Avis juridique important

61986J0199

European Court reports 1988 Page 01169

Summary

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK AND MILK PRODUCTS - SKIMMED-MILK POWDER HELD BY INTERVENTION AGENCIES - COMPULSORY PURCHASE - SECURITY SCHEME ESTABLISHED BY REGULATION NO 563/76, DECLARED INVALID - ANNULMENT BY A NATIONAL COURT OF A DEMAND FOR THE PROVISION OF SECURITY - POWER TO DO SO ( COUNCIL REGULATION NO 563/76 )

2 . OWN RESOURCES OF THE EUROPEAN COMMUNITIES - AMOUNTS LEVIED BY THE MEMBER STATES - SECURITY LODGED PURSUANT TO REGULATION NO 563/76, DECLARED INVALID - REPAYMENT - DEPENDENT ON THE DATE THE RELEVANT COMMERCIAL TRANSACTIONS WERE CONCLUDED ( COUNCIL REGULATION NO 563/76; COMMISSION REGULATION NO 677/76 )

Parties

IN CASE 199/86, REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN RAIFFEISEN HAUPTGENOSSENSCHAFT EG, KIEL, AND BUNDESANSTALT FOER LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS - BALM ), FRANKFURT AM MAIN ON THE CONSEQUENCES OF THE COURT' S DECLARATION THAT COUNCIL REGULATION ( EEC ) NO 563/76 OF 15 MARCH 1976 ON THE COMPULSORY PURCHASE OF SKIMMED-MILK POWDER HELD BY INTERVENTION AGENCIES FOR USE IN FEEDINGSTUFFS ( OFFICIAL JOURNAL 1977, L 67, P . 18 ) IS INVALID, ESPECIALLY IN RELATION TO THE ANNULMENT OF A DEMAND FOR THE PROVISION OF SECURITY MADE ON THE BASIS OF THE REGULATION DECLARED INVALID AND THE RELEASE OF THE SECURITY, THE COURT ( SIXTH CHAMBER ) COMPOSED OF : O . DUE, PRESIDENT OF CHAMBER, T . KOOPMANS, K . BAHLMANN, C . KAKOURIS AND T . F . O' HIGGINS, JUDGES, ADVOCATE GENERAL : J . MISCHO REGISTRAR : J . A . POMPE, DEPUTY REGISTRAR AFTER CONSIDERING THE OBSERVATIONS SUBMITTED IN THE WRITTEN AND ORAL PROCEDURE ON BEHALF OF RAIFFEISEN HAUPTGENOSSENSCHAFT EG, THE PLAINTIFF IN THE MAIN PROCEEDINGS, BY J . GOENDISCH, RECHTSANWALT, THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY P . KARPENSTEIN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 8 OCTOBER 1987, AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 18 NOVEMBER 1987, GIVES THE FOLLOWING JUDGMENT

Grounds

1 BY AN ORDER OF 22 MAY 1986, WHICH WAS RECEIVED AT THE COURT ON 31 JULY 1986, THE BUNDESVERWALTUNGSGERICHT REFERRED SIX QUESTIONS TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY IN ORDER TO ENABLE THE BUNDESVERWALTUNGSGERICHT TO DETERMINE THE CONSEQUENCES OF THE COURT' S DECLARATION THAT COUNCIL REGULATION NO 563/76 OF 15 MARCH 1976 ON THE COMPULSORY PURCHASE OF SKIMMED-MILK POWDER BY INTERVENTION AGENCIES FOR USE IN FEEDINGSTUFFS IS INVALID, ESPECIALLY IN RELATION TO THE ANNULMENT OF A DEMAND FOR THE PROVISION OF SECURITY MADE ON THE BASIS OF THE REGULATION DECLARED INVALID AND THE RELEASE OF THE SECURITY .

2 THOSE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN THE BUNDESANSTALT FOER LANDWIRTSCHAFTLICHE MARKTORDNUNG ( HEREINAFTER REFERRED TO AS "THE BUNDESANSTALT ") AND RAIFFEISEN HAUPTGENOSSENSCHAFT EG ( HEREINAFTER REFERRED TO AS "RAIFFEISEN") IN WHICH RAIFFEISEN SOUGHT THE ANNULMENT OF THE BUNDESANSTALT' S DECISION REQUIRING SECURITY OF DM 1 251.84 ON THE BASIS OF REGULATION NO 563/76 AND THE RELEASE OF THAT SECURITY, WHICH WAS DECLARED FORFEIT BY DECISION OF THE BUNDESANSTALT .

3 IN 1976, AFTER LODGING SECURITY IN THE AMOUNT OF DM 1 251.84 WITH THE BUNDESANSTALT, RAIFFEISEN IMPORTED AND PUT INTO FREE CIRCULATION GOODS COVERED BY REGULATION NO 563/76 . RAIFFEISEN DID NOT, HOWEVER, BUY SKIMMED-MILK POWDER AS REQUIRED BY THE REGULATION, THE OBLIGATION IN RESPECT OF WHICH THE SECURITY HAD BEEN LODGED .

4 WHEN ITS ADMINISTRATIVE APPEAL AGAINST THE DEMAND FOR THE PROVISION OF SECURITY WAS REJECTED RAIFFEISEN BROUGHT AN ACTION BEFORE THE VERWALTUNGSGERICHT WHICH WAS PENDING WHEN THE COURT, IN ITS JUDGMENTS OF 5 JULY 1977 IN CASE 114/76 BELA-MOEHLE V GROWS-FARM (( 1977 )) ECR 1211, CASE 116/76 GRANARIA V HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTSCHAP (( 1977 )) ECR 1247, AND JOINED CASES 119 AND 120/76 OELMOEHLE HAMBURG V HAUPTZOLLAMT HAMBURG-WALTERSHOF (( 1977 )) ECR 1269 REPLYING TO QUESTIONS REFERRED BY A NUMBER OF COURTS FOR A PRELIMINARY RULING, DECLARED REGULATION NO 563/76 INVALID . RAIFFEISEN THEREUPON MAINTAINED THAT SINCE THE REGULATION WAS INVALID THE REQUIREMENT TO BUY SKIMMED MILK AND THE DEMAND FOR THE PROVISION OF SECURITY WERE UNLAWFUL . IT ADDED THAT IT HAD NOT BEEN ABLE TO PASS THE BURDEN OF THE SECURITY ON TO ITS CUSTOMERS . THE VERWALTUNGSGERICHT UPHELD ITS CLAIM .

5 THE BUNDESANSTALT APPEALED AGAINST THAT DECISION ON THE BASIS OF THE JUDGMENT OF THE COURT OF 13 MAY 1981 IN CASE 66/80 INTERNATIONAL CHEMICAL CORPORATION V AMMINISTRAZIONE DELLE FINANZE DELLO STATO (( 1981 )) ECR 1191, WHICH HAD IN THE MEANTIME HELD THAT AN ACTION FOR THE RECOVERY OF SUCH SECURITY WAS UNFOUNDED . THE HESSICHER VERWALTUNGSGERICHTSHOF ALLOWED THE APPEAL AND DISMISSED RAIFFEISEN' S ACTION ON THE BASIS OF THE JUDGMENT OF 13 MAY 1981 . IN THE MEANTIME THE BUNDESANSTALT HAD DECLARED THE SECURITY FORFEIT .

6 RAIFFEISEN APPEALED TO THE BUNDESVERWALTUNGSGERICHT, WHICH BY ORDER OF 22 MAY 1986 STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT : "( 1 ) IS THERE A RULE OF COMMUNITY LAW TO THE EFFECT THAT A DEMAND FOR THE PROVISION OF SECURITY WHICH ( A ) WAS ISSUED PURSUANT TO COUNCIL REGULATION ( EEC ) NO 563/76, OF 15 MARCH 1976, AND ( B ) HAS BEEN CHALLENGED BY MEANS OF NATIONAL LEGAL PROCEDURES AND HAS THEREFORE NOT BECOME DEFINITIVE SHOULD NOT BE ANNULLED ALTHOUGH IT WOULD BE LIABLE TO BE ANNULLED UNDER THE PROVISIONS OF NATIONAL LAW ON THE GROUND THAT COUNCIL REGULATION NO 563/76 HAS BEEN HELD INVALID? SHOULD QUESTION 1 BE ANSWERED IN THE NEGATIVE : ( 2 ) IS THERE A RULE OF COMMUNITY LAW TO THE EFFECT THAT SECURITY LODGED PURSUANT TO A DEMAND WHICH ( A ) WAS ISSUED ON THE BASIS OF COUNCIL REGULATION NO 563/76, AND ( B ) HAS BEEN CHALLENGED BY MEANS OF NATIONAL LEGAL PROCEDURES AND IN THE EVENT ANNULLED ON THE GROUND THAT COUNCIL REGULATION NO 563/76 IS INVALID SHOULD NEVERTHELESS NOT BE RELEASED? SHOULD QUESTION 2 BE ANSWERED IN THE AFFIRMATIVE : ( 3 ) ( A ) DOES THE RULE PREVENT THE SECURITY FROM BEING RELEASED ONLY WHERE THE SECURITY WAS DECLARED FORFEIT BEFORE DELIVERY OF THE JUDGMENT IN WHICH THE COURT OF JUSTICE DECLARED COUNCIL REGULATION NO 563/76 INVALID, OR ( B ) DOES THE RULE ALSO PREVENT THE SECURITY FROM BEING RELEASED WHERE THE SECURITY WAS DECLARED FORFEIT AFTER THAT JUDGMENT DECLARED COUNCIL REGULATION NO 563/76 INVALID? SHOULD QUESTION 3 ( A ) BE ANSWERED IN THE AFFIRMATIVE : ( 4 ) ( A ) MAY SECURITY - IN THIS INSTANCE SECURITY LODGED PURSUANT TO COUNCIL REGULATION NO 563/76 - BECOME FORFEIT ONLY WHEN THE DEMAND PURSUANT TO WHICH THE SECURITY WAS LODGED IS NO LONGER ASSAILABLE AND HAS THEREFORE BECOME DEFINITIVE, OR ( B ) MAY THE SECURITY BECOME FORFEIT EVEN THOUGH LEGAL PROCEEDINGS CONCERNING THE LEGALITY OF THE DEMAND ARE STILL PENDING? ( 5 ) ( A ) DO THE LEGAL CONSEQUENCES OF THE FORFEITURE OF SECURITY ENSUE ONLY IF THE SECURITY HAS BEEN DECLARED FORFEIT BY DECISION OF AN AUTHORITY, OR ( B ) DO THE LEGAL CONSEQUENCES OF THE FORFEITURE OF THE SECURITY ENSUE IMMEDIATELY UPON FULFILMENT OF THE CONDITIONS GOVERNING FORFEITURE UNDER THE RELEVANT LEGISLATION WITHOUT ITS BEING NECESSARY FOR AN AUTHORITY TO DECIDE THAT THE SECURITY IS FORFEIT? SHOULD QUESTION 4 ( B ) BE ANSWERED IN THE AFFIRMATIVE : ( 6 ) IS THERE A RULE OF COMMUNITY LAW DETERMINING THE LEGAL CONSEQUENCES WHICH FOLLOW IF THE DEMAND PURSUANT TO WHICH SECURITY THAT HAS ALREADY BECOME FORFEIT WAS LODGED IS SUBSEQUENTLY ANNULLED AS BEING UNLAWFUL?"

Decision on costs

COSTS THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS 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 NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS, THE COURT ( SIXTH CHAMBER ), IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESVERWALTUNGSGERICHT BY ORDER OF 22 MAY 1986, HEREBY RULES : ( 1 ) THERE IS NO RULE OF COMMUNITY LAW TO THE EFFECT THAT A DEMAND FOR THE PROVISION OF SECURITY MADE PURSUANT TO COUNCIL REGULATION NO 563/76 OF 15 MARCH 1976 ON THE COMPULSORY PURCHASE OF SKIMMED-MILK POWDER HELD BY INTERVENTION AGENCIES FOR USE IN FEEDINGSTUFFS, WHICH WAS DECLARED INVALID BY THE JUDGMENT OF THE COURT OF 13 MAY 1981, MAY NOT, IF CHALLENGED IN ACCORDANCE WITH NATIONAL LAW, BE ANNULLED . ( 2 ) WHERE PROTEIN PRODUCTS ACQUIRED UNDER REGULATION NO 563/76 HAVE BEEN RESOLD ON THE BASIS OF CONTRACTS MADE BEFORE THAT REGULATION ENTERED INTO FORCE, THERE IS A RULE OF COMMUNITY LAW TO THE EFFECT THAT THE AMOUNT OF THE SECURITY LODGED PURSUANT TO A DEMAND MADE ON THE BASIS OF THAT REGULATION MAY NOT BE REPAID EVEN IF THE DEMAND WAS CHALLENGED IN ACCORDANCE WITH NATIONAL LAW AND ANNULLED ON THE GROUND THAT THE SAID REGULATION WAS INVALID . WHERE, ON THE OTHER HAND, SUCH PRODUCTS BOUGHT SUBJECT TO THE PROVISION OF SECURITY HAVE BEEN RESOLD UNDER CONTRACTS MADE AFTER THE ENTRY INTO FORCE OF THE SAID REGULATION AND THE DEMAND FOR SECURITY WAS CHALLENGED IN ACCORDANCE WITH NATIONAL LAW AND ANNULLED ON THE GROUND THAT THE REGULATION WAS INVALID, NO RULE OF COMMUNITY LAW PREVENTS REPAYMENT OF THE SECURITY . ( 3 ) NEITHER THE FACT THAT SECURITY LODGED PURSUANT TO REGULATIONS NOS 563/76 AND 677/76 HAS BECOME FORFEIT NOR THE TIME OF ITS FORFEITURE IS RELEVANT UNDER COMMUNITY LAW TO THE REPAYMENT OF THE SECURITY .