Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - IMPORT OR EXPORT DOCUMENTS - LOSS OF DOCUMENTS - CONCEPT - THEFT - INCLUSION - TRADER ' S RIGHT TO ANOTHER DOCUMENT ALLOWING THE TRANSACTION TO BE EFFECTED ON THE CONDITIONS LAID DOWN IN THE STOLEN DOCUMENT - NO SUCH RIGHT
( REGULATION ( EEC ) NO 193/75 OF THE COMMISSION , ART . 17 ( 7 ))
2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - IMPORT OR EXPORT DOCUMENTS - COMMISSION ' S IMPLEMENTING POWERS - SCOPE - RULES GOVERNING THE CONSEQUENCES OF THE LOSS OF THE DOCUMENT
( REGULATION ( EEC ) NO 2727/75 OF THE COUNCIL , ART . 12 ( 2 ); REGULATION ( EEC ) NO 193/75 , ART . 17 ( 7 ))
3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - IMPORT OR EXPORT DOCUMENTS - LOSS OF DOCUMENT - PROVISION TO THE EFFECT THAT THE TRANSACTION MAY NOT BE CARRIED OUT ON THE BASIS OF A DUPLICATE - PRINCIPLE OF PROPORTIONALITY - BREACH - NONE INVOLVED
( REGULATION ( EEC ) NO 193/75 , ART . 17 ( 7 ))
Summary
1 . THE REFERENCE TO ' ' LOSS ' ' OF THE EXPORT DOCUMENT IN ARTICLE 17 ( 7 ) OF REGULATION NO 193/75 INCLUDES A THEFT WHICH TAKES PLACE BEFORE OR AFTER THE PERFORMANCE OF THE IMPORT OR EXPORT TRANSACTION . THEREFORE THE AFORESAID PROVISION MUST BE INTERPRETED AS MEANING THAT AN EXPORTER WHO HAS SUFFERED THE THEFT OF AN EXPORT LICENCE OR ADVANCE FIXING CERTIFICATE MAY NOT OBTAIN A NEW LICENCE OR CERTIFICATE OR EQUIVALENT DOCUMENT PERMITTING HIM TO CARRY OUT THE EXPORT TRANSACTIONS ON THE CONDITIONS LAID DOWN IN THE STOLEN DOCUMENT .
2 . IT IS CLEAR FROM THE WORDING OF ARTICLE 12 ( 2 ) OF REGULATION NO 2727/75 THAT THE COUNCIL CONFERRED WIDE POWERS UPON THE COMMISSION FOR THE PURPOSE OF IMPLEMENTING THE SYSTEM OF IMPORT AND EXPORT LICENCES INTRODUCED BY THAT PROVISION AND THAT THE PERIOD OF VALIDITY OF LICENCES OR CERTIFICATES IS ONLY ONE EXAMPLE OF THE DETAILED RULES WHICH MAY BE ADOPTED BY THE COMMISSION UNDER THE PROCEDURE KNOWN AS THE MANAGEMENT COMMITTEE PROCEDURE .
SINCE , MOREOVER , THE FUNCTION GIVEN TO LICENCES DOES NOT ENABLE A DISTINCTION TO BE MADE BETWEEN THE RIGHT TO CARRY OUT THE TRANSACTION AND THE DOCUMENT WHICH ALLEGEDLY SERVES ONLY AS A MANIFESTATION OF THAT RIGHT , THERE IS NO REASON TO SUPPOSE THAT THE COMMISSION IS NOT EMPOWERED TO LAY DOWN RULES IN CONNEXION WITH THAT RIGHT OR TO PRESCRIBE THAT THE LOSS OF THE DOCUMENT SHALL ENTAIL THE EXTINCTION OF THE RIGHT .
3 . IT IS NECESSARY FOR THE AUTHORITIES ENTRUSTED WITH THE MANAGEMENT OF THE COMMON ORGANIZATION OF THE MARKETS TO HAVE AVAILABLE PRECISE FORECASTS ON FUTURE IMPORTS AND EXPORTS . WHILST THAT OBJECTIVE REQUIRES THAT THE PERFORMANCE OF THE UNDERTAKING TO EXPORT OR IMPORT IN ACCORDANCE WITH THE LICENCES OR CERTIFICATES ISSUED BE ENSURED BY APPROPRIATE MEANS , IT ALSO MAKES IT NECESSARY TO ENSURE THAT THE DOCUMENTS ARE USED ONLY FOR THE TRANSACTIONS COVERED THEREBY . IN THE CASE OF ADVANCE FIXING CERTIFICATES , THAT NEED IS ALL THE MORE IMPERATIVE SINCE THE USE OF SUCH CERTIFICATES TWICE OVER MAY CONFER UNJUSTIFIED BENEFITS UPON TRADERS AND THUS IMPOSE HEAVY FINANCIAL BURDENS UPON THE COMMUNITY .
IF BY REQUESTING ADVANCE FIXING TRADERS TAKE ADVANTAGE OF THE CONSIDERABLE BENEFITS DERIVED FROM THAT SYSTEM , IT IS THEREFORE JUST THAT THEY SHOULD BEAR THE DISADVANTAGES WHICH ARISE FROM THE NECESSITY , ON THE PART OF THE COMMUNITY , OF PREVENTING ANY ABUSE . THEREFORE THE RISK BORNE BY TRADERS AS A RESULT OF THE PROVISION CONTAINED IN ARTICLE 17 ( 7 ) OF REGULATION NO 193/75 IS NOT DISPROPORTIONATE IN RELATION TO THE CONTROL REQUIREMENTS .
Parties
IN CASE 808/79
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRESIDENT OF THE TRIBUNALE DI LUCCA FOR A PRELIMINARY RULING IN THE CONTEXT OF AN APPLICATION FOR THE ANNULMENT AND REPLACEMENT OF A DOCUMENT ISSUED IN THE HOLDER ' S NAME SUBMITTED BY
FRATELLI PARDINI S.P.A .
Subject of the case
ON THE INTERPRETATION AND VALIDITY OF ARTICLE 17 ( 7 ) OF REGULATION ( EEC ) NO 193/75 OF THE COMMISSION OF 17 JANUARY 1975 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL 1975 L 25 , P . 10 ),
Grounds
1 BY AN ORDER OF 28 NOVEMBER 1979 , RECEIVED AT THE COURT ON 3 DECEMBER 1979 , THE PRESIDENT OF THE TRIBUNALE DI LUCCA REFERRED TO THE COURT A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY , TWO QUESTIONS ON THE INTERPRETATION AND VALIDITY OF ARTICLE 17 ( 7 ) OF REGULATION NO 193/75 OF THE COMMISSION OF 17 JANUARY 1975 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL L 25 , P . 10 ). THE SAID PARAGRAPH ( 7 ) PROVIDES THAT DUPLICATES ISSUED IN THE EVENT OF CERTIFICATES ' BEING LOST MAY NOT BE SUBMITTED FOR PURPOSES OF CARRYING OUT IMPORT OR EXPORT OPERATIONS .
2 THE QUESTIONS ARISE IN THE CONTEXT OF PROCEEDINGS COMMENCED BY AN ITALIAN UNDERTAKING WHICH , DECLARING THAT IT HAD SUFFERED THE THEFT OF A NUMBER OF DOCUMENTS , INCLUDING AN EXPORT CERTIFICATE RELATING TO 12 500 TONNES OF DURUM WHEAT MEAL WITH ADVANCE FIXING OF THE REFUNDS , IS SEEKING THE ANNULMENT AND REPLACEMENT OF THE STOLEN CERTIFICATE IN ORDER TO BE ABLE TO CARRY OUT THE EXPORTS UNDER THE NEW DOCUMENT REQUESTED ON THE SAME CONDITIONS AS THOSE LAID DOWN BY THE STOLEN DOCUMENT .
3 UNDER ARTICLE 12 OF REGULATION NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL L 281 , P . 1 ), IMPORTS INTO THE COMMUNITY OR EXPORTS THEREFROM OF ANY OF THE PRODUCTS LISTED IN ARTICLE 1 ARE SUBJECT TO THE SUBMISSION OF A LICENCE VALID THROUGHOUT THE COMMUNITY , THE ISSUE OF WHICH IS CONDITIONAL ON THE LODGING OF A DEPOSIT GUARANTEEING THAT IMPORTATION OR EXPORTATION WILL BE EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE . ACCORDING TO THE TWELFTH RECITAL IN THE PREAMBLE TO THAT REGULATION THE SYSTEM OF ISSUING LICENCES MUST ENABLE THE COMPETENT AUTHORITIES ' ' TO FOLLOW TRADE MOVEMENTS IN ORDER TO ASSESS MARKET TRENDS AND TO APPLY THE MEASURES LAID DOWN IN THIS REGULATION AS NECESSARY ' ' . FURTHER , WHERE THE LEVY OR REFUND IS FIXED IN ADVANCE , THE FIXING MUST , ACCORDING TO ARTICLE 12 OF THE REGULATION , BE NOTED ON THE LICENCE , WHICH SERVES AS SUPPORTING DOCUMENT FOR THE ADVANCE FIXING . IT FOLLOWS THAT ADVANCE FIXING CERTIFICATES MAY BE OF VERY GREAT IMPORTANCE WHEN THE RATE OF THE LEVY OR REFUND APPLICABLE ON THE DAY OF THE TRANSACTION DIFFERS APPRECIABLY FROM THE RATE FIXED IN ADVANCE .
4 ARTICLE 12 ( 2 ) PROVIDES THAT THE PERIOD OF VALIDITY OF LICENCES AND OTHER DETAILED RULES FOR THE APPLICATION OF THAT ARTICLE SHALL BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE KNOWN AS THE MANAGEMENT COMMITTEE PROCEDURE . IT IS BY VIRTUE OF THAT PROVISION AND THE CORRESPONDING PROVISIONS CONTAINED IN THE REGULATIONS RELATING TO OTHER AGRICULTURAL PRODUCTS THAT THE COMMISSION ADOPTED REGULATION NO 193/75 , TO WHICH REFERENCE HAS BEEN MADE ABOVE , ARTICLE 17 ( 7 ) OF WHICH PROVIDES :
' ' WHERE A LICENCE OR CERTIFICATE OR EXTRACT THEREFROM IS LOST , ISSUING AGENCIES MAY , EXCEPTIONALLY , SUPPLY THE PARTY CONCERNED WITH A DUPLICATE THEREOF , DRAWN UP AND ENDORSED IN THE SAME WAY AS THE ORIGINAL DOCUMENT AND CLEARLY MARKED WITH THE WORD ' DUPLICATE ' ON EACH COPY .
DUPLICATES MAY NOT BE SUBMITTED FOR PURPOSES OF CARRYING OUT IMPORT OR EXPORT OPERATIONS ' ' .
5 TOGETHER WITH THAT DISPUTED PROVISION , IT IS NECESSARY FOR THE PURPOSE OF THIS CASE TO QUOTE ARTICLE 20 ( 1 ) OF THE SAME REGULATION WHICH PROVIDES :
' ' WHERE AS A RESULT OF FORCE MAJEURE IMPORTATION OR EXPORTATION CANNOT BE EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE OR CERTIFICATE , THE COMPETENT AGENCY OF THE ISSUING MEMBER STATE SHALL DECIDE , AT THE REQUEST OF THE TITULAR HOLDER , EITHER THAT THE OBLIGATION TO IMPORT OR EXPORT BE CANCELLED , THE SECURITY BEING RELEASED , OR THAT THE PERIOD OF VALIDITY OF THE LICENCE OR CERTIFICATE BE EXTENDED FOR SUCH PERIOD AS MAY BE CONSIDERED NECESSARY IN VIEW OF THE CIRCUMSTANCES INVOKED .
. . .
ANY EXTENSION OF A LICENCE OR CERTIFICATE SHALL BE RECORDED BY MEANS OF AN ENDORSEMENT STAMPED BY THE ISSUING AGENCY ON THE LICENCE OR CERTIFICATE AND WHERE APPROPRIATE ON ITS EXTRACTS , AND THE NECESSARY ADJUSTMENTS SHALL BE MADE ' ' .
6 IN THIS REGARD , IT IS ALSO NECESSARY TO CITE THE JUDGMENT OF 30 JANUARY 1974 IN CASE 158/73 , KAMPFFMEYER V EINFUHR- UND VORRATSSTELLE FUR GETREIDE UND FUTTERMITTEL ( 1974 ) ECR 101 , WHERE , IN REPLY TO PRELIMINARY QUESTIONS SUBMITTED IN THE CONTEXT OF A DISPUTE CONCERNING THE RELEASE OF THE SECURITY FOLLOWING THE LOSS OF A LICENCE , THE COURT HELD THAT ' ' THE LOSS OF AN IMPORT LICENCE CONSTITUTES A CASE OF FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 18 OF REGULATION NO 1373/70 ( THE PROVISION CORRESPONDING TO ARTICLE 20 OF REGULATION NO 193/75 ) WHEN SUCH LOSS OCCURS DESPITE THE FACT THAT THE TITULAR HOLDER OF THE LICENCE HAS TAKEN ALL THE PRECAUTIONS WHICH COULD REASONABLY BE EXPECTED OF A PRUDENT AND DILIGENT TRADER ' ' . IT IS THEREFORE SETTLED THAT IF THE TITULAR HOLDER CANNOT PERFORM THE TRANSACTION AS A RESULT OF THE LOSS OF THE LICENCE IN SUCH CIRCUMSTANCES HE MAY OBTAIN THE RELEASE OF THE SECURITY . FURTHER , HE MAY , IN ACCORDANCE WITH THE GENERAL RULES , OBTAIN A FRESH LICENCE , WHERE APPROPRIATE WITH A FRESH ADVANCE FIXING , BUT AT THE RATE APPLICABLE ON THE DATE ON WHICH THE APPLICATION FOR THE FRESH LICENCE IS SUBMITTED .
THE INTERPRETATION OF ARTICLE 17 ( 7 )
7 THE FIRST QUESTION SUBMITTED BY THE COURT REQUESTING A PRELIMINARY RULING IS AS FOLLOWS :
' ' MUST THE FIRST AND SECOND SUBPARAGRAPHS OF ARTICLE 17 ( 7 ) OF REGULATION NO 193/75 BE INTERPRETED AS MEANING THAT AN EXPORTER WHO HAS SUFFERED THE THEFT OF AN EXPORT LICENCE OR CERTIFICATE , VALID THROUGHOUT THE COMMUNITY , FIXING IN ADVANCE THE AMOUNT OF THE REFUNDS , MAY NOT REQUEST AND OBTAIN A NEW LICENCE OR CERTIFICATE OR EQUIVALENT DOCUMENT ISSUED BY A NATIONAL AUTHORITY PERMITTING HIM TO CARRY OUT THE EXPORT OPERATIONS BEFORE OR AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE STOLEN DOCUMENT , THUS SUFFERING THE TOTAL LOSS OF THE REFUNDS FIXED IN ADVANCE UNDER THE SAID DOCUMENT?
' '
8 THE PLAINTIFF IN THE MAIN PROCEEDINGS SUBMITS THAT ARTICLE 17 ( 7 ) OF REGULATION NO 193/75 DEALS SOLELY WITH THE SITUATION OF A TRADER WHO , HAVING LOST THE LICENCE OR CERTIFICATE , DOES NOT WISH TO PERFORM THE OBLIGATIONS ARISING THEREUNDER , WHILST AT THE SAME TIME SEEKING TO OBTAIN THE RELEASE OF THE SECURITY . BUT THE CASE OF A TRADER WHO WISHES TO PERFORM THE TRANSACTION IN SPITE OF THE LOSS OF THE LICENCE OR CERTIFICATE IS DEALT WITH ONLY IN ARTICLE 20 OF THE REGULATION , AND ONLY IN A GENERAL MANNER , NO SPECIFIC PROVISION BEING MADE FOR THAT CASE .
9 THE VERY WORDING OF THE ARTICLES IN QUESTION IS SUFFICIENT REASON TO DISMISS THAT ARGUMENT . IN FACT , IT IS CLEAR FROM ARTICLE 20 THAT THAT PROVISION DOES NOT CONCERN THE ISSUE OF A DUPLICATE OR A FRESH LICENCE CAPABLE OF BEING SUBMITTED FOR THE PURPOSE OF PERFORMING THE TRANSACTION ON THE SAME CONDITIONS AS THOSE LAID DOWN IN THE STOLEN LICENCE OR CERTIFICATE . ON THE CONTRARY , THE ONLY PROVISION CONCERNING THE ISSUE OF SUCH DOCUMENTS IS ARTICLE 17 ( 7 ), THE SECOND SUBPARAGRAPH OF WHICH EXPRESSLY PROVIDES THAT DUPLICATES , ISSUED BY VIRTUE OF THE FIRST SUBPARAGRAPH , MAY NOT BE SUBMITTED FOR PURPOSES OF CARRYING OUT IMPORT OR EXPORT OPERATIONS .
10 SECONDLY , THE PLAINTIFF IN THE MAIN PROCEEDINGS MAINTAINS THAT ARTICLE 17 ( 7 ) DOES NOT DEAL WITH CASES OF THEFT . IT ARGUES THAT ITALIAN LAW MAKES A DISTINCTION BETWEEN LOSS , MISAPPROPRIATION - INCLUDING THEFT - AND DESTRUCTION AND THAT , IN THIS RESPECT , ITALIAN LAW ACCORDS WITH THE LAW OF THE OTHER MEMBER STATES . SINCE ALL THE LEGAL SYSTEMS ENVISAGE THE REPRODUCTION OF DOCUMENTS AND ASCRIBE TO COPIES THEREOF ESSENTIALLY THE SAME EFFECT AS THAT OF THE ORIGINAL DOCUMENT , SO IT IS ARGUED , ARTICLE 17 ( 7 ) IS OF A DEROGATIVE NATURE AND SHOULD THEREFORE BE CONSTRUED NARROWLY . MOREOVER , IT IS ARGUED THAT , WITH REGARD TO CONTROL , A CASE OF THEFT DOES NOT ENTAIL THE SAME RISK AS A LOSS IN THE PROPER SENSE OF THE WORD , SINCE A THEFT WOULD BE REPORTED TO THE POLICE AND THUS GIVE RISE TO AN INVESTIGATION .
11 THE CONSTRUCTION OF THE TERM ' ' LOSS ' ' IN ARTICLE 17 ( 7 ) MUST TAKE INTO ACCOUNT THE FUNCTION WHICH THAT PARAGRAPH PERFORMS IN THE COMMUNITY LICENSING SYSTEM . UNDER THAT SYSTEM , THE LICENCE OR CERTIFICATE MUST ACTUALLY BE SUBMITTED NOT ONLY FOR THE PERFORMANCE OF EACH TRANSACTION , BUT ALSO FOR THE RELEASE OF THE SECURITY ( ARTICLE 17 ( 2 ) AND ( 3 )). IF THE DOCUMENT IS LOST AFTER THE PERFORMANCE OF THE TRANSACTION , THE DUPLICATE ISSUED BY VIRTUE OF ARTICLE 17 ( 7 ), ENDORSED BY THE OFFICE WHERE CUSTOMS FORMALITIES WERE COMPLETED , MAY BE USED TO OBTAIN THE RELEASE OF THE SECURITY . SIMILARLY , IN THE EVENT OF A THEFT OCCURRING AFTER THE TRANSACTION HAS BEEN CARRIED OUT , THE POSSESSION OF A DUPLICATE IS NECESSARY IN ORDER TO RELEASE THE SECURITY . THUS THERE IS NO REASON FOR NOT INCLUDING THAT CASE WITHIN THE SCOPE OF THE FIRST SUBPARAGRAPH OF ARTICLE 17 ( 7 ). WHILST THE ISSUE OF A DUPLICATE WHICH SERVES SOLELY TO RELEASE THE SECURITY CANNOT LEAD TO A LICENCE OR CERTIFICATE BEING USED TWICE , THE SITUATION WOULD BE QUITE DIFFERENT IN THE CASE OF A DUPLICATE CAPABLE OF BEING USED IN ORDER TO CARRY OUT THE TRANSACTION ITSELF . THERE CAN BE NO ASSURANCE THAT THE TRANSACTION HAS NOT ALREADY BEEN CARRIED OUT ON THE BASIS OF THE LOST DOCUMENT . IF THE TRANSACTION HAS NOT YET BEEN CARRIED OUT , AND IF THE PERIOD OF VALIDITY HAS NOT YET EXPIRED , THE LOST DOCUMENT MAY IN PRINCIPLE BE PRODUCED THROUGHOUT THE COMMUNITY FOR THE PURPOSE OF CARRYING OUT THE TRANSACTION . THAT IS WHY THE SECOND SUBPARAGRAPH OF ARTICLE 17 ( 7 ) PROVIDES THAT THE TRANSACTION CANNOT BE CARRIED OUT ON THE BASIS OF A DUPLICATE . THE PROBLEM ARISES IN THE SAME WAY IN THE CASE OF A STOLEN LICENCE OR CERTIFICATE . THEREFORE IT IS NECESSARY TO INTERPRET THE SECOND SUBPARAGRAPH , IN VIEW OF ITS PURPOSE , AS INCLUDING CASES OF THEFT .
12 IT IS THUS NECESSARY TO REPLY TO THE FIRST QUESTION THAT ARTICLE 17 ( 7 ) OF REGULATION NO 193/75 MUST BE INTERPRETED AS MEANING THAT AN EXPORTER WHO HAS SUFFERED THE THEFT OF AN EXPORT LICENCE OR ADVANCE FIXING CERTIFICATE MAY NOT OBTAIN A NEW LICENCE OR CERTIFICATE OR EQUIVALENT DOCUMENT PERMITTING HIM TO CARRY OUT THE EXPORT TRANSACTIONS ON THE CONDITIONS LAID DOWN IN THE STOLEN DOCUMENT .
THE VALIDITY OF ARTICLE 17 ( 7 )
13 IN THE EVENT OF AN AFFIRMATIVE ANSWER TO THE FIRST QUESTION , THE NATIONAL COURT ASKS THE COURT OF JUSTICE TO GIVE A RULING ON THE FOLLOWING QUESTION :
' ' IS ARTICLE 17 ( 7 ) OF REGULATION ( EEC ) NO 193/75 , WHICH IMPOSES A VERY SEVERE PENALTY UPON AN EXPORTER WHO , WITHOUT ANY FAULT ON HIS PART , HAS SUFFERED THE THEFT OF AN EXPORT LICENCE OR CERTIFICATE , COMPATIBLE WITH THE PRINCIPLE OF PROPORTIONALITY IN THE LIGHT OF THE DECISIONS OF THE COURT OF JUSTICE , BEARING IN MIND THAT THE DISPUTED REGULATION IS A REGULATION OF THE COMMISSION AND NOT A REGULAION OF THE COUNCIL OF MINISTERS OF THE EEC?
' '
14 IT MUST BE POINTED OUT IN THE FIRST PLACE THAT THE PROVISIONS IN QUESTION CANNOT BE REGARDED AS IMPOSING A ' ' PENALTY ' ' , IN THE PROPER SENSE OF THE TERM , UPON A TRADER IN THE EVENT OF HIS LICENCE OR CERTIFICATE BEING LOST . IN FACT , IT IS NECESSARY TO APPRAISE THE CONSEQUENCES WHICH THE COMMUNITY LEGISLATURE HAS ATTACHED TO THE LOSS OF SUCH A DOCUMENT , IRRESPECTIVE OF THE CAUSE OF THE LOSS IN EACH INDIVIDUAL CASE AND REGARDLESS OF THE LIABILITY WHICH THE TRADER CONCERNED MAY INCUR . IN THIS REGARD , THE NATIONAL COURT INDICATES , BY THE VERY WORDING OF ITS QUESTION , THE TWO CONSIDERATIONS WHICH LED IT TO QUESTION THE VALIDITY OF THE DISPUTED PROVISION : THE ISSUE OF PROPORTIONALITY AND THAT OF THE POSSIBLE LIMITATIONS PLACED UPON THE POWER WHICH THE REGULATION CONFERS UPON THE COMMISSION .
15 AS REGARDS THE LATTER ASPECT , THE PLAINTIFF IN THE MAIN PROCEEDINGS MAKES A DISTINCTION BETWEEN THE RIGHT TO CARRY OUT AN IMPORT OR EXPORT TRANSACTION AND THE DOCUMENT WHICH ATTESTS THAT RIGHT . THE FORMER , IT IS ARGUED , IS GOVERNED BY THE REGULATIONS OF THE COUNCIL , WHILST THEY IN TURN EMPOWER THE COMMISSION TO SETTLE QUESTIONS OF FORM AND LAY DOWN DETAILED IMPLEMENTING RULES IN RELATION TO THE DOCUMENT . IN THIS REGARD , IT IS SIGNIFICANT TO NOTE THAT IN ORDER TO DELEGATE TO THE COMMISSION THE POWER TO DETERMINE THE PERIOD OF VALIDITY OF LICENCES , IT WAS CONSIDERED NECESSARY TO DO SO IN EXPRESS TERMS . THEREFORE , IT IS SAID , THE COMMISSION IS NOT EMPOWERED TO PRESCRIBE THAT THE LOSS OF THE DOCUMENT SHALL ENTAIL THE EXTINCTION OF THE RIGHT .
16 ARTICLE 12 ( 2 ) OF REGULATION NO 2727/75 OF THE COUNCIL PROVIDES THAT ' ' THE PERIOD OF VALIDITY OF LICENCES AND OTHER DETAILED RULES FOR THE APPLICATION OF THIS ARTICLE SHALL BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 26 ' ' ( MANAGEMENT COMMITTEE PROCEDURE ). IT IS CLEAR FROM THE WORDING OF THAT PROVISION THAT THE COUNCIL CONFERRED WIDE POWERS UPON THE COMMISSION FOR THE PURPOSE OF IMPLEMENTING THE LICENSING SYSTEM INTRODUCED BY THE SAID ARTICLE 12 . IN PARTICULAR , IT IS CLEAR THAT THE PERIOD OF VALIDITY OF LICENCES OR CERTIFICATES IS ONLY ONE EXAMPLE OF THE DETAILED RULES WHICH MAY BE ADOPTED BY THE COMMISSION . MOREOVER , THE FUNCTION GIVEN TO LICENCES IN ARTICLE 12 ( 1 ) DOES NOT ENABLE A DISTINCTION TO BE MADE BETWEEN THE RIGHT TO CARRY OUT THE TRANSACTION AND THE DOCUMENT WHICH ALLEGEDLY SERVES ONLY AS A MANIFESTATION OF THAT RIGHT . IN PRINCIPLE , ARTICLE 12 ( 1 ) MAKES ANY TRANSACTION WITH NON-MEMBER COUNTRIES SUBJECT TO THE SUBMISSION OF A LICENCE IN ORDER TO ENABLE THE COMPETENT AUTHORITIES CONSTANTLY TO FOLLOW TRADE MOVEMENTS . MOREOVER , WHERE THE LEVY OR REFUND IS FIXED IN ADVANCE , THE SAME PARAGRAPH GIVES THE LICENCE THE FUNCTION OF A SUPPORTING DOCUMENT FOR THE ADVANCE FIXING . TAKING INTO ACCOUNT THAT ESSENTIAL ROLE OF THE DOCUMENT ITSELF , THE CONTROL OF THE MANNER IN WHICH IT IS USED ACQUIRES PARTICULAR IMPORTANCE . IF THE DISPUTED PROVISION APPEARS NECESSARY IN ORDER TO ENSURE EFFECTIVE CONTROL , THERE IS THEREFORE NO REASON TO SUPPOSE THAT IN ADOPTING IT THE COMMISSION EXCEEDED ITS POWERS .
17 IN ORDER TO DETERMINE WHETHER THE DISPUTED PROVISION IS COMPATIBLE WITH THE PRINCIPLE OF PROPORTIONALITY , IT IS FIRST OF ALL NECESSARY TO ASCERTAIN THE AIMS OF THE REGULATIONS IN QUESTION . AS THE COURT HAS ALREADY HAD OCCASION TO EMPHASIZE WITH REGARD TO THE SYSTEM OF LODGING SECURITY , IT IS NECESSARY FOR THE AUTHORITIES ENTRUSTED WITH THE MANAGEMENT OF THE COMMON ORGANIZATION OF THE MARKETS TO HAVE AVAILABLE PRECISE FORECASTS ON FUTURE IMPORTS AND EXPORTS . WHILST THAT OBJECTIVE REQUIRES THAT THE PERFORMANCE OF THE UNDERTAKING TO EXPORT OR IMPORT IN ACCORDANCE WITH THE LICENCES OR CERTIFICATES ISSUED BE ENSURED BY APPROPRIATE MEANS , IT ALSO MAKES IT NECESSARY TO SEE THAT THE DOCUMENTS ARE USED ONLY FOR THE TRANSACTIONS COVERED THEREBY . IN THE CASE OF ADVANCE FIXING CERTIFICATES , THAT NEED IS ALL THE MORE IMPERATIVE SINCE THE USE OF SUCH CERTIFICATES TWICE MAY CONFER UNJUSTIFIED BENEFITS UPON TRADERS AND THUS IMPOSE HEAVY FINANCIAL BURDENS UPON THE COMMUNITY .
18 IN THIS REGARD , THE PROHIBITION CONTAINED IN ARTICLE 17 ( 7 ) UPON CARRYING OUT THE TRANSACTION ON THE BASIS OF MERE DUPLICATES CONSTITUTES A MEASURE WHICH IS BOTH SIMPLE AND EFFECTIVE . ON THE OTHER HAND , FROM THE TRADER ' S POINT OF VIEW THAT PROHIBITION ENTAILS THE RISK OF LOSING , EVEN THROUGH NO FAULT OF THEIR OWN , THE BENEFITS ATTACHED TO THE ORIGINAL CERTIFICATES .
19 IT IS CLEAR THAT THE MERE POSSIBILITY OF SEVERAL DOCUMENTS EXISTING SIMULTANEOUSLY IN RELATION TO THE SAME TRANSACTION AND CAPABLE OF BEING SUBMITTED FOR THE PURPOSE OF CARRYING OUT THAT TRANSACTION REQUIRES A SYSTEM OF CONTROL . WHILST IT IS TRUE THAT , AS THE PLAINTIFF EMPHASIZES , THE LAW OF EACH MEMBER STATE LAYS DOWN SEVERE PENALTIES FOR FRAUD , THE EFFECTIVENESS OF THOSE PENALTIES DEPENDS PRECISELY ON THE EFFECTIVENESS OF THE CONTROL ENABLING THE FRAUD TO BE DETECTED . MOREOVER , THE USE OF A DOCUMENT TWICE DOES NOT ALWAYS NECESSARILY COME ABOUT AS A RESULT OF A FRAUDULENT INTENTION , BUT MAY ALSO BE CAUSED BY A FAILURE IN THE INTERNAL SYSTEM OF CONTROL OF THE COMPANY TO WHICH THE LICENCE IS ISSUED . FURTHER , TO REQUIRE A COMPANY WHICH REQUESTS A DUPLICATE OF A LOST OR STOLEN DOCUMENT TO LODGE A FURTHER SECURITY , AS THE PLAINTIFF IN THE MAIN PROCEEDINGS PROPOSES , WOULD NOT REMOVE THE NEED FOR A CHECK PRIOR TO THE RELEASE OF THAT SECURITY .
20 AS REGARDS THE METHODS OF CONTROL , THE COMMISSION OBSERVES THAT IN EACH CASE IN WHICH A DUPLICATE CAPABLE OF BEING USED TO CARRY OUT THE TRANSACTION WAS ISSUED , IT WOULD BE NECESSARY TO CARRY OUT CHECKS COVERING TENS OF THOUSANDS OF FILES IN ALMOST ALL THE MEMBER STATES AND EXTENDING IN EACH CASE OVER A PERIOD FROM THE DATE ON WHICH THE DOCUMENT WAS ISSUED TO A DATE SIX MONTHS AFTER ITS DATE OF EXPIRY . FOR TEN YEARS THE COMMISSION AND THE MEMBER STATES HAVE BEEN DISCUSSING THE POSSIBILITY OF INTRODUCING OTHER METHODS OF CONTROL , BUT HAVE NOT FOUND A SYSTEM CONTAINING SUFFICIENT SAFEGUARDS AGAINST THE RISK OF A LICENCE OR CERTIFICATE BEING USED TWICE .
21 IN THE CIRCUMSTANCES IT IS NECESSARY TO EXAMINE THE SITUATION OF TRADERS UNDER THE RULES IN FORCE . IN THE FIRST PLACE , THE RISK BORNE BY THEM DERIVES FROM THE SYSTEM OF ADVANCE FIXING , WHICH WAS CREATED IN THE INTERESTS OF TRADE AND WHICH IN NORMAL CASES GIVES TRADERS CONSIDERABLE BENEFITS . IF BY REQUESTING ADVANCE FIXING TRADERS TAKE ADVANTAGE OF THOSE BENEFITS , IT IS THEREFORE JUST THAT THEY SHOULD BEAR THE DISADVANTAGES WHICH ARISE FROM THE NECESSITY , ON THE PART OF THE COMMUNITY , OF PREVENTING ANY ABUSE . IN PARTICULAR , IT IS REASONABLE TO EXPECT THE TITULAR HOLDERS OF LICENCES OR CERTIFICATES TO TAKE THE GREATEST POSSIBLE CARE OF THEM AND TO INSURE AGAINST THE RISKS WHICH CANNOT BE ELIMINATED , TO THE SAME EXTENT TO WHICH THEY INSURE AGAINST OTHER COMMERCIAL RISKS .
22 FOR THOSE REASONS , THE RISK BORNE BY TRADERS AS A RESULT OF THE PROVISION CONTAINED IN ARTICLE 17 ( 7 ) OF REGULATION NO 193/75 IS NOT DISPROPORTIONATE IN RELATION TO THE NEED FOR CONTROL .
23 IT IS THEREFORE NECESSARY TO STATE IN REPLY TO THE SECOND QUESTION THAT CONSIDERATION OF THE PROVISION IN QUESTION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT ITS VALIDITY .
Decision on costs
24 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE ; AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PLAINTIFF IN THE MAIN ACTION IS CONCERNED , IN THE NATURE OF A STEP IN THE CASE PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE PRESIDENT OF THE TRIBUNALE DI LUCCA BY AN ORDER OF 28 NOVEMBER 1979 , HEREBY RULES :
1 . ARTICLE 17 ( 7 ) OF REGULATION ( EEC ) NO 193/75 OF THE COMMISSION OF 17 JANUARY 1975 , LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS , MUST BE INTERPRETED AS MEANING THAT AN EXPORTER WHO HAS SUFFERED THE THEFT OF AN EXPORT LICENCE OR ADVANCE FIXING CERTIFICATE MAY NOT OBTAIN A NEW LICENCE OR EQUIVALENT DOCUMENT PERMITTING HIM TO CARRY OUT THE EXPORT OPERATIONS ON THE CONDITIONS LAID DOWN IN THE STOLEN LICENCE OR CERTIFICATE .
2 . CONSIDERATION OF THE PROVISION IN QUESTION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO EFFECT ITS VALIDITY .
Full & Egal Universal Law Academy