1 BY ORDER OF 9 OCTOBER 1970, RECEIVED AT THE COURT ON 12 OCTOBER 1970, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN, THE HAGUE, HAS REQUESTED THE COURT, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, TO GIVE A PRELIMINARY RULING ON THE FOLLOWING QUESTION :
" MUST THE EXPRESSION " LEVY FIXED IN ADVANCE " APPEARING IN ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 473/67/EEC OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, AS IT WAS WORDED BEFORE THE ENTRY INTO FORCE OF REGULATION ( EEC ) NO 638/70 OF THE SAID COMMISSION, BE UNDERSTOOD AS REFERRING TO THE LEVY FIXED IN ADVANCE APPLICABLE FOR THE MONTH OF IMPORTATION ENVISAGED IN THE IMPORT LICENCE OR AS REFERRING TO THE LEVY FIXED IN ADVANCE APPLICABLE FOR THE FINAL MONTH OF THE PERIOD OF VALIDITY OF THAT LICENCE? "
2 THIS QUESTION CONCERNS THE INTERPRETATION OF THE EXPRESSION " LEVY FIXED IN ADVANCE " EMPLOYED IN ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 473/67/EEC OF THE COMMISSION OF 21 AUGUST 1967 ON IMPORT AND EXPORT LICENCES FOR CEREALS AND CEREAL-BASED PROCESSED PRODUCTS, RICE, BROKEN RICE AND RICE-BASED PROCESSED PRODUCTS ( OFFICIAL JOURNAL 1967, NO 204, P . 16 ), WHICH IS ONE OF THE FACTORS TO BE TAKEN INTO ACCOUNT IN CALCULATING THE DEPOSIT OR PART OF THE DEPOSIT WHICH IS FORFEITED IF IMPORTATION IS NOT EFFECTED OR IS ONLY PARTIALLY EFFECTED DURING THE PERIOD OF VALIDITY OF THE IMPORT LICENCE .
3 IT APPEARS FROM THE INFORMATION SUPPLIED IN THE COURSE OF THESE PROCEEDINGS THAT THE COMPETENT AUTHORITIES OF THE VARIOUS MEMBER STATES HAVE INTERPRETED THIS PROVISION IN DIFFERENT WAYS . SOME OF THEM BELIEVE THAT THE PHRASE " LEVY FIXED IN ADVANCE " WITHIN THE MEANING OF THE PROVISION AT ISSUE MUST BE UNDERSTOOD AS THE RATE OF LEVY FIXED FOR THE EXPECTED MONTH OF IMPORTATION SPECIFIED IN THE IMPORT LICENCE, WHILE OTHERS TAKE THE VIEW THAT THIS EXPRESSION MEANS THE RATE FIXED FOR THE FINAL MONTH OF THE PERIOD OF VALIDITY OF THE LICENCE .
4 THE HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN AND THE PRODUKTSCHAP VOOR GRANEN, ZADEN EN PEULVRUCHTEN OF THE HAGUE, WHICH ARE THE INTERVENTION AGENCIES FOR THE KINGDOM OF THE NETHERLANDS AND ARE THE DEFENDANTS IN THE MAIN ACTION, CONTEND, IN RELIANCE ON ARTICLE 7 OF REGULATION NO 54 AND ARTICLE 9 OF REGULATION NO 140/67 WHICH REPLACED IT, AS WELL ON CONSIDERATIONS DRAWN FROM THE OBJECTIVE OF THE SYSTEM OF DEPOSITS, THAT THE EXPRESSION " LEVY FIXED IN ADVANCE " IS TO BE UNDERSTOOD AS REFERRING TO THE RATE OF LEVY FIXED FOR THE FINAL MONTH OF THE PERIOD OF VALIDITY OF THE LICENCE .
5 THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS COMES TO THE SAME CONCLUSION .
6 THE PLAINTIFFS IN THE MAIN ACTION, ON THE OTHER HAND, TAKE THE VIEW THAT THIS EXPRESSION REFERS TO THE RATE FIXED FOR THE EXPECTED MONTH OF IMPORTATION .
7 FOR A LONG TIME THE COMMISSION UPHELD THE INTERPRETATION PUT FORWARD BY THE PLAINTIFFS IN THE MAIN ACTION, BUT BEFORE THE COURT IT HAS ADOPTED THE INTERPRETATION PUT FORWARD BY THE NETHERLANDS AGENCIES, RELYING IN PARTICULAR ON ARTICLE 9 OF REGULATION NO 140/67/EEC OF THE COUNCIL OF 21 JUNE 1967 ON RULES FOR THE ADVANCE FIXING OF LEVIES ON CEREALS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 91 ) AND ON ARGUMENTS ADDUCED FROM THE OBJECTIVE OF THE SYSTEM OF DEPOSITS .
8 ARTICLE 8 ( 3 ) OF REGULATION NO 473/67 STATES THAT THE AMOUNTS TO BE TAKEN INTO CONSIDERATION WHEN CALCULATING THE DEPOSIT OR PORTION OF THE DEPOSIT WHICH IS FORFEITED, IN RESPECT OF IMPORT CERTIFICATES FOR WHICH THE LEVY HAS BEEN FIXED IN ADVANCE, ARE AS FOLLOWS :
" 0.50 UNIT OF ACCOUNT PER METRIC TON, INCREASED BY AN AMOUNT EQUAL TO :
- THE LEVY FIXED IN ADVANCE, INCREASED BY A PREMIUM PROVIDED FOR IN THE SCALE OF PREMIUMS IN FORCE ON THE DAY OF LODGING THE REQUEST FOR THE LICENCE FOR THE MONTH OF IMPORTATION SHOWN IN THE LICENCE, OR FOR THE FINAL MONTH OF THE PERIOD OF VALIDITY OF THE LICENCE, IF THE LATTER IS HIGHER; AND
- REDUCED BY THE LEVY APPLICABLE ON THE FINAL DAY OF THE PERIOD OF VALIDITY OF THE IMPORT LICENCE . "
9 ALTHOUGH THIS PROVISION HAS TAKEN CARE TO INDICATE WITH PRECISION VARIOUS FACTORS INVOLVED IN THE CALCULATION OF THE AMOUNT OF THE DEPOSIT OR PART DEPOSIT TO BE FORFEITED, IT HAS NOT DEFINED WHAT IS TO BE UNDERSTOOD BY " LEVY FIXED IN ADVANCE ".
10 IN ORDER TO INTERPRET THAT EXPRESSION, REFERENCE MUST BE MADE TO THE PROVISIONS WHICH FORM THE LEGAL BASIS OF REGULATION NO 473/67 AS A WHOLE, NAMELY REGULATIONS NOS 120/67 AND 140/67 OF THE COUNCIL .
11 ARTICLE 15 ( 2 ) OF REGULATION NO 120/67 PROVIDES THAT IN A CASE OF ADVANCE FIXING THE LEVY TO BE CHARGED ON IMPORTATION IS " THE LEVY APPLICABLE ON THE DAY ON WHICH APPLICATION FOR A LICENCE IS MADE, ADJUSTED FOR THE THRESHOLD PRICE WHICH WILL BE IN FORCE DURING THE EXPECTED MONTH OF IMPORTATION ".
12 SINCE REGULATION NO 473/67 USES THE EXPRESSION " LEVY FIXED IN ADVANCE " WITHOUT DEFINING IT MORE PRECISELY, IT MUST BE UNDERSTOOD IN THE SAME SENSE AS THAT IN WHICH IT IS USED IN THE BASIC REGULATION NO 120/67, WHICH REGULATION NO 473/67 IS INTENDED TO IMPLEMENT .
13 CONTRARY TO WHAT WAS MAINTAINED BEFORE THE COURT BY THE DEFENDANTS IN THE MAIN ACTION, THIS INTERPRETATION IS NOT CONTRADICTED BY ARTICLE 9 OF REGULATION NO 140/67, UNDER WHICH " IF IMPORTATION IS NOT EFFECTED DURING THE MONTH INDICATED AT THE TIME OF APPLICATION ... ( A ) THE LEVY APPLICABLE ON THE DAY ON WHICH THE APPLICATION FOR THE LICENCE WAS SUBMITTED SHALL BE ADJUSTED IN ACCORDANCE WITH THE THRESHOLD PRICE IN FORCE ON THE DATE OF IMPORTATION ... ".
14 IN FACT, THAT PROVISION - WHICH IS INTENDED TO MEET THE CASE IN WHICH IMPORTATION IS EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE BUT DURING A MONTH OTHER THAN THAT INDICATED IN THE APPLICATION FOR A LICENCE - IS NOT APPLICABLE TO A CASE IN WHICH IMPORTATION IS NOT EFFECTED, OR IS ONLY PARTIALLY EFFECTED, DURING THE PERIOD OF VALIDITY OF THE LICENCE, SO THAT THE DEPOSIT IS WHOLLY OR PARTIALLY FORFEITED .
15 IT CANNOT BE ACCEPTED THAT THE SAID PROVISION ALTERED THE SYSTEM LAID DOWN BY REGULATION NO 120/67, ESPECIALLY SINCE REGULATION NO 140/67, BEING AN IMPLEMENTING REGULATION NOT DIRECTLY BASED ON THE THIRD SUBPARAGRAPH OF ARTICLE 43 ( 2 ) OF THE TREATY BUT ON THE ENABLING PROVISION OF ARTICLE 15 ( 4 ) OF REGULATION NO 120/67, COULD NOT HAVE DEROGATED FROM THE PROVISIONS OF THE BASIC REGULATION TO WHICH IT IS SUBORDINATE .
16 IN THESE CIRCUMSTANCES IT SEEMS UNNECESSARY TO GO INTO THE CONFLICTING ARGUMENTS WHICH HAVE BEEN PUT FORWARD IN THE COURSE OF THE PROCEDURE BY THE COMMISSION AND THE DEFENDANTS IN THE MAIN ACTION REGARDING THE PURPOSE OF THE PROVISIONS GOVERNING THE DETAILED RULES FOR FIXING THE AMOUNTS TO BE WITHHELD IN CASE OF FAILURE TO IMPORT, PARTICULARLY AS THESE ARGUMENTS HAVE GIVEN RISE TO WIDELY DIVERGENT INTERPRETATIONS .
17 THE EXPRESSION " LEVY FIXED IN ADVANCE " IN ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 473/67 SHOULD THEREFORE BE INTERPRETED AS REFERRING TO THE RATE OF LEVY FIXED FOR THE MONTH OF IMPORTATION SPECIFIED IN THE APPLICATION BY THE HOLDER OF THE IMPORT LICENCE .
18 THE COSTS INCURRED BY THE COMMISSION AND THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS, WHICH HAVE 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, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN, THE HAGUE, BY ORDER OF THAT COURT OF 9 OCTOBER 1970, HEREBY RULES :
THE EXPRESSION " LEVY FIXED IN ADVANCE " IN ARTICLE 8 ( 3 ) ( B ) OF REGULATION NO 473/67/EEC OF THE COMMISSION OF 21 AUGUST 1967 REFERS TO THE RATE OF LEVY FIXED FOR THE MONTH OF IMPORTATION INDICATED BY THE HOLDER OF THE IMPORT LICENCE IN HIS APPLICATION .
