Avis juridique important

Judgment of the Court of 27 October 1981. - Anklagemyndigheden v Hans Ulrich Schumacher, Peter Hans Gerth, Johannes Heinrich Gothmann and Alfred C. Töpfer. - Reference for a preliminary ruling: Københavns Byret - Denmark. - Accession compensatory amounts. - Case 250/80. European Court reports 1981 Page 02465

Summary Parties Subject of the case Grounds Decision on costs Operative part

ACCESSION OF NEW MEMBER STATES TO THE COMMUNITIES - AGRICULTURE - TRADE BETWEEN NEW MEMBER STATES AND THE COMMUNITY AS ORIGINALLY CONSTITUTED - ' ' ACCESSION ' ' COMPENSATORY AMOUNTS - PAYMENT OF COMPENSATORY AMOUNTS BY THE EXPORTING MEMBER STATE - CONDITION - ACTUAL RELEASE OF PRODUCTS ON TO THE MARKET IN THE IMPORTING MEMBER STATE

( ACT OF ACCESSION , ART . 55 ( 1 ); REGULATION NO 269/73 OF THE COMMISSION , ART . 5 ( 2 ) AS AMENDED BY REGULATION NO 1466/73 )

THE OBJECT OF THE ' ' ACCESSION ' ' COMPENSATORY AMOUNTS IN INTRA-COMMUNITY TRADE IS TO PROMOTE THE SATISFACTORY CIRCULATION OF PRODUCTS BETWEEN TWO MEMBER STATES WITH DIFFERENT PRICE-LEVELS AND THEREFORE THE SYSTEM IN QUESTION IS APPLICABLE ONLY IF THE GOODS IN QUESTION ACTUALLY MOVE BETWEEN THOSE TWO STATES AND IF , BY REASON OF THE MARKETING OF THOSE GOODS WITHIN THE STATE DESIGNATED AS THE IMPORTING STATE , SUCH PRICE-DIFFERENCE AS MAY EXIST BETWEEN THAT MEMBER STATE AND THE EXPORTING MEMBER STATE CONSTITUTES AN ECONOMIC FACTOR WHICH REALLY AFFECTS TRADE BETWEEN THE TWO STATES .

THEREFORE , ARTICLE 5 ( 2 ) OF REGULATION NO 269/73 OF THE COMMISSION , AS AMENDED BY REGULATION NO 1466/73 , MUST BE INTERPRETED AS MEANING THAT AN EXPORTER WHO SENDS AGRICULTURAL PRODUCTS TO A NEW MEMBER STATE FROM A MEMBER STATE WHICH APPLIES HIGHER PRICES MAY NOT CLAIM PAYMENT OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS IF THE COMPLETION OF CUSTOMS FORMALITIES IN THE MEMBER STATE DECLARED TO THE COMPETENT AUTHORITIES IN THE EXPORTING MEMBER STATE AS THE STATE OF DESTINATION IS NOT FOLLOWED BY THE EFFECTIVE RELEASE OF THOSE PRODUCTS ON TO THE MARKET OF THE LATTER STATE .

IN CASE 250/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE KOEBENHAVNS BYRET ( MUNICIPAL COURT , COPENHAGEN ) FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT , BROUGHT BY

ANKLAGEMYNDIGHEDEN ( PUBLIC PROSECUTOR ' S OFFICE )

V

HANS ULRICH SCHUMACHER ,

PETER HANS GERTH ,

JOHANNES HEINRICH GOTHMANN ,

ALFRED C . TOPFER , HAMBURG ,

ON THE INTERPRETATION OF ARTICLE 5 ( 2 ) OF REGULATION ( EEC ) NO 269/73 OF THE COMMISSION OF 31 JANUARY 1973 LAYING DOWN DETAILED CONDITIONS FOR APPLICATION OF THE SYSTEM OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1973 , L 30 , P . 73 ) AS AMENDED BY REGULATION ( EEC ) NO 1466/73 OF THE COMMISSION OF 30 MAY 1973 ( OFFICIAL JOURNAL 1973 , L 146 , P . 13 ),

1 BY ORDER OF 17 OCTOBER 1980 RECEIVED AT THE COURT ON 13 NOVEMBER 1980 THE KOEBENHAVNS BYRET ( MUNICIPAL COURT , COPENHAGEN ) REFERRED TO THE COURT OF JUSTICE A QUESTION FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF ARTICLE 5 ( 2 ) OF REGULATION NO 269/73 OF THE COMMISSION OF 31 JANUARY 1973 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1973 , L 30 , P . 73 ) AS AMENDED BY ARTICLE 2 OF REGULATION NO 1466/73 OF THE COMMISSION OF 30 MAY 1973 ( OFFICIAL JOURNAL 1973 , L 146 , P . 13 ).

2 THE QUESTION AROSE IN PROCEEDINGS BROUGHT BY THE STATSADVOKAT FOR SAERLIG OEKONOMISK KRIMINALITET ( ASSISTANT PUBLIC PROSECUTOR EMPOWERED TO INSTITUTE PROCEEDINGS FOR OFFENCES OF AN ECONOMIC NATURE ) AGAINST AN INTERNATIONAL WHEAT-DEALER AND THREE OF ITS EMPLOYEES , WHO WERE CHARGED WITH INFRINGEMENT , ON THE OCCASION OF THE EXPORTATION OF WHEAT FROM DENMARK INTENDED FOR THE FEDERAL REPUBLIC OF GERMANY , OF CERTAIN PROVISIONS OF DANISH LAW RELATING TO THE IMPLEMENTATION OF COMMUNITY PROVISIONS ESTABLISHING A COMMON MARKET FOR AGRICULTURAL PRODUCTS , AND THE DANISH PROSECUTING AUTHORITY SOUGHT REIMBURSEMENT BOTH OF THE ' ' ACCESSION ' ' COMPENSATORY AMOUNTS PAID IN RESPECT OF THAT EXPORT AND OF THE SECURITY WHICH HAD BEEN RELEASED WITHOUT JUSTIFICATION .

3 REGULATION NO 269/73 OF THE COMMISSION , OF WHICH THE NATIONAL COURT REQUESTS INTERPRETATION , PROVIDES IN ARTICLE 5 ( 1 ) THAT THE ' ' ACCESSION ' ' COMPENSATORY AMOUNT ' ' SHALL BE PAID ONLY UPON PROOF THAT THE PRODUCT IN RESPECT OF WHICH CUSTOMS EXPORT FORMALITIES HAVE BEEN COMPLETED HAS LEFT THE GEOGRAPHICAL TERRITORY OF THE MEMBER STATE IN WHICH THE FORMALITIES WERE COMPLETED ' ' . IT ADDS IN PARAGRAPH ( 2 ) THAT ' ' WHERE THE COMPENSATORY AMOUNT IS APPLICABLE FOR A PRODUCT FOR WHICH NO REFUND IS FIXED , IT SHALL BE PAID ONLY UPON PROOF THAT , FURTHER , IMPORT FORMALITIES HAVE BEEN COMPLETED AND DUTIES AND TAXES OF EQUIVALENT EFFECT PAYABLE IN THE MEMBER STATE OF DESTINATION HAVE BEEN COLLECTED ' ' .

4 THE LAST SUBPARAGRAPH OF THAT PARAGRAPH , AS AMENDED BY REGULATION NO 1466/73 OF THE COMMISSION , PROVIDES ADDITIONALLY THAT THE PROOF ' ' SHALL BE FURNISHED BY PRODUCTION OF THE CONTROL COPY REFERRED TO IN ARTICLE 1 OF REGULATION ( EEC ) NO 2315/69 ' ' , NAMELY THE INTRA-COMMUNITY TRANSIT DOCUMENT KNOWN AS T/5 . FINALLY , IN ( B ) OF THE SAME SUBPARAGRAPH IT IS PROVIDED THAT , AMONG THE SPECIAL ENDORSEMENTS TO BE MADE ON THE CONTROL COPY , SECTION 104 MUST BE COMPLETED BY DELETING AS NECESSARY AND INSERTING ONE OF THE FOLLOWING :

' ' INTENDED FOR ENTRY FOR HOME USE ' '

' ' BESTEMT TIL AFSAETNING TIL FORBRUG ' '

' ' FUR DEN FREIEN VERKEHR BESTIMMT ' '

' ' DESTINE A ETRE MIS A LA CONSOMMATION ' '

' ' DESTINATO AD ESSERE IMMESSO IN CONSUMO ' '

' ' BESTEMD OM IN HET VRIJE VERKEER TE WORDEN GEBRACHT ' ' .

5 IT IS APPARENT FROM THE FILE ON THE CASE AND FROM THE ORDER MAKING THE REFERENCE TO THE COURT FOR A PRELIMINARY RULING , THAT A WHEAT-DEALER , ONE OF THE ACCUSED IN THE MAIN ACTION , OBTAINED PURSUANT TO ARTICLE 6 OF REGULATION NO 229/73 OF THE COUNCIL OF 31 JANUARY 1973 ( OFFICIAL JOURNAL 1973 , L 27 , P . 25 ) BY A CERTIFICATE ISSUED ON 29 JULY 1975 ADVANCE FIXING OF AN ' ' ACCESSION ' ' COMPENSATORY AMOUNT IN ITS FAVOUR FOR THE EXPORTATION OF 5 000 TONNES OF WHEAT TO THE UNITED KINGDOM FROM DENMARK , AT THE RATE OF 24.05 UNITS OF ACCOUNT PER TONNE - WHICH WAS SUBSEQUENTLY REDUCED TO 26.62 UNITS OF ACCOUNT PURSUANT TO ARTICLE 4 ( 2 ) OF REGULATION NO 3280/73 ( OFFICIAL JOURNAL 1973 , L 337 , P . 11 ) - AND FOR THAT PURPOSE FURNISHED A SECURITY OF THREE UNITS OF ACCOUNT PER TONNE .

6 ON 27 AUGUST 1975 IT ALSO OBTAINED FROM THE BELGIAN AUTHORITIES ADVANCE FIXING OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS TO BE PAID BY IT FOR THE IMPORTATION OF THE WHEAT , WHICH ORIGINATED FROM DENMARK AND THE UNITED KINGDOM , INTO A MEMBER STATE OF THE COMMUNITY AS ORIGINALLY CONSTITUTED . THE COMPENSATORY AMOUNT TO BE PAID AMOUNTED IN THE CASE OF THE UNITED KINGDOM TO TWO UNITS OF ACCOUNT PER TONNE AND THE SECURITY TO BE FURNISHED WAS THREE UNITS OF ACCOUNT PER TONNE . THE CERTIFICATE IN RESPECT OF THE ADVANCE FIXING WAS VALID UNTIL 25 OCTOBER 1975 .

7 ON 4 SEPTEMBER 1975 THE DEALER CONCLUDED A CONTRACT FOR THE SALE OF 1 800 TONNES OF DANISH WHEAT TO AN UNDERTAKING IN BREMEN IN THE FEDERAL REPUBLIC OF GERMANY . ON 15 SEPTEMBER 1975 IT SOLD AN IDENTICAL QUANTITY OF THE SAME GOODS TO AN ENGLISH UNDERTAKING AND ON THE FOLLOWING DAY RE-PURCHASED THE SAME TONNAGE FROM THAT UNDERTAKING AT AN INCREASED PRICE OF UKL 3.35 PER LONG TON . IN THE MEANTIME , BY TELEX MESSAGES OF 15 AND 19 SEPTEMBER 1975 THE DEFENDANT IN THE MAIN ACTION CHARTERED THREE VESSELS FROM A BRITISH SHIPOWNER , GIVING THE FOLLOWING INSTRUCTIONS : ' ' FOR DESTINATION LOWESTOFT ' ' - ' ' DISCHARGING AND RELOADING INTO THE SAME VESSEL ' ' - ' ' FINAL DESTINATION : BREMEN ' ' .

8 THOSE VESSELS LEFT DENMARK ON 17 , 23 AND 25 SEPTEMBER 1975 AND TRANSPORTED THE ABOVEMENTIONED 1 800 TONNES OF WHEAT BELONGING TO THE EXPORTER IN QUESTION TO LOWESTOFT , IN THE UNITED KINGDOM , WHERE IT WAS DISCHARGED . ONCE THE IMPORT FORMALITIES WERE COMPLETED IT WAS RELOADED AND RE-EXPORTED TO BREMEN WHERE IT ARRIVED ON 26 SEPTEMBER , 1 AND 13 OCTOBER 1975 .

9 SINCE THE ' ' ACCESSION ' ' COMPENSATORY AMOUNT IN QUESTION APPLIED TO A PRODUCT FOR WHICH NO REFUND WAS FIXED , THE EXPORTER WAS OBLIGED - BY VIRTUE OF ARTICLE 5 ( 2 ) OF REGULATION NO 269/73 - TO COMPLETE CONTROL COPY T/5 . FOR THAT PURPOSE , IT SPECIFIED THE UNITED KINGDOM IN THAT DOCUMENT AS THE DESTINATION OF THE PRODUCT IN QUESTION AND STATED IN SECTION 104 THAT THE PRODUCT WAS ' ' BESTEMT TIL AFSAETNING TIL FORBRUG ' ' ( ' ' INTENDED FOR ENTRY FOR HOME USE ' ' ). BY VIRTUE OF THAT COPY , WHICH HAD BEEN DULY ENDORSED BY THE BRITISH IMPORT AUTHORITIES , THE EXPORTER RECEIVED A COMPENSATORY AMOUNT IN DENMARK OF 20.62 UNITS OF ACCOUNT PER TONNE AND HIS SECURITY WAS RELEASED . ON EFFECTING THE IMPORTATION INTO THE FEDERAL REPUBLIC OF GERMANY ON THE OTHER HAND , HE PAID , ON THE BASIS OF THE IMPORTATION CERTIFICATE OBTAINED IN BELGIUM , AN ' ' ACCESSION ' ' COMPENSATORY AMOUNT OF TWO UNITS OF ACCOUNT PER TONNE AND THE SECURITY IN RESPECT THEREOF WAS RELEASED .

10 HAVING REGARD TO THE PARTICULAR FEATURES OF THIS EXPORTATION AND TO THE STATEMENTS MADE ON THE T/5 CONTROL COPY SUBMITTED TO THE DANISH AUTHORITIES , THE STATSADVOKAT FOR SAERLIG OEKONOMISK KRIMINALITET , BY INDICTMENT OF 14 NOVEMBER 1979 , CHARGED THE EXPORTER AND THREE OF ITS EMPLOYEES WITH MAKING AN INCORRECT AND MISLEADING DECLARATION TO THOSE AUTHORITIES BY INDICATING ON THE CONTROL COPY THAT THE EXPORTATION WAS TO THE UNITED KINGDOM WHEREAS THE GOODS HAD BEEN IMMEDIATELY RE-EXPORTED FROM THAT MEMBER STATE AFTER COMPLETION OF THE CUSTOMS IMPORT FORMALITIES .

11 THE ACCUSED , WHILST ADMITTING THAT EVEN BEFORE THE EXPORTATION FROM DENMARK TO THE UNITED KINGDOM IT HAD BEEN ENVISAGED THAT THE GOODS IN QUESTION WOULD BE DELIVERED TO A CUSTOMER IN THE FEDERAL REPUBLIC OF GERMANY , CONTENDED THAT SUCH A TRANSACTION DID NOT CONFLICT WITH COMMUNITY RULES . IN SUPPORT OF THAT ASSERTION THEY RELIED ON THE GERMAN WORDING OF THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 2 ) OF REGULATION NO 269/73 , AS AMENDED BY REGULATION NO 1466/73 , AND IN PARTICULAR THE ENDORSEMENT TO BE MADE IN SECTION 104 OF THE T/5 CONTROL COPY , FROM WHICH IT APPEARED , IN THEIR OPINION , THAT THE PROOF REQUIRED BY THE SECOND SUBPARAGRAPH OF PARAGRAPH ( 2 ) IS THAT ' ' IMPORT FORMALITIES HAVE BEEN COMPLETED AND DUTIES AND TAXES OF EQUIVALENT EFFECT PAYABLE IN THE MEMBER STATE OF DESTINATION HAVE BEEN COLLECTED ' ' , A CONDITION WHICH , THEY CONTEND , THEY FULFILLED BY COMPLETING CUSTOMS CLEARANCE IN THE UNITED KINGDOM .

12 IN VIEW OF THOSE ARGUMENTS AND HAVING REGARD TO THE DISCREPANCY IN THAT RESPECT BETWEEN THE VARIOUS LANGUAGE VERSIONS OF THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 2 ) AND OF THE FOURTH RECITAL IN THE PREAMBLE TO REGULATION NO 269/73 , THE KOEBENHAVNS BYRET , CONSIDERING THAT THE DECISION TO BE GIVEN IN THE CASE INVOLVED AN INTERPRETATION OF THE APPLICABLE COMMUNITY LAW , REFERRED THE FOLLOWING QUESTION TO THE COURT :

' ' IS A MEMBER STATE ( A ) IN A CASE WHERE IT HAS ISSUED AN ADVANCE-FIXING CERTIFICATE CONCERNING AN ' ' ACCESSION ' ' COMPENSATORY AMOUNT ON THE EXPORT OF WHEAT TO A SECOND MEMBER STATE ( B ) ENTITLED PURSUANT TO ARTICLE 5 ( 2 ) OF REGULATION ( EEC ) NO 269/73 OF THE COMMISSION , AS AMENDED BY ARTICLE 2 OF REGULATION ( EEC ) NO 1466/73 , TO REFUSE PAYMENT OF THE AMOUNT TO THE CLAIMANT IF THE WHEAT IS PLACED IN FREE CIRCULATION , FOR CUSTOMS PURPOSES IN B , AND THE CLAIMANT SUBMITS A CONTROL DOCUMENT ISSUED IN B , AS REFERRED TO IN REGULATION ( EEC ) NO 2315/69 OF THE COMMISSION , INTER ALIA CONTAINING THE INFORMATION ' BESTEMT TIL AFSAETNING TIL FORBRUG ' ( LITERALLY ' INTENDED FOR SALE FOR USE ' , TRANSLATED AS ' INTENDED FOR ENTRY FOR HOME USE ' ) OR ' FUR DEN FREIEN VERKEHR BESTIMMT ' BUT THE WHEAT IS PLACED IN FREE CIRCULATION IN B FOR THE SOLE PURPOSE OF ITS RE-EXPORTATION IMMEDIATELY THEREAFTER TO A THIRD MEMBER STATE ( C)? IN THIS CONNECTION IT IS ASSUMED THAT THE PROVISIONS CONCERNING THE 1 - TRANSLATOR ' S NOTE : THE RELEVANT ARTICLE IS IN FACT ARTICLE 1 .

' ACCESSION ' COMPENSATORY AMOUNTS ARE OBSERVED IN RELATION TO THE EXPORTATION FROM B TO C . ' '

13 HAVING REGARD TO THE DISPARITY BETWEEN THE VARIOUS LANGUAGE VERSIONS OF THE ABOVEMENTIONED PROVISIONS OF REGULATION NO 269/73 , IT IS APPROPRIATE , IN ORDER TO ANSWER THE NATIONAL COURT ' S QUESTION , TO PLACE THOSE PROVISIONS AND THE REGULATION OF WHICH THEY FORM PART WITHIN THE CONTEXT OF THE TOTALITY OF THE COMMUNITY RULES CONCERNING THE SYSTEM OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS AND TO INTERPRET THEM WITH PARTICULAR REGARD TO THE OBJECTIVES OF THAT SYSTEM .

17 IN VIEW OF ALL THE FOREGOING CONSIDERATIONS , THE DISPARITY BETWEEN THE VARIOUS LANGUAGE VERSIONS OF THE CONTROL COPY REFERRED TO IN THE SECOND SUBPARAGRAPH OF ARTICLE 5 ( 2 ) OF REGULATION NO 269/73 IS NOT TO BE CONSIDERED AS COMPELLING ACCEPTANCE OF THE VIEW THAT THE PROOF WHICH MUST BE PROVIDED BY THE CONTROL COPY IN QUESTION FOR THE PURPOSES OF PAYMENT OF THE ' ' ACCESSION ' ' COMPENSATORY AMOUNT IS LIMITED TO COMPLETION OF CUSTOMS FORMALITIES IN THE MEMBER STATE OF DESTINATION , WHETHER OR NOT THE PRODUCT IN QUESTION IS ACTUALLY MARKETED IN THAT STATE . ON THE CONTRARY , THE VERY FACT THAT REGULATION NO 1466/73 OF THE COMMISSION SUPPLEMENTED THE ORIGINAL WORDING OF THAT ARTICLE BY MEANS OF A PROVISION REQUIRING SUBMISSION OF THE T/5 CONTROL COPY WITH THE ENDORSEMENTS PROVIDED FOR IN SECTION 104 , INDICATES THAT THE ABOVEMENTIONED PROOF GOES BEYOND MERE COMPLETION OF THE CUSTOMS FORMALITIES PRESCRIBED BY THE UNAMENDED WORDING OF THAT PROVISION AND MUST BE UNDERSTOOD , IN THE LIGHT OF THE OBJECTIVES AND THE SYSTEM OF THE PROVISIONS GOVERNING THE SCHEME IN QUESTION , AS INCLUDING MARKETING OF THE PRODUCT IN QUESTION IN THE MEMBER STATE DESIGNATED AS THE STATE OF DESTINATION .

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 .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE KOEBENHAVNS BYRET , BY ORDER OF 17 OCTOBER 1980 , HEREBY RULES :

ARTICLE 5 ( 2 ) OF REGULATION ( EEC ) NO 269/73 OF THE COMMISSION OF 31 JANUARY 1973 , AS AMENDED BY REGULATION ( EEC ) NO 1466/73 OF THE COMMISSION OF 30 MAY 1973 , MUST BE INTERPRETED AS MEANING THAT AN EXPORTER WHO SENDS AGRICULTURAL PRODUCTS TO A NEW MEMBER STATE FROM A MEMBER STATE WHICH APPLIES HIGHER PRICES MAY NOT CLAIM PAYMENT OF ' ' ACCESSION ' ' COMPENSATORY AMOUNTS IF THE COMPLETION OF CUSTOMS FORMALITIES IN THE MEMBER STATE DECLARED TO THE COMPETENT AUTHORITIES IN THE EXPORTING MEMBER STATE AS THE STATE OF DESTINATION IS NOT FOLLOWED BY THE EFFECTIVE RELEASE OF THOSE PRODUCTS ON TO THE MARKET OF THE LATTER STATE .