Avis juridique important

61984O0160(02)

European Court reports 1985 Page 00675

Parties

IN CASE 160/84

ORYZOMYLI KAVALLAS OEE, A PARTNERSHIP GOVERNED BY GREEK LAW, HAVING ITS REGISTERED OFFICE AT 4 ODOS PANAGOUDA, KAVALA, GREECE,

BOTH REPRESENTED BY PANAGIOTIS MARINOS BERNITSAS, OF THE ATHENS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALOYSE MAY, 31 GRAND-RUE,

APPLICANTS,

COMMISSION OF THE EUROPEAN COMMUNITIES, 200 RUE DE LA LOI, 1049 BRUSSELS, BELGIUM, REPRESENTED BY XENOPHON YATAGANAS, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF G. KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

Subject of the case

APPLICATION FOR A DECLARATION THAT COMMISSION DECISION NO E(84) 557 OF 25 APRIL 1984, DECLARING THAT THE REMISSION OF IMPORT DUTIES IS NOT JUSTIFIED IN THE APPLICANTS' INDIVIDUAL CASE, IS VOID,

Grounds

HAVING REGARD TO ARTICLE 52 OF THE RULES OF PROCEDURE OF THE COURT, WHICH PROVIDES:

'THE COURT MAY, ON APPLICATION BY A PARTY OR OF ITS OWN MOTION, ISSUE LETTERS ROGATORY FOR THE EXAMINATION OF WITNESSES OR EXPERTS, AS PROVIDED FOR IN THE SUPPLEMENTARY RULES MENTIONED IN ARTICLE 111 OF THESE RULES';

HAVING REGARD TO ARTICLE 111 OF THE RULES OF PROCEDURE, WHICH PROVIDES:

'SUBJECT TO THE PROVISIONS OF ARTICLE 188 OF THE EEC TREATY AND ARTICLE 160 OF THE EURATOM TREATY AND AFTER CONSULTATION WITH THE GOVERNMENTS CONCERNED, THE COURT SHALL ADOPT SUPPLEMENTARY RULES CONCERNING ITS PRACTICE IN RELATION TO:

(A) LETTERS ROGATORY;

HAVING REGARD TO CHAPTER I OF THE SUPPLEMENTARY RULES TO THE RULES OF PROCEDURE, WHICH PROVIDES:

'ARTICLE 1

LETTERS ROGATORY SHALL BE ISSUED IN THE FORM OF AN ORDER WHICH SHALL CONTAIN THE NAMES, FORENAMES, DESCRIPTION AND ADDRESS OF THE WITNESS OR EXPERT, SET OUT THE FACTS ON WHICH THE WITNESS OR EXPERT IS TO BE EXAMINED, NAME THE PARTIES, THEIR AGENTS, LAWYERS OR ADVISERS, INDICATE THEIR ADDRESSES FOR SERVICE AND BRIEFLY DESCRIBE THE SUBJECT MATTER OF THE DISPUTE.

NOTICE OF THE ORDER SHALL BE SERVED ON THE PARTIES BY THE REGISTRAR.

ARTICLE 2

THE REGISTRAR SHALL SEND THE ORDER TO THE COMPETENT AUTHORITY NAMED IN ANNEX I OF THE MEMBER STATE IN WHOSE TERRITORY THE WITNESS OR EXPERT IS TO BE EXAMINED. WHERE NECESSARY, THE ORDER SHALL BE ACCOMPANIED BY A TRANSLATION INTO THE OFFICIAL LANGUAGES OF THE MEMBER STATE TO WHICH IT IS ADDRESSED.

THE AUTHORITY NAMED PURSUANT TO THE FIRST PARAGRAPH SHALL PASS ON THE ORDER TO THE JUDICIAL AUTHORITY WHICH IS COMPETENT ACCORDING TO ITS NATIONAL LAW.

THE COMPETENT JUDICIAL AUTHORITY SHALL GIVE EFFECT TO THE LETTERS ROGATORY IN ACCORDANCE WITH ITS NATIONAL LAW. AFTER IMPLEMENTATION THE COMPETENT JUDICIAL AUTHORITY SHALL TRANSMIT TO THE AUTHORITY NAMED PURSUANT TO THE FIRST PARAGRAPH THE ORDER EMBODYING THE LETTERS ROGATORY, ANY DOCUMENTS ARISING FROM THE IMPLEMENTATION AND A DETAILED STATEMENT OF COSTS. THESE DOCUMENTS SHALL BE SENT TO THE REGISTRAR OF THE COURT.

THE REGISTRAR SHALL BE RESPONSIBLE FOR THE TRANSLATION OF THE DOCUMENTS INTO THE LANGUAGE OF THE CASE.

ARTICLE 3

THE COURT SHALL DEFRAY THE EXPENSES OCCASIONED BY THE LETTERS ROGATORY WITHOUT PREJUDICE TO THE RIGHT TO CHARGE THEM, WHERE APPROPRIATE TO THE PARTIES',

MAKES THE FOLLOWING

ON 26 AUGUST 1981, THE APPLICANT UNDERTAKINGS, WISHING TO IMPORT CONSIGNMENTS OF RICE TOTALLING APPROXIMATELY 1 000 TONNES FROM NON-MEMBER COUNTRIES, ASKED THE COMPETENT DEPARTMENT OF THE GREEK MINISTRY OF AGRICULTURE WHAT THE RATE OF THE IMPORT LEVY WAS. THEY WERE TOLD THAT THAT DAY'S RATE WAS DR 381 PER TONNE AND THAT IT WAS A CONDITION OF CARRYING OUT THE IMPORT THAT THEY MUST LODGE AN APPLICATION TOGETHER WITH A BANK GUARANTEE SO AS TO MAKE IT POSSIBLE TO PREPARE THE IMPORT LICENCE REQUIRED FOR CUSTOMS CLEARANCE OF THE PRODUCT THEY WERE IMPORTING.

ON 27 AUGUST 1981, THE APPLICANTS SUBMITTED TWO APPLICATIONS TO THE COMPETENT GREEK AUTHORITY FOR TWO IMPORT LICENCES TO BE DRAWN UP AND THEY FURNISHED THE REQUIRED BANK GUARANTEES. THEIR CONTENTION, WHICH IS DENIED BY THE COMMISSION, IS THAT THEY DID NOT FILL IN BOX 15 OF THE FORM, CONTAINING THE WORDS 'ADVANCE FIXING REQUESTED: YES/NO', BECAUSE THEY DID NOT UNDERSTAND WHAT IT MEANT. THEY SAY THAT THE OFFICIAL AT THE MINISTRY OF AGRICULTURE WHOM THEY ASKED FOR CLARIFICATION DID NOT UNDERSTAND THE MEANING OF THE WORDS EITHER AND IN THE END COMPLETED THE FORM FOR THEM BY PUTTING A CROSS AGAINST 'NO'.

ON 28 AUGUST 1981, THE RELEVANT DEPARTMENT OF THE MINISTRY OF AGRICULTURE ISSUED TO THE APPLICANTS THE TWO IMPORT LICENCES; THEIR EXPIRY DATE WAS 31 OCTOBER 1981, AND BOX 15 OF EACH LICENCE INDICATED THAT ADVANCE FIXING OF THE IMPORT LEVY HAD NOT BEEN REQUESTED.

WHEN THE RICE WAS ACTUALLY IMPORTED, THE RELEVANT CUSTOMS OFFICE INFORMED THE APPLICANTS THAT THE RATE OF IMPORT LEVY WAS NOT DR 381 PER TONNE BUT DR 3 811 PER TONNE SINCE THEY HAD SUBMITTED AN IMPORT LICENCE AND NOT AN ADVANCE-FIXING CERTIFICATE. IN VIEW OF THOSE CIRCUMSTANCES THE APPLICANTS CONSIDERED IT PREFERABLE TO PLACE THE RICE UNDER THE CUSTOMS WAREHOUSING PROCEDURE IN ORDER FOR THE MATTER TO BE CLEARED UP BY THE MINISTRY OF AGRICULTURE. THERE FOLLOWED AN ABUNDANT EXCHANGE OF CORRESPONDENCE BETWEEN GREEK GOVERNMENT DEPARTMENTS AND THE APPLICANT UNDERTAKINGS, WHICH MADE VAIN REQUESTS TO THE MINISTRY OF AGRICULTURE FOR AN ADVANCE-FIXING CERTIFICATE TO BE DRAWN UP SHOWING A RATE OF LEVY OF DR 381 PER TONNE AND FOR THE RECTIFICATION OF THE ORIGINAL IMPORT LICENCES. DURING THAT TIME, THE RATE OF LEVY ROSE CONSTANTLY.

ON THE EXPIRY OF THE STATUTORY WAREHOUSING PERIOD OF TWO YEARS FROM WHEN THE RICE WAS PLACED IN THE WAREHOUSE, ON 27 SEPTEMBER 1983, THE APPLICANTS DECLARED IT FOR FREE CIRCULATION; THE RATE OF IMPORT LEVY ON THAT DATE WAS DR 11 487.54 PER TONNE (30 TIMES MORE THAN IT WAS IN AUGUST 1981).

THE APPLICANTS THEN APPLIED FOR THE REMISSION OF THE EXCESS OF THE LEVY OVER WHAT IT WOULD HAVE BEEN IF THE RATE OF DR 381 PER TONNE RULING ON 26 AUGUST 1981 HAD BEEN APPLIED (THAT IS, DR 11 452 296 - 379 832 = 11 072 464), PLEADING IGNORANCE OF THE COMMUNITY PROVISIONS APPLICABLE IN GREECE AFTER 1 JANUARY 1981.

ON 30 NOVEMBER 1983, THE GREEK MINISTRY OF FINANCE SUBMITTED TO THE COMMISSION A REQUEST FOR THE REMISSION OF THE AMOUNT OF DR 11 072 464 AND FOR THE ADOPTION OF A DECISION TO THAT EFFECT, PURSUANT TO ARTICLE 13 OF COUNCIL REGULATION (EEC) NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES (OFFICIAL JOURNAL 1979 L 175, P. 1) (SEE ANNEX I TO THIS ORDER), AMENDED BY COUNCIL REGULATION (EEC) NO 1672/82 OF 24 JUNE 1982 (OFFICIAL JOURNAL 1982 L 186, P. 1). IN ITS REQUEST, THE MINISTRY OF FINANCE INDICATED THAT THE CONDUCT OF THE UNDERTAKINGS IN QUESTION DID NOT INVOLVE ANY NEGLIGENCE OR DECEPTION AND THAT:

'IT IS CLEAR THAT THE RELEVANT DEPARTMENT OF THE MINISTRY OF AGRICULTURE DID NOT APPRECIATE THE DIFFERENCE BETWEEN AN ORDINARY IMPORT LICENCE AND AN ADVANCE-FIXING CERTIFICATE'.

ON 23 FEBRUARY 1984, A GROUP OF EXPERTS COMPOSED OF REPRESENTATIVES OF ALL THE MEMBER STATES HELD A MEETING WITHIN THE FRAMEWORK OF THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND EXAMINED THE APPLICANTS' CASE. THE COMMITTEE CAME TO THE CONCLUSION THAT GREECE'S REQUEST FOR THE REMISSION OF IMPORT DUTIES WAS NOT JUSTIFIED.

ON THE BASIS OF THAT FINDING THE COMMISSION ADOPTED DECISION NO E(84) 557 OF 25 APRIL 1984. THE STATEMENT OF THE GROUNDS FOR THE DECISION INCLUDES THE FOLLOWING PASSAGE:

'IT IS NOT POSSIBLE TO TREAT THE TWO COMPANIES CONCERNED AS IF THEY HAD APPLIED FOR AND OBTAINED ADVANCE FIXING CERTIFICATES; ... THE RATE OF THE IMPORT LEVY ON RICE FLUCTUATED CONSIDERABLY DURING THE PERIOD FROM 26 AUGUST 1981 TO 27 SEPTEMBER 1983; ... IT IS NOT FOR THE COMMUNITY TO ASSUME THE COMMERCIAL RISK RESULTING FROM CHANGES IN THE RATE OF THE IMPORT LEVY WHILE THE RICE WAS HELD IN A CUSTOMS WAREHOUSE; ... THE COMPANIES SHOWED THEMSELVES TO BE NEGLIGENT IN UNDERTAKING A TRANSACTION CONCERNING A FAIRLY LARGE QUANTITY OF RICE WITHOUT OBTAINING ADEQUATE INFORMATION ABOUT THE LEGISLATION GOVERNING THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS; ... THE DIFFERENCE BETWEEN IMPORT LICENCES AND ADVANCE FIXING CERTIFICATES IS IMMEDIATELY CLEAR FROM THE TEXT OF THE COMMUNITY REGULATIONS IN FORCE IN THIS MATTER.'

IN THOSE CIRCUMSTANCES, ON 25 JUNE 1984, THE APPLICANT UNDERTAKINGS BROUGHT AN ACTION FOR THE DECISION TO BE DECLARED VOID.

2. THE DISPUTED FACTS

THE APPLICANTS MAINTAIN IN PARTICULAR THAT:

(A) THEY WERE MISLED BY THE OFFICIAL OF THE MINISTRY OF AGRICULTURE WHO FILLED IN BOX 15 OF THE FORM HIMSELF WITHOUT KNOWING THE DIFFERENCE BETWEEN AN ORDINARY IMPORT LICENCE AND AN ADVANCE-FIXING CERTIFICATE;

(B) IF THEY DID IN FACT MAKE AN ERROR OF LAW BY CONFUSING AN ORDINARY IMPORT LICENCE WITH AN ADVANCE-FIXING CERTIFICATE, THAT ERROR WAS WHOLLY EXCUSABLE IN VIEW OF THE FACT THAT, UP TO AUGUST 1981, NO OTHER IMPORTATION OF AGRICULTURAL PRODUCTS FROM A NON-MEMBER COUNTRY INTO GREECE HAD TAKEN PLACE;

(C) THE CASE AROSE IN THE VERY FIRST MONTHS OF GREECE'S MEMBERSHIP OF THE EEC AND EVERYONE, INCLUDING THE OFFICIALS CONCERNED, WAS UNFAMILIAR WITH THE MEANING OR EVEN THE TEXT OF THE COMMUNITY REGULATIONS;

(D) AT THAT TIME THE REGULATIONS DEALING WITH THE AGRICULTURAL SECTOR WERE NOT AVAILABLE IN GREEK AND, IN SO FAR AS COPIES OF PROVISIONS WERE AVAILABLE, THE OFFICIALS CONCERNED RELIED ON PROVISIONAL HANDWRITTEN TRANSLATIONS PREPARED FOR THEIR INTERNAL USE;

(E) THE WORDING IN GREEK OF THE RUBRIC 'ADVANCE FIXING REQUESTED' CONTAINED IN BOX 15 OF THE IMPORT LICENCE FORM WAS MEANINGLESS AND INCAPABLE OF BEING ANSWERED BY 'YES' OR 'NO';

(F) THEY WERE PREVENTED FROM CONTINUING TO KEEP THE RICE IN CUSTOMS STORAGE AND COMPELLED TO CLEAR IT THROUGH CUSTOMS BY VIRTUE OF THE RELEVANT GREEK LEGISLATION (DECISION SERIAL NO M 1025/82 OF 19 OCTOBER 1984 OF THE MINISTRY OF ECONOMIC AFFAIRS).

THE COMMISSION CHALLENGES THOSE STATEMENTS.

3. THE FACTS ON WHICH THE COURT SEEKS CLARIFICATION

2. WAS THE WORDING OF THE QUESTION RELATING TO BOX 15 OF THE IMPORT LICENCE INTELLIGIBLE IN THE GREEK TRANSLATION?

3. WERE THE GREEK OFFICIALS WHO WERE IN CONTACT WITH THE APPLICANT UNDERTAKINGS AT THE MATERIAL TIME AWARE OF THE DIFFERENCE BETWEEN AN ORDINARY IMPORT LICENCE AND AN ADVANCE-FIXING CERTIFICATE?

5 . ON 27 AUGUST 1981 , THE COMMUNITY REGULATIONS RELEVANT TO THIS DISPUTE AND IN PARTICULAR THE REGULATIONS LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE-FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS WERE AS FOLLOWS :

COUNCIL REGULATION ( EEC ) NO 1418/76 OF 21 JUNE 1976 ON THE COMMON ORGANIZATION OF THE MARKET IN RICE ;

COUNCIL REGULATION ( EEC ) NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ;

COMMISSION REGULATION ( EEC ) NO 1575/80 OF 20 JUNE 1980 LAYING DOWN PROVISIONS FOR THE IMPLEMENTATION OF ARTICLE 13 OF COUNCIL REGULATION ( EEC ) NO 1430/79 ;

COMMISSION REGULATION ( EEC ) NO 3183/80 OF 3 DECEMBER 1980 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS .

ON 27 AUGUST 1981 :

HAD THOSE REGULATIONS BEEN PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES IN GREEK?

WERE THOSE OFFICIAL JOURNALS AVAILABLE TO THE GREEK OFFICIALS CONCERNED?

WERE THOSE OFFICIAL JOURNALS READILY AVAILABLE TO THE APPLICANT UNDERTAKINGS , REGARD BEING HAD TO THE SITUATION OF THEIR REGISTERED OFFICE?

6 . IS IT TRUE THAT THE APPLICANT UNDERTAKINGS WERE PROHIBITED BY THE GREEK AUTHORITIES FROM CONTINUING TO KEEP THE RICE IN CUSTOMS STORAGE ON THE EXPIRY OF A PERIOD OF TWO YEARS?

1 . IT IS APPROPRIATE TO ISSUE LETTERS ROGATORY FOR THE EXAMINATION , BY THE COMPETENT JUDICIAL AUTHORITY , OF THE FOLLOWING FOUR WITNESSES :

MR CHARALAMBOS BLANAS , HEAD OF DIVISION RESPONSIBLE FOR THE EXTERNAL MARKET , MINISTRY OF AGRICULTURE , 23 ODOS MARINOU GEROULANOU , 115 24 ATHENS ;

MISS ANNIE GEORGOPOULOU , LEGAL EXPERT , EXTERNAL MARKET DIVISION , MINISTRY OF AGRICULTURE , 62 ODOS ARITIS , PAGRATI , ATHENS ;

MR ANTHONY MAKRIYANNIS , HEAD OF DIVISION , FOURTH CUSTOMS DIVISION , MINISTRY OF FINANCE , 10 ODOS KARAGEORGI SERVIAS , 105 62 ATHENS ;

MR NIKOLAOS MANOUSSOPOULOS , AN OFFICIAL IN THE FOURTH CUSTOMS DIVISION , MINISTRY OF FINANCE , 10 ODOS KARAGEORGI SERVIAS , 105 62 ATHENS .

2 . THE ABOVE-MENTIONED WITNESSES SHALL BE HEARD ON THE FOLLOWING OF THE QUESTIONS MENTIONED ABOVE IN SECTION 3 :

MR BLANAS : QUESTIONS NOS 1 TO 5 .

MISS GEORGOPOULOU : QUESTIONS NOS 1 TO 5 .

MR MAKRIYANNIS : QUESTIONS NOS 2 TO 6 .

MR MANOUSSOPOULOS : QUESTIONS NOS 2 TO 6 .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

BY WAY OF INTERIM DECISION ,

HEREBY ORDERS AS FOLLOWS :

( 1 ) LETTERS ROGATORY ARE HEREBY ISSUED FOR THE HEARING BY THE COMPETENT JUDICIAL AUTHORITY OF THE HELLENIC REPUBLIC , AS PROVIDED ABOVE , OF THE FOLLOWING WITNESSES :

MR CHARALAMBOS BLANAS ,

MISS ANNIE GEORGOPOULOU ,

MR ANTHONY MAKRIYANNIS ,

MR NIKOLAOS MANOUSSOPOULOS .

( 2 ) THE MINISTER FOR JUSTICE OF THE HELLENIC REPUBLIC IS REQUESTED TO SEND TO THE COURT REGISTRAR WITHIN THREE MONTHS AFTER NOTIFICATION OF THIS ORDER ANY DOCUMENTS ARISING FROM ITS IMPLEMENTATION AND A DETAILED STATEMENT OF COSTS .

( 3)THE EXPENSES OCCASIONED IN THE IMPLEMENTATION OF THIS ORDER SHALL PROVISIONALLY BE BORNE BY THE COURT . AT THE CONCLUSION OF THE MAIN PROCEEDINGS THE COURT WILL , AS APPROPRIATE , DESIGNATE THE PARTY OR PARTIES WHICH MUST FINALLY BEAR THESE COSTS .

( 4)NOTICE OF THIS ORDER SHALL BE SERVED ON THE MINISTER FOR JUSTICE OF THE HELLENIC REPUBLIC , THE COMPETENT AUTHORITY WITHIN THE MEANING OF ARTICLE 2 OF CHAPTER I OF THE SUPPLEMENTARY RULES CITED ABOVE .

( 5)NOTICE OF THIS ORDER SHALL BE SERVED ON ORYZOMYLI KAVALLAS OEE , ORYZOMYLI AGIOU KONSTANTINOU G . RAPTIS - L . TRIANDAFYLLIDIS KAI SIA OE , AND THE COMMISSION OF THE EUROPEAN COMMUNITIES .