JUDGMENT OF 13. 3. 1973 — CASE 61/72 MIJ PPW INTERNATIONAAL N.V. v HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN

In Case 61/72 Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven at the Hague for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, H. Kutscher (Rapporteur), C. Ó Dálaigh, M. Sørensen and A. J. Mackenzie Stuart, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

The facts and procedure may be summarised as follows:

1)

a) On 18 December 1967, the Council adopted Regulation No 1009/67/EEC ‘on the common organization of the market in sugar’. Article 1 (1) of that Regulation lists the products to which the Regulation applies (sugar, beet sugar, cane sugar and molasses). Under the terms of Article 11 (1), first subparagraph, ‘Imports or exports into or out of the Community of the products listed in Article 1 (1) shall be made conditional on the submission of an import or export licence issued by Member States to any applicant’; in the Dutch version, the expression ‘issued’ is translated by ‘afgeven’. Article 17 (1) provides that ‘To the extent necessary to enable the products listed in Article 1 (1) (a), (c) and (d) to be exported in the natural state, or in the form of goods listed in the Annex to this Regulation, on the basis of quotations or prices for the products listed in Article 1 (1) (a) and (c) on the world market, the difference Setween those quotations or prices and the prices within the Community may be covered by an export refund.’ The above-mentioned Annex lists a series of processed products with a sugar base, including ‘sugar confectionery, not containing cocoa’ (No ex 17.04 of the Common Customs Tariff), which is the product concerned in the main action. Under the terms of Article 17 (2), first and second subparagraphs, this refund ‘shall be granted on application by the party concerned’. The Council ‘shall adopt general rules for granting refunds, for fixing the amounts of such refunds, and for fixing such refunds in advance’ (fifth subparagraph); refunds shall be fixed at regular intervals by the Commission acting on the Opinion of the Management Committee (sixth subparagraph).

b) In application of, inter alia, Article 17 (2), fifth subparagraph, of Regulation No 1009/67, the Council, on 28 January 1969, adopted Regulation No 204/69/ EEC ‘laying down general rules for granting export refunds on certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds’ (OJ No L 29, p. 1). Under the terms of Article 5 (1) thereof, ‘the rate of the refund shall be that applying on the day on which the goods are exported.’ However, except in respect of certain products, ‘the rate of the refund may be fixed in advance at the request of the party concerned’; ‘In that case, the rate of the refund applicable on the day on which application for the certificate referred to in Article 6 is made shall be applied to an export to be effected during the period of validity of that certificate’ (Article 5 (2)). Under the terms of Article 6, ‘the granting of the refunds under the system of advance fixing provided for in Article 5 (2) shall be subject to the submission of an advance fixing certificate which may be issued (in the Dutch: “afgegeven”) by Member States to any applicant …’ (Article 6 (1)). ‘The issue (“afgifte”) of advance fixing certificates shall be conditional on the lodging of a deposit guaranteeing that exportation is effected during the period of validity of the certificate; the deposit shall be forfeited in whole or in part if exportation is not effected, or is only partially effected, within that period’ (Article 6 (2)).

c) On 10 July 1970, the Commission, acting on the basis, inter alia, of Regulation No 1009/67, adopted Regulation No 1373/70/EEC ‘on common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products subject to a single price system’ (OJ No L 158, p. 1). Under the terms of Article 1 thereof, this Regulation lays down the common detailed rules for the application of the system of licences and certificates established, in particular, by Article 11 of Regulation No 1009/67 and Article 6 of Regulation No 204/69. Under the terms of Article 8 (2), first subparagraph, ‘licences and certificates shall be drawn up at least in duplicate, the first copy of which, called “Titular Holder's Copy”, and marked “No 1”, shall be issued (in the Dutch: “overhandigd”) without delay to the applicant and the second, called “Issuing Agency's Copy”, and marked “No 2”, shall be retained by the issuing agency.’ Under the terms of the second subparagraph of Article 8 (2) ‘Copy No 1 of the licence or certificate shall be submitted to the office responsible for completing: … (b) in the case of an import licence or of a certificate of advance fixing of the refund, export customs formalities relating to … an export from the Community …’ Under the terms of the third subparagraph of that paragraph. ‘After attribution of the quantity and endorsement by the office referred to in the preceding paragraph, Copy No 1 of the licence or certificate shall be returned to the party concerned’. Article 9 (1), first and second subparagraphs, provides that: ‘On application by the titular holder of the licence or certificates or by the transferee, and on submission of Copy No 1 of the document, one or more extracts from that document may be issued (in the Dutch: “worden afgegeven”) by the competent agencies of Member States. Extracts shall be drawn up in at least two copies, the first of which, called “Titular Holder's Copy” and marked “No 1”, shall be issued (in the Dutch: “overhandigd”) to the applicant and the second, called “Issuing Agency's Copy” and marked “No 2”, shall be retained by the issuing agency’. Article 15 (2) provides that ‘Release of the security shall be subject to production of proof … (b) as regards exports, of completion of the customs formalities referred to in (b) of the second subparagraph of Article 8 (2)’. Under the terms of Article 15 (3) (b), first subparagraph, this proof shall be furnished ‘by production of Copy No 1 of the licence or certificate and, where appropriate, of Copy No 1 of the extract or extracts of licences or certificates endorsed in accordance with the provisions of Article 8’. Under the terms of Article 15 (4), ‘Where a licence or certificate or extract from a licence or certificate is lost, issuing agencies may, exceptionally, supply (in the Dutch: “afgeven”) the party concerned with a duplicate thereof, drawn up and endorsed in the same way as the original documents and clearly marked with the word “Duplicate” on each copy’; however, ‘Duplicates may not be submitted for purposes of effecting import or export transactions’.

d) Regulations Nos 2565/71/EEC and 404/72/EEC of the Commission of 25 November 1971 and 8 February 1972 (OJ Nos L 264, p. 48 and L 51, p. 16) fixed the rate of refund on 100 kg of white sugar exported in the form of ‘sugar confectionery, not containing cocoa’ at 9.50 u.a. for December 1971 and at 2.81 u.a. for March 1972 respectively.

2)

a) Mij PPW Internationaal N.V., the plaintiff in the main action (hereinafter called ‘PPW’) had requested the Hoofdproduktschap voor Akkerbouwprodukten, the defendant in the main action (hereinafter called ‘Hoofdproduktschap’) by telex reaching that organization on 20 December 1971, to issue to it an advance fixing certificate for a refund of 34.39 florins per 100 kg of sugar, in respect of two batches of processed goods with a sugar base, coming under No 17.04 of the Common Customs Tariff (‘sugar confectionery, not containing cocoa’) and each comprising 25000 kg. PPW lodged the deposit required under Regulation No 1009/67. On 22 December 1971, the Hoofdproduktschap drew up the certificate and sent by post a copy of it as the ‘Titular Holder's Copy’ within the meaning of Article 8 (2) of Regulation No 1373/70, together with two extracts. The envelope was placed in a sack in the messenger department of the Hoofdproduktschap and was then taken by an employee of that organization to the PTT office where it was sent by ordinary mail, that is without having been registered. At the beginning of January 1972, PPW informed the Hoofdproduktschap that these documents had not arrived. Enquiries made of the postal authorities failed to uncover the missing envelope. In these circumstances and deeming PPW to be acting in good faith, the Hoofdproduktschap considered that the deposit should not be forfeited. However, it refused a request by PPW of 30 March 1972 either to authorize it to export the products in question on the basis of the rate of the refund fixed in advance (34.39 florins), or to indemnify it for the loss it would suffer in the absence of such authorization arising from the difference between that amount and the amount applicable in March 1972 (9.52 florins). The Hoofdproduktschap justified its stand, in regard to the first alternative requested, by Article 15 (4) of Regulation No 1373/70. As to the second alternative, it alleged that the Community system in force did not allow for compensation for such loss.

b) PPW brought an action for annulment of that decision before the College van Beroep voor het Bedrijfsleven, pointing out, inter alia, that subsequently to the said incident the Hoofdproduktschap had adopted measures to prevent thereafter any loss of licences or certificates (a right for the party concerned to request that the licence or certificate be sent by registered mail, or that it be collected, etc.), which evidenced the defectiveness of the previous system. The Hoofdproduktschap submitted that the action should be dismissed. By judgment dated 29 August 1972, the national court decided to refer the following questions to the Court: In the summary of the grounds of judgment, it is stated that a reply to these questions is necessary in order to be able to judge whether the Hoofdproduktschap acted with all requisite diligence and to what extent PPW suffered loss.

‘1) What is the meaning to be given to the term “afgegeven” (issued), translated by “délivré” in the French version and by “erteilt” in the German version, appearing in Article 11 (1) of Regulation No 1009/67/ EEC …?

2) What is the meaning to be given to the term “overhandigd” (issued), translated by “délivré” in the French version and by “ausgehändigt” in the German version, appearing in Article 8 (2); to the term “worden afgegeven” (may be issued), translated by “être délivrés” in the French version and by “erteilen” in the German version, appearing in Article 9 (1), first subparagraph; to the term “overhandigd” (issued), translated by “remis” in the French version and by “ausgehändigt” in the German version, appearing in Article 9 (1), second subparagraph; also to the term “afgeven” (supply), translated by “délivrer” in the French version and by “erteilen” in the German version, appearing in Article 15 (4), all being Articles of Regulation No 1373/70/EEC of the Commission …?

3) In particular, is it sufficient in order to satisfy the requirements of “overhandiging” (issue) [“remise” or “délivrance”] and/or of “afgifte” (issue) [“délivrance”] and especially the requirement of “overhandiging” the licence or certificate and extracts thereof as laid down in Article 8 (2) and Article 9 (1), second subparagraph, of Regulation No 1373/70, for the competent agency issuing the licence or certificate merely to post the licence or certificate and the extracts thereof, in the manner described in this judgment for example, but without registering the envelope and receiving a certificate of registration?’

3) The judgment referring the matter was received at the Court Registry on 31 August 1972. The parties to the main action and the Commission of the European Communities submitted their written observations in accordance with the provisions of Article 20 of the Statute of the Court of the EEC. After hearing the report of the Judge Rapporteur and the opinion of the Advocate-General, the Court decided to proceed without any preparatory inquiry. PPW was represented by its director, F. J. van Tienen, the Hoofdproduktschap by A. W. F. Helmstrijd and the Commission by its Legal Adviser, J. H. J. Bourgeois. The oral observations of the Hoofdproduktschap and the Commission were made at the hearing on 24 January 1973. The Advocate-General presented his opinion at the hearing on 7 February 1973.

II — Observations submitted before the Court

The observations submitted before the Court may be summarized as follows:

PPW restricts itself, in substance, to emphasizing that the essential point raised by the national court is that of whether it is permissible to dispatch a document as important as the certificate in question without registering the envelope at the post office.

The Hoofdproduktschap points out that, apart from Regulations Nos 1009/67 and 1373/70 cited by the College van Beroep, Regulation No 204/69 should also be taken into consideration, as the main action concerned products covered by that act. In order to obtain a clear idea of the terminology used in these Regulations, one must look at all the provisions of those Regulations in which the expressions the interpretation of which is requested by the national court appear; it happens that in Regulations Nos 1009/67 and 204/69 only the words ‘afgeven’ and ‘afgifte’ appear, while, apart from those words and the related word ‘afleveren’, Regulation No 1373/70 contains in two places the word ‘overhandigen’ (shall be issued) Article 8 (2) and Article 9 (1), second subparagraph).

It is not reasonable to expect the certificates in question to be passed from hand to hand as such a requirement would raise difficulties for the competent authority quite apart from the question of whether that authority should hand the document over to the party concerned or whether the party concerned should go to the offices of the authority to collect it. The term ‘overhandigen’ (shall be issued) should not therefore be understood in its literal sense of ‘placing in the hands of …’ but in a more neutral sense, corresponding to the expression ‘afgeven’ (issue). Consequently, one must give a corresponding meaning to the words ‘délivrer’ and ‘remettre’ as well as to the words ‘aushändigen’ and ‘erteilen’, appearing in the French and German versions respectively of the Regulations concerned.

Netherlands law makes a distinction between, on the one hand, ordinary post, as in this case, and, on the other hand, registered post either with or without a declaration as to value. Article 39 of the ‘Postbeschikking’ of 13 January 1972 contains a list of the categories of postal packets which must be registered; Community certificates are not included. Nor do the international conventions concerning postal services require that such documents be sent by registered letter.

As to Community law, there are certain regulations and other acts which call explicitly for registration. As the Regulations concerned in this case are silent on this point, it must be concluded that they do not impose such a requirement.

To sum up, the reply given to the national court should therefore be:

to the first and second questions, that the expressions ‘afgeven’ and ‘overhandigen’ have in view the adoption of all means which may be taken to be reasonably appropriate in ensuring that the certificate reaches the party concerned;

to the third question, that the requirement of ‘overhandiging’ the certificate is satisfied when the competent authority has consigned it to the post, without being bound to send it by registered letter.

The Commission states that the judgment referring the matter does not make it entirely clear what, in the opinion of the national court, is the relation between the questions raised and the subject matter of the case. At first sight, one might deduce from the summary of the grounds of judgment that the College van Beroep wishes to have the interpretation requested in order to rule on whether PPW may claim damages. However the possibility does not appear to be excluded that the national court was further considering the request by that company to be authorized to export the products in question on the basis of the rate of refund fixed in advance. In that case, the judgment referring the matter involves the supplementary question of whether the Community rules, and in particular Article 15 (4) of Regulation No 1373/70, is opposed, in cases such as this, to the issuing agency supplying the person concerned with a duplicate which may, exceptionally, be used for an export transaction. In case it may be of assistance, the Commission also therefore examines this question.

The problems raised are restricted essentially to the difference between the expressions ‘afgeven’ and ‘overhandigen’, the requirements to be satisfied on the ‘overhandiging’ (‘délivrance’, ‘remise’) of a certificate and the result when the certificate is lost.

With regard to the expressions ‘afgeven’ and ‘overhandigen’ (first and second questions)

The verbs ‘afgeven’ or ‘afleveren’ and the substantive ‘afgifte’ (translated in French each time by ‘délivrer’ and ‘délivrance’) are used frequently in the body of the clauses concerned in this case; cf. Article 11 (1), first and second subparagraphs, of Regulation No 1009/67; Articles 4 (1), 8 (1) and 9 (1) of Regulation No 1373/70. On the other hand, the expression ‘overhandigd’ appears in Articles 8 (2) and 9 (1), second subparagraph, of that latter Regulation; the French version of these provisions uses the words ‘délivré’ (issued) and ‘remis’ (issued) respectively.

The expression ‘(een certificaat) afgeven’ refers to the creation of the complex legal relationship between the administration and the trader arising from the system of certificates, while the expression ‘(een certificaat) overhandigen’ indicates merely an element in that relationship. These two expressions do not have the same meaning as is apparent, inter alia, from the fact that, because ‘for the purpose of determining their period of validity, licences or certificates shall be considered to have been issued (“afgeleverd”) on the day on which the application for them was lodged (Article 8 (1) of Regulation No 1373/70), and by virtue of Article 5 (1), first subparagraph, of Regulation No 204/69, it is the rate of refund applicable on that date which applies to exports effected on the basis of an advance fixing certificate’.

With regard to the ‘overhandiging’(délivrance, remise) of the licence or certificate or extracts thereof, the scope of this expression may be inferred from the fact that, under the system established by the Regulations in question, these documents constitute the sole means of proof and are indispensable if proof be required. When it is a matter, as in this case, of an export certificate relating to goods for which the refund had been fixed in advance, this system involves in particular:

that the release of the deposit is subject to proof, to be furnished by production of Copy No 1 of the licence or certificate, that exportation has taken place (cf. Article 15 (2) and (3) of Regulation No 1373/70);

that payment of the refund is subject, inter alia, to production of the same Copy on which the amount of exports is endorsed by the customs authorities after completion of the customs formalities (cf. Article 8 (2) of Regulation No 1373/70 and Article 6 (1) of Regulation No 204/69).

It follows that the action described by the word ‘overhandigen’ forms an integral part of the whole series of actions described by the expression ‘afgeven’, in the sense that a licence or certificate cannot be considered to have been ‘issued’ (‘délivré’) (‘afgegeven’) when Copy No 1 or extracts thereof — documents in the absence of which the rights arising from the ‘issue’ (‘délivrance’) (‘afgifte’) of the licence or certificate cannot be exercised — have not been ‘issued’ (‘remis’) (‘overhandigd’) to the party concerned.

The ‘overhandiging’ (‘issue’, ‘remise’, ‘délivrance’) of Copy No 1 or extracts thereof constitutes an essential element in the system in question also because this Copy is produced as the document whereby the administration makes known its decision to the trader. In the absence of ‘overhandiging’, that decision, although in existence, normally has no effect in relation to the said trader.

With regard to the requirements to be satisfied on the ‘overhandiging’ (third question)

The Community provisions do not contain any detailed set of rules as to the way in which the issuing agency must issue the licences or certificates in question to the party concerned. In principle, therefore, it falls to the administrations, and if necessary to the courts of the Member States to settle this question. In so doing, however, they do not have an entirely free hand, for:

the expression ‘overhandigd’ (‘issued’) (in French ‘remis’ or ‘délivré’; in German ‘ausgehändigt’) includes an obligation for the issuing agency to do everything necessary for the documents concerned actually to reach the addressee;

by issuing Copy No 1 of the licence or certificate, the said agency makes known to the party concerned a decision which can have important consequences; as a general rule, in the absence of any express provision to the contrary, dispatch by ordinary mail is deemed to be insufficient in such cases;

in view of the consequences resulting from the loss of a certificate of advance fixing, the above mentioned agency is bound to do everything necessary to ensure that the risk of such a loss is transferred to the exporter only in conditions acceptable to him.

With regard to the consequences of failure to issue the licence or certificate

In the event of the licence or certificate not being issued to the exporter, and regardless of whether it was lost in the post or at the offices of the issuing agency, the application is still before that agency. It is logical, therefore, to recognize that the Community system is not opposed to the said agency issuing a new licence or certificate when it establishes that the original document has not been issued to the exporter. However, this solution can reasonably only hold good during the period of validity of the licence or certificate, given that, in the majority of cases, the refund fixed in advance is not adapted to the situation after the expiration of that period. The suggested solution does not conflict with Article 15 (4) of Regulation No 1373/70, as this provision must be interpreted as referring only to the case where the licence or certificate has been lost after having been issued to the party concerned.

Grounds of judgment

1. By judgment of 29 August 1972, received at the Court Registry on 31 August 1972, the College van Beroep voor het Bedrijfsleven referred to the Court three questions, under Article 177 of the EEC Treaty, on the interpretation of Regulation No 1009/67/EEC of the Council of 18 December 1967 (OJ No 308, p. 1) and Regulation No 1373/70/ECC of the Commission of 10 July 1970 (OJ No L 158, p. 1) and concerning the conditions according to which advance fixing of refund certificates for processed products with a sugar base intended for export to third countries must be ‘délivré’ (issued) or ‘remise’ (issued) to the traders concerned.

2. In regard to the first two questions, the Court is asked to interpret the expressions ‘afgeven’ (at udstede, erteilen, to issue or supply with, délivrer, rilasciare) and ‘overhandigen’ (at udlevere, aushändigen, to issue, délivrer or remettre, rilasciare) appearing in Article 11 (1) of Regulation No 1009/67 and in Articles 8 (2), 9 (1), first and second subparagraphs, and 15 (4) of Regulation No 1373/70.

3. The third question asks ‘in particular’ whether the requirement of ‘overhandiging’ (unlevering, Aushändigung, issue, délivrance or remise, rilascio) or of ‘afgifte’ (udstedelse, Erteilung, issue or supply, délivrance or remise, rilascio), especially within the meaning of Articles 8 (2) and 9 (1), second subparagraph, of Regulation No 1373/70, is satisfied when the competent authority restricts itself to dispatching the licence or certificate and extracts thereof by post without registering the envelope.

4. These questions have been asked with regard to the fact that on PPW applying for an advance fixing of refund certificate from the Hoofdproduktschap, with a view to exporting certain quantities of sugar confectionery not containing cocca, that authority sent two extracts by unregistered post which failed to reach the addressee in circumstances in which it was impossible to establish where it had gone astray.

5. The main action concerns the contested refusal by the Hoofdproduktschap of the claim by PPW either to be authorised to export the products in question on the basis of the rate of refund fixed in advance, or to be indemnified for the loss it had suffered by reason of the lower rate applicable to the disputed exports in the absence of such authorization.

6. Article 11 (1) of Regulation No 1009/67, concerning the import or export licences the submission of which is a condition for all import or export of basic products in the sugar sector, lays down that such a licence shall be ‘issued (afgegeven) by Member States to any applicant’.

7. Following Article 17 (1) of the same Regulation which provided for refunds on exports, Regulation No 204/69/EEC of the Council of 28 January 1969 (OJ No L 29, p. 1), which established the rules for granting those refunds, stipulates, in Article 5 thereof, that the rate of refund shall be that applying on the date on which the goods are exported; Article 5 (2), however, provides for a system of advance fixing of the rate of refund.

8. Article 6 (1) of the same Regulation provides that ‘the granting of the refund under the system of advance fixing provided for in Article 5 (2) shall be subject to the submission of an advance fixing certificate which may be issued (afgegeven) by Member States to any applicant.’

9. In application of, inter alia, Regulation No 1009/67, Regulation No 1373/70 provides, by Article 8 (2), first subparagraph, that ‘licences and certificates shall be drawn up at least in duplicate, the first copy of which, called “Titular Holder's Copy”, and marked “No 1”, shall be issued (overhandigd) without delay to the applicant’.

10. According to Article 9 (1), first subparagraph, ‘on application by the titular holder of the licence or certificate … and on submission of Copy No 1 of the document, one or more extracts from that document may be issued (afgegeven) by the competent agencies of Member States’, and such extracts shall, under the terms of the second subparagraph of Article 9 (1), be drawn up in at least two copies, the first of which, called ‘Titular Holder's Copy’, and marked ‘No 1’, shall be issued (overhandigd) to the applicant.

11. Article 15 (4) provides that where a licence or certificate or extract from a licence or certificate is lost, issuing agencies may, exceptionally, supply (afgeven) the party concerned with a duplicate thereof, clearly marked with the word ‘Duplicate’, but such duplicates may not be submitted for the purposes of effecting import or export transactions.

12. The questions raised concern what obligations arise for the competent authorities of Member States from the provisions cited by the national court, relating to the dispatch of advance fixing certificates or extracts thereof to the addressee.

13. The provisions in question contain no express rules as to the ways and means to be adopted by those authorities to ensure that the above mentioned documents reach the applicant.

14. No argument can be drawn either from any linguistic divergences between the various language versions, or from the multiplicity of the verbs used in one or other of those versions, as the meaning of the provisions in question must be determined with respect to their objective.

15. The rules referred to in the questions attach important consequences for traders to the possession of advance fixing certificates.

16. In fact, on the one hand, the granting of the refund under the system of advance fixing is subject to the submission of the certificate (Article 6 (1) of Regulation No 204/69) and, on the other hand, the issue of that certificate is conditional on the prior lodging of a deposit which is released only when the trader produces the certificate or extracts thereof (Articles 8 (2) (b), 15 (2) (b), 15 (3) (b) and 16 (1) of Regulation No 1373/70).

17. Furthermore, the fact that the Community agricultural rules involve substantial formalities and burdens for traders demands a strict interpretation of the obligations imposed on national authorities.

18. Therefore, although the rules in question leave to the national authorities the ways and means to be adopted for the dispatch of advance fixing certificates and extracts thereof to the applicant, the requirement of issuing the certificate or extracts thereof nonetheless involves the obligation for the competent authority to ensure that such documents actually reach the applicant.

19. The said authority did not fulfil this obligation when sending the documents by post as they failed to reach the addressee for reasons for which the latter is not responsible.

Costs

20. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge Rapporteur; Upon hearing the submissions of the parties to the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 1009/67/EEC of the Council, on the common organization of the market in sugar (OJ No 308, p. 1), especially Article 11; Having regard to Regulation No 204/69/EEC of the Council, laying down general rules for granting export refunds on certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds (OJ No L 29, p. 1), especially Articles 5 and 6; Having regard to Regulation No 1373/70/EEC of the Commission on common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products subject to a single price system (OJ No L 158, p. 1), especially Articles 8, 9, 15 and 16; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the question referred to it by the College van Beroep voor het Bedrijfsleven, by judgment of that court dated 29 August 1972, hereby rules: