61982CJ0156_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 156/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ), HAMBURG, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
SA NICOLAS CORMAN & FILS, BRUSSELS,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS,
Subject of the case
FOR A PRELIMINARY RULING ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( II ), P . 559 ) AND 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 ),
Grounds
1 BY ORDER OF 31 MARCH 1982, WHICH WAS RECEIVED AT THE COURT ON 19 MAY 1982, THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION 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 ) AND REGULATION NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( II ), P . 559 ).
2 THE QUESTION WAS RAISED IN AN ACTION BETWEEN THE CUSTOMS AUTHORITIES OF THE FEDERAL REPUBLIC OF GERMANY AND A BELGIAN UNDERTAKING WHICH IN 1973 MADE USE OF THE OPPORTUNITY OFFERED BY THE AFORESAID REGULATION NO
1259/72 TO BUY BUTTER AT A REDUCED PRICE FROM THE GERMAN INTERVENTION AGENCY IN ORDER TO PROCESS IT INTO CONCENTRATED BUTTER AND TO USE IT THEN FOR THE MANUFACTURE OF FINE BAKERS '
WARES OR ICE-CREAM .
3 AFTER EXPORTING THE BUTTER TO BELGIUM WHERE IT WAS PROCESSED INTO CONCENTRATED BUTTER THE UNDERTAKING RE-IMPORTED IT INTO THE FEDERAL REPUBLIC OF GERMANY .
4 ON EXPORT TO BELGIUM AND THEN UPON RE-IMPORTATION INTO THE FEDERAL REPUBLIC OF GERMANY THE GERMAN CUSTOMS AUTHORITIES RESPECTIVELY GRANTED AND LEVIED MONETARY COMPENSATORY AMOUNTS AT THE REDUCED RATE PROVIDED FOR IN ARTICLE 20 OF REGULATION NO 1259/72 .
5 AFTER FINDING THAT THE BUTTER HAD NOT BEEN USED FOR THE PURPOSE PRESCRIBED BY THE SAID REGULATION THE GERMAN AUTHORITIES, BY A NOTICE OF CORRECTIVE ASSESSMENT, LEVIED ON THE RE-IMPORTATION INTO GERMANY A SUM EQUAL TO THE DIFFERENCE BETWEEN THE REDUCED MONETARY COMPENSATORY AMOUNT AND THAT APPLICABLE OUTSIDE THE SYSTEM ESTABLISHED BY THE REGULATION NO 1259/72 .
6 IN ITS JUDGMENT OF 28 JUNE 1979 IN CASE 217/78 CORMAN ( 1979 ) ECR 2287 THE COURT HELD THAT SUCH REASSESSMENT HAS ITS LEGAL BASIS IN THE GENERAL RULES GOVERNING THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS AS ESTABLISHED BY THE AFORESAID REGULATION NO 974/71 .
7 SUBSEQUENTLY THE UNDERTAKING ALLEGED THAT THE CONSIDERATIONS SET OUT BY THE COURT IN THE AFORESAID JUDGMENT APPLIED IN IDENTICAL FASHION BOTH TO THE GRANT AND TO THE LEVY OF MONETARY COMPENSATORY AMOUNTS AND CLAIMED FROM THE GERMAN AUTHORITIES THE GRANT OF THE DIFFERENCE BETWEEN THE REDUCED AMOUNT AND THE AMOUNT AT THE FULL RATE IN RESPECT OF THE EXPORT FROM THE FEDERAL REPUBLIC OF GERMANY TO BELGIUM .
8 THE FINANZGERICHT HAMBURG BEFORE WHICH THE UNDERTAKING BROUGHT THE MATTER STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT :
' ' REGARD BEING HAD TO REGULATION ( EEC ) NO 1259/72, IS REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971 CONCERNING THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS TO BE INTERPRETED AS MEANING THAT ACCORDING TO THE GENERAL RULES GOVERNING THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS THE DIFFERENCE BETWEEN THE REDUCED MONETARY COMPENSATORY AMOUNT AND THE FULL AMOUNT IS SUBSEQUENTLY TO BE GRANTED, WHERE ON THE EXPORTATION OF BUTTER FROM STORAGE THE REDUCED MONETARY COMPENSATORY AMOUNT WAS PAID PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 20 OF REGULATION ( EEC ) NO 1259/72 BUT THE CONCENTRATED BUTTER PRODUCED FROM THE BUTTER WAS NOT USED FOR THE PURPOSE AND WITHIN THE PERIOD PRESCRIBED BY REGULATION ( EEC ) NO 1259/72 AND AFTER RE-IMPORTATION WAS THEREFORE SUBJECTED TO A SUPPLEMENTARY LEVY EQUAL TO THE DIFFERENCE BETWEEN THE REDUCED MONETARY COMPENSATORY AMOUNT AND THE FULL AMOUNT,
OR IS THE DIFFERENCE BETWEEN THE REDUCED MONETARY COMPENSATORY AMOUNT AND THE FULL AMOUNT NOT TO BE GRANTED SUBSEQUENTLY?
' '
9 AS THE COURT HAS ALREADY STATED IN ITS AFORESAID JUDGMENT OF 28 JUNE 1979 THE APPLICATION, IN ACCORDANCE WITH ARTICLE 20 OF REGULATION NO 1259/72, TO BUTTER FROM STORAGE SOLD ON THE CONDITIONS SPECIFIED IN THE REGULATION, OF MONETARY COMPENSATORY AMOUNTS CONSIDERABLY LESS THAN THOSE NORMALLY APPLIED TO BUTTER DOES NOT CONSTITUTE ONE OF THE MEASURES LAID DOWN IN THE SAID REGULATION AND INTENDED TO PROMOTE THE DISPOSAL AND MARKETING OF BUTTER FROM STORAGE BUT FORMS PART OF THE GENERAL RULES GOVERNING THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS .
10 IT IS CLEAR FROM THOSE RULES, AND IN PARTICULAR FROM ARTICLE 2 OF REGULATION NO 974/71, THAT THE FIXING OF MONETARY COMPENSATORY AMOUNTS IS BASED INTER ALIA ON THE PRICES OF THE PRODUCTS IN QUESTION . AS THE PENULTIMATE RECITAL IN THE PREAMBLE TO REGULATION NO 1259/72 SHOWS, ARTICLE 20 THEREOF IS THUS INTENDED TO ADJUST THE MONETARY COMPENSATORY AMOUNTS ON THE BASIS OF THE PRICES OF THE PRODUCTS IN QUESTION, REPRESENTING THEIR MARKET VALUE, WHICH IS REDUCED BY REASON OF THE RESTRICTIONS RELATING TO THE ULTIMATE USE OF THE PRODUCTS . IF THOSE RESTRICTIONS ARE NOT OBSERVED THE BUTTER HAS ITS NORMAL MARKET VALUE AND THE REASONS FOR A REDUCTION OF THE MONETARY COMPENSATORY AMOUNTS DISAPPEARS .
11 IN ITS ABOVE-MENTIONED JUDGMENT THE COURT DREW FROM THE FOREGOING CONSIDERATIONS THE CONCLUSION THAT IN SO FAR AS THE IMPORTER HAS FAILED TO FURNISH PROOF WITHIN THE PRESCRIBED PERIODS THAT THE GOODS HAVE REACHED THE
DESTINATION WHICH WAS MADE A CONDITION OF THE REDUCTION OF THE COMPENSATORY AMOUNTS, THE COMPETENT CUSTOMS AUTHORITIES ARE REQUIRED UNDER REGULATION NO 974/71 OF THE COUNCIL TO APPLY THE COMPENSATORY AMOUNTS LAID DOWN FOR BUTTER MARKETED AT THE NORMAL PRICE AND THUS TO REASSESS THE REDUCED COMPENSATORY AMOUNTS WHICH WERE INITIALLY APPLIED .
12 WHERE THE GOODS IN QUESTION HAVE ALSO BEEN EXPORTED IN CIRCUMSTANCES GIVING RISE TO THE GRANT OF REDUCED MONETARY COMPENSATORY AMOUNTS THE SAME CONSIDERATIONS LEAD TO THE GRANT OF ADDITIONAL AMOUNTS .
13 IN THE OBSERVATIONS WHICH IT HAS LODGED WITH THE COURT THE COMMISSION HAS NEVERTHELESS CONTENDED THAT SUCH A GRANT WOULD BE CONTRARY TO THE SPIRIT AND PURPOSE OF THE OTHER ARTICLES OF REGULATION NO 1259/72 WHOSE PURPOSE IS PRECISELY TO ENSURE THAT THE BUTTER IS NOT PUT TO USES OTHER THAN THOSE RECOGNIZED AS LAWFUL BY THE REGULATION .
14 THAT ARGUMENT CANNOT HOWEVER BE ACCEPTED . AS THE COURT EMPHASIZED IN ITS AFORESAID JUDGMENT OF 28 JUNE 1979 THE SAID REGULATION LAID DOWN SPECIFIC MEASURES IN ORDER TO ENSURE THAT THE BUTTER DISPOSED OF AT A REDUCED PRICE IS USED IN ACCORDANCE WITH ITS PURPOSE AND THAT IT IS NOT FREELY MARKETED . IN THAT RESPECT IT ESTABLISHES A SYSTEM OF SUPERVISION ENTAILING THE PROVISION OF A PROCESSING SECURITY, TO BE RELEASED ONLY ON SPECIFIC CONDITIONS . THESE, AND NOT MONETARY COMPENSATORY AMOUNTS, THE OBJECT OF WHICH IS ALIEN TO THAT SOUGHT BY THE OTHER PROVISIONS OF THE REGULATION, ARE THE MEANS WHICH THE REGULATION EMPLOYS TO AVOID ABUSES .
15 THE ANSWER TO THE QUESTION REFERRED TO THE COURT SHOULD THEREFORE BE THAT REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 AND REGULATION NO 1259/72 OF THE COUNCIL OF 16 JUNE 1972 MUST BE INTERPRETED AS MEANING THAT THE DIFFERENCE BETWEEN THE MONETARY COMPENSATORY AMOUNT AT THE FULL RATE AND THE REDUCED MONETARY COMPENSATORY AMOUNT PAID ON THE EXPORTATION OF BUTTER FROM STORAGE PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 20 OF REGULATION NO 1259/72 IS TO BE GRANTED A POSTERIORI WHEN THE BUTTER HAS NOT BEEN USED AFTER RE-IMPORTATION FOR THE PURPOSE AND WITHIN THE PERIOD PRESCRIBED BY THE REGULATION AND FOR THAT REASON THE BALANCE OF THE MONETARY COMPENSATORY AMOUNT AT THE FULL RATE WAS LEVIED A POSTERIORI AFTER RE-IMPORTATION .
Decision on costs
COSTS
16 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 .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIFTH CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT HAMBURG, BY ORDER OF 31 MARCH 1982, HEREBY RULES :
REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 AND REGULATION NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 MUST BE INTERPRETED AS MEANING THAT THE DIFFERENCE BETWEEN THE MONETARY COMPENSATORY AMOUNT AT THE FULL RATE AND REDUCED MONETARY COMPENSATORY AMOUNT PAID UPON EXPORTATION OF BUTTER FROM STORAGE PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 20 OF REGULATION NO 1259/72 IS TO BE GRANTED A POSTERIORI WHEN THE BUTTER HAS NOT BEEN USED AFTER RE-IMPORTATION FOR THE PURPOSE AND WITHIN THE PERIOD PRESCRIBED BY THE REGULATION AND FOR THAT REASON THE BALANCE OF THE MONETARY COMPENSATORY AMOUNT AT THE FULL RATE WAS A POSTERIORI LEVIED AFTER RE-IMPORTATION .