Court of Justice of the European Communities (including Court of First Instance Decisions)

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Cite as: [1970] EUECJ R-26/70

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61970J0026
Judgment of the Court of 17 December 1970.
Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Günther Henck.
Reference for a preliminary ruling: Hessischer Verwaltungsgerichtshof - Germany.
Case 26-70.
European Court reports 1970 Page 01183
Danish special edition 1970 Page 00273
Greek special edition 1969-1971 Page 00635
Portuguese special edition 1969-1970 Page 00675

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - EXPORT LICENCES - REFUND FIXED IN ADVANCE - DEPOSIT - AMOUNT - FIXING SUCH AMOUNT
( REGULATION NO 102/64 OF THE COMMISSION, ARTICLE 7 )

THE REQUIREMENT OF A HIGHER DEPOSIT IN CASES OF ADVANCE FIXING OF THE REFUND IS A METHOD NECESSARY TO GUARANTEE COMPLIANCE ON THE PART OF EXPORTERS WITH THE OBLIGATION ATTACHED TO THE ISSUE OF THE LICENCE AND THEREBY TO ENSURE THE ACCURACY OF THE FORECASES OF FUTURE MARKET TRENDS .
DETERMINATION OF THE AMOUNT OF THE DEPOSIT FALLS WITHIN THE DISCRETION OF THE AUTHORITY HAVING THE POWER TO ADOPT REGULATIONS IN THE MATTER . THE AMOUNT FIXED BY REGULATION NO 102/64 IS IN NO WAY EXCESSIVE, TAKING INTO ACCOUNT THE SIZE OF PRICE FLUCTUATIONS .

IN CASE 26/70
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHER VERWALTUNGSGERICHTSHOF ( HIGHER ADMINISTRATIVE COURT OF THE LAND OF HESSE ), KASSEL, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT-AM-MAIN
AND
GUENTHER HENCK, HAMBURG,

ON THE VALIDITY OF REGULATION NO 102/64/EEC OF THE COMMISSION OF 28 JULY 1964 ON IMPORT AND EXPORT LICENCES FOR CEREALS AND PROCESSED CEREAL PRODUCTS, RICE, BROKEN RICE AND PROCESSED RICE PRODUCTS,

1 BY ORDER OF 28 APRIL 1970 RECEIVED AT THE COURT ON 28 MAY 1970, THE HESSISCHER VERWALTUNGSGERICHTSHOF, BY VIRTUE OF ARTICLE 177 OF THE EEC TREATY, HAS ASKED THE COURT TO GIVE A RULING ON " THE VALIDITY OF REGULATION NO 102/64/EEC OF THE COMMISSION OF 28 JULY 1964 ON IMPORT AND EXPORT LICENCES FOR CEREALS AND PROCESSED CEREAL PRODUCTS, RICE, BROKEN RICE AND PROCESSED RICE PRODUCTS ( OJ 1964, P . 2125 ) AND, IN PARTICULAR, ON THE QUESTION WHETHER ARTICLES 1 AND 7 OF THAT REGULATION ARE VALID IN SO FAR AS THEY RELATE TO EXPORT LICENCES AND DEPOSITS LODGED FOR THE PURPOSE OF OBTAINING EXPORT LICENCES " .
2 IN ITS JUDGMENT GIVEN TODAY IN CASE 25/70 THE COURT HAS RULES THAT EXAMINATION OF THE QUESTION PUT BY THE HESSISCHER VERWALTUNGSGERICHTSHOF HAS NOT REVEALED ANY FACTOR CAPABLE OF AFFECTING THE VALIDITY OF THE PROVISIONS REFERRED TO .
3 HOWEVER, IN THIS CASE THE COURT IS ALSO ASKED IN ONE OF THE QUESTIONS SUBORDINATE TO THE PRINCIPAL QUESTION TO RULE WHETHER THE PROVISIONS OF ARTICLE 7 ( 1 ) OF REGULATION NO 102/64 ARE VALID IN A CASE " IN WHICH THE DEPOSIT IS LODGED FOR THE PURPOSE OF OBTAINING EXPORT LICENCES IN RESPECT OF WHICH THE AMOUNT OF THE REFUND HAS BEEN FIXED IN ADVANCE ".
4 UNDER THE TERMS OF THE SECOND INDENT OF ARTICLE 7 ( 1 ) OF REGULATION NO 102/64 THE DEPOSIT IS TO BE 5 UNITS OF ACCOUNT PER 1 000 KG IN CASES WHERE THE AMOUNT OF THE REFUND HAS BEEN FIXED IN ADVANCE . ACCORDING TO THE DEFENDANT IN THE MAIN ACTION, THIS AMOUNT, WHICH REPRESENTS A MULTIPLE OF THE DEPOSIT LAID DOWN IN CASES WHERE THE REFUND IS NOT FIXED IN ADVANCE, CONSTITUTES AN EXCESSIVE BURDEN, UNRELATED TO THE REAL OBJECTIVE OF THE SYSTEM OF DEPOSITS .
5 IT CANNOT BE DENIED THAT AS A PRINCIPLE IT IS NECESSARY TO FIX THE AMOUNT OF THE DEPOSIT REQUIRED IN THE CASE OF " ADVANCE FIXING " OF THE REFUND AT A HIGHER LEVEL THAN IN THE CASE OF A TRANSACTION GIVING RISE TO THE APPLICATION OF THE REFUND APPLICABLE ON THE DAY OF EXPORTATION . AS THE SYSTEM OF ADVANCE FIXING WAS CREATED IN THE INTERESTS OF TRADE, IT WAS NECESSARY TO PROVIDE AT THE SAME TIME, IN THE SCHEME OF THE REGULATION, FOR ADEQUATE GUARANTEES TO ELIMINATE THE POSSIBILITY THAT MACHINERY OF THE COMMON ORGANIZATION OF THE MARKETS MIGHT BE UPSET BY SPECULATION MADE POSSIBLE BY THE INTRODUCTION OF THIS OPTION .
6 TO THAT END, THE DEPOSIT WAS FIXED IN SUCH A MANNER AS TO TAKE INTO ACCOUNT PRICE TRENDS AND CONSEQUENTLY THE VARIATION IN REFUNDS DURING THE PERIOD OF VALIDITY OF THE EXPORT LICENCE . THE AMOUNT OF THE DEPOSIT MUST BE SUFFICIENT TO TAKE AWAY FROM EXPORTERS ANY INTEREST, AS THE PRICES ON THE EXTERNAL MARKETS VARY, IN CHANGING THEIR EXPORT PLANS AS THEY ARE APPARENT FROM THE LICENCES APPLIED FOR AND ISSUED . IT APPEARS THEREFORE THAT THE REQUIREMENT OF A HIGHER DEPOSIT IN CASES OF ADVANCE FIXING OF THE REFUND IS A METHOD NECESSARY TO GUARANTEE COMPLIANCE ON THE PART OF EXPORTERS WITH THE OBLIGATION ATTACHED TO THE ISSUE OF THE LICENCE AND THEREBY TO ENSURE THE ACCURACY OF THE FORECASTS OF FUTURE MARKET TRENDS .
7 TAKING INTO ACCOUNT THE SIYE OF PRICE FLUCTUATIONS WHICH CAN OCCUR ON THE MARKETS IN QUESTION, THIS AMOUNT IN NO WAY APPEARS EXCESSIVE . FURTHERMORE, DETERMINATION OF THE AMOUNT OF THE DEPOSIT FALLS WITHIN THE DISCRETION OF THE AUTHORITY HAVING THE POWER TO ADOPT REGULATIONS IN THE MATTER .

8 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS, AND THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE HESSISCHER VERWALTUNGSGERICHTSHOF, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHER VERWALTUNGSGERICHTSHOF BY ORDER OF THAT COURT OF 28 APRIL 1970, HEREBY RULES :
EXAMINATION OF THE QUESTION PUT HAS REVEALED NO FACTOR CAPABLE OF AFFECTING THE VALIDITY OF :
( 1 ) REGULATION NO 102/64/EEC OF THE COMMISSION OF 28 JULY 1964 ON IMPORT AND EXPORT LICENCES FOR CEREALS AND PROCESSED CEREAL PRODUCTS, ADOPTED UNDER ARTICLE 16 ( 3 ) OF REGULATION NO 19 IN ACCORDANCE WITH THE MANAGEMENT COMMITTEE PROCEDURE ESTABLISHED BY ARTICLE 26 OF THAT REGULATION;
( 2 ) ARTICLES 1 AND 7 OF REGULATION 102/64/EEC OF THE COMMISSION, IN SO FAR AS THEY CONCERN EXPORT LICENCES AND DEPOSITS LODGED FOR THE PURPOSE OF OBTAINING SUCH LICENCES .