OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 7 FEBRUARY 1973 (*1)

Mr President,

Members of the Court,

The preliminary questions which the College van Beroep voor het Bedrijfsleven refers to you concern the conditions in which so-called advance fixing certificates for refunds on exports to third countries of processed products with a sugar base must be issued (délivrés or remis) to producers or traders.

In order to clarify the dispute and to enable the precise scope of these questions to be understood, it is essential in the first place to give a general outline of the rules laid down in this matter by the Community institutions.

The common organization of the market in sugar is governed by Regulation No 1009/67 of the Council which applies to the basic products: sugar, beet sugar and cane sugar as well as molasses.

Insofar as trade with third countries is concerned, Article 11 (1) of this Regulation lays down, in principle, that imports or exports into or out of the Community of these basic products shall be made conditional on the submission of an import or export licence issued by Member States to any applicant.

To the extent necessary to enable exportation, Article 17 (1) of the same Regulation lays down that refunds may be granted with the object of covering the difference between the quotations for these products on the world market and their prices within the Community. This provision does not only refer to the basic products; it relates equally to the processed products listed in the Annex to the Regulation, including sugar confectionery not containing cocoa classified under heading 17.04 of the Common Customs Tariff.

The whole question concerns Community refunds, the amount of which, at a given moment and for a given product, is fixed at the same level for the whole of the Common Market.

The general rules relating to granting these refunds, fixing their amount and fixing such refunds in advance, insofar as agricultural products in the form of processed goods, and in particular products with a sugar base, are concerned, were adopted by Regulation No 204/69 of the Council. Essentially, the rate of refund shall be that applying on the day on which the goods are exported. However, except in respect of certain products, this rate may be fixed in advance at the request of the exporter. Such a system not only enables the processing industries to know sufficiently in advance the amount of the refund to which they may be entitled; it affords them the guarantee that, during the period of validity of the advance fixing certificate issued to them, they may export their products on the basis of a firm rate of refund.

Further, the submission of the certificate is a necessary condition for the grant of the refund fixed in advance and, as is the case with the export system for the basic products, the lodging of a deposit ensures the undertaking of the contractor to export before the validity of the certificate expires.

This is the general structure of the system of advance fixing, applicable in particular to processed products with a sugar base.

The detailed rules of application, concerning in particular conditions for the issue of advance fixing certificates, were adopted by Regulation No 1373/70 of the Commission.

Article 8 (2) of this Regulation lays down that licences and certificates shall be drawn up at least in duplicate by the competent agencies of the Member States, the first copy of which, called ‘Titular Holder's Copy’, shall be issued without delay to the applicant and the second, called ‘Issuing Agency's Copy’, shall be retained by the issuing agency.

Copy No 1 must be submitted to the office responsible for completing export customs formalities relating to an export from the Community; after attribution of the quantity and endorsement by this office, this copy is returned to the party concerned. We would add that release of the security is subject to production of proof of completion of the export customs formalities (Article 15 (2) of Regulation No 1373/70). This proof is furnished by production of Copy No 1 of the licence or certificate, endorsed by the customs office in accordance with the provisions of Article 8. Article 9 (1) of the same Regulation permits the titular holder of the licence or certificate, on application by him and on submission of Copy No 1, to obtain one or more extracts from that document which are issued to him by the competent agency. These extracts, as with the licence or certificate itself, are drawn up in at least two copies, the first of which, called ‘Titular Holder's Copy’, is issued to the applicant and the second, called ‘Issuing Agency's Copy’, is retained by the issuing agency.

Finally, under the terms of Article 15 (4), where a licence or certificate or extract therefrom is lost, issuing agencies may, exceptionally, issue the party concerned with a duplicate thereof, drawn up and endorsed in the same way as the original documents and clearly marked with the word ‘duplicate’ on each copy; however these duplicates may not be submitted for purposes of effecting export transactions.

The dispute brought before the College van Beroep voor het Bedrijfsleven at The Hague concerns the application of this system in the case where an advance fixing certificate drawn up by the issuing agency went astray before reaching the applicant.

It is advisable to call to mind the actual circumstances from which this dispute arose.

PPW Internationaal (Peppermint and Pharmaceutical Works), the registered office of which is at Bladel in the province of Noord Brabant, manufactures goods with a sugar or dextrose base which it exports, particularly outside the Common Market.

In view of an open tender in a third country, it requested the Hoofdproduktschap voor Akkerbouwprodukten, the competent Dutch Office, by telex of 20 December 1971, to issue to it an advance fixing certificate for a refund on the export of a quantity of 50000 kgs of sugar entering into the manufacture of products coming under heading 17.04 of the Common Customs Tariff (sugar confectionery not containing cocoa) in two batches of 25000 kgs each.

As the rules in force stood at that date, the rate of refund was 34-39 florins per 100 kgs of sugar. The company lodged the required deposit in respect of the intended transaction.

Two days later the Hoofdproduktschap drew up the certificate requested and sent it to the registered office of the undertaking by ordinary mail in an envelope also containing two extracts from this certificate and an accompanying letter. These documents never reached the addressee. The company informed the issuing agency of this at the beginning of January 1972. An enquiry carried out by the postal authorities at the request of the Hoofdproduktschap did not bring them to light nor did it clarify the exact circumstances of their disappearance.

Fearing quite rightly that it could not effect exportation of its goods as anticipated, PPW submitted to the Hoofdproduktschap on 30 March 1972 an alternative claim that either it be authorized to export the products in question with the benefit of the refund fixed in advance or, failing this, it be indemnified for the loss resulting from the fact that exportation would only give a right to a refund of a lesser amount, calculated at the rate of 9-52 florins, which was applicable in March 1972.

This claim was rejected. The Hoofdproduktschap in fact considered that the undertaking's inability to produce the certificate which had gone astray formed a lawful obstacle to the grant to it of the refund fixed in advance on the basis of the rate of 34-39 florins; that, further, although Article 15 (4) of implementing Regulation No 1373/70 permits the issue of a duplicate certificate in the event of loss, this cannot be used for the purposes of effecting exportation.

With regard to the loss resulting from the difference between the rate of refund fixed in advance and the lower rate of refund applicable in March 1972, the Hoofdproduktschap declared that it could not make compensation for this.

It was on a purely gratuitous basis — and after having obtained the approval of the Ministry of Agriculture — that this agency nevertheless agreed to release the security lodged by the undertaking.

PPW not at all satisfied with this decision, brought the matter before the College van Beroep voor het Bedrijfsleven on 8 May following.

Taking it as established that the advance fixing certificate requested on 20 December 1971 by the undertaking and actually drawn up by competent agency on 22 December had gone astray before reaching the addressee, this court considered that, in order to settle the question of whether the Hoofdproduktschap had acted, in this case, with all required diligence and, accordingly, to give a decision on the right to compensation claimed by the company, it was first necessary to have clarification on the interpretation of the Community provisions governing the conditions under which issuing agencies draw up and issue (délivrés or remis) the advance fixing of refund certificates to exporters.

It therefore decided to suspend proceedings until your Court rules on the following preliminary questions:

1.What is the meaning to be given to the term ‘afgegeven’ (issued), translated by ‘délivré’ in the French version and by ‘erteilt’ the German version, appearing in Article 11 (1) of Regulation No 1009/67/EEC … ?

2.What is the meaning to be given to the term ‘overhandigd’ (issued), translated by ‘délivré’ in the French version and ‘ausgehändigt’ in the German version, appearing in Article 8 (2); to the term ‘worden afgegeven’ (may be issued), translated by ‘être délivrés’ in the French version and by ‘erteilen’ in the German version, appearing in Article 9 (1), first subparagraph; to the term ‘overhandigd’ (issued), translated by ‘remis’ in the French version and by ‘ausgehändigt’ in the German version, appearing in Article 9 (1), second subparagraph; also to the term ‘afgeven’ (supply), translated by ‘délivré’ in the French version and by ‘erteilen’ in the German version, appearing in Article 15 (4), all being Articles of Regulation No 1373/70/ EEC of the Commission … ?

3.In particular, is it sufficient, in order to satisfy the requirements of ‘overhandiging’ (issue) [‘remise’ or ‘délivrance’] and/or of ‘afgifte’ (issue) [‘délivrance’] and especially the requirement of ‘overhandiging’ the licence or certificate and extracts thereof as laid down in Article 8 (2) and Article 9 (1), second subparagraph, of Regulation No 1373/70, for the competent agency issuing the licence or certificate merely to post the licence or certificate and the extracts thereof in the manner described in this judgment for example, but without registering the envelope and receiving a certificate of registration?

Discussion

The problem of interpretation posed by the Dutch Court therefore consists of first ascertaining whether, in the Regulations in question,

the verb ‘délivrer’ (to issue or to supply) (translated in Dutch by ‘afgeven’) or the noun ‘délivrance’ (issue) (translated in Dutch by ‘afgifte’) on the one hand, and

the verb ‘remettre’ (to issue or to return) (translated by ‘overhandigen’) or the noun ‘remise’ (issue or return) (translated by ‘overhandiging’) on the other hand,

have a different meaning from the legal point of view.

Let us say straight away that we do not think so. The wording used does not seem to us to be decisive and analysis of the Regulations does not lead one to the conclusion that the authors of those Regulations intended, by the expression ‘délivrer un certificat’ (issue a licence or certificate), to impose on the competent national authorities obligations other than those covered by the expression ‘remettre un certificat’ (issue or return a certificate).

On reading the Regulations we find in fact that only the terms ‘délivrer’ (issue) (‘afgeven’) and ‘délivrance’ (issue) (‘afgifte’) are employed in connection with import or export licences in Regulation No 1009/67 of the Council, the basic Regulation on the market in sugar (Article 11 (1)); and that, in Article 6 of Regulation No 204/69 of the Council, on export refunds for processed products, these same terms appear in relation to advance fixing certificates.

In implementing Regulation No 1373/70, adopted by the Commission, the word ‘délivre’ (issued) is employed both in Article 4 (1) (‘no licence or certificate shall be issued in respect of products which are not admitted to free circulation within the Community’), and in Article 8 (1) (‘for the purpose of determining their period of validity, the licences or (advance fixing) certificates shall be considered to have been issued on the day on which the application for them was lodged’). On the other hand, in the second paragraph of the same Article, we find in the first sentence the word ‘délivre’ (issued) when the Dutch text retains the expression ‘overhandigd’. The last subparagraph of this paragraph is translated in French as follows: ‘Après imputation et visa par le bureau (où sont accomplies les formalités douanières), l'exemplaire No 1 du certificat est remis à l'intéressé’ (‘After attribution of the quantity and endorsement by the office (responsible for completing the customs formalities), Copy No 1 of the licence or certificate is returned to the party concerned’) — in Dutch ‘teruggegeven’.

In Article 9 of the same Regulation, no longer referring to advance fixing certificates but to extracts thereof, the French and Dutch versions agree: in the first paragraph, first subparagraph, we see that ‘un ou plusieurs extraits… peuvent être délivrés (worden afgegeven)’ (‘one or more extracts … may be issued’) whereas in the second subparagraph the French text lays down that ‘les extraits sont établis en au moins deux exemplaires, dont le premier… portant le numéro 1 est remis au demandeur …’ (‘extracts shall be drawn up in at least two copies, the first of which … marked No 1 shall be issued to the applicant …’), which the Dutch text renders by ‘overhandigd’.

Finally, in Article 15 (4) it is stated that where a licence or certificate or extract from a licence or certificate is lost, issuing agencies may, exceptionally, ‘supply the party concerned with a duplicate thereof’— in Dutch ‘afgeven’.

From the wording of these provisions there emerges the fact, in the first place, that the words ‘délivrer’ (to issue) or ‘délivrance’ (issue) are the only words used in the Regulations of the Council, the word ‘remis’ (issued, returned) only appearing in Regulation No 1373/70 of the Commission; in the second place, these terms relate to both import or export licences and advance fixing certificates and extracts from those certificates; finally, whatever may be the wording employed, from which we have seen there is a marked difference between the French and Dutch versions only in Article 8 (2) of the Commission Regulation, the transaction referred to is always identical in nature; it is seen from the fact that the issuing agency sends the applicant the certificate which enables him to avail himself, subject to certain conditions, of a right to import, export, or receive a refund fixed in advance.

The only case in which the term ‘remis’ has a meaning different from ‘issued’ is, in our view, that dealt with in the last subparagraph of Article 8 (2) of Regulation No 1373/70. In fact, in that case the exporter is already in possession of Copy No 1 of the advance fixing certificate which has been previously issued to him by the competent authority. He must submit this document to the office responsible for customs formalities. After attribution of the quantity and endorsement of this copy by the customs office, the document is ‘remis à l'intéressé’ (‘returned to the party concerned’), that is restored to him.

On the other hand, in the relationships between the issuing agency and the applicant, the terms ‘délivrer’ (to issue) or ‘remettre’ (to issue/return) have the same meaning. Contrary to what the Commission thinks, it does not seem to us that any distinction can be made between the issue of a certificate which gives rise to complex legal relationships between the Administration and the exporter, and the return of Copy No 1 which represents only a factor in these legal relationships. The sole worthwhile distinction which one can make in the system set up for the advance fixing of refunds must be made between the decision taken by the issuing agency, which is embodied by the drawing up of the certificate, and the fact of receipt by the applicant, which enables him to avail himself of his rights.

The question is really reduced to knowing what conditions are to be satisfied by the ‘délivrance’ (issue) or the ‘remise’ (issue/return) of the advance fixing certificate in order that the rights granted by it and the obligations which it imposes on the exporter may, in practice, be implemented and from there to deduce what legal consequences are entailed by the loss of this certificate, according to whether this loss occurs before or after the applicant has received the document.

A reply to this question can only be found in the objectives of the system of advance fixing, bearing in mind the decisive effects which attach for the exporter to having Copy No 1 of the certificate as well as extracts at his disposal which, by virtue of Article 9 (2) of Regulation No 1373/70, have the same effects as the certificate itself.

But what are those effects?

The advance fixing certificate grants the holder a right to benefit from an export refund at the rate applicable on the day the application was lodged (Article 8 (1)), whatever the date on which export of the products in question takes place, on the sole condition that such transaction, which may be analysed as the exit of these products from the geographical territory of the Community, takes place during the period of validity of the certificate — in this case until the expiry of the fifth month following the lodging of the application.

Likewise, the submission of the certificate duly endorsed by the customs is the only means admitted as evidence that exportation has taken place, thus enabling release of the security to be obtained.

Thus, whether the Regulations use the term ‘délivrer’ (to issue) or the term ‘remettre’ (to issue/to return), nevertheless the fact remains that these two expressions cover one and the same thing. The objective of the system of advance fixing requires that Copy No 1 of the certificate actually reaches the applicant; this is a necessary condition for the applicant to be able to exercise the rights accorded him under this system.

The task of implementation has been entrusted by the Communities to the national authorities designated by the Member States; it is therefore incumbent on these authorities — in this case the Hoofdproduktschap — to act in such a way that the certificates drawn up by them reach the applicants.

But although this obligation arises from the importance to the applicants of possession of the certificate, the Community institutions did not feel they had to impose on national authorities the appropriate ways and means to achieve this end. They left them with complete freedom of action on this point.

As the Community Regulations are silent on this point, this question falls under the domestic law of each Member State.

Therefore it is not incumbent upon you to indicate to the Dutch Court what provisions the Hoofdproduktschap could or should have taken in order to ensure that in this case the certificate and extracts drawn up in the name of PPW actually reached the registered office of that undertaking.

It was permissible for that agency — at its own risk — to dispatch these documents by ordinary post and we can only note that, according to the observations of the Hoofdproduktschap, Community certificates are not among the postal packets which are obliged to be registered by virtue of Dutch postal regulations.

The national court is alone competent to give a decision, if necessary, on this point.

However we note that the Hoofdproduktschap has on its own initiative taken certain measures so that in the future the risk of loss of certificates prior to receipt by the applicants might be avoided. It has agreed to send the certificates by registered mail provided that the addressee bears the cost; it has been agreed that applicants may send one of their representatives to the offices of the agency in order that the certificates may be handed over to them personally; finally, in respect of large firms, it has established a system for lodging of certificates at the office so that there is no physical removal of these documents, exportations being noted as and when they take place.

However, although such provisions fall under the sole initiative of national authorities, nevertheless there remains a question which must still be settled in the interpretation of Community law; this is the question of the legal consequences of the loss of a certificate or extracts thereof.

Is this question settled by Article 15 (4) of Regulation No 1373/70?

Here we share the view of the Commission. This provision has no sense save in the case where the loss of a certificate takes place only after the applicant has in fact received it. In this case, as one knows, the competent authority may, exceptionally, issue a duplicate, drawn up and endorsed in the same way as the original document.

But this duplicate may not be submitted for purposes of effecting export transactions.

In other words, it cannot be submitted as evidence of such exportation and does not give a right to payment of the refund fixed in advance, nor to the release of the security.

Such consequences are not admissible when the loss of the certificate has occurred prior to its receipt by the applicant, that is to say when the certificate has not been ‘délivre’ or ‘remis’ (issued). The exporter would then only have a theoretical right to benefit from the refund fixed in advance; failing submission of the copy of the certificate sent to him, he could not carry out his transaction. This seems to us to be a gap in Community law.

The Commission suggests a solution whereby the issuing agency draws up not a duplicate but a new certificate, considering the application as still pending. Obviously this solution could be applied only within the limits of the validity of the certificate the duration of which commences as from the day the application is lodged.

While recognizing that such a liberal interpretation of the Regulation would allow the difficulty to be resolved, we do not think that it is possible, as the Regulation is silent on this point, to impose the issue of new certificates on national authorities. In our view an express provision would be necessary.

On the other hand, we feel it desirable that, after having confirmed the obligation of these authorities to take the required measures in order that the certificate and, where applicable, the extracts actually reach the applicant, you should place the national court in a position to draw the inferences therefrom in the event of loss of these documents through no fault of the applicant.

In this case, in fact, the risk of loss must in our view fall on the issuing agency which has failed to satisfy the obligation of effective ‘délivrance’ or ‘remise’ (issue/supply). But it is for the national court to decide whether the loss resulting therefrom for the exporter can, under domestic law, justify compensation.

We conclude that you should rule that the provisions of Regulations Nos 1009/67 and 204/69 of the Council and also those appearing in particular in articles 8 and 9 of Regulation No 1373/70 of the give rise to the obligation of the competent national authorities to take the necessary steps to ensure that advance fixing certificates for export refunds issued by them actually reach the applicants.

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(*1) Translated from the French.