Court of Justice 05-02-1997 ECLI:EU:C:1997:53

The first and third parts of the first plea

In the first part of this plea, the appellant claims that the Court of First Instance manifestly erred in its interpretation of the concept of ‘exceptional circumstances’ in Article 25(1) of Regulation No 1035/72. It submits that the Commission is required under that paragraph not to introduce a countervailing charge when, as in the present case, it maintains the requirement that importers must obtain an import licence subject to the lodging of a security which is forfeit if the importation does not take place. A paradoxical and contradictory situation, in which the importer loses the security if the importation does not take place but has to pay a countervailing charge if it does, should be avoided. The concept of ‘exceptional circumstances’ should therefore be interpreted to include a situation such as the present.

The third part of this plea concerns the reasoning of the Court of First Instance justifying, at paragraph 63 of the judgment under appeal, the coexistence of the requirement that an import licence must be presented after a security has been lodged and the imposition of a countervailing charge. In the appellant's submission, the statement of reasons given by the Court of First Instance is manifestly erroneous and unlawful; it is impossible for the two measures to apply concurrently because the importer concerned would thereby be placed in an absurd situation. No well-informed trader could legitimately expect a combination of measures leading to such contradictory results to the detriment of importers.

The Court of First Instance did not err in law, and the first and third parts of this plea must be rejected.

That Court was right to consider, at paragraph 54 of the judgment under appeal, that the proviso for ‘exceptional circumstances’ in Article 25(1) of Regulation No 1035/72 does not apply to the appellant's situation. That paragraph, as justification for a derogation from the principle that a countervailing charge is to be fixed, must be construed strictly. It refers only to situations in which it is not necessary to levy the charge, even though all the criteria for its levying are met, because the volume of produce offered at abnormally low prices is insignificant.

It has, it is true, consistently been held (see, in particular, Joined Cases C-90/90 and C-91/90 Neu and Others v Secrétaire d'Etat à l'Agriculture [1991] ECR I-3617, paragraph 12) that when it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the Treaty and the general principles of Community law.

However, an interpretation of Article 25(1) of Regulation No 1035/72 which is most consistent with the objective of that regulation and the general principles of Community law cannot lead to the ‘exceptional circumstances’ clause being interpreted in the manner advocated by the appellant.

The Court of First Instance was also right in holding, at paragraph 63 of the judgment under appeal, that the introduction of special surveillance measures for imports of apples by Regulation No 384/93 did not preclude the Commission from subsequently introducing a countervailing charge such as that referred to in Article 25(1) of Regulation No 1035/72.

The requirement relating to import licences and the lodging of a security which is forfeit if importation does not take place, as provided for in Article 2 of Regulation No 384/93, is intended to enable the Commission to determine in the most effective manner its interventions on the market in apples (see Case 25/70 Einfuhrund Vorratsstelle v Köster [1970] ECR 1161, paragraphs 23 to 28). Such a measure thus plays a preparatory role in the context of protective measures.

In contrast, as the Court of First Instance correctly pointed out in paragraph 61 of the judgment under appeal, a countervailing charge introduced automatically on the basis of Article 25(1) of Regulation No 1035/72 is intended to protect price levels on the Community market by restoring entry prices generally to the level of the reference price. The introduction of a countervailing charge should thus obviate disturbances on the Community market caused by sales of produce from non-member countries at abnormally low prices.

Consequently, the aims sought by the surveillance measures set up by Regulation No 384/93 and by the countervailing charge introduced by the contested regulations are different but not necessarily contradictory. On the one hand, it is essential that the security be forfeit if the importation does not take place, in order to ensure effective surveillance of the market (see Köster, paragraph 25). On the other, it remains necessary, even if such a surveillance measure is implemented, to obviate disturbances caused by offers of produce imported from non-member countries at abnormally low prices by introducing for that purpose, where appropriate, a countervailing charge prior to the adoption of more stringent measures as provided for in Article 29 of Regulation No 1035/72, read in conjunction with Article 3 of Regulation No 2707/72.

Thus, contrary to the appellant's contention, the fact that a countervailing charge is imposed concurrently with surveillance measures meets objectives in the general interest. In the light of those objectives, such concurrent application is not such as to affect traders in a disproportionate or intolerable manner. A trader, even if in possession of an import licence, must envisage the possibility that a countervailing charge may be introduced under Article 25(1) of Regulation No 1035/72.

The second part of the first plea

In the second part of its first plea in law, the appellant claims that the Court of First Instance should have accepted that Article 3(3) of Regulation No 2707/72 applied by analogy to the introduction of a countervailing charge, with the result that such a charge does not apply to products in transit to the Community.

The appellant submits that the Court of First Instance should have compared the function of the countervailing charge with that of the protective measure of levying an additional amount as provided for in the second indent of Article 3(1) of Regulation No 2707/72. The two measures fulfil absolutely equivalent functions; just like that of the countervailing charge, the aim of the levying of an additional amount is, as stated in the judgment under appeal, not to prevent the sale of non-Community goods on the Community market but solely to protect price levels on that market. Furthermore, the real purpose of the countervailing charge, if repeatedly increased, is to make it impossible for importers to sell their products in the Community, and it is thus extremely similar to a protective measure levying an additional amount or suspending imports.

The second part of the first plea must also be rejected.

In paragraphs 56 to 62 of the judgment under appeal, the Court of First Instance specifically stated that the countervailing charge is not similar to a protective measure. It must be stressed that, unlike a countervailing charge, protective measures seek essentially to suspend imports. The effect of Article 3(3) of Regulation No 2707/72 is therefore to allow traders to rely on a legitimate expectation that in the absence of an overriding public interest their products already in transit to the Community will not be refused entry on arrival in Community territory (see Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 16). That provision does not, however, require the Commission, when levying an additional amount, in all cases to exempt products in transit to the Community. A fortiori, it cannot be interpreted in the manner argued by the appellant, as requiring the Commission to exempt products in transit from a countervailing charge, since such a measure is one which affects traders less severely than the levying of an additional amount. In any event, the reference price system would be rendered completely ineffective if goods in transit were exempted from the levying of the countervailing charge.

The fourth part of the first plea

In the fourth part of its first plea in law, the appellant submits that the judgment under appeal should be set aside on the ground that it failed to acknowledge that the Framework Agreement for Cooperation concluded on 20 December 1990 between the European Economic Community and the Republic of Chile (OJ 1991 L 79, p. 2, hereinafter ‘the Agreement’) had given it a legitimate expectation that no countervailing charge would be imposed, in particular once protective measures had been adopted and a fortiori on products in transit.

This part of the plea too must be rejected.

It is sufficient to point out in that regard that the Agreement could not give the appellant any legitimate expectation, since, as the Court of First Instance noted at paragraph 66 of the judgment under appeal, it was in no way intended to amend the provisions of Regulation No 1035/72 concerning countervailing charges.