JUDGMENT OF 13. 2. 1980 — CASE 74/79 O.C.E. v SAMAVINS

In Case 74/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d'Appel [Court of Appeal], Paris, for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: H. Mayras

Registrar: A. Van Houtte gives the following

JUDGMENT

Facts and Issues

The judgment making the reference and the written observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and written procedure

Under a contract dated 18 June 1974 Samavins, a company incorporated under French law, purchased from the Moroccan Office de Commercialisation et d'Exportation [Marketing and Export Office], hereinafter referred to as “the O.C.E.”, 200000 hectolitres of “EEC export category” wine, the deliveries to be spread over a period up to the end of June 1975. The “c.i.f. on board ship” prices, on the basis of which the buyer was to settle the accounts, were fixed at FF 80538 per hectolitre of 11o wine and FF 91268 per hectolitre of 12o wine, the prices being valid until 15 December 1974 and thereafter having to be indexed “according to the new reference price”.

The O.C.E. claimed payment from Samavins of the sum of FF 547 607-29, being the equivalent of the monetary compensatory amounts which the latter company had received on its imports of wine into France between 14 March and 11 December 1974. By a judgment dated 7 June 1977 the Tribunal de Commerce [Commercial Court], Paris, dismissed the O.C.E.'s claims. From this judgment the O.C.E. appealed to the Cour d'Appel, Paris, before which a cross appeal was lodged by Samavins who claimed the sum of FF 15000 as damages for “abuse of process” and a further sum of FF 6000 under Article 700 of the new Code of Civil Procedure (which provides that “whenever it appears inequitable that one party should have to bear the fees and other expenses not included in judicial costs the court may order the other party to pay to that party such sum as the court may determine.”).

By a judgment given on 6 April 1979 the Cour d'Appel, Paris, decided to stay the proceedings until the Court of Justice should have given a preliminary ruling pursuant to Article 177 of the EEC Treaty on the following question :

“Where wine from Morocco is imported by a French company does Community legislation — in particular the provisions of Regulation No 974/71 of the Council and Regulations Nos 648/73 and 649/73 of the Commission of the European Communities — require the compensatory amounts which were granted to the French importer to be paid over by it to the Moroccan exporter?”

Before the Cour de Paris the O.C.E. maintained that the price of the goods was so calculated that — including the expenses and customs duties — the importation should be carried out at the reference price and that both the contractual provisions and the Community regulations implied that the compensatory amounts — which cannot take the form of aid to imports — were ultimately due to it, otherwise the reference price would not be observed.

Samavins for its part argued that under the terms of the agreements it was to bear the burden of the customs duties and thus to benefit from any deductions; that it had paid in full the price stipulated in the contract; that “as a nonmember country Morocco cannot profit from compensatory amounts which are only for the benefit of the Member States of the EEC” and that since the wine had been resold in French customs territory Samavins was to retain the benefit of the compensatory amounts.

The decision making the reference was received at the Court Registry on 3 May 1979.

The Commission of the European Communities represented by Hendrik Bronkhorst, a member of its Legal Department, acting as Agent, assisted by Jacques Delmoly, a member of the Legal Department, submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry and, by order dated 19 September 1979, to assign the case to the First Chamber in accordance with Article 95 of the Rules of Procedure.

II — Observations submitted to the Court

The Commission considers that the rules in the agri-monetary sector do not specify who ultimately is to benefit from, or bear the burden of, compensatory amounts granted or paid on trade with nonmember countries.

The effect of the provisions of Regulation No 974/71 and of those relating to the grant of export refunds and the charging of customs duties or levies is that the trader who carries out the customs formalities relating to the import (or export) receives or pays, as the case may be, the compensatory amount.

However, these provisions are only concerned with the relationship between the trader and the Administration; any further questions concern the field of the contractual relations of the trader. No Community regulation interferes with the freedom of the parties in regard to the manner in which they may arrange to distribute the benefit or the burden of the monetary compensatory amount.

It occurs to the Commission that in the national proceedings in question the French importer may have overlooked other provisions relating to the wine regulations and to the customs arrangements between the Community and Morocco.

Indeed Regulation No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organization of the market in wine (Official Journal, English Special Edition 1970 (I), p. 234) provides in Article 9 for the fixing, annually, before 16 December, of a reference price fixed on the basis of the guide prices for the types of wine most representative of Community production, plus the costs incurred by bringing Community wines to the same marketing stage as imported wines. At the time of the events giving rise to the litigation the incidence of monetary compensatory amounts on the observance of the reference prices for wines to be imported was regulated as follows :

The reference price was considered to have been observed at the time of importation from nonmember countries if the offer price at the frontier reduced by a certain amount in the case of an import into a Member State having a depreciated currency and increased by the customs duty was now lower than the said reference price (Regulation No 1463/73 of the Commission);

Regulation No 2823/71 of the Council reduced the duties applicable to imports of wine originating in and coming from Morocco to 60% of the duties under the Common Customs Tariff;

If the offer price was at a lower level than that of the reference price the full duty under the Common Customs Tariff was applied.

In any event the Commission has difficulty in seeing how an irregularity in regard to the reference price, even assuming that such can be proved, which on the present contents of the file would not be the case, could provide a basis for the O.C.E.'s claim to have paid to it the compensatory amounts granted to the French purchaser.

III — Oral procedure

The Commission, represented by Jacques Delmoly, a member of its Legal Department, acting as Agent, presented oral argument at the sitting on 13 December 1979.

The Advocate General delivered his opinion at the sitting on 31 January 1980.

Decision

1. By judgment of 6 April 1979, which was received at the Court on 3 May 1979, the Cour d'Appel, Paris, submitted for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of the provisions of Regulation No 974/71 of the Council of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States (Official Journal, English Special Edition 1971 (I), p. 257), of Regulation No 648/73 of the Commission of 1 March 1973 laying down detailed rules for the application of monetary compensatory amounts (Official Journal L 64, p. 1) and of Regulation No 649/73 of the Commission of 1 March 1973 fixing the monetary compensatory amounts (Official Journal L 64, p. 7).

2. That question has been raised in the context of a dispute having its source in a contract for the sale of 200000 hectolitres of “EEC export category” wine concluded on 18 June 1974 between the Moroccan Office de Commercialisation et d'Exportation (O.C.E.) and a French company, Samavins. The O.C.E. claimed payment from Samavins of the sum of FF 547 607.29, being the equivalent of the monetary compensatory amounts which the latter company had been granted on its imports of wine into France in terms of Regulations Nos 648/73 and 649/73 of the Commission.

3. By judgment of 7 June 1977 the Tribunal de Commerce, Paris, dismissed the O.C.E.'s claims. From that judgment the O.C.E. appealed to the Cour d'Appel, Paris.

4. The judgment making the reference is concerned with the question whether, where wine from Morocco is imported by a French company, Community legislation — in particular the provisions of Regulation No 974/71 of the Council and Regulations Nos 648/73 and 649/73 of the Commission — requires the compensatory amounts which were granted to the French importer to be paid over by it to the Moroccan exporter.

5. The effect of the provisions of Regulation No 974/71, as amended by Regulation No 509/73 of the Council of 22 February 1973 (Official Journal L 50, p. 1), and of Community rules in the agri-monetary sector is that the trader who carries out the customs formalities relating to the import or export receives or pays, as the case may be, the monetary compensatory amount. These provisions are concerned only with the relationship between that trader and the public authority which levies or grants the monetary compensatory amount.

6. Any further questions going beyond those provisions concern the field of contractual relations which are governed by national law.

7. The answer to the question submitted should therefore be that the issue of whether the gain derived from a monetary compensatory amount must be repaid by the trader who carries out the customs formalities to the party with whom he contracts comes within the sphere of contractual relations and not of Community law.

Costs

8. 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 (First Chamber), in answer to the question submitted to it by the Cour d'Appel, Paris, by judgment of 6 April 1979, hereby rules: