61979C0004
OPINION OF MR ADVOCATE GENERAL MAYRAS
DELIVERED ON 11 MARCH 1980 (
1
)
Mr President,
Members of the Court,
I —
The requests for preliminary rulings submitted to the Court by the Tribunal Administratif [Administrative Court], Châlons-sur-Mame, the Tribunal Administratif, Orléans, and the Tribunal d'Instance [District Court], Lille, all concern the methods of calculating the monetary compensatory amounts charged on the exportation from France of products derived from basic agricultural products (products of the milling industry, maize and wheat, on the one hand, and starch products on the other).
The first two cases directly challenge the validity of Regulation No 2744/75 of the Council of 29 October 1975 on the import and export system for products processed from cereals and from rice and above all that of Commission Regulations Nos 1910/76 of 30 July 1976 and 2466/76 of 8 October 1976 altering the monetary compensatory amounts.
In the third case, although the Court was not expressly requested to give a ruling on the validity of any particular Community provision, the questions submitted to it, which concern the interpretation of Commission Regulation No 652/76 of 24 March 1976 changing the monetary compensatory amounts following changes in exchanges rates for the French franc, ovérlap the first two questions to a large extent. I have therefore taken the liberty of dealing with the three together in my opinion, although the Court did not comply with the request of the Italian Government to join the cases.
The problem in question has given rise to observations not only from the parties to the main actions and from the institutions which enacted the measures to be interpreted or whose validity is challenged but also from two Governments of Member States with “soft” currencies, France and Italy, which have an interest in obtaining the reduction or even the abolition of “negative” compensatory amounts. On the other hand, naturally no Member State with a “hard” currency has submitted observations.
Since the facts have been set out in great detail by the Judge-Rapporteurs and replies have been given in writing to the questions asked by the Court matters have been clarified in large part.
I propose to group my comments round the following themes:
(1)
the choice of the proceesing coefficient to be applied to a product derived from a basic product for the purposes of the system of monetary compensatory amounts (and the effects of that choice on exchange rates);
(2)
the problem of taking into account the production refund and the choice of the basis of calculation;
(3)
the application of the principles thereby evolved to a certain number of products of the starch industry;
(4)
finally, I shall have something to say on the problem of the interest on the sums collected and reimbursed.
II —
1.
According to Article 2 (2) 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 the compensatory amounts to be charged (or granted) on products of which, on the one hand, the prices are dependent on those of products covered by intervention arrangements under the common organization of agricultural markets and which, on the other, are governed by a common organization of the market or are the subject of specific arrangements under Article 235 of the Treaty, “shall be equal to the incidence, on the prices of the product concerned, of the application of the compensatory amount to the prices of the product” for which provision has been made for intervention measures and “on which they depend”.
According to the annexes to the regulations which were in force at the time of the exports effected by the plaintiffs in respect of which monetary compensatory amounts were collected by the Office National Interprofessionnel des Céréales (The National Cereal Trade Board, hereinafter referred to as “the Board”), that is between 25 March 1976 and 31 July 1977, namely Commission Regulations No 652/76 of 24 March 1976, No 1910/76 of 30 July 1976, No 2466/76 of 8 October 1976 and, finally, No 938/77 of 29 March 1977, that incidence was represented, for the relevant products of the maize industry, by the coefficient 1.80. Accordingly, the monetary compensatory amount to be charged on 1 tonne of maize groats or meal exported from France was equal to the compensatory amount to be paid on 1 tonne of maize exported from France multiplied by the coefficient 1.80, that is to say, at the dates when the exports in question were effected:
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FF 71.67 per tonne (39.82 x 1.80),
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FF 143.35 per tonne (79.64 X 1.80),
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FF 199.09 per tonne (110.61 X 1.80).
That rate of 1.80 was taken by the Commission from Annex I to Regulation No 2744/75 of the Council of 29 October 1975 on the import and export system for products processed from cereals and from rice. Article 2 (1) and Annex I to that regulation, taken together, indicate that the variable component of the levy on the importation of maize groats and meal from non-member countries is equal to that applicable to maize (the basic product) multiplied by the coefficient 1.80. Those provisions were themselves in implementation of Article 14 of Regulation No 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals, in accordance with which the variable component of the levy on processed products manufactured from basic products corresponds to “the incidence on their prime cost of the levies on those basic products”.
The technical justification for the weighting is that, in order to obtain 1 tonne of groats or meal, 1.80 tonnes of maize are required. In the proceedings between the Board, which simply applied to the products the scale of compensatory amounts given in the annexes to the said regulations of the Commission, and the French exporters, the latter, the plaintiffs in the first two main actions, argued — with a sufficient degree of plausibility to prompt the courts before which the proceedings were brought to raise the point with the Court of Justice — that, if at least 1.80 tonnes of maize (tariff subheading 10.05 B) is required to manufacture 1 tonne of groats or meal (tariff subheading 11.02 A V (a)(1) and (2)) intended for the brewing industry for the manufacture of beer, for the manufacture of glucose by the direct hydrolysis method or for the production of starch or quellmehl intended for breadmaking, the use of that quantity also produces, if a yield of 55.5 % is assumed, the following secondary products, in addition to 18 kg of “waste”:
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270 kg of high-quality flour [farine première] (subheading 11.01 Ell), which is also subject to compensatory amounts;
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270 kg of flour for fodder or lower-quality flour (bran and sharps coming under subheading 23.02 AI (b)), which is also subject to compensatory amounts;
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and, finally, 242 kg of germ (subheading 11.02 G II), likewise subject to compensatory amounts.
Similary, the report on starch products submitted by the Commission to the Council on 8 August 1977 states that 1 tonne of maize provides, apart from tegument and steeping liquors:
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621 kg of starch (subheading 11.08 A I),
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27 kg of maize oil (heading 15.07),
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200 kg of maize gluten cake (subheading 23.04 B),
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40 kg of oil-cake,
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and finally 50 kg of maize gluten (subheading 23.03 A I).
Similarly, turning from the manufacture of products of the milling industry to starch (subheading 11.08 A III) or to starch products obtained from wheat, it is impossible to avoid producing gluten (heading 11.09), bran and sharps.
Since the application of the coefficient 1.80 passes on to the processed product “meal and groats” the whole of the compensatory amount affecting the basic cereal from which it is obtained, the method adopted in the Commission regulations is therefore said to have resulted in over-compensating for the fall in value of the French franc in relation to the “green rate” of that currency (the plaintiffs provide detailed information on that over-compensation) whilst the proper method would have been to pass on the compensatory amount affecting maize or wheat to all the derived products on a proportionate basis which would have led to the choice of a lower coefficient (a figure of 1.07 is proposed by the first two plaintiffs) for meal or groats. The result of the method adopted in the annexes to the regulations whose validity is challenged is that the quantity of the basic product deemed to have been used in accordance with the coefficients of equivalence which form the bases for those annexes exceeds the quantity actually processed.
2.
The Commission replies to that criticism with a whole series of arguments.
First of all, it puts forward as a defence the said Regulation No 2744/75 of the Council from which, it states, it merely adopted by analogy the method of calculation prescribed in that regulation for levies and refunds. In the case of maize meal and maize groats the levy was derived from that applicable to maize by using the same coefficient 1.80. In accordance with Article 1 (1) of Commission Regulation No 1570/78 of 4 July 1978 laying down the detailed rules for the application of Regulation (EEC) No 2742/75 as regards production refunds on starches and repealing Regulation (EEC) No 2026/75, that figure was and still is adopted as the basis for calculating the production refund on meal or groats.
The national courts were sufficiently persuaded of the relevance of that argument to raise with the Court of Justice the question of the validity of the above-mentioned regulation of the Council. The Council, in particular in its observations on the second case, and the Commission are of the view that consideration of the validity of that regulation is not “relevant” to the appraisal of the validity of the rules for calculating the monetary compensatory amounts.
Nevertheless the regulations of the Commission on monetary compensation are not wholly unconnected with the provisions of the Council concerning levies since the latter indicate that, whilst account was subsequently taken, as I shall show, of the secondary products of the starch industry in calculating the compensatory amounts applicable to flour made from common wheat, the reason is that such secondary products are themselves taken into account in fixing the levies and refunds for flour made from common wheat. The fact that those products are taken into account reflects a wish to be consistent with the system of levies and refunds set up by the Council for such secondary products.
At first sight I do not see any reason to query the validity of the coefficient adopted in the Council regulation and, at all events, I think that there is no necessary connexion between that regulation and the provisions of the Commission.
The levy constitutes a charge on imports from non-member countries. It provides protection. The compensatory amounts do not perform the same role as the levies and refunds, even though their effects in practice unfortunately are often the same and they have sometimes been employed for the same purposes. Their objective is not to grant a subsidy or to levy taxation but to eliminate the effect of monetary distortion on the level of agricultural prices. The discretion enjoyed by the Council in fixing the levies and refunds cannot be transposed in its entirety into the context of the fixing of monetary compensation by the Commission. As the French Government recalls, “the purpose of levies on imports is to provide effective protection for Community agricultural products and at the same time to ensure the proper operation of the principle of Community preference in the matter of supplies by preventing products from non-member countries from reaching the Community market at an abnormally low price”. At all events, since the levy is applied under identical conditions at all the Community frontiers, even if the coefficient applied for that purpose is too high it does not entail any discrimination between traders in the various Member States; that is not the case if the coefficient employed in calculating compensatory amounts on exports is fixed in such a way that it does not correspond to the realities of the economic situation.
This had already been emphasized in December 1978 by Peter Gilsdorf in his study of monetary compensatory amounts (p. 13):
“That principle (that is to say the general and undifferentiated application of monetary compensatory amounts) may also have the effect that the calculation of monetary compensatory amounts is different from that used for levies and refunds. Since with levies protection is the main aim, whereas with refunds there are often aspects of trade policy in addition to that of relieving pressure on the market, the methods of calculating the two amounts may differ considerably from each other; normally the levy is higher than the refund. Monetary compensatory amounts... must therefore be calculated on an independent ‘neutral’ basis which takes into account solely their cotnpensatory purpose”.
The introduction of compensatory amounts in 1971 was envisaged as a short-term measure. That is why no system of calculation was laid down in respect of processed products for which the method of calculation applied for levies on imports was employed at the outset. However, if that method was still justified in 1976 or 1977 for the calculation of the levy this was no longer the case at that time for the calculation of the processing coefficient to be applied for the purpose of compensatory amounts.
As the French Government further observes, the coefficients adopted in certain cases by the Commission for the calculation of compensatory amounts do not correspond to those in Regulation No 2744/75 of the Council, which do not correctly represent the incidence on processed products of the amounts affecting the basic products. Further proof of the possible differences between the coefficient applied to the import levy and that applied to the compensatory amount consists in the fact that when Regulation No 751/75 of the Commission of 21 March 1975 amending Regulation (EEC) No 539/75 on monetary compensatory amounts for certain products processed from cereals reduced the coefficient used in the calculation of such amounts by aligning it in the case of most products (but not in that of maize meal) on the lower coefficients applicable for the calculation of export refunds, the coefficient applied in the case of levies on the importation of such products was not, however, modified.
To summarize my observations in this matter I would say that if the contested regulations of the Commission were to be held invalid and inapplicable to the exports in question it would by no means follow that the adjustment which would require to be made to the benefit of the applicants would have to be extended “on the same grounds” to the calculation of the levies on the importation of the products in question, such that there would be a proportionate reduction in those levies.
3.
The Commission then sets out a series of considerations whereby it endeavours to show that the fixing of the processing coefficient at issue was effected through the exercise of the largely discretionary power, which, according to the case-law of the Court of Justice, it enjoys in this field.
It recalls that “the definition of secondary products with a view to their classification in the Common Customs Tariff and their yields are a matter of dispute between the German and French maize-milling industries”. It appears that flour is obtained from maize only in France and the United Kingdom and not in the Federal Republic or in the Benelux countries. Thus, according to the German maize industry, with a yield of 51.5% (instead of 55%, the rate adopted by the French maize-milling industry) 1.80 tonnes of American maize gives, in addition to 933 kg of groats or meal:
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693 kg of flour for fodder (subheading 23.02 AI (a)), and
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144 kg of germ.
In its observations the French Government adopts an intermediate position. It considers that flour for fodder must be classified only under subheading 23.02 AI (a) whereas, according to the Commission, it has always maintained in the past that it came under subheading 23.02 AI (b). The Member States with soft currencies and the Netherlands classify maize bran under subheading 23. 02 A I (b) (processing coefficient 0.32), whilst the Federal Republic of Germany and Belgium classify it under subheading 23.02 A I (a) (coefficient 0.10).
According to the Commission this shows that there is no uniform view on the classification of secondary products in relation to the Common Customs Tariff and on the rate of yield. In those circumstances it resorted to a compromise solution by taking the view that flour for fodder comes half under subheading 23.02 A I (a) and half under subheading 23.02 A I (b).
Incidentally, it is surprising that the Commission never endeavoured to clarify the situation in such an important sphere by submitting the matter to the Committee on Common Customs Tariff Nomenclature (Regulation No 97/69 of the Council of 16 January 1969 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff) and that it did not initiate the procedure under Article 169 of the Treaty if it considered that the customs authorities of a Member States were classifying certain products in the tariff incorrectly.
Despite the differences concerning the processing coefficient, it is nevertheless agreed that the “over-compensation” of which the plaintiffs complain exists, albeit to a lesser degree, even on the view most favourable to the German milling industry. Another basic factor, the “over-compensation” which adversely affects millers in countries with soft currencies who must pay “negative” compensatory amounts is accompanied by an equivalent “over-compensation” for millers in countries with hard currencies, but in their favour since they receive “positive” compensatory amounts. We shall see that the same situation recurs in the case of production refunds.
The Commission states subsequently that, with regard to certain secondary products, the outlets are unsatisfactory because such secondary products are in competition with animal feeds manufactured from maize gluten and kibbled maize from non-member countries, the price of which depresses the market in countries with hard currencies, which consequently are not subject to compensatory amounts, so that the income derived therefrom by producers varies amongst the Member States of the Community. It does not appear justified to take maize germ into consideration since it is mostly processed into oil having cake as a secondary product and oil, like cake, is not subject to compensatory amounts. It follows that the exemption of germ has scarcely any economic effect. If that argument were correct it would nevertheless be impossible to avoid the question how the application of compensatory amounts is justified on the exportation of maize germ.
Having regard to those various factors the Commission considers that it was empowered, within the framework of the discretionary power which the Court has recognized it to have in a number of judgments (in particular those in the Balkan case of 24 October 1973 [1973] ECR 1091 and in the Balkan case of 22 January 1976 [1976] ECR 19), to act in a uniform manner, and that any remaining divergencies are negligible. Confronted with the technical difficulty of the choice of the processing coefficient it simply aligned, for the purpose of calculating compensatory amounts, the processing coefficient for derived products on the coefficient applicable to such products for the purposes of levies. The figure of 1.80 thus represents a “technical harmonization”.
4.
What is the precise position with regard to that discretionary power claimed by the Commission?
In this connexion it appears to be of fundamental importance to draw a distinction between Article 1 (2) (b) of basic Regulation No 974/71 of the Council and Article 2 (2) thereof, which alone is at issue in these cases.
Concerning the inclusion or otherwise of a product or group of products within the system of compensation the Court has in fact declared in a number of its judgments that the Management Committee and the Commission enjoyed a wide measure of discretion because the evaluation of a complex economic situation was concerned.
I myself maintained this point of view in the Peiser case ([1979] ECR 1490 et seq., judgment of 5 April 1979 [1979] ECR 1482) precisely concerning the principle of applying compensatory amounts on importation to products derived from pilot products.
Such “uniformity of treatment” also follows inevitably from the weekly fixing of the rates of exchange, which furthermore are sometimes determined late, and the Court has held in its judgment in the IRCA case of 7 July 1976 ([1976] ECR 1213) that the circumstance that the factors necessary for the calculation of compensatory amounts are determined only after the period during which the said amounts have become applicable is inherent in the system itself and cannot affect their validity.
Regulation No 974/71 itself envisages a certain degree of “uniformity of treatment” in taking account of the “temporary” widening of the margins of fluctuation and of the incidence thereof on prices.
With regard to the currencies in the “snake” the compensatory amounts are calculated on the basis of the central rates, whilst fluctuations within the “snake” are not taken into account.
With regard to “floating” currencies, the difference between, on the one hand, the exchange rate resulting from the representative rate for the currency considered in relation to the central rate for each of the currencies in the “snake” and, on the other, the spot-market rate for that currency in relation to each of the currencies is to be reduced by 1.5 % (Article 2 (1) (b)).
The alteration of the compensatory amounts is conditional on a change of at least 1 point in the percentage taken as a basis for calculating those amounts (Article 3). The minimum difference between the market rate and the representative rates must be 2.5 % in at least one Member State (Article 4 (1)).
No compensatory amount shall be fixed for products for which the amount is negligible (generally less than 1%) in relation to their average value (Article 4(2)).
However, generalization and “uniformity of treatment” may not be stretched beyond economic reality on the pretext that they are “inherent” in the system. Since the point at issue is not the inclusion or otherwise of a product within the system of compensatory amounts but the calculation of the level of such amounts, that is to say the application of Article 2 (2), there can be no question of “uniformity of treatment”where the result of the method adopted is to apply to the various derived products compensatory amounts which together are higher than that applicable to the quantity of the basic product used to manufacture those various products.
Simple arithmetic shows that as soon as the sum of the amounts applied to all the products obtained from the processing of a single basic product exceeds that of the amounts applicable to that product there is a manifest error, not to say an arbitrary calculation, at variance with certain minimum requirements.
The Commission exhausted its margin of technical discretion when it chose the processing coefficient; it is not possible to extend the “uniformity of treatment” by disregarding the amounts affecting other derived products. The calculation of the incidence on the price of the processed product of the application of the compensatory amount to the price of the product upon which it depends constitutes a purely arithmetical operation since it does not entail problems of principle like those which were raised in the cases which the Court has hitherto encountered. The Court has held (judgment of 24 October 1973 in the Balkan case [1973] ECR 1091, paragraph 37 of the decision in fine) that “this deductive method requires only a limited margin of discretion on the part of the Commission”, and I feel justified in inferring from the judment of the Court of 12 November 1974 ([1974] ECR 1230) in the Roquette case that in no case may the monetary compensation applied to a product derived from a basic product equal the total of the monetary compensation applied to all the products derived from that same basic product.
According to the sixth recital of the preamble to Regulation No 974/71 of the Council, “the compensatory amounts should be limited to the amounts strictly necessary to compensate the incidence of the monetary measures on the prices of basic products covered by intervention arrangements”. The Court of Justice has itself ruled (judgment of 20 October 1977 in the Roquette case [1977] ECR 1835 et seq.) that the objective of the system of monetary compensatory amounts was restricted strictly to the correction of monetary imbalances between the Member States, otherwise traders would be burdened by a charge unrelated to fluctuations in the currencies.
5.
The choice of the coefficient adopted for calculating the compensatory amounts applicable to processed products is not neutral from the point of view of trade. The method adopted in the contested regulations necessarily entailed distortion in trade between Member States and thus constituted discrimination between producers contrary to Article 40 (3) of the Treaty. A system which “over-compensates” for the effects of currency depreciation favours traders in countries with hard currencies at the expense of those in countries with soft currencies.
The fact that two Member States with soft currencies have intervened in support of the plaintiffs in no way detracts from the fact that that finding is obvious. The undertakings which are in competition with maize millers in a country with hard currency are the best placed to judge whether their competitive position is adversely affected by the monetary compensatory amounts. In that connexion the Commission has produced a letter of 11 May 1979 from the Association of German Maize-Milling
Undertakings [Verband der deutschen Maismühlenbetriebe] protesting against alterations in the coefficient, which will be considered later, and “requiring the conversion rate to be fixed again at 1.80”. That letter, which was sent after the request for a preliminary ruling from the Tribunal Administratif, Châlons-sur-Marne, was registered at the Court of Justice, maintains that there is “discrimination against exporters of maize grits from Member States whose currency is overvalued in relation to the ‘snake’ and in particular against German exporters”. So far as I am aware, German maize millers have not yet given effect to their threat, contained in that letter, “to challenge Regulation No 746/79 before the [German] tax courts”.
Furthermore, a letter sent to the Commission on 12 July 1979 by the EEC Wheat Starch Manufacturers' Association [Association des Amidonniers de Blé de la Communauté. Économique Européenne] shows that such producers in the United Kingdom, Belgium, France, Ireland and Italy complained that the same Regulation No 746/79 made good only to a very minor degree the serious distortion in competition brought about for manufacturers in the Member States by the method of calculating compensatory amounts applied to products of the starch industry; they repeated their claim, with particular force, that the Commission should amend the basis for calculating the compensatory amounts applicable to products of the starch industry along the lines of the amendment effected with regard to cereals and rice by means of Regulation No 546/71 of 15 March 1971 by taking into consideration the reference price of wheat employed in the calculation of the monetary compensation applied to wheat and not its threshold price together with the compensatory amounts applied to “co-products” (gluten) and secondary products (bran and bran groats). Nevertheless it is only fair to recognize that in that letter the German and Netherlands starch manufacturers stated clearly that they were against the reduction decided by the Commission in the monetary compensation applicable to starch products.
The Court of Justice in not unaware of the possibility of distortion in competition since, in the “maize gritz” cases (Deutsche Getreideverwertung, judgment of 4 October 1979) it requested the Council and the Commission to provide it with all appropriate explanations concerning certain statements made by the parties which gave the impression that the system of compensatory amounts might promote German, Belgian and Netherlands exports to France.
The Commission will not object if I quote the following passages from the written reply which it provided on 29 June 1979 to that question:
“If those products (maize flour coming within tariff heading 11.01 E II, maize bran coming under tariff heading 23.02 A I (a) and (b) and maize germ coming under tariff heading 11.02 G II) are exported (from France) with the application of the compensatory amounts it may occur that the sum of the compensatory amounts on the processed products and secondary products is greater than the compensatory amount applicable to the quantity of raw material necessary to manufacture those products. It might thus in fact give rise to an unjustified advantage for undertakings in countries with hard currencies”.
The Commission continued:“The countries with hard currencies have naturally replied to that argument that the French industry can to a large extent obtain supplies from its domestic maize production, the price of which is more advantageous than that of maize imported from non-member countries”, in particular American maize.
That justification appears to me to be irrelevant since the advantage enjoyed by French millers and starch producers arises from the nature of things and it is not permissible to compensate for that situation by manipulating the compensatory amounts. That natural preference is furthermore largely offset by the increase in production costs in countries with soft currencies; the method of calculating compensatory amounts in the relevant sector does not take account of other factors (such as capital goods and energy) which play a significant role in the final cost of the processed products and which adversely affect traders in countries with soft currencies.
The Commission admitted that “developments in exports of maize meal from Germany and the Benelux countries to France have for many years shown a virtually constant increase. Nevertheless the amount of those increases is still entirely normal. As a whole, the proportion of foreign supplies in the French consumption of maize groats amounts only to approximately 20%. In the same way, German exports of groats to France represent only approximately 10% of the total exports of groats by Germany”. The proportions in question were, more precisely, 10.5% in 1974 and 11% in 1977; whereas in 1974 imports from Germany of maize groats intended for the brewing industry represented 13.4% of total French consumption, they increased to 16.7% in 1977. Even though, according to the Commission, French exports of meal or groats show a continual increase during that period with a slight reduction in exports to non-member countries, in 1976, to be precise, it is not difficult to imagine that that increase would have been more significant if the compensatory amounts had imposed less of a burden on French exports of agri-foodstuffs. Furthermore, the Commission by implication concedes this point (I quote) :
“Nevertheless it is impossible to rule out the favourable effect produced to a certain degree by the coefficient employed in calculating the monetary compensatory amount applicable to maize meal. For this reason the Commission reached the conclusion that a slight reduction in the coefficient constituted a more neutral system from the point of view of competition”.
At the end of its reply the Commission recognized that the new coefficient of 1.50 (fixed by Regulation No 746/79) “should be more neutral from the point of view of competition than the coefficient 1.80 because it seems justified to take into account to some extent the secondary products of the manufacture of maize meal”.
In a communication presented to the Council on 10 February 1978 on the “Economic effects of the agri-monetary system” the Commission was even more explicit. Finding that the Netherlands had considerably increased its “imports of maize from non-member countries” it states (page 17, point 36) that “the fixed nature of the coefficients used for calculating the monetary compensatory amounts applicable to processed products influenced some trade; this effect depends on the diversification of the systems of production and the method of calculation employed to take into account the basic products subject to monetary compensatory amounts which go into the manufacture of the processed product”.
6.
In fact the Commission had already been prompted in Regulation No 1771/77 of 29 July 1977 to reduce the coefficient from 1.80 to 1.60. By Regulation No 746/79 of 11 April 1977, which came into force on 28 May 1979 as the result of a “thorough study”, it again reduced the compensatory amounts applicable to maize groats and maize meal together with those on other products processed from cereals (in particular maize starch and wheat starch):
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for high-quality flour (maize flour coming under tariff heading 11.01 EII) the coefficient was reduced from 1.02 to 0.92 (whilst the coefficient for the “levy on maize” remained fixed at the same amount),
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for maize groats and maize meal coming under tariff heading 11.02 A V (a) (1) and (2) the coefficient, which was 1.80, was fixed at 1.50,
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for maize germ, even in the form of flour, coming under tariff heading 11.02 GII the coefficient was reduced from 0.75 to 0.68 whilst the coefficient for the “levy on maize” remained fixed at 0.75,
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for flour for fodder (maize bran coming under tariff headings 23.02 AI (a) and (b)) from 0.10 to 0.09 and 0.32 to 0.29 respectively, whilst the “levy” coefficients were maintained respectively at 0.10 and 0.32.
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All those amendments came into force on 28 May 1979.
The justification which the Commission put forward for those amendments in Bulletin of the European Communities (Commission) No 4 of 1979 (p. 41) is that they were made “so as to reflect more accurately the technical conditions of processing and the relationship between these products”. The relatively long period fixed for the application of the two above-mentioned regulations shows, according to the Commission, “that they constitute only an improvement of the system and not the correction of monetary compensatory amounts calculated in accordance with a method which is basically wrong” and that “furthermore, the second amendment formed part of a ‘more complete’ review of the methods of calculating compensatory amounts which also concern other sectors (in particular milk products and meat)”.
Certainly, the validity of a regulation cannot be challenged on the basis of facts which occur subsequently, as the Court held in its judgment of 13 June 1972 in the Compagnie d'Approvisionnement case ([1972] ECR 391 at p. 407), and those amendments cannot be considered as showing that the contested regulations are invalid. Nevertheless, comparison of the provisions contained in those regulations with the provisions of subsequent regulations indicates inequality of treatment which was not justified either by differences in the facts of the situation or by general considerations unrelated to the application of Article 2 (2) of Regulation No 974/71; that inequality can only be explained by an error made in the calculation of the incidence of the monetary compensation affecting the basic product which was subsequently recognized, albeit in veiled terms, by the Commission.
Furthermore, the Commission has on at least two occasions conceded that it was manifestly mistaken in a context very closely related to these cases:
By Regulation No 546/71 of 15 March 1971“whereas it appears that the fixed amounts whereby the subsidies (granted on the importation into France from Member States and non-member States) and the compensatory amounts (charged by France on the exportation to Member States and non-member countries) have been fixed for flour of common wheat and of mesiin, rye flour, (durum) wheat groats and meal, (common) wheat groats and meal have led, through a manifest error, to over-compensation of the effects of the measures referred to in Articles 1 and 2 of Regulation (EEC) No 1586/69” the Commission retroactively reduced the compensatory amounts charged by France on exportation.
By Regulation No 751/75 of 21 March 1975“whereas recent experience has shown that the method used heretofore for the calculation of monetary compensatory amounts for certain processed products [from cereals] has led to amounts the level of which is higher than the... incidence [on the price of the processed product of the application of the compensatory amount to the prices of the relevant basic product]; whereas this results or could result in trade flows such that competition is distorted and the smooth functioning of the common organization of the market endangered; whereas there should be fixed for the products concerned a compensatory amount based on data corresponding more closely to the actual situation”, the Commission again altered the compensatory amount on those products.
To summarize my observations at this stage, I find that the choice of the coefficient 1.80 has resulted in increasing artificially exports of maize groats and meal from countries with hard currencies, a development which the Commission expressly recognized as early as July 1977 although the system was in fact intended to prevent artificial distortion in trade arising from currency fluctuations and not to cause or aggravate such distortion. It is thus impossible to rely upon the need to mediate in a conflict, in view of “wider” economic interests, a situation in which it is in fact difficult to perceive the manifest error. In the present case it was necessary only to take account of the technical conditions for processing maize and not to appraise as a whole the situations on the market in cereals or “the long-term development of patterns of trade”. I must emphasize that such considerations are in order only where the point at issue is the very principle of the introduction of compensatory amounts or the inclusion of certain products or groups of products in the system; they are irrelevant to the detailed rules for calculating the amounts once their introduction has been decided. The Commission is not prohibited from making certain “improvements” to the initial system but, for the reasons which I have explained, I consider that those “improvements” constitute confirmation of actual or possible distortion in competition.
Whilst certain differences continue to exist between the calculations of the plaintiffs, the French Government and the Commission, the total of the compensatory amounts charged on the processed products as a whole may not in any event exceed the amount applied to the basic product. If the fixed-rate coefficient of 1.80 for meal or groats does not correspond to economic realities the remedy is to fix an equation-more in accordance with those realities and to make allowance for the entire incidence of the amounts affecting the other derived products, although the importance of the incidence is reduced by the application to such products of a reduced processing coefficient, or to reduce the contested amounts by the over-compensation divided between the secondary products in proportion to their weight.
Nevertheless this Court may not, at any rate within the framework of Article 177, put itself in the place of the legislature in order to choose between the two methods set out in Question 3 of the third case before it. Under Article 6 of Regulation No 974/71 of the Council it is for the Commission alone to fix the compensatory amounts. Even if those amounts are annulled as a result of a direct action it is for the institution whose act has been declared void to take the necessary measures to comply with the judgment annulling those amounts, relying upon an expert's report if necessary.
With regard to limiting the effects of a “declaration of invalidity” as the Commission suggests that this Court should do, I merely observe that such a derogation from the erga omnes effect of an annulment is provided for only within the framework of an action for annulment (Article 174); it is by no means a requirement within the framework of Article 177 since by definition a “declaration of invalidity” can directly benefit only the plaintiffs in the main actions within the limits of their conclusions and of the subject-matter of their applications.
III —
There are two other grounds which might conduce to the view that the contested regulations are invalid. One has already been put forward by the French Government in its written observations in the first two cases; it concerns the failure to take account of the production refund on starch. The other was treated in particular in the third cases; it concerns the choice of the basis for the calculation.
1.
The plaintiff in the main action in Case 145/79 states that with regard to maize starch (tariff heading 11.08 A I), the calculation of compensatory amounts does not take account of the production refund on such starch. Regulation No 2727/75 of the Council of 29 October 1975, the basic regulation, contains the following (eighth) recital:
“Whereas in view of the special market situation for cereal starch, potato starch and glucose produced by the ‘direct hydrolysis’ process it may prove necessary to provide for a production refund of such a nature that the basic products used by this industry can be made available to it at a lower price than that resulting from the application of the system of levies and common prices”.
By Regulations No 2742/75 of 29 October 1975 and No 1665/77 of 20 July 1977, the Council laid down detailed rules for the system of production refunds thereby provided for in such a way as to create a price difference between maize starch and other products derived from maize. The amount of the refund was fixed at 17 units of account by the latter regulation.
Where a producer established in a Member State with a hard currency obtains supplies of maize, a basic product, in a Member State with a soft currency in order to re-export it after processing into starch to a State of that kind, the system established by Regulation No 572/76 of the Council results in over-compensation for the disparities between the currencies. The validity of this finding is not affected by the circumstance that starch producers in countries with hard currencies have recourse largely to American maize. In fact the production refunds are granted in “green currency” and the production refund paid in German “green currency”, for example, exceeds the same refund paid at the French “green rate”.
Failure to take account of the production refund in the calculation of the monetary compensatory amounts affecting starch causes an alteration in the net amount of the refund obtained by the producer where the derived product which he manufactures forms the subject-matter of trade between Member States. It is as though, for products of the starch industry forming the subject-matter of trade between Member States, a reduced refund was granted in relation to the common rate (17 units of account) to the producer in the Member State with the softer currency and, on the contrary, an increased refund for the producer in the State whose currency is harder. Thus the uniform difference in price which the Council intended to establish between maize starch and other products derived from maize is jeopardized and a distortion is created in favour of producers in Member States with hard currencies at the expense of those in States with soft currencies.
The Court ruled in its judgment of 12 November 1974 in the Roquette case ([1974] ECR 1230, paragraph 19 of the decision) that “it was contrary to the objective of Regulation No 974/71 to take account, by way of a ‘charge on products imported’, of the fixed component of the import levy on products derived from cereals, fixed by reference to considerations — the protection of the processing industry — which were totally extraneous to the objective of Regulation No 974/71” and (paragraph 20 of the decision) that “the result of taking account of this factor... was to impose on exporters of derived products a charge which bore no relation to monetary fluctuations and, in consequence, worsened their competitive position”. Similarly, it is contrary to the objective of Regulation No 974/71 to disregard the monetary incidence on the price of the derived products in question (maize starch and wheat starch) of the production refund granted on them, which differs in terms of the disparities between the “green rate” and the actual rate of the soft currencies. Such failure to take account of that factor results in the granting through the system of compensatory amounts of additional protection for the processing industry in Member States with hard currencies.
As. in the case of the processing coefficient it appears to me that the subsequent provisions confirm that the argument of the plaintiff in the main action is well founded. In fact Commission Regulation No 851/79 of 30 April 1979 fixing the export refunds applicable to products processed from cereals and rice extends the system of monetary compensation to the calculation of refunds.
For wheat starch, maize starch and potato starch the export refund is obtained by applying, first, the monetary coefficient to the amount appearing in the right-hand column of the annex to that regulation and, secondly, by reducing it by an amount equal to the production refund per tonne of the finished product.
In order to make good that inequality between the supply costs of starch producers in countries with soft currencies and their competitors in countries with hard currencies it is necessary either to deduct the production refund from the price of the corresponding basic product (intervention price) for the purpose of calculating the amounts to be levied on starch products (or to be granted on such products), or to apply to the production refund the monetary coefficient provided for in Article 4 (3) of Regulation No 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts. However, in the context of the present cases the Court may not make a decision between the various procedures.
Since the monetary compensation applicable to potato starch (tariff heading 11.08 AIV) must be identical to that applicable to maize starch the detailed rules for calculating the latter also apply to the calculation of the former which has remained the same throughout the entire period in question (1976 to 1978). The irregularity in the calculation of the amounts applicable to maize starch also affects the amounts applicable to potato starch.
2.
Whilst the compensatory amount applicable to wheat is calculated on the “reference price” of common wheat of minimum bread-making quality at which wheat of bread-making quality may be purchased by the intervention agencies, the compensatory amounts applicable to wheat starch (tariff heading 11.08 A III) and secondary products are calculated on the threshold price after deduction of the production refund and not on the reference price after deduction of that refund. The reference price for common wheat of bread-making quality was introduced by Council Regulation No 1143/76 of 17 May 1976 amending basic Regulation No 2727/75. Nevertheless under Council Regulation No 1151/76 of 17 May 1976 no special reference price was fixed for the 1976/77 marketing year; that price is equal to the single intervention price of common wheat.
In this connexion too the plaintiff maintains that the difference between the threshold price and the reference price in the calculation of the amounts applicable to processed products is the cause of distortion in competition between producers.
The Commission replies that in economic terms it is necessary to adopt as a basis the supply price of starch manufacturers. That price corresponds te the threshold price after deduction of the production refund. Although, in calculating the compensatory amounts on maize starch it proceeded from 1977 on the basis of the intervention price of maize, it did so because the supply price of maize has, since 1977, exceeded its intervention price and the “logic of the agri-monetary system” led the Commission to consider the intervention price as the maximum price for the purposes of calculating compensatory amounts. On the other hand, before 1977 the market price of maize was always above the threshold price, which led the Commission to adopt the threshold price and not the intervention price as the “support price” on the basis of which the amounts on maize starch were calculated. With regard to the supply price of wheat processed into starch, it always remained below the “reference price of wheat” during the period in question, unlike the maize prices.
Whether the threshold price or the intervention price is adopted as the basis there are, it claims, no grounds for taking account of the incidence of the production refund since the intervention price remained below the threshold price after deduction of the refund.
With regard to the selection of the price level on the basis of which compensatory amounts must be calculated I consider on the contrary that, at least where cereals are concerned, that price can only be the intervention price and not the threshold price. The terms of Regulation No 974/71 do not leave room for doubt in this connexion and preclude recourse to the vague concept of a “support price”. Furthermore, in Italy it is the intervention price, which is lower than the threshold price, which determines the purchase price of maize intended for the manufacture of starch. With regard to wheat starch, the basis for calculating the compensatory amount on that product must be the reference price of common wheat after deduction of the production refund and not the threshold price after deduction of that refund. In fact producers of wheat starch prefer to use wheat flour rather than the wheat itself; wheat flour of bread-making quality is certainly a product for which there is a specific intervention price.
The choice of the threshold price as the basis of calculation is contrary to the complementary nature of the various branches of agriculture and to intra-Community specialization in production.
If the common organization of the market in cereals confers excessive advantages on French agriculture it must be remedied by the adoption of agricultural regulations for this purpose and not by the device of monetary compensatory amounts.
IV —
It remains to consider the case of sorbitol which contains more than 2% mannitol and is manufactured from maize, and the case of isoglucose, which is also manufactured from maize.
The two products in question are derived from starch and have numerous industrial outlets which are continually expanding. This special sector of the maize starch industry is characterized by an advance level of technology and is much more closely related to the processing industries than the agricultural sector in general.
(1)
Sorbitol is a product obtained from glucose, dextrose or fructose and is used in pharmaceuticals and for the preparation of vitamin C. it comes either under Chapter 29, “Organic Chemicals” (tariff heading 29.04 C), or Chapter 38, “Miscellaneous chemical products” (tariff heading 38.19 T). Accordingly, it does not constitute an “agricultural” product for the purposes of Annex II to the Treaty: nevertheless it comes under the embryonic common organization of the market set up by Regulation No 1059/69 of the Council of 28 May 1969 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products, adopted on the basis of Article 235 of the Treaty, because it contains more than 2% mannitol which is itself manufactured from maize.
The quantity of maize, the basic product, considered to have been used in the manufacture of that product is fixed at 172 or 245 kg depending upon whether or not the sorbitol is in an aqueous solution. This follows from Regulation No 1060/69 of the Council of 28 May 1969, as amended by Regulation No 3085/75 of 24 November 1975, fixing the quantities of basic products considered to have been used in the manufacture of the goods covered by Regulation (EEC) No 1059/69. However, Article 3 (3) of that regulation provides that “mannitol falling within subheading 29.04 C II and sorbitol falling within subheadings 29.04 C III and 38.19 T of the Common Customs Tariff on which a variable component calculated on the basis of a quantity of sugar is levied shall be considered to have been made from white sugar covered by the production refund referred to in Article 9 (6) of Regulation (EEC) No 1009/67” of the Council.
Consequently the relationship between the basic product (maize) and the derived product is much looser than in the case of products of the meal industry or starch: the value added to the basic product is much greater than the component “price of the basic product” and I consider that, on the basis of the above-mentioned provision of the Council, the Commission enjoys very much wider discretion than in the case of products of the meal industry or of starch.
(2)
The plaintiff in the third case argues that the cost price of isoglucose depends upon the price of maize and not on that of sucrose and that accordingly the compensatory amount on that product must be based on the compensatory amount applicable to the basic product, maize. The Commission maintains that isoglucose is in competition with liquid sugar. Consequently, the price of isoglucose is, it claims, in fact determined by the intervention price of isoglucose is, it claims, in fact determined by the intervention price of sugar and not by that of maize, and the criticisms concerning the compensatory amounts applied to that product are unfounded.
The problem arises from the fact that, on the one hand, isoglucose is a processed agricultural product which is obtained generally from starch processed into glucose but which, on the other hand, is a substitute product competing directly with liquid sugar obtained by processing sugar beet or sugar cane. It appears to me that the plaintiff thus maintains that the relationship between isoglucose and sugar is even slighter and that the product is related entirely to the basic product from which it is obtained.
In fact, in respect of the period with which the main action is concernedisoglucose coming under tariff headings 17.02 D and 17.05 C bas always been treated as equivalent to sugar for the purpose of compensatory amounts. It was only from 1 July 1977 that isoglucose was formally separated from sugar, whilst remaining within the same sector. This is established by Commission Regulation No 1474/77 of 30 June 1977 which contains the following (third) recital:
“Whereas the Council, by Regulation (EEC) No 1111/77 of 17 May 1977, laid down common provisions for isoglucose; isoglucose is a direct substitute for liquid sugar obtained by processing sugar beet or cane; whereas it is in direct competition with liquid sugar, for which monetary compensatory amounts are fixed by Regulation (EEC) No 938/77;
Whereas therefore, since monetary compensatory amounts exist for sugar, such amounts should also be fixed for isoglucose; whereas, if such amounts were not fixed there could be disturbances in trade in the product in question; whereas Regulation (EEC) No 938/77 should therefore be supplemented”.
Since 1 July 1977 Part 7 of Annex I to the Commission regulations concerning monetary compensatory amounts no longer bears the title “Sugar” but “Sugar and isoglucose”. By Council Regulation No 2560/77 of 7 November 1977 amending the nomenclature for certain agricultural products, various regulations concerning these products and the Common Customs Tariff, tariff subheading 17.05 C I was replaced from 1 January 1978 by tariff subheading 21.07 F II “Flavoured or coloured isoglucose syrup”. Chapter 21 is entitled “Miscellaneous edible preparations”.
Having regard to that aspect of the matter I consider that even before 1 July 1977 there was no mathematical relationship between the compensatory amount on maize and the compensatory amount on isoglucose. The Commission has appropriately pointed out that Mr Advocate General Capotorti considered in his opinion in the Milac case (judgment of the Court of 3 May 1978 [1978] ECR 1041) that for the purposes of Article 1 (2) of Regulation No 974/71 “it is sufficient that the price of a product not covered by intervention arrangements depends on the price of another product which is so covered (and which is governed by the common organization of the agricultural markets); further, it is unnecessary that this latter product should constitute the raw material from which the former is derived. The products in question might also be in competition with one another as long as it can be established that the prices of the product not covered by intervention arrangements are composed on the basis of the prices of the other product”.
V —
In the third case submitted to the Court of Justice the Tribunal d'Instance, Lille, raises the question of principle concerning the detailed rules on the award of default interest on sums improperly levied on traders. If the contested regulations are held to be invalid the national court, before ordering repayment of the sums paid but not owed, including interest, wishes to ascertain that the charge will ultimately be paid from the Community budget.
The same question has been submitted in Case 130/79, Express Dairy Foods, in which case the parties recently, on12 February 1980, presented oral argument.
The Commission considers that this question “which concerns the relationship between the Member States and the Community institutions cannot be settled in the context of proceedings before a national court between an individual and the administration of a Member State and cannot therefore be referred to the Court for a preliminary ruling”. Furthermore, it considers that the reply to this question is of no assistance to the national court in settling the main action.
This point of view of the Commission appears to me a novel argument and, if it were upheld, it would mean that the Court of Justice would have to declare that it had no jurisdiction in a large number of cases submitted to it under Article 177. It is all the more surprising since, in the Roquette case in which the Court delivered judgment on 21 May 1976 ([1976] ECR 686), in contending that an application for compensation for non-payment of default interest was inadmissible, the agent of the Commission had argued that “the appropriate method appears rather to submit a fresh question to the Court of Justice for a preliminary ruling as to whether the French State was obliged to pay to the applicant the interest ancillary to the principal improperly levied for which the European Agricultural Guidance and Guarantee Fund would immediately become liable”.
For my part I shall make a distinction between the very principle of the award of default interest an the problem to whose budget it should be charged. The Court of Justice in any case has jurisdiction to reply to the first part of the question.
As this Court ruled in the above-mentioned judgment of 21 May 1976 in the Roquette case, it is clear from the provisions on the Communities' own resources, that is to say, the Decision of the Council of 21 April 1970 and Regulation No 2/71 of the Council of 2 January 1971 in implementation thereof in conjunction with Regulation No 729/70 of 21 April 1970 on the financing of the common agricultural policy that the national authorities must ensure on behalf of the Community and in accordance with the provisions of Community law that monetary compensatory amounts are collected.
Those amounts are collected by the Member States in accordance with their laws, regulations and administrative provisions. Proceedings for the repayment of amounts collected on behalf of the Community accordingly fall within the jurisdiction of the national courts and must be settled by them by applying their national law in so far as no provision of Communty law settles the matter.
With regard to the charging of the interest to the national budgets or, alternatively, to the Community budget, there existed only a proposal for a regulation submitted by the Commission to the Council on 14 February 1973 on interest on sums paid and repayable. This proposal, which was never published in the Official Journal of the European Communities, was altered by amendments sent to the Council on 20 September 1973 but was finally withdrawn by the Commission on 8 December 1976. From the point of view of the European accounting system this constitutes a disturbing legal vacuum which gives rise to distortion and which should be made good at the Community level.
The budgetary arrangements for negative compensatory amounts were, at the time, as follows: the compensatory amounts charged in trade between Member States were considered, with regard to the financing of the common agricultural policy, as forming part of the intervention intended to stabilize the agricultural markets (Article 7 (2) of Regulation No 974/71). The European Agricultural Guidance and Guarantee Fund was required to account for the difference between the amounts granted and the amounts levied by each Member State.
In trade with non-member countries the compensatory amounts charged on exports were deducted from the export refund (Article 4 (a)). The total sum of the amounts to be deducted from the refunds could be determined in accordance with a general method. For the purposes of accounting under the Community budget that sum was deemed to have been deducted from the refunds and only the proportion exceeding that sum was considered as own resources.
In the present state of affairs it is for the national authorities to settle with regard to the repayment of charges improperly levied all subsidiary questions concerning such repayment, such as any payment of default interest. The Tribunal d'Instance, Lille, is thus the only court having jurisdiction to settle the award of interest; nothing prevents it, if French law enbables it to do so or if, as I think, a principle of natural justice common to the legal systems of the Member States so requires, from reaching a decision, like that of the Finanzgericht Hamburg on 16 May 1978 concerning amounts improperly granted, that the duty to repay sums improperly levied extends to default interest on such sums.
I am of the opinion that the Court should rule as follows in answer to the questions which have been submitted to it: to the extent indicated above:
1.
Part 1 of Annex I to Commission Regulations No 1910/76 of 30 July 1976 and No 2466/76 of 8 October 1976 fixing the amounts to be charged on exports from France of maize meal and maize groats is invalid;
2.
Part 1 of Annex I to Commission Regulation No 652/76 of 24 March 1976 fixing the amounts to be charged on exports of maize starch, wheat starch and potato starch from France is invalid;
3.
It is for the national court to settle the question of default interest on the sums levied by way of monetary compensation which are repaid.
(
1
)	Translated from the French.