. 36.
7 OJ 1983, L 163, p 44.
8 OJ 1986, L 87, p. 5.
9 It seems to me to be significant that, after the occurrence of the eventi at issue in this case, and even after the amendment of Article 8 of Regulation No 1594/83 made by Council Regulation No 935/86, the Commission, having in two other cases found an error in a regulation fixing the amount of the subsidy, proceeded to rectify matters by amending the incorrect regulation (see Commission Regulations Nos 1520/87 of 1 June 1987, OJ 1987, L 142, and 1537/87 of 2 June 1987, OJ 1987, L 143). In the first case, when the error was unfavourable to the traders concerned, the amendment took effect ex mmc, unless otherwise requested by those concerned; in the second case, where the amendment was made a few days after the issue of the incorrect regulation, in which the error was favourable to the traders concerned, the amendment took effect ex tunc, unless otherwise requested by those concerned.