Court of Justice 20-11-1986 ECLI:EU:C:1986:435

Opinion of Mr Advocate General Mancini

delivered on 20 November 1986^(*)

Mr President,

Members of the Court,

By judgment of 26 February 1986, the application brought under Article 178 and the second paragraph of Article 215 of the EEC Treaty by Krohn, Hamburg, against the Commission of the European Communities was held to be admissible by the Court. The damage complained of by the applicant was allegedly caused by the refusal of the Bundesanstalt für landwirtschaftliche Marktordnung [Federal Office for the Organization of Agricultural Markets, hereinafter referred to as ‘the Bundesanstalt’], on the Commission's instructions, to issue the import licences requested by Krohn in respect of a consignment of manioc roots or tubers originating in Bangkok (Thailand).

In the Opinion which I delivered on the question of admissibility on 19 November 1985, the first three sections were concerned with the relevant legislation, the origin and the course of the proceedings. Those sections are set out below with the necessary amendments and supplements in view of the fact that the application is now to be considered from a different point of view.

I propose to begin by considering the relevant Community rules in force at the material time. Those rules are set out in: (a) the Cooperation Agreement on manioc production, marketing and trade between the Community and the Kingdom of Thailand approved by Council Decision No 82/495/EEC of 19 July 1982 (Official Journal 1982, L 219, p. 52); (b) Commission Regulation (EEC) No 2029/82 of 22 July 1982 laying down detailed rules for its implementation (Official Journal 1982, L 218, p. 8). As is stated in its preamble, the Cooperation Agreement was made in recognition of two facts: Thailand's economy is dependent on manioc production, which, besides, is concentrated in the poorest and most policitically sensitive areas of the country; secondly, imports of manioc into the Community, which are growing steadily, are creating problems for the common market.

In the light of those constraints, Thailand undertook to manage its exports (namely those falling within subheading 07.06 A of the Common Customs Tariff) in such a way as to ensure that they did not exceed the agreed quantities, which were 5 million tonnes per year for 1983 and 1984 and 4.5 million tonnes for the two following years (Article 1). In return, the Community undertook to limit the levy applicable to imports to a maximum amount of 6% ad valorem and to ensure that Thailand enjoyed most-favoured nation treatment with respect to the rate of the levy (Article 3). The rules for the management of exports provide that: (a) Thailand is to ensure that export certificates are not issued for any quantities above the limit laid down; (b) the Community is to make the necessary arrangements to issue import licences for manioc, subject to presentation of an export certificate issued by the relevant authority in Bangkok. The import licence is to be issued within seven days from presentation of the export certificate. The date of issue of the export certificate determines the year to which the quantities shipped are to be attributed (Article 5).

That brings me to Regulation No 2029/82. For our purposes, the most important provisions are Articles 7 (1) and (2), 9, 10 and 11. Article 7 provides as follows :

The import licence shall be issued on the fifth working day following the day on which the application was lodged, except where the Commission has informed the competent authorities of the Member State by telex that the conditions laid down in the Cooperation Agreement have not been fulfilled. In the event of non-observance of the conditions governing the issue of the licence, the Commission may, where necessary, and following consultation with the Thai authorities, adopt appropriate measures.

At the request of the party concerned, and following communication of the Commission's agreement by telex, the import licence may be issued within a shorter period.’

Article 9 provides:

‘The Member States shall communicate to the Commission each day by telex the following information concerning each application for a licence:

1. the quantity for which each import licence is requested,

2. the number of the export certificate submitted ... ,

3. the date of issue of the export certificate,

4. the total quantity for which the export certificate was issued,

5. the name of the exporter indicated on the export certificate. ’

Under Article 10, those provisions are to apply only to export certificates issued by the Thai authorities from 28 July to 31 December 1982. Finally, Article 11 provides that an importer of products exported from Thailand before 28 July 1982 who holds an import licence which does not entail advance fixing of the levy may not benefit from the preferential rate (6% ad valorem) unless the products are placed in free circulation within 30 days following 28 July 1982 and he can prove that those products were transported to the Community in accordance with the information indicated on the export certificate.

Regulation No 2029/82 remained in force until the end of 1982, whereupon it was replaced by Commission Regulation (EEC) No 3383/82 (Official Journal 1982, L 356, p. 8), which was amended several times subsequently.

On 16 November 1982 Krohn, an importer and distributor of cereals and feedingstuffs, requested the Bundesanstalt to issue five import licences covering a total of 54 895 472 kg of manioc roots or tubers from Thailand. In accordance with the provisions which I have just referred to, Krohn joined to its request several export certificates granted by the Thai authorities on 18 August 1982 (for a consignment of 380 tonnes) and on 7 September 1982 (for the remainder). The export certificates indicated that the manioc was bound for Europe aboard vessels whose names (the Asumina, the Valdivia and the Daiko Maru) were notified by the Bundesanstalt to the Commission on the day the former received the request in accordance with Article 9 of Regulation No 2029/82.

It will be noted that whereas ocean transport from Thailand to Europe usually lasts between four and six weeks, the periods which elapsed between the issue of the export certificates on 18 August and 7 September and the lodging of the request on 16 November was three months in the first case and two and a half months in the second. Moreover, the Commission became aware that in autumn 1982 a German undertaking sought to import into the Community about 60 000 tonnes of manioc for which it did not have the requisite export certificate from Thailand. On being alerted thereto, the Commission in Brussels informed the Bundesanstalt by telex on 23 November that it was necessary, by virtue of Article 7 of Regulation No 2029/82, to ascertain whether Krohn had in fact satisfied the conditions for the issue of import licences, and in particular whether it had notified the date of shipment in Thailand, the names of the vessels on which the goods were carried, and the place and date of customs clearance on importation into the Community.

By telex messages dated 23 November and 7. December 1982 the Bundesanstalt informed Krohn that it could be issued with the import licences only if it gave the name of the vessel or vessels used and the place of customs clearance of the manioc in the Community. Krohn replied by telex on 24 November 1982 with the relevant details for a consignment of 500 tonnes covered by export certificate No 3840/1982; it requested an import licence for that consignment, reserving the right to provide the remaining information subsequently. On 10 December 1982, however, Krohn declared itself unable to provide the remainder of the information inasmuch as the consignment indicated on the export certificate did not correspond to the consignment that was to be imported. It added that it was not required to provide the information in question since the provisions in force did not make the issue of import licences subject to production of such information.

On 21 December 1982, after being informed of that reply, the Commission sent a further telex to the Bundesanstalt in which it pointed out that the production of export certificate No 3840/1982 did not entitle Krohn to an import licence. It stated that the name of the vessel mentioned by Krohn did not correspond to that in the export certificate issued in Thailand and that, in addition, the length of time which had elapsed between the grant of the export certificate and the lodging of the request with the German authorities by Krohn was unreasonable. By a notice dated 23 December 1982, in conformity with those instructions, the Bundesanstalt rejected both the general request of 16 November covering 55 000 tonnes and the supplementary request of 24 November covering 500 tonnes. Krohn objected to that decision by telex on 24 January 1983. It subsequently gave reasons for its objection in a letter dated 7 March 1983.

Meanwhile, Krohn had chartered another vessel, the Equinox; the manioc tubers were loaded on board at some time between January and March 1983, and on 15 April it reached Rotterdam where the goods were cleared through customs and put into free circulation in the Community. The damages alleged by the applicant arose at that point. Because the Thai authorities did not issue it with export certificates for the first quarter of 1983 (the relevant quotas had already been exhausted), and since the Bundesanstalt had refused its requests, Krohn was not permitted to pay import levy at the preferential rate. It sought to mitigate the damage by purchasing import licences covering a total of 33 000 tonnes at DM 85 per tonne from Peter Cremer, an undertaking in Hamburg, but was unable to produce a licence covering the remainder (21 895 tonnes) and was therefore compelled to pay the full rate of import levy.

On 27 April 1983 the Bundesanstalt rejected Krohn's objection, citing Article 7 (1) of Regulation No 2029/82 as the reason for its decision; it added that the Commission had opposed the issue of the import licences because, in the absence of the information it had requested, it was not satisfied that valid export certificates had been granted.

On 25 May 1983 Krohn brought an action before the Verwaltungsgericht [Administrative Court] Frankfurt am Main, seeking (a) the annulment of both the Bundesanstalt^ decisions (the refusal of the request and the rejection of the objection) and (b) an order requiring the Bundesanstalt to issue the import licences requested at a rate of levy of 6%. In its defence lodged on 17 January 1984, the Bundesanstalt relied on an opinion of the Commission in which the latter explained the steps it had taken and confirmed that it had received information that Krohn had sought to introduce into the Community 60 000 tonnes of manioc by using certificates issued by the Thai authorities in respect of other consignments which could be imported only under the procedure known as advance fixing of import levies. The Commission argued further that the manioc was not covered by the Cooperation Agreement between the Community and Thailand because it had been transported on board a different vessel from the one indicated on the export certificate presented and most of it (50 000 tonnes) had been shipped without a valid certificate. Finally, the Bundesanstalt requested the Verwaltungsgericht to join the Commission to the proceedings since the instructions on which the Bundesanstalt had acted in adopting the contested decision had emanated from the Commission.

Besides bringing an action before the national court, Krohn on 6 June 1983 requested the Commission for compensation for the damage which it had suffered as a result of the pressure which the Commission had, in the applicant's view, unlawfully exerted upon the Bundesanstalt to withhold the import licences. That request was refused by letter of 28 July 1983.

Approximately a year later, on 4 July 1984, Krohn brought an action for damages before the Court on the basis of the Commission's non-contractual liability. The Court decided to adjudicate on the question of admissibility of its own motion and, after declaring the application admissible on 26 February 1986, decided to continue the proceedings with a view to considering the substance of the case.

The dispute centres on the information concerning the name of the vessel used for the transport of the manioc and the place where it was cleared through customs, which the applicant was asked to state by the Bundesanstalt on instructions from the Commission. As the Court is aware, it was Krohn's refusal to accede to that request that prompted the Commission to instruct the Bundesanstalt not to issue licences for the importation of the goods into the Community.

Krohn maintains that the Commission's conduct must be considered unlawful and, in support of that view, it relies on two arguments: (a) the Bundesanstalt's request was not justified either by the wording, or by the objectives or by the procedure for enforcing the rules of Community law on the importation of manioc from Thailand; (b) the failure to issue the licences jeopardized rights which it had acquired before the Cooperation Agreement between the Community and Thailand entered into force.

I propose to begin by considering the wording of Regulation No 2029/82. Krohn points out that there is nothing in that regulation which makes the issue of a licence conditional upon communication of the information demanded by the Commission. Instead, the requirement that such information must be communicated was laid down by Regulation (EEC) No 499/83 of 2 March 1983 (Official Journal 1983, L 56, p. 12), a measure which has been applied since 21 March 1983 and is therefore subsequent to the facts of the case. In addition, as is clear from the recitals in the preamble to that regulation, its purpose was to reinforce the system of Community and national controls by a stricter and more systematic monitoring; it follows that, before the regulation's entry into force, provision of the relevant information, the purpose of which was precisely to reinforce that system of controls, did not constitute a requirement for the issue of the licence.

I now turn to the objectives of the rules under consideration. As is well known, Krohn points out, the purpose of the Cooperation Agreement is to stabilize the Community and Thai markets in manioc by fixing quotas for the importation of the product into the Community. The information sought by the Commission is by no means essential for compliance with those objectives or with the means whereby those objectives are pursued. That is borne out by at least two provisions. According to Article 1 of Regulation No 2029/82, import licences are issued subject to the submission of ‘a’ (that is to say a ‘general’ or at any rate nonspecific) certificate for export, from which it may be inferred that the decisive factor for the purposes of monitoring the quota is the information relating to the quantity of goods imported rather than the vessel on which they were shipped or the place in which they were unloaded. Moreover, Article 4 of that regulation authorizes partial use to be made of export certificates, which implies that only the quantity of goods to which the first request for the issue of import licences relates has definitely been loaded on board the vessel specified in the export certificate issued by the Thai authorities, whilst there is a possibility that the quantity imported subsequently, although indicated on that certificate, may have been transported on a different vessel. Hence the indication ‘shipped per’ in box 3 of the export certificate has no bearing on the functioning of the system.

That brings me to the enforcement procedure. In that respect Krohn merely notes that, since the entry into force of the Cooperation Agreement, there have been many cases in which the Bundesanstalt has not made the issue of import licences conditional upon communication of the contested information.

Krohn's second argument is based, as I have pointed out, on compliance with acquired rights. Krohn maintains that on 10 January 1984 the Commission stated in a telex to the Bundesanstalt that it had received information in autumn 1982 that certain traders had attempted to import a quantity of manioc by using import licences issued under the procedure for the advance fixing of import levies before the Cooperation Agreement between the Community and Thailand was approved. It is true that between the summer and the autumn of 1982 Krohn obtained a number of export certificates and refrained from using them precisely because manioc could be imported on the basis of the licences issued prior to the conclusion of the Cooperation Agreement. Since those imports were subject to the procedure established by Commission Regulation (EEC) No 3183/80 of 3 December 1980 (Official Journal 1980, L 338, p. 1), they must be regarded as entirely lawful. That is not all. As is well known, Article 11 of Regulation No 2029/82 guarantees for the 30 days following its entry into force the benefit of the preferential rate to holders of old import licences not entailing advance fixing of the levy; a fortiori, therefore, the holders of old licences entailing advance fixing of the levy will have to be accorded the same benefit throughout the period for which those licences are valid.

I shall examine the arguments summarized above in due course. Before I do so, however, I wish to make a preliminary remark: the Commission's conduct must be assessed on the basis of the relevant rules of Community law and of the powers conferred on the Commission with regard to the monitoring of quotas fixed in advance. By ‘relevant rules’ I mean particularly the Cooperation Agreement between the Community and Thailand. Regulation No 2029/82 merely lays down measures designed to enable the Cooperation Agreement to be applied. It therefore pursues the objectives of that agreement and must be interpreted in the light thereof.

Under the Cooperation Agreement (see section 2, supra) the task of ensuring that the annual quota is complied with, that is to say preventing the manioc consignments that may be imported at the preferential rate from exceeding the agreed quantity, is entrusted primarily to Thailand. It is indisputable, therefore, that the cornerstone of the system is the export certificate granted by the Bangkok authorities and that the issue of that certificate is tantamount to confirmation that an export transaction covered by the quota has been carried out. Furthermore, the following factors militate in support of the view that that is the role of export certificates: (a) the fact that they do not describe the goods solely in abstract terms (by indicating the type and weight) but actually identify them (by giving the names of the exporter and the importer and the name of the vessel used for shipping the goods to the Community); (b) the Thai authorities' caution in granting the certificate given that, as the Commission has pointed out, it is issued not when the goods have been loaded on board but when the vessel carrying them has left territorial waters.

The fundamental role thus played by export certificates would be emptied of its substance unless the proper consequences were drawn from the interpretation of the rules governing import licences. As the Court is aware, those licences are granted on the basis of the certificates issued by Thailand (Article 5 of the Cooperation Agreement). The authorities of the Member States and the Community may therefore issue licences only once they have ascertained that the import arrangements for which those licences are sought correspond exactly to the information contained in the export certificates, and since such information includes the name of the vessel the argument that it is of no relevance for the purposes of the proper implementation of the Cooperation Agreement — that is to say the use of the vessel indicated on the export certificate need not be verified by the Commission and the national authorities — is evidently devoid of substance.

Those considerations are in themselves sufficient to refute Krohn's argument. However, I propose to take a closer look at the separate points made in that argument. The point concerning the wording of Regulation No 2029/82 contains an element of truth; there is no denying, in other words, that the notification of the name of the vessel and the place of unloading was expressly provided for by a measure (Regulation No 499/83) which was adopted after the material events had occurred. Having said that, however, it must be pointed out that, far from aiming at a radical amendment of the preceding system of controls, the new rules were designed merely to reinforce it (see the fourth recital in the preamble to Regulation No 499/83), from which it follows that dubious information could be checked — if not methodically at least whenever the need to do so arose — even under the system embodied in Regulation No 2029/82. The same holds true for the point concerning the procedure for enforcing that measure: the assertion that there were few requests for information of the kind made in this case is of little account given that, in the light of the rules in force at the time, such requests could be made only in situations where doubts had arisen.

Nor can more weight be attached to the argument concerning the purpose of the relevant rules, which is based on Articles 1 and 4 of Regulation No 2029/82. Article 1 must be read in conjunction with all the other provisions of that regulation, which makes it clear that although that provision refers to ‘a’ certificate for export, the application referred to in Article 4 must be accompanied by the original of ‘the’ export certificate. That, in my view, is sufficient to regard as quite fanciful the consequences which the applicant draws from the fact that the legislature has used the indefinite rather than the definite article in the first provision. Next, the reference to Article 4 is irrelevant. The sole purpose of that provision is to facilitate customs clearance of goods released into free circulation (see, for a similar example, Article 3 (2) of Commission Regulation (EEC) No 19/82, Official Journal 1982, L 3, p. 18). As is clear from Article 5 of Regulation No 2029/82, importers must lodge a deposit of 3 ECU per tonne of manioc at the time when they apply for the import licence. In order to avoid the need for importers to pay at once the sum corresponding to the total quantity specified in the export certificate, Article 4 authorizes them to apply for an import licence for part of that quantity. Thus, importers having an interest in doing so will be able to leave the manioc in customs warehouses and gradually release it into free circulation.

The accuracy of those observations is borne out by the difficulties encountered by the applicant in interpreting the expression ‘shipped per’ in box 3 of the export certificate (see the second subparagraph of Article 3 (1) and the second paragraph of Article 4 of Regulation No 2029/82). Krohn is obliged to argue that that expression is of no importance. Instead, I believe that its importance is obvious if it is taken as further evidence that the quantity of goods actually identified (by reference to the vessel on which they are carried) in the export certificate must correspond to the quantity in respect of which an import licence is sought.

I wish to say a few words concerning Krohn's views on the subject of acquired rights. It seems to me that the subject is wholly unconnected with this case which is certainly not concerned with the refusal to issue import licences on the basis of licences fixing the preferential rate in advance which were granted before the Cooperation Agreement between the Community and Thailand entered into force. Instead, all parties are agreed that Krohn enclosed with its application of 16 November 1982 the export certificates issued by the Thai authorities on 18 August and 7 September 1982, that is to say after the Cooperation Agreement had been approved, which were in conformity with the form set out in the annex to Regulation No 2029/82.

It is clear from the foregoing that in its conduct the Commission has complied with the rules applicable to the facts of the case, I now turn to the powers conferred upon the Commission by Article 7 (1) of Regulation No 2029/82 in connection with the controls to be carried out on the annual quotas. In that regard I would recall that, as the Court held in its judgment of 26 February 1986, the provisions of that article ‘do not merely confer upon the Commission the right to give an opinion on the decision to be adopted in the context of the cooperation between itself and the national bodies responsible for applying the Community rules, but actually empower it to insist that such national bodies refuse requests for import licences where the conditions laid down in the Cooperation Agreement have not been fulfilled’ (paragraph 21 of the decision).

I have already emphasized (section 5, supra) the importance for the purposes of compliance with the Cooperation Agreement of the actual identification of the consignments of imported goods and the crucial role played by the reference to the vessel used to carry the goods in the export certificate issued by the Thai authorities. I have also argued that even while Regulation No 2029/82 was in force, the Commission was entitled to ask the national authorities to subject the issue of import licences to communication of the name of the vessel and the place of customs clearance.

Moreover, it is clear from the documents before the Court that: (a) Krohn has failed to show that the reasons for which the Commission intervened (the length of time which elapsed between the issue of the export certificate and the application for an import licence or the information received from the Thai authorities concerning exports of manioc not covered by appropriate certificates) were either irrelevant or unreasonable; (b) in its letter of 10 December 1982 to the Bundesanstalt, Krohn itself acknowledged that the goods in respect of which the import licences had been requested did not correspond to the goods referred to in the export certificates issued by the Thai authorities on 7 September 1982; (c) in reply to a question from the Court, Krohn acknowledged that in the first few months in which the Cooperation Agreement was in force, the fact that the previous system (involving the issue of certificates fixing the preferential rate in advance) and the system established by Regulation No 2029/82 both continued to operate could have given rise to fraudulent manoeuvres.

In the light of those considerations, the measures adopted by the Commission seem to be entirely in keeping with its task of ensuring compliance with the Cooperation Agreement between the Community and Thailand and with its implementing provisions. It follows from that conclusion that the applicant has not sustained any damage for which it can be compensated. Accordingly, I do not propose to deal with the arguments put forward in that connection by the parties and I would refer those interested in the matter to the Report for the Hearing which contains a summary of those arguments.

In the light of all the foregoing considerations, I suggest that the Court should dismiss the application submitted on 4 July 1984 by Krohn against the Commission of the European Communities.

The applicant should be ordered to pay the costs, including those reserved by the Court in its judgment of 26 February 1986.