Judgment of the Court (First Chamber) of 9 March 1978. - Kühlhaus Zentrum AG v Hauptzollamt Hamburg-Harburg. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Case 79/77.



European Court reports 1978 Page 00611

Greek special edition Page 00237

Portuguese special edition Page 00239



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - IMPORTS FROM THIRD COUNTRIES - EXEMPTION FROM LEVY - REDUCTION OF MONETARY COMPENSATION BY MULTIPLICATION BY A COEFFICIENT - INADMISSIBILITY

( REGULATION NO 1380/75 OF THE COMMISSION , ART . 4 ( 3 ))

Summary

REGULATION NO 1380/75 IS NOT TO BE INTERPRETED IN THE SENSE THAT WHERE , ON THE IMPORT INTO MEMBER STATES OF GOODS FROM THIRD COUNTRIES , THE LEVY HAS BEEN FIXED BUT ITS IMPOSITION HAS BEEN SUSPENDED AND WHERE MONETARY COMPENSATION IS CHARGED FOR SUCH GOODS THE MONETARY COMPENSATION SHOULD BE REDUCED BY MULTIPLICATION BY A MONETARY COEFFICIENT .

Parties

IN CASE 79/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

KUHLHAUS ZENTRUM AG , HAMBURG

AND

Subject of the case

HAUPTZOLLAMT HAMBURG-HARBURG ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 139 OF 30 MAY 1975 , P . 37 ),

Grounds

1BY AN ORDER OF 1 JUNE 1977 , RECEIVED AT THE COURT ON 4 JULY 1977 , THE FINANZGERICHT HAMBURG REFERRED TO THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , SEVERAL QUESTIONS ON THE INTERPRETATION AND THE VALIDITY OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 139 , P . 37 ).

THOSE QUESTIONS WERE RAISED IN THE COURSE OF A DISPUTE CONCERNING THE CHARGING OF MONETARY COMPENSATORY AMOUNTS ON A CONSIGNMENT OF FROZEN BEEF IMPORTED FROM ARGENTINA BY THE GERMAN UNDERTAKING KUHLHAUS ZENTRUM , THE PLAINTIFF IN THE MAIN ACTION .

IT HAD BEEN IMPORTED AS PART OF A TARIFF QUOTA OPENED TO THIRD COUNTRIES BY THE COMMUNITY UNDER AGREEMENTS ENTERED INTO WITHIN THE FRAMEWORK OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE ( GATT ), GIVING EXEMPTION FROM IMPORT LEVY .

A MONETARY COMPENSATORY AMOUNT OF DM 1 866.80 WAS CHARGED ON THE GOODS , AND THE PLAINTIFF IN THE MAIN ACTION LODGED AN OBJECTION AGAINST THE PAYMENT NOTICE IN RESPECT THEREOF .

THAT OBJECTION WAS BASED ON ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 , APPLICATION OF WHICH , IN THE PLAINTIFF ' S SUBMISSION , HAS THE EFFECT OF REDUCING THE MONETARY COMPENSATION BY THE AMOUNT BY WHICH THE LEVY IS REDUCED WHEN IT IS MULTIPLIED BY THE COEFFICIENT REFERRED TO IN THE SAID ARTICLE 4 ( 3 ).

2IT IS ASKED WHETHER REGULATION NO 1380/75 IS TO BE INTERPRETED IN THE SENSE THAT WHERE , ON THE IMPORT INTO MEMBER STATES OF GOODS FROM THIRD COUNTRIES , THE LEVY HAS BEEN FIXED BUT ITS IMPOSITION HAS BEEN SUSPENDED AND WHERE MONETARY COMPENSATION IS CHARGED FOR SUCH GOODS THE MONETARY COMPENSATION SHOULD BE REDUCED BY MULTIPLICATION BY A MONETARY COEFFICIENT .

IF THE FOREGOING QUESTION IS ANSWERED IN THE AFFIRMATIVE , IT IS ASKED WHETHER THE MONETARY COMPENSATION IS TO BE REDUCED BY THE AMOUNT BY WHICH , IF A LEVY HAD BEEN IMPOSED , IT WOULD HAVE BEEN REDUCED BY APPLICATION OF THE COEFFICIENT SET OUT IN REGULATION NO 2147/75 .

IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE , IT IS ASKED WHETHER REGULATION NO 1380/75 IS VOID IN SO FAR AS , WHERE A LEVY IS FIXED IN UNITS OF ACCOUNT BUT ITS IMPOSITION IS SUSPENDED , THE MONETARY COMPENSATION ON IMPORTS INTO THE FEDERAL REPUBLIC OF GERMANY FROM THIRD COUNTRIES IS NOT REDUCED BY APPLICATION OF A MONETARY COEFFICIENT .

3THE PROVISIONS OF ARTICLE 4 ( 3 ) AND ( 4 ) OF REGULATION NO 1380/75 READ AS FOLLOWS :

' ' 3 . HOWEVER ,

( A ) . . .

( B ) IN TRADE WITH THIRD COUNTRIES THE IMPORT CHARGES AND THE EXPORT REFUNDS AND LEVIES , FIXED IN UNITS OF ACCOUNT . . . SHALL BE MULTIPLIED BY A COEFFICIENT . THIS COEFFICIENT SHALL BE DERIVED FROM THE PERCENTAGE USED TO CALCULATE THE MONETARY COMPENSATORY AMOUNT AND SHALL BE FIXED BY THE COMMISSION AT THE SAME TIME AS THAT AMOUNT .

. . .

4 . WHERE THE LEVY OR REFUND IS TO BE INCREASED OR REDUCED , AS THE CASE MAY BE , BY ACCESSION AND MONETARY COMPENSATORY AMOUNTS AND MULIPLIED BY A COEFFICIENT , THE CALCULATION SHALL BE MADE AS FOLLOWS :

( A ) THE LEVY OR REFUND SHALL BE REDUCED OR INCREASED , AS THE CASE MAY BE , BY THE ACCESSION COMPENSATORY AMOUNT ;

( B)THE RESULTING AMOUNT SHALL BE MULTIPLIED BY THE COEFFICIENT ; AND

( C)THE AMOUNT OBTAINED AFTER MULTIPLICATION SHALL , AFTER CONVERSION INTO NATIONAL CURRENCY , BE REDUCED OR INCREASED , AS THE CASE MAY BE , BY THE MONETARY COMPENSATORY AMOUNT . ' '

4IN THE SEVENTH RECITAL IN THE PREAMBLE TO THE SAME REGULATION , THE COMMISSION GIVES THE FOLLOWING EXPLANATION OF THE NEED TO APPLY THE COEFFICIENT :

' ' WHEREAS ACCESSION COMPENSATORY AMOUNTS , FIXED COMPONENTS AS REFERRED TO IN ARTICLE 61 OF THE ACT OF ACCESSION ( OFFICIAL JOURNAL ( ENGLISH SPECIAL EDITION ) OF 27 MARCH 1972 , P . 14 ), IMPORT CHARGES , EXPORT REFUNDS AND ALL OTHER AMOUNTS CHARGED OR GRANTED IN UNITS OF ACCOUNT IN RESPECT OF TRADE WITH THIRD COUNTRIES ARE , LIKE THE PRICES IN THE MEMBER STATES CONCERNED , CONVERTED INTO THE CURRENCIES OF THOSE MEMBER STATES BY APPLYING THE EXCHANGE RATES PROVIDED FOR UNDER THE COMMON AGRICULTURAL POLICY ; WHEREAS , THEREFORE , IN CALCULATING THE MONETARY COMPENSATORY AMOUNT ONLY THE DIFFERENCE BETWEEN THE PRICE LEVEL AND THE AMOUNT IN QUESTION EXPRESSED IN UNITS OF ACCOUNT NEED BE TAKEN INTO CONSIDERATION ; WHEREAS , IN ORDER TO SIMPLIFY THE SYSTEM SO THAT THE SAME COMPENSATORY AMOUNT MAY BE APPLIED IN RESPECT OF THE TRADE OF A GIVEN MEMBER STATE WITH EVERY OTHER MEMBER STATE AND WITH THIRD COUNTRIES , ACCESSION COMPENSATORY AMOUNTS , FIXED COMPONENTS , IMPORT CHARGES , EXPORT REFUNDS AND ALL OTHER AMOUNTS CHARGED OR GRANTED IN RESPECT OF TRADE WITH THIRD COUNTRIES SHOULD BE CORRECTED BY A COEFFICIENT EXPRESSING THE POSITION OF THE CURRENCY OF THE MEMBER STATE WHICH IS TO APPLY THE MONETARY COMPENSATORY AMOUNT . ' '

5RELYING ON THE TERMS OF THAT RECITAL AND IN PARTICULAR ON THE SENTENCE ' ' WHEREAS , THEREFORE , IN CALCULATING THE MONETARY COMPENSATORY AMOUNT ONLY THE DIFFERENCE BETWEEN THE PRICE LEVEL AND THE AMOUNT IN QUESTION EXPRESSED IN UNITS OF ACCOUNT NEED BE TAKEN INTO CONSIDERATION ' ' , THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT THE PROVISIONS OF THE SAID ARTICLE 4 ARE TO BE INTERPRETED IN THE SENSE THAT IT IS SUFFICIENT FOR A LEVY TO BE FIXED IN UNITS OF ACCOUNT , EVEN IF THE LEVY IS NOT IMPOSED , AND THAT IN SUCH A CASE THE MONETARY COMPENSATORY AMOUNT MUST BE REDUCED BY THE AMOUNT BY WHICH THE LEVY WHICH HAS NOT BEEN IMPOSED WOULD HAVE BEEN REDUCED BY APPLICATION OF THE COEFFICIENT .

6OUT OF CONCERN FOR ADMINISTRATIVE SIMPLIFICATION , THE COMMISSION DECIDED ON 1 MARCH 1973 TO FIX UNIFORM BASIC MONETARY COMPENSATORY AMOUNTS CALCULATED BY REFERENCE TO THE COMMUNITY GUARANTEE PRICES BOTH FOR INTRA- COMMUNITY TRADE AND FOR TRADE WITH THIRD COUNTRIES .

HOWEVER , IN PRINCIPLE THE MONETARY COMPENSATORY AMOUNTS REQUIRE TO BE CORRECTED IN RESPECT OF IMPORTS FROM THIRD COUNTRIES ( OR EXPORTS TO SUCH COUNTRIES ), SINCE THE COMPENSATION NECESSARY HAS ALREADY BEEN ENSURED BY THE LEVY OR REFUND .

THAT CORRECTION IS EFFECTED BY THE APPLICATION OF THE COEFFICIENT REFERRED TO IN ARTICLE 4 OF REGULATION NO 1380/75 .

ALTHOUGH AT FIRST SIGHT THE MONETARY COMPENSATORY AMOUNT APPLIED TO THE IMPORTATION CARRIED OUT BY THE PLAINTIFF IN THE MAIN ACTION MAY SEEM EXCESSIVE BECAUSE THE CORRECTION ORDINARILY CARRIED OUT BY MEANS OF THE MONETARY COEFFICIENT COULD NOT TAKE PLACE OWING TO THE EXEMPTION FROM THE LEVY , THE EXPRESS TERMS OF THE REGULATION LEAD TO THAT RESULT .

SINCE THE TERMS OF THE REGULATION ARE CLEAR , THE INTERPRETATION OF ARTICLE 4 OF THE REGULATION WHICH IS PUT FORWARD BY THE PLAINTIFF IN THE MAIN ACTION CANNOT BE UPHELD .

CONSEQUENTLY , THE FIRST QUESTION MUST BE ANSWERED IN THE NEGATIVE .

7THE PLAINTIFF IN THE MAIN ACTION FURTHER SUBMITS THAT , IF ITS INTERPRETATION OF THE REGULATION AT ISSUE IS NOT UPHELD , THE REGULATION ITSELF IS ' ' VOID ' ' FOR INFRINGEMENT OF THE PRINCIPLE OF THE PROHIBITION ON DISCRIMINATION AND OF THE PRINCIPLE OF EQUAL TREATMENT , AND IN PARTICULAR OF THE PRINCIPLE STATED IN ARTICLE 40 ( 3 ) OF THE TREATY .

THE PLAINTIFF CONSIDERS THAT THE CHARGING OF THE MONETARY COMPENSATORY AMOUNT AT THE FULL RATE ON IMPORTS CARRIED OUT FREE FROM IMPOSITION OF THE LEVY HAS THE EFFECT OF GIVING AN ADVANTAGE TO IMPORTS INTO MEMBER COUNTRIES WITH DEPRECIATED CURRENCIES , IN WHICH THE MONETARY COMPENSATORY AMOUNT IS GRANTED WITHOUT DEDUCTION , AND OF PUTTING AT A DISADVANTAGE IMPORTS INTO MEMBER COUNTRIES WITH APPRECIATED CURRRENCIES , IN WHICH THE MONETARY COMPENSATORY AMOUNT IS CHARGED WITHOUT ADJUSTMENT .

8ALTHOUGH IT MAY BE DOUBTED WHETHER IT IS APPROPRIATE TO APPLY THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS IN THE CASE OF A QUOTA FROM A THIRD COUNTRY ADMITTED INTO THE COMMUNITY FREE FROM IMPOSITION OF THE LEVY , THE COMMUNITY RULES PROVIDE FOR THAT SYSTEM TO BE APPLIED TO SUCH IMPORTS UNLESS THE COMMISSION GRANTS A SPECIAL DEROGATION .

THE PLAINTIFF IN THE MAIN ACTION HAS NOT CALLED IN QUESTION THE APPLICATION OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS TO THE IMPORTS IN QUESTION , BUT ONLY THE FAILURE TO REDUCE THE AMOUNT BY APPLICATION OF THE MONETARY COEFFICIENT .

IT IS INHERENT IN THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS THAT THEY ARE FIXED AT A FLAT RATE AND IN A GENERAL WAY FOR PRODUCTS OR GROUPS OF PRODUCTS .

THE EXEMPTION OF THE QUOTA IN QUESTION FROM THE LEVY WAS AN EXCEPTIONAL DEROGATION FROM THE COMMUNITY SYSTEM OF DETERMINATION OF PRICES FOR BEEF AND VEAL , SO THAT IMPORTERS WHO WERE ABLE TO BENEFIT FROM THAT EXEMPTION WERE IN A SITUATION NOT COMPARABLE TO THAT OF OTHER IMPORTERS .

THEREFORE , SINCE DISCRIMINATION CONSISTS ABOVE ALL IN TREATING COMPARABLE SITUATIONS DIFFERENTLY , THE FACTS DO NOT SUPPORT THE COMPLAINT OF DISCRIMINATION AS REGARDS THE APPLICATION OF REGULATION NO 1380/75 TO THE GOODS IMPORTED AS PART OF THE QUOTA EXEMPTED FROM LEVY .

9IT FOLLOWS FROM WHAT HAS BEEN SAID THAT CONSIDERATION OF THE THIRD QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO EFFECT THE VALIDITY OF THE REGULATION AT ISSUE .

Decision on costs

COSTS

10THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH 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

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE FINANZGERICHT HAMBURG , BY AN ORDER OF 1 JUNE 1977 , HEREBY RULES :

( 1 ) REGULATION NO 1380/75 IS NOT TO BE INTERPRETED IN THE SENSE THAT WHERE , ON THE IMPORT INTO MEMBER STATES OF GOODS FROM THIRD COUNTRIES , THE LEVY HAS BEEN FIXED BUT ITS IMPOSITION HAS BEEN SUSPENDED AND WHERE MONETARY COMPENSATION IS CHARGED FOR SUCH GOODS THE MONETARY COMPENSATION SHOULD BE REDUCED BY MULTIPLICATION BY A MONETARY COEFFICIENT .

( 2 ) CONSIDERATION OF THE THIRD QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THE REGULATION AT ISSUE .