P.451
BY ORDER OF 25 APRIL 1967, RECEIVED AT THE COURT ON 16 MAY 1967, THE BUNDESFINANZHOF REFERRED TO THE COURT, UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, FOUR PRELIMINARY QUESTIONS REGARDING THE VALIDITY AND INTERPRETATION OF REGULATION NO 22 OF THE COUNCIL OF 4 APRIL 1962 AND THE VALIDITY OF REGULATION NO 135/62 OF THE COMMISSION OF 7 NOVEMBER 1962 .
UNDER THE TERMS OF THAT ORDER THE LEGAL BACKGROUND TO THOSE QUESTIONS IS THE APPLICATION TO IMPORTS OF SLAUGHTERED CHICKENS FROM THIRD COUNTRIES OF AN ' ADDITIONAL AMOUNT ' TO THE LEVY FIXED BY REGULATION NO 135/62 OF THE COMMISSION UNDER REGULATION NO 22/62 OF THE COUNCIL TOGETHER WITH REGULATION NO 109/62 OF THE COMMISSION .
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THE FIRST QUESTION
THE FIRST QUESTION ASKS WHETHER THE TREATY CONFERS ON THE INSTITUTIONS OF THE COMMUNITY ' THE RIGHT TO ESTABLISH SYSTEMS OF LEVY DIRECTLY APPLICABLE IN THE MEMBER STATES, AS THE COUNCIL HAS DONE BY REGULATION NO 22 OF 4 APRIL 1962 ', AND, IF THE ANSWER IS IN THE AFFIRMATIVE, WHETHER THE LEVIES CONSTITUTE CUSTOMS DUTIES OR TAXATION AND FINALLY WHETHER THE TREATY ' HAD THE EFFECT OF TRANSFERRING TO THE COMMUNITY THE POWER TO LEGISLATE ' ON MATTERS COMING UNDER THE FISCAL SOVEREIGNTY OF THE STATES .
UNDER ARTICLE 38(2 ) OF THE TREATY, SAVE AS OTHERWISE PROVIDED IN ARTICLES 39 TO 46, THE RULES LAID DOWN FOR THE ESTABLISHMENT OF THE COMMON MARKET SHALL APPLY TO AGRICULTURAL PRODUCTS . THESE PROVISIONS AS A WHOLE MAY CONSTITUTE A DEROGATION FROM ANY OF THE SAID RULES, INCLUDING THOSE SET OUT IN ARTICLE 18 ET SEQ . CONSEQUENTLY AN ARGUMENT MAY NOT BE BASED ON THE FACT THAT THOSE ARTICLES WERE NOT EXPRESSLY MENTIONED AS EXCEPTIONS TO THE RULE PROPOUNDED IN ARTICLE 38(2 ) TO CONCLUDE THAT IT WAS NECESSARY TO APPLY TO AGRICULTURAL PRODUCTS THE RULES OF THE COMMON CUSTOMS TARIFF ALONE INSTEAD AND IN PLACE OF A SPECIAL SYSTEM OF LEVIES . IN PARAGRAPH ( 4 ) OF THE SAME ARTICLE 38 IT IS STIPULATED THAT THE OPERATION AND DEVELOPMENT OF THE COMMON MARKET FOR AGRICULTURAL PRODUCTS FOR WHICH THE VERY GENERAL PROVISIONS OF PARAGRAPH ( 2 ) HAVE PROVIDED, ' MUST ' BE ACCOMPANIED BY THE ESTABLISHMENT OF A COMMON AGRICULTURAL POLICY AMONG THE MEMBER STATES .
AFTER PRESCRIBING AS THE PARTICULAR OBJECTIVES OF THE COMMON AGRICULTURAL POLICY THE RATIONAL DEVELOPMENT OF AGRICULTURAL PRODUCTION AND THE STABILIZATION OF MARKETS, THE TREATY PROVIDES IN ARTICLE 40(2 ) THAT IN ORDER TO ATTAIN THOSE OBJECTIVES ' A COMMON ORGANIZATION OF AGRICULTURAL MARKETS SHALL BE ESTABLISHED '. FINALLY ARTICLE 40(3 ) EXPRESSLY LAYS DOWN THAT THE COMMON ORGANIZATION IN QUESTION MAY INCLUDE ALL MEASURES REQUIRED TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 39 AND ' IN PARTICULAR ' REGULATIONS OF PRICES AND COMMON MACHINERY FOR STABILIZING IMPORTS OR EXPORTS .
THE SYSTEMS OF LEVY RESULTING FROM REGULATION NO 22 OF THE COUNCIL ARE INTENDED TO ATTAIN THE OBJECTIVES DEFINED IN ARTICLE 39 AND COME WITHIN THE MEASURES PROVIDED FOR IN THE SUBSEQUENT ARTICLES . IN FACT ALTHOUGH THOSE SYSTEMS APPEAR TO CONFORM ESSENTIALLY WITH ARTICLE 40(3 ) BOTH AS METHODS OF REGULATING PRICES AND AS COMMON MACHINERY FOR STABILIZING THE IMPORT OF AGRICULTURAL PRODUCTS, IT SHOULD ALSO BE OBSERVED THAT THE SAID ARTICLE DOES NOT SET OUT THOSE CONCEPTS RESTRICTIVELY . BY ESTABLISHING WITH REGARD TO AGRICULTURAL PRODUCTS A SYSTEM REGULATING PRICES AND STABILIZING THE MARKET, THE SYSTEM OF LEVIES CONSTITUTES ONE OF THE BASES OF THE ' COMMON ORGANIZATION OF AGRICULTURAL MARKETS ' PRESCRIBED BY ARTICLE 40(2 ).
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A SYSTEM OF LEVIES WHICH FULFILS THOSE CONDITIONS IS IN ACCORDANCE WITH THE TREATY AND, UNDER THE EXPRESS PROVISION OF THE THIRD SUBPARAGRAPH OF ARTICLE 43(2 ), MAY FORM THE SUBJECT-MATTER, DURING THE TRANSITIONAL PERIOD, OF THE COUNCIL'S REGULATIONS .
SINCE THE LEVY IS BASED ON THE TREATY AND NOT ON NATIONAL LAW, IS APPLICABLE SIMULTANEOUSLY IN ALL MEMBER STATES AND NOT ONLY IN ONE, ACTS AS A REGULATORY DEVICE FOR MARKETS NOT IN A NATIONAL CONTEXT BUT IN A COMMON ORGANIZATION, IS DEFINED WITH REFERENCE TO A PRICE LEVEL FIXED IN THE LIGHT OF THE OBJECTIVES OF THE COMMON MARKET AND SINCE ITS RATE IS FLEXIBLE AND MAY VARY IN TERMS OF THE HAZARDS OF THE MARKET, IT THEREFORE APPEARS AS A CHARGE REGULATING EXTERNAL TRADE CONNECTED WITH A COMMON PRICE POLICY, WHATEVER SIMILARITIES IT MAY HAVE TO A TAX OR A CUSTOMS DUTY .
ACCORDING TO ARTICLE 189, REGULATION NO 22, ESTABLISHING THE SYSTEM OF LEVIES IS ' BINDING IN ITS ENTIRETY AND DIRECTLY APPLICABLE IN ALL MEMBER STATES '. THIS SYSTEM MUST THEREFORE BE APPLIED WITH THE SAME BINDING FORCE IN ALL THE MEMBER STATES WITHIN THE CONTEXT OF THE COMMUNITY LEGAL SYSTEM WHICH THEY HAVE SET UP AND WHICH, BY VIRTUE OF THE TREATY, HAS BEEN INTEGRATED INTO THEIR LEGAL SYSTEMS . THE STATES HAVE THUS CONFERRED ON THE COMMUNITY INSTITUTIONS POWER TO TAKE MEASURES FIXING THE LEVY SUCH AS THOSE WHICH FORM THE SUBJECT-MATTER OF REGULATION NO 22, THUS SUBMITTING THEIR SOVEREIGN RIGHTS TO A CORRESPONDING LIMITATION . MORE PARTICULARLY TO THE EXTENT TO WHICH THIS CONCERNS FISCAL SOVEREIGNTY, SUCH A RESULT IS PERFECTLY IN ACCORDANCE WITH THE SYSTEM OF THE TREATY .
IT IS CLEAR FROM ALL THOSE FACTORS THAT THE VALIDITY OF THE SAID REGULATION NO 22 OF THE COUNCIL MAY NOT BE AFFECTED BY THE CHARACTER OF THE LEVY AS A CUSTOMS DUTY, TAXATION OR OTHERWISE .
THE SECOND QUESTION
THE COURT IS ASKED TO RULE WHETHER ARTICLE 6(3 ) AND ( 4 ) OF REGULATION NO 22 MUST BE INTERPRETED AS MEANING THAT THE POWER TO FIX AN ADDITIONAL LEVY BELONGS SOLELY TO THE IMPORTING MEMBER STATE TO THE EXCLUSION OF COMMUNITY INSTITUTIONS .
P.454
ARTICLE 6(3 ) PROVIDES THAT ' SHOULD THE OFFER PRICES FREE-AT-FRONTIER FOR IMPORTS FALL BELOW THE SLUICE-GATE PRICE, THE AMOUNT OF THE LEVY ... SHALL BE INCREASED IN EACH MEMBER STATE BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE OFFER PRICE FREE-AT-FRONTIER AND THE SLUICE-GATE PRICE '.
PARAGRAPH ( 4 ) OF THE SAME ARTICLE PROVIDES THAT THE ' METHODS OF FIXING ' ADDITIONAL AMOUNTS SHALL BE DETERMINED BY THE COMMISSION OR, IF NECESSARY, BY THE COUNCIL, AFTER TAKING THE OPINION OF THE MANAGEMENT COMMITTEE FOLLOWING THE PROCEDURE LAID DOWN IN ARTICLE 17 . THE SAME PROVISION GIVES THE IMPORTING MEMBER STATE THE POWER TO DETERMINE AND COLLECT THOSE ADDITIONAL AMOUNTS, PROVIDED THAT THE COMMISSION AND THE OTHER MEMBER STATES ARE IMMEDIATELY NOTIFIED . FINALLY THE ' MEASURES TO BE TAKEN JOINTLY BY THE MEMBER STATES SHALL BE DETERMINED ACCORDING TO THE PROCEDURE LAID DOWN IN ARTICLE 17 '.
THOSE PROVISIONS DISTINGUISH BETWEEN DETERMINING THE ' METHODS OF FIXING ' THE ADDITIONAL AMOUNTS, ON THE ONE HAND, AND FIXING THEIR ACTUAL AMOUNTS AND COLLECTING THEM, ON THE OTHER . THE PROCEDURE FOR DETERMINING THE GENERAL METHODS OF FIXING THE ADDITIONAL AMOUNTS PERTAINS TO THE COMMISSION OR, IF NECESSARY, TO THE COUNCIL AFTER THE OPINION OF THE MANAGEMENT COMMITTEE HAS BEEN OBTAINED; THIS PROCEDURE FORMED THE SUBJECT-MATTER OF REGULATION NO 109/62 OF THE COMMISSION . FIXING THE ACTUAL AMOUNTS IS A MATTER FOR THE IMPORTING MEMBER STATE WHICH HAS DECIDED TO TAKE THE MEASURE, WHILST IT FALLS WITHIN THE POWERS OF THE COMMISSION OR, IF NECESSARY, OF THE COUNCIL WHEN A DECISION HAS BEEN TAKEN TO FORMULATE A MEASURE JOINTLY . THE COLLECTING OF THE ADDITIONAL AMOUNTS IS A MATTER FOR THE IMPORTING MEMBER STATE .
THERE IS NO CONTRADICTION BETWEEN THOSE DISTINCTIONS AND THE PROVISION IN ARTICLE 6(3 ) WHEREBY THE AMOUNT OF THE LEVY SHALL BE INCREASED ' IN EACH MEMBER STATE ' BY AN ADDITIONAL AMOUNT . IN FACT THIS PROVISION DOES NOT DEFINE ANY POWERS VESTING IN THE MEMBER STATE BUT MERELY LAYS DOWN THE GEOGRAPHICAL BOUNDS OF THE MEASURE . REGULATION NO 109/62 ORGANIZED THE PROCEDURE FOR FIXING THE SAID AMOUNTS ON THE BASIS OF THE POWERS OF THE IMPORTING MEMBER STATE, TO WHICH MUST BE ADDED THE POWERS OF THE COMMISSION OR, IF NECESSARY, THE COUNCIL IN CONNEXION WITH THE MEASURES TO BE TAKEN JOINTLY WITHIN THE FRAMEWORK OF ARTICLE 17 OF REGULATION NO 22 .
IT IS CLEAR, MOREOVER, FROM THE PREAMBLE TO REGULATION NO 135/62 THAT THIS WAS THE PROCEDURE FOLLOWED IN FIXING THE ADDITIONAL AMOUNTS IN DISPUTE SINCE, AFTER FINDING THAT THE FEDERAL REPUBLIC OF GERMANY ' IS ALREADY IMPOSING ADDITIONAL AMOUNTS ON IMPORTS OF SLAUGHTERED HENS AND CHICKENS FROM THIRD COUNTRIES ', THE COMMISSION FIXED A UNIFORM ADDITIONAL AMOUNT IN ACCORDANCE WITH THE PROCEDURE IN ARTICLE 17 OF REGULATION NO 22 .
P.455
IT IS CLEAR FROM THOSE VARIOUS FACTORS THAT ARTICLE 6(3 ) AND ( 4 ) OF REGULATION NO 22 OF THE COUNCIL EMPOWERS THE IMPORTING MEMBER STATE TO FIX THE ADDITIONAL AMOUNT OF THE LEVY, SUBJECT TO THE MEASURES TO BE TAKEN JOINTLY WITHIN THE FRAMEWORK OF THE PROCEDURE LAID DOWN IN ARTICLE 17 .
THE THIRD QUESTION
THE THIRD QUESTION ASKS WHETHER REGULATION NO 135/62 INFRINGES REGULATION NO 22 OF THE COUNCIL AND REGULATION NO 109/62 OF THE COMMISSION, ' ON THE GROUND THAT, ALTHOUGH THOSE TWO PROVISIONS PROVIDE FOR AN ADDITIONAL LEVY SHOULD THE OFFER PRICE FALL BELOW THE SLUICE-GATE PRICE, REGULATION NO 135/62 ( ACCORDING TO THE PLAINTIFF'S ALLEGATIONS ) DOES NOT TAKE INTO ACCOUNT - OR SUFFICIENTLY INTO ACCOUNT - THE OFFER PRICE IN FIXING THE ADDITIONAL LEVY '.
UNDER ARTICLE 6(3 ) OF REGULATION NO 22, THE LEVY SHALL BE INCREASED WHEN ' THE OFFER PRICES FREE-AT-FRONTIER FOR IMPORTS FALL BELOW THE SLUICE-GATE PRICE ', THIS INCREASE BEING ' EQUAL TO THE DIFFERENCE BETWEEN THE OFFER PRICE FREE-AT-FRONTIER AND THE SLUICE-GATE PRICE '. IT WAS IN IMPLEMENTATION OF THOSE PROVISIONS, IN ACCORDANCE WITH ARTICLE 6(4 ), THAT THE MEASURES PRESCRIBED TO BE TAKEN JOINTLY BY THE MEMBER STATES WERE TAKEN BY REGULATION NO 135/62, THE VALIDITY OF WHICH IS QUESTIONED .
IT IS CLEAR FROM THE JOINT NATURE OF THE SAID MEASURES THAT THEY CANNOT DEPEND ON THE OFFER PRICE FREE-AT-FRONTIER OF A GIVEN IMPORT . MOREOVER, ARTICLE 6(3 ) OF REGULATION NO 22 REFERS NOT TO AN INDIVIDUAL OFFER PRICE BUT TO ' OFFER PRICES ' FREE-AT-FRONTIER IN ACCORDANCE WITH THE GENERAL REFERENCE TO THE WORLD MARKET CONTAINED IN THE PREAMBLE . THIS IS THEN THE MEANING OF REGULATION NO 109/62 WHICH EMPHASIZES IN ITS PREAMBLE THAT FIXING THE ADDITIONAL AMOUNT MAY ONLY BE EFFECTED ' IN A UNIFORM MANNER ' FOR ALL IMPORTS TO ALL MEMBER STATES . THE OFFER PRICE FIXED ACCORDING TO THIS PROCEDURE IS TO CONTINUE UNTIL IT IS AMENDED OR ABOLISHED IN ACCORDANCE WITH ARTICLE 2 OF REGULATION NO 109/62 .
CONSEQUENTLY, THE CARRYING OUT OF AN INDIVIDUAL IMPORT AT A PRICE HIGHER THAN THE OFFER PRICE LAID DOWN BY REGULATION NO 135/62 CANNOT RESULT IN CALLING IN QUESTION THE VALIDITY OF THE LATTER PRICE WHICH IS UNAFFECTED BY THE CIRCUMSTANCE PUT FORWARD IN THE JUDGMENT REFERRING THE MATTER WHEREBY THE SAID REGULATION DID NOT TAKE INTO ACCOUNT - OR DID NOT SUFFICIENTLY TAKE INTO ACCOUNT - THE OFFER PRICE OF A GIVEN IMPORT, EFFECTED MOREOVER AFTER THE SAID REGULATION .
THE FOURTH QUESTION
THE FOURTH QUESTION ASKS WHETHER THE VALIDITY OF REGULATION NO 135/62 IS AFFECTED BY THE PROVISION LAYING DOWN THAT IT SHALL ENTER INTO FORCE ON THE DAY OF ITS PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES . IT WAS IN FACT MAINTAINED THAT AN IMMEDIATE ENTRY INTO FORCE GIVES RISE TO LEGAL UNCERTAINTY, THAT ARTICLE 191 OF THE TREATY, MOREOVER, STIPULATES THAT IN PRINCIPLE AND IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY REGULATIONS SHALL ENTER INTO FORCE ON THE TWENTIETH DAY FOLLOWING THEIR PUBLICATION AND FINALLY THAT THE SECOND SUBPARAGRAPH OF ARTICLE 12(2 ) OF REGULATION NO 22 EXCLUDES GOODS IN TRANSIT FROM THE APPLICATION OF THE PROTECTIVE MEASURES .
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UNDER ARTICLE 191 OF THE TREATY REGULATIONS ' SHALL ENTER INTO FORCE ON THE DATE SPECIFIED IN THEM, OR IN THE ABSENCE THEREOF ON THE TWENTIETH DAY FOLLOWING THEIR PUBLICATION '. CONSEQUENTLY THE TREATY ENTRUSTS THE INSTITUTION ISSUING THE REGULATION WITH THE TASK OF SPECIFYING THEREIN THE DATE OF THEIR ENTRY INTO FORCE . ONLY IF THE DATE IS NOT SPECIFIED IN THE REGULATION WILL IT BE FIXED AS THE TWENTIETH DAY FOLLOWING ITS PUBLICATION .
THIS WIDE LIBERTY GRANTED TO THE AUTHORS OF A REGULATION CANNOT, HOWEVER, BE CONSIDERED AS EXCLUDING ALL REVIEW BY THE COURT, PARTICULARLY WITH REGARD TO ANY RETROACTIVE EFFECT . AN INSTITUTION CANNOT, WITHOUT HAVING AN ADVERSE EFFECT ON A LEGITIMATE REGARD FOR LEGAL CERTAINTY, RESORT WITHOUT REASON TO THE PROCEDURE OF AN IMMEDIATE ENTRY INTO FORCE .
ALTHOUGH THE PREAMBLE TO REGULATION NO 135/62 IS SILENT IN THIS RESPECT, THE COURT NEVERTHELESS FINDS IN THE PROVISIONS WHICH IT ENACTS SERIOUS REASONS FOR HOLDING THAT ANY INTERVAL BETWEEN THE PUBLICATION AND THE ENTRY INTO FORCE OF THE REGULATION MIGHT IN THIS CASE HAVE BEEN PREJUDICIAL TO THE COMMUNITY . SUCH A DELAY IN FACT WOULD HAVE RUN THE RISK OF CAUSING A HASTY AND CONCENTRATED FLOW OF TRANSACTIONS WHICH WOULD HAVE INTERFERED WITH THE VERY IMPLEMENTATION OF ARTICLE 6(3 ) OF REGULATION NO 22 .
FINALLY NO ANALOGY CAN BE MADE BETWEEN THE RULES DESCRIBED IN ARTICLE 191 OF THE TREATY REGARDING THE ENTRY INTO FORCE OF A REGULATION AND THE PROVISIONS OF ARTICLE 12(2 ) OF REGULATION NO 22 EXEMPTING GOODS IN TRANSIT FROM THE EFFECTS OF THE PROTECTIVE MEASURES TAKEN BY A MEMBER STATE, THE SPECIAL PROVISIONS OF WHICH MAY NOT BE EXTENDED BEYOND THEIR OWN SUBJECT-MATTER . THE VALIDITY OF REGULATION NO 135/62 IS THUS NOT AFFECTED BY THE CONDITIONS OF ARTICLE 2 THEREOF WHICH PROVIDES THAT IT SHALL ENTER INTO FORCE IMMEDIATELY, AS ANY TRANSACTION WHICH HAD ALREADY TAKEN PLACE AND BEEN EXECUTED AT THE MOMENT OF ITS ENTRY INTO FORCE WOULD BE EXCLUDED FROM ITS APPLICATION .
THE COSTS INCURRED BY THE COUNCIL AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND 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 BUNDESFINANZHOF, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING BY THE BUNDESFINANZHOF BY DECISION OF 25 APRIL 1967, HEREBY RULES :
1 . THE TREATY ESTABLISHING THE EEC CONFERRED ON THE INSTITUTIONS OF THAT COMMUNITY THE RIGHT TO ESTABLISH SYSTEMS OF LEVY DIRECTLY APPLICABLE IN THE MEMBER STATES, AS THE COUNCIL HAS DONE BY REGULATION NO 22 OF 4 APRIL 1962; CONSEQUENTLY THE VALIDITY OF THE SAID REGULATION CANNOT BE AFFECTED BY THE CHARACTER OF THE LEVY THUS ESTABLISHED AS EITHER A CUSTOMS DUTY OR A TAX;
2 . ARTICLE 6(3 ) AND ( 4 ) OF REGULATION NO 22 AUTHORIZES THE IMPORTING MEMBER STATE TO FIX THE AMOUNT ADDITIONAL TO THE LEVY, SUBJECT TO MEASURES TO BE TAKEN JOINTLY WITHIN THE FRAMEWORK OF THE PROCEDURE LAID DOWN IN ARTICLE 17;
3 . THE VALIDITY OF REGULATION NO 135/62 OF THE COMMISSION WITH REGARD TO REGULATION NO 22 OF THE COUNCIL AND REGULATION NO 109/62 OF THE COMMISSION IS NOT AFFECTED BY THE FACT THAT IT DID NOT TAKE INTO ACCOUNT THE INDIVIDUAL OFFER PRICE IN FIXING THE ADDITIONAL LEVY;
4 . THE VALIDITY OF REGULATION NO 135/62 OF THE COMMISSION IS NOT AFFECTED BY THE PROVISIONS OF ARTICLE 2 THEREOF WHICH LAYS DOWN THAT IT SHALL ENTER INTO FORCE IMMEDIATELY .
THE DECISION ON THE COSTS OF THE PRESENT CASE IS A MATTER FOR THE BUNDESFINANZHOF .
