OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 18 JANUARY 1972 (1)

Mr President,

Members of the Court,

Before we consider the two references for a preliminary ruling (Cases 49/71 and 50/71) which were joined by order of the Court of 10 November 1971 for the purpose of the oral procedure, and with which I have to deal today, it is necessary to say the following.

As is known from other proceedings Regulation No 120/67 of the Council of 13 June 1967 (OJ No 117, 1967, p. 2269) created the final organization of the market in cereals with a uniform price system (common target prices, threshold prices and uniform intervention prices). According to Article 7 thereof throughout the cereal marketing year the State intervention agencies are obliged to buy in cereals which are offered to them and have been harvested in the Community (inter alia common wheat and barley). General rules for intervention are laid down in Regulation No 132/67 of the Council of 13 June 1967 (OJ No 120, 1967, p. 2364) and, so far as is relevant to the present proceedings, in Regulation No 1028/68 of the Commission of 19 July 1968 (JO L 176, 1968, p. 1) ‘fixing the procedure and conditions for the taking over of cereals by intervention agencies for the 1968/69 marketing year’. I shall deal more fully with these regulations later.

It need only be noted at present that early in 1969, owing to the devaluation of the French franc, which was expected at that time, a fall occurred in the rate of exchange of that currency. At that time, undertakings from other Member States which had exported goods to France under agreements which provided for long-term payment in French francs, sold their export credits in French currency at a reduced rate, that is below the official rate of exchange and thus made it possible for importers in other Member States, inter alia undertakings in the Federal Republic, to buy up French cereals at the intervention price and sell them to the German intervention agency (the Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Frankfurt am Main) obviously at a profit in spite of the costs involved in the transactions. As many transactions of this kind took place, the German intervention agency experienced difficulties with regard to storage. For this reason, on 2 May 1969, the Federal Government applied to the Commission of the European Communities for protective measures to be taken under Article 226 of the EEC Treaty. The Commission acceded to this request by a Decision of 8 May 1969.

This authorized the Federal Republic ‘to restrict the purchase of common wheat and barley in accordance with Article 7(1) of Regulation No 120/67 to cereals harvested in this Member State’. The German intervention agency was simply required still to accept for intervention foreign cereals ‘which were offered to the intervention agency before this decision came into force’. Similar authorizations were moreover given at the same time to the Kingdom of Belgium and the Kingdom of the Netherlands. As we have heard during the proceedings, the decision directed to the Federal Republic became effective in accordance with Article 191 of the EEC Treaty at 6.40 p.m. on 8 May 1969 by immediate publication. Thereupon the Einfuhr- und Vorratsstelle für Getreide und Futtermittel issued the following notice on 8 May 1969 which was published in the Bundesanzeiger of 10 May 1969: ‘At the direction of the Federal Minister for Food, Agriculture and Forestry and in accordance with the decision of the European Communities of 8 May 1969, henceforth with immediate effect the Einfuhr- und Vorratsstelle für Getreide und Futtermittel will accept for intervention only common wheat and barley which has been harvested in the Federal Republic of Germany. Common wheat and barley offered for intervention to the Einfuhr- und Vorratsstelle before the said decision came into force (6.40 p.m. on 8 May 1969) is not affected by this notice’. Later, namely on 17 June 1969, with the agreement of the Federal Minister for Economic Affairs a regulation of the Federal Minister for Food, Agriculture and Forestry was adopted, in Article 1 of which it is stated: ‘Intervention in respect of common wheat and barley under Article 7(1) of Regulation No 120/67 … shall be limited to cereals harvested in the Federal Republic of Germany’. In accordance with Article 3 of the said regulation this provision entered into force ‘with effect from 8.45 a.m. on 9 May 1969’.

The undertakings Hagen and Wünsche, the plaintiffs in the main actions (in future I shall call them the first and second plaintiffs) were affected by the said regulations.

The first plaintiff purchased summer barley and common wheat in January and February 1969 in France and offered them for intervention to the Einfuhr- und Vorratsstelle für Getreide in accordance with the Richtlinien (to which I shall return later) in an application form dated 5 May 1969 (received by the Einfuhr- und Vorratsstelle at about 11.00 a.m. on 6 May 1969). Mannheim was chosen as the marketing centre; no particulars were given of ‘the place where the cereals (were) when the offer (was) made’. In fact the consignments offered were at the time in transit. The barley was temporarily stored in Strasbourg and there was loaded on to a ship and reached Mannheim in the afternoon of 9 May. The wheat offered was on board ship which passed Strasbourg on 12 May and reached Mannheim on 14 May. On 12 and 14 May the plaintiff informed the Einfuhr- und Vorratsstelle of the arrival of the cereals in the Mannheim taking-over depot. By notices dated 10 and 11 June 1969, however, the Einfuhr- und Vorratsstelle refused to take over the cereals. It stated in this respect that as from 9 May it was no longer obliged to purchase foreign cereal and that it could not regard the offers made prior to that date as effective in the absence of particulars of the place where they were.

The same fate attended the second plaintiff who had purchased common wheat in France in February 1969. It had offered this wheat for intervention on three application forms dated 8 May 1969 (received by the Einfuhr- und Vorratsstelle at about noon on 9 May 1969). In the first application the premises of the Silo Kiel-Nord-hafen undertaking of Kiel-Wik were given as the place for taking over the cereals and it was mentioned in addition that the goods had been in process of shipment to this place since 6 May. In the second application the premises of Rhenus GmbH of Stuttgart were named as the place for taking over the cereals and it was noted that the goods had been in process of shipment to this place since 7 May. The particulars in the third application agree with those just given in the second application. On 12 May 1969 the cereal consignments were brought to the said depot for taking over. By letter dated 12 May 1969 the plaintiff informed the Einfuhr- und Vorratsstelle that the cereals offered were now at the depot referred to. Intervention was refused in these cases by telephone on 14 May 1969. Upon objection by the importing company the Einfuhr- und Vorratsstelle explained in a notice dated 28 May 1969 that as from 9 May 1969 it was no longer obliged to buy in foreign cereals. There had been no effective offers because the goods at the time of the offer had not been in a depot but afloat on the high seas or near Mannheim.

The two import companies consider this attitude of the Einfuhr- und Vorratsstelle to be unjustified. In their view the criterion is the despatch of the offers. Moreover they allege that offers are valid without particulars of the place where the goods are; it is sufficient that the goods should be brought to the depot during the month stated for delivery. The importers therefore brought the matter before the Verwaltungsgericht Frankfurt, and since they were unsuccessful or only partially successful there they appealed to the Hessischer Verwaltungsgerichtshof. Since questions of the interpretation of Community law arise in the cases and in the view of the court are material to the judgment, the Verwaltungsgerichtshof by order dated 19 July 1971 stayed the proceedings and submitted the following questions in both cases for a preliminary ruling:

In the case of 1 (b)

In case of 1(b):

In case of 3(b):

In case of 4(b):

In case of 6(a):

The plaintiffs in the main actions, the Einfuhr- und Vorratstelle für Getreide und Futtermittel, Frankfurt, and the Commission of the European Communities have submitted written and oral observations on these questions. Let us now see what view we must take.

This explanation to which the Commission also has attached importance appears appropriate at the outset of the legal discussions in the present case. The national court must decide whether consequences arise from this for judging the national proceedings.

Expressions are used which remove any doubt as to the binding force of the rules adopted. At least in this respect it is necessary to speak of a Community content of the concept of an offer.

Further the following may be observed with regard to the first question. When certain concepts are used in Community documents then where there is doubt it may be inferred that it is a uniform concept since Community law must have the same scope everywhere. If the intention is different and the definition is to be left to national law for example, this must be obvious, that is, it must be stated expressly or be capable of being inferred unambiguously from the sense of the provision. In this connexion the fact is significant for the intervention system that it is a uniform Community regulation (the recitals to Regulation No 132/67 refer expressly to “Community intervention measures”). A coherent system of intervention prices applies in the Community; the Council fixes these on the basis of a uniform basic price for a number of marketing centres according to the geographical position so that the existing market forces apply as far as possible. The further principle applies that cereals harvested anywhere in the Community may be offered for intervention. In view of this situation it appears scarcely conceivable that the central concept of “offer” to which the duty to intervene is related, could be interpreted variously according to the rules of national law. Finally it should also not be forgotten that the position depends above all of a decision of the Commission and the concept used in it. As already stated, it is intended to indicate an absolute limit to the authorization fixed in accordance with Community requirements and it has moreover the same significance for several States so authorized. This certainly speaks in favour of an interpretation in accordance with Community law.

Thus there should be no doubt how the first question is to be answered: it must be admitted that the concepts “offer” and “offered” have in essence a meaning uniform throughout the Community.

3. In the second question the national court seeks to know whether an offer for intervention is to be taken as made on despatch by the person making the offer or whether its effectiveness is conditional on its receipt by the intervention agency. The latter is the view of the Einfuhr- und Vorratstelle and of the Commission; the second plaintiff pleads for the criterion of despatch (namely with regard to the fact that its applications were not received by the Einfuhr- und Vorratsstelle until after 8.45 a.m. on 9 May).

If the answer to this question is based on the general concept of offer then it is indisputable that a number of indications speak in favour of the correctness of the argument of the Einfuhr- und Vorratsstelle, that is, that it is necessary for the offer to be received. In this respect it is significant that in Regulations Nos 132 and 1028 it is provided that the offers should be made to the intervention agency. If, since nothing further is provided, reference were made to national law, then in defining the concept of an offer, that is, a declaration of intent to do a legal act, the fact could not be escaped, as was recognized by the Court as early as Case 8/56, EuGH 10 December 1957 — Acciaierie Laminatoi Magliano Alpi (ALMA) v High Authority — Slg. 1957, 200, namely that it is “a principle of law recognized in all countries of the Community” that “a written declaration of intent becomes effective as soon as it arrives in due course within the control of the addressee”. Last but not least reference may moreover be made to the related problem of the effectiveness of applications in another context (on the issue of licences and the pre-fixing of charges). In this connexion not only does the French version of Articles 12, 15 and 16 of Regulation No 120 and Article 6 of Regulation No 1373/70 (jour du dépôt) indicate that an application becomes effective when it is lodged, but so does the fact that the rules in question are clearly based on the date on which applications are received. In this respect I refer to the observations made by the Commission on page 10 of its pleading in Case 50/71 and to what it has stated in connexion with Regulation No 2591/69 (relating to the application of the protective measures of Article 20 of Regulation No 120/67, OJ L 324, 1969, p. 1).

Since it thus appears that the criterion with regard to offers is in general the time of their receipt, then it may clearly be inferred from the fact that the Commission Decision of 8 May 1969 simply speaks of offers that the same requirements must apply here. If the offer were effective on despatch this would indeed have to be regarded as a derogation or exception and it may be assumed that if this had been intended it would have been clearly expressed. Moreover this interpretation accords with the interests involved. The fact that in the decision of the Commission giving the authorization there is a reservation to safeguard intervention already applied for may be explained by the intention to prevent prejudice to rights which have been duly acquired. Ad idem with the Commission it may however be said that the duty to intervene has only crystallized into an interest meriting protection when a due offer has been made and when the Einfuhr- und Vorratsstelle has notice of the intent to offer and thus has cause to take intervention measures. No compelling reasons on the other hand may be discerned for a need of protection going beyond this. It is not only important to note that after the national protective measures authorized by the Commission's decision were adopted, it remained possible to initiate intervention measures in the Member State in which the cereals concerned were harvested, but it is also significant that in normal conditions with a normal functioning of the intervention mechanism, the objective of which is to guarantee minimum prices to producers, trade across the frontier would not be the rule but the exception. Thus transactions of the kind such as have arisen in the main actions, that is, activities which have been set in train by the fluctuations and the special features of a national currency, may be said to constitute a typical intervention. This allows it to be assumed that the parties recognized the special nature of the transactions they had undertaken and of the risks involved and could not expect it to be acknowledged that their legal position merited any special protection.

To summarize, it should thus be recorded that with regard to the concept of an “offer” both the general criterion and the criterion according to the Commission Decision of 8 May 1969 is the receipt by the addressee.

It appears to me that the answer to these questions too creates no unusual difficulties. The way the intervention system functions can be deduced clearly from the relevant provisions. Thus offers for intervention in accordance with Article 1 of Regulation No 132/67 are to be made in respect of a marketing centre chosen from among the three centres nearest to the place where the cereals are when the offer is made. The nearest marketing centres means centres for which intervention prices have been fixed and to which the cereals can be sent at least cost. The intervention agencies then decide on the place where the cereals are to be taken over. If the intervention agency takes over the cereals at any place other than the marketing centre indicated by the seller, the price to be paid is equal to the intervention price valid at the marketing centre indicated by the seller, less the most advantageous transport costs between the place where the cereals are when the offer is made and the marketing centre. If the intervention agency takes over the cereals at a place other than the marketing centre indicated by the seller and other than the place where the cereals are when the offer is made, then, as is further stated in Article 2 of Regulation No 132/67, the costs of transport from the place where the cereals are to the place where they are taken over are to be borne by the intervention agency.

It is thus significant that the person making the offer has to choose from among three marketing centres defined in relation to the place where the cereals are. It is further significant that the intervention agency thereupon, and, as is laid down in Regulation No 1028, without delay, has to designate a place for taking over. In this it is guided inter alia by the transport costs involved which, as is laid down in Regulation No 132/67, are determined by the agency. Accordingly it may be accepted that the intervention rule assumes that the cereals offered are at a fixed place when the offer is made. Even if it were assumed that it is possible to choose a marketing centre for goods which are in transit and continually changing their place when the offer is made, it must be observed that in such a case the check which the intervention agency is obliged to make of the correctness of the choice is made much more difficult if not impossible. The rules made further imply that particulars of the place where the cereals are should be given directly when the offer is made, for the intervention agency must make its decision without delay, that is, without time-consuming enquiries and questions; this applies also to the transport costs involved which, in the interests of economic administration, are to be kept as low as possible. According to the wording and the reasons given for the rules relating to intervention it may thus be stated that an effective offer for intervention presupposes a fixed place when the offer is made and a statement of the particulars. This conclusion would basically suffice since the criterion is essentially the meaning in Community law of the concept under consideration, in view of the fact that the concept of an offer in the Commission Decision of May 1969, which has the function of limiting the authorization to the national legislature, is the central issue.

For the sake of completeness however I intend to show that there need be no change in the answer given even if the peculiarities of national law were considered. In this connexion I refer to the plaintiffs’ references to the German implementation provisions, that is to the Richtlinien issued by the Einfuhr- und Vorratsstelle on 3 October 1967 in consultation with the representatives of the German cereal industry and which according to a notice of 1 August 1968 applied also to the 1968/69 marketing year. From these it appears, or so the plaintiffs allege, that the Einfuhr- und Vorratsstelle has designated in advance a number of places for taking over with special prices for taking over and has thus caused interested parties to conclude appropriate contracts for storage. No 5.11 of the Richtlinien indeed states: ‘With regard to certain places for taking over (depots) the Einfuhr- und Vorratsstelle für Getreide has reached a general decision to the effect that it will take over at the depots themselves (depots listed in Annex C) cereals which are in such depots and are offered to it for intervention’. In the context of this rule accordingly the decision on the place for taking over which, under the intervention system, has to be made by the Einfuhr- und Vorratsstelle alone has already been made on a general basis and therefore the requirement that the cereals must be in a fixed place when the offer is made is meaningless and without purpose. As a result in view of this rule it follows, so it is alleged, that offers must be accepted as valid even where there are no particulars of the place where the cereals are.

Various objections may be made to this argument which certainly at first sight is impressive. First of all it is established that the simplified procedure (as the parties have called it) set out there is not the only one which is used but that the normal system, if it may be so called, of Regulation No 132 is also used. In this event the form used by the Einfuhr- und Vorratsstelle expressly requires particulars of the place where the cereals are. Apparently the latter procedure, as appears from the grounds of the order for a preliminary ruling and the pleadings, was used in the case of the first plaintiff. At least in this respect therefore the references of the plaintiffs to the procedural rules of the Einfuhr- und Vorratsstelle are irrelevant. Over and above this it would be well to check whether the plaintiffs' version of the so-called simplified procedure is indeed correct. In so far as mention is made in the Richtlinien of the Einfuhr- und Vorratsstelle of agreements between sellers and depot proprietors then obviously, as appears from the express reference to the acceptance of the offer, agreements made thereafter are intended. Moreover, and this is even more important, the condition still apparently holds even where the simplified procedure is used that the cereals offered must be in a fixed place when the offer is made. According to the convincing explanations of the Einfuhr- und Vorratsstelle Form D conceived for both procedures is to be so understood for under entry No 7 in the case of the simplified procedure express assurance is sought that the cereals are already in a specified place for taking over. It cannot therefore be said that when the simplified procedure is used the place where the cereals are and particulars thereof are irrelevant. An explanation of this is easy. As we learned in the proceedings, the acceptance of the offer involves the administration in a certain amount of expense. In view of this there must accordingly be no doubt at this time that the intervention agency to which application is made is competent in respect of the offer made and that the cereals are in the area over which it has jurisdiction.

Even if the answer to the questions raised were to depend on the structure of the national rules of procedure the finding must therefore remain that particulars of the place where the cereals are when the offer is made for intervention cannot be omitted.

In a further group of questions the national court seeks to know whether offers made without particulars of the place where the cereals are when the offer is made can be completed and whether in this case the offer may be regarded as effective only when particulars are supplied of the place where the cereals are.

In my view this does not require lengthy discussion. Since the completion of an incomplete offer does not represent an unusual incident in legal transactions and since the provisions of Community law do not require the simultaneous submission of all requisite declarations, there is nothing in this respect which could prevent the completion of offers for intervention. If therefore in a case in which the cereals offered for intervention are in transit the intervention agency is notified and at the same time informed that the offer still holds, this must be regarded as an acceptable completion of the offer. In terms of the normal intervention practice this means that the offer in question operates from this moment, that is, from the time the additional particulars are supplied and is thus legally effective ex nunc. Since on the other hand the authorization decision of the Commission does not expressly provide anything to the contrary then in the special situation referred to in the decision no retroactive validity may be inferred in respect of originally incomplete offers to the detriment of the intervention agency, but it must be said that the offer is effective only as from its completion.

The fourth group of questions in the order for a preliminary ruling should be answered to this effect.

Finally the Hessischer Verwaltungsgerichtshof has asked whether Member States are allowed to issue provisions or to develop their own practice at variance with the Community provisions on the basic rules of intervention and on the making of offers for intervention.

This question too may be answered relatively shortly. First reference may be made to Regulation No 1028/68 of the Commission of 19 July 1968. In Article 5 thereof it is provided that the intervention agencies shall, ‘as far as may be required, adopt supplementary procedures and conditions for taking over’; the reservation is nevertheless made here too that the national provisions must be compatible with the provisions of Regulation No 1028 (and likewise naturally with any other Community law relevant in this field). Thus according to the above observations the finding may in general be made that in so far as Community provisions contain mandatory wording as is the case for the essential rules for the functioning of the intervention machinery, variations are not permissible having regard to the necessary uniformity of the system. As we have seen, this applies as a rule to the making of the offer, to the requirements necessary for a valid offer and in particular to the statement of the place where the cereals are. Should the national court, as the plaintiffs think and as appears obvious, have in mind in this connexion the structure of the so-called simplified German procedure for taking over (that is, the prior and general designation of places for taking over), then it should be said that there do not appear to be any grounds for doubt as to its compatibility with Community law, because the requirement applies here too that the cereals must be in a fixed place when the offer is made.

Further however the following observations may perhaps be appropriate. The essential appears to me to be that the decision of the Commission which is the central issue simply contains an authorization to issue national protective measures. There is only one limitation from the Community's point of view: offers for intervention effectively made according to Community law before the Commission decision came into force must in any case be accepted. How the scope of the authorization is used and could be used in the national sphere is moreover unimportant from the point of view of Community law. Thus it is conceivable with regard to a particular structure of national procedure and national practice that limitations are placed under national law on the use made of the authorization given by the Community. They possibly involve the obligation on the intervention agency not only to accept foreign cereals effectively offered for intervention according to Community law but also in accordance with the principles of good faith and the principles of protection of legitimate expectation such as are contained in national law to accept also offers which have become effective only after the coming into force of the national protective measures. Such consequences in the sphere of national law are not excluded because it is a question only of an authorization under Community law and not an obligation to do a particular act.

I shall content myself with this remark and so conclude my observations on the last group of questions. Everything else should be left to the national court to decide.

After all this, to summarize I propose that the questions raised should be answered as follows:

(a) The concepts ‘offer’ and ‘offered’ contained in Regulations Nos 120, 132 and 1028 are not to be interpreted in accordance with national law of the Member States applying the intervention rules, but as Community concepts with a function in the context of a Community intervention system uniform for the whole Community.

(b) Offers such as described become effective when they are received by the intervention agency to which they are addressed.

(c) It follows from the principles governing the intervention rules that cereals offered for intervention must be in a fixed place when the offer is made (that is, they must not be in transit) and that offers are effective only if they contain particulars of the place where the cereals are when the offer is made.

(d) If offers which do not fulfil all the conditions for effectiveness are later completed while the intent to keep the offer open is maintained (for example by supplying particulars of the place where the cereals are), then they become effective as from the time when the completed particulars are received by the intervention agency.

(e) The intervention agencies are empowered to adopt further procedural rules and conditions for taking over in accordance with Article 5 of Regulation No 1028. However, in so far as the intervention rules use mandatory wording and in so far as provisions which are essential to the functioning of the intervention machinery are in question, national implementation provisions cannot derogate from Community law.

(<span class="note">1</span>) Translated from the German.