Judgment of the Court (Second Chamber) of 30 November 1978. - Hauptzollamt Hamburg-Jonas v Hermann Kendermann OHG. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Monetary compensatory amounts - Wine. - Case 88/78.



European Court reports 1978 Page 02477

Greek special edition Page 00783

Portuguese special edition Page 00867



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - WINE - TABLE WINES - TYPES - DISTINCTION - CRITERIA

( COUNCIL REGULATION 945/70 , ART . 2 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - WINE - BLEND OF WINES CONTAINING WINE OF TYPE A II - EXPORTATION TO A THIRD COUNTRY - MONETARY COMPENSATORY AMOUNTS - PRO RATA GRANT IN PROPORTION TO THE QUANTITY OF WINE OF TYPE A II - NOT PERMISSIBLE

( COMMISSION REGULATION 192/75 , ART . 8 , AND 1380/75 , ART . 6 )

Summary

1 . THE DEFINITION OF TYPES OF WINES CONTAINED IN ARTICLE 2 OF REGULATION 945/70 IS TO BE VIEWED IN THE CONTEXT OF THE COMMUNITY RULES ON WINE NOT FOR THE PURPOSES OF TARIFF CLASSIFICATION BUT FOR THOSE OF THE PRICE SYSTEM CREATED BY THOSE RULES ; THE DISTINCTION BETWEEN VARIOUS TYPES OF TABLE WINES MADE IN THAT REGULATION IS ACCORDINGLY BASED ON THE CHARACTERISTICS OF PRICE FORMATION ON THE VARIOUS MARKETS OF THE COMMUNITY .

2 . THE COMBINED PROVISIONS OF ARTICLE 6 OF REGULATION 1380/75 OF THE COMMISSION AND ARTICLE 8 OF REGULATION 192/75 OF THE COMMISSION MUST BE INTERPRETED AS MEANING THAT A BLENDED WINE WHICH DOES NOT FULFIL THE CONDITIONS FOR BEING TREATED , AS AN ENTITY , AS TABLE WINE OF TYPE A II CANNOT BENEFIT , ON EXPORTATION TO A NON-MEMBER COUNTRY , FROM MONETARY COMPENSATORY AMOUNTS PROPORTIONATE TO THE QUANTITY OF WINE OF TYPE A II WHICH IT CONTAINS .

Parties

IN CASE 88/78

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

HAUPTZOLLAMT HAMBURG-JONAS

AND

FIRMA HERMANN KENDERMANN OHG , BINGEN ,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 2 ( B ) OF REGULATION 945/70 OF THE COUNCIL OF 26 MAY 1970 DETERMINING THE TYPES OF TABLE WINES ( OFFICIAL JOURNAL ENGLISH SPECIAL EDITION 1970 ( I ), P . 267 ) AND THE VALIDITY OF REGULATION 2448/75 OF THE COMMISSION OF 25 SEPTEMBER 1975 SUSPENDING THE MONETARY COMPENSATORY AMOUNTS FOR CERTAIN WINES ( OFFICIAL JOURNAL L 250 OF 26 SEPTEMBER 1975 , P . 29 )

Grounds

1BY ORDER DATED 28 FEBRUARY 1978 , RECEIVED AT THE COURT ON 30 MARCH 1978 , THE BUNDESFINANZHOF REFERRED FOUR QUESTIONS TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OT THE EEC TREATY CONCERNING THE INTERPRETATION OF CERTAIN PROVISIONS OF COMMUNITY LAW IN RELATION TO THE COMMON ORGANIZATION OF THE MARKET IN WINE AND THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS IN RESPECT TO WINE .

2THOSE QUESTIONS HAVE ARISEN IN THE CONTEXT OF A CASE BETWEEN A GERMAN UNDERTAKING AND THE GERMAN CUSTOMS ADMINISTRATION WHICH REFUSED TO GRANT THE UNDERTAKING THE MONETARY COMPENSATORY AMOUNTS CLAIMED BY IT IN CONNEXION WITH THE EXPORT TO A THIRD COUNTRY BETWEEN 3 AND 15 OCTOBER 1975 OF CERTAIN QUANTITIES OF BLENDS OF WHITE TABLE WINE . THE WINES IN QUESTION WERE BLENDS OF WINES OF ' ' TYPE A II ' ' WITHIN THE MEANING OF ARTICLE 2 OF REGULATION 945/70 OF THE COUNCIL OF 26 MAY 1970 DETERMINING THE TYPES OF TABLE WINES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 267 ) WITH WINES OF ' ' TYPE A I ' ' WITHIN THE MEANING OF THAT PROVISION . AT THE TIME OF THE EXPORTS IN QUESTION APPLICATION OF MONETARY COMPENSATORY AMOUNTS TO TABLE WINES OF TYPE A I BUT NOT , HOWEVER , IN GERMANY TO TABLE WINES OF TYPE A II WITHIN THE MEANING OF REGULATION 945/70 , HAD BEEN SUSPENDED BY REGULATION 2448/75 OF THE COMMISSION OF 25 SEPTEMBER 1975 SUSPENDING THE MONETARY COMPENSATORY AMOUNTS FOR CERTAIN WINES ( OFFICIAL JOURNAL L 250 OF 26 SEPTEMBER 1975 , P . 29 ).

QUESTIONS 1 AND 2

3THE FIRST TWO QUESTIONS OF THE BUNDESFINANZHOF ARE CONCERNED ESSENTIALLY WITH WHETHER WINE PRODUCED FROM A BLEND OF TABLE WINES OF TYPES A II AND A I IS TO BE TREATED AS BEING OF TYPE A II IF THE COMPONENT WHICH GIVES THE WINE ITS ESSENTIAL CHARACTER IS OF TYPE A II OR AT LEAST WHERE THE CONTENT OF WINE OF TYPE A I IS VERY LIMITED . THE PLAINTIFF IN THE MAIN ACTION AND RESPONDENT TO THE APPEAL TAKES THE VIEW , AS DID THE GERMAN COURT OF FIRST INSTANCE , THAT IN ANSWERING THESE QUESTIONS IT IS RELEVANT TO REFER TO THE GENERAL RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF , TO WHICH ARTICLE 12 OF REGULATION 816/70 OF THE COUNCIL OF 28 APRIL 1970 LAYING DOWN ADDITIONAL PROVISIONS FOR THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 234 ) REFERS .

4HOWEVER , THE DEFINITION OF TYPES OF WINES CONTAINED IN ARTICLE 2 OF REGULATION 945/70 IS TO BE VIEWED IN THE CONTEXT OF THE COMMUNITY RULES NOT FOR THE PURPOSES OF TARIFF CLASSIFICATION BUT FOR THOSE OF THE PRICE SYSTEM CREATED BY THOSE RULES . REGULATION 945/70 WAS ADOPTED IN PARTICULAR TO IMPLEMENT ARTICLE 2 OF REGULATION 816/70 WHICH PROVIDED THAT A GUIDE PRICE SHOULD BE FIXED ANNUALLY FOR EACH TYPE OF TABLE WINE REPRESENTATIVE OF COMMUNITY PRODUCTION . THE DISTINCTION BETWEEN VARIOUS TYPES OF TABLE WINES MADE IN REGULATION 945/70 IS ACCORDINGLY BASED ON THE CHARACTERISTICS OF PRICE-FORMATION ON THE VARIOUS MARKETS OF THE COMMUNITY .

5TYPE A II IS RESTRICTED NEITHER TO WINES OF A SINGLE VINE VARIETY NOR TO WINES OF THE TWO EXPRESSLY MENTIONED VINE VARIETIES , NAMELY SYLVANER AND MULLER-THURGAU , BUT MAY INCLUDE OTHER VINE VARIETIES FROM WHICH WINES SIMILAR TO THOSE VARIETIES ARE OBTAINED . FROM THE POINT OF VIEW OF PRICE-FORMATION IT IS MOREOVER IN ACCORDANCE WITH MARKET CONDITIONS WITHIN CERTAIN LIMITS TO ALLOW WINE OF TYPE A II NOT TO BE PRODUCED EXCLUSIVELY FROM A SINGLE VINE VARIETY .

6SINCE COMMUNITY LAW DID NOT PRESCRIBE THE PERMITTED EXTENT OF COUPAGE AT THE TIME OF THE FACTS IN QUESTION IT WAS FOR THE MEMBER STATES TO ADOPT THE APPROPRIATE PROVISIONS . ACCORDINGLY THE PROVISIONS OF ARTICLE 8 AND 10 OF THE GERMAN WINE REGULATION OF 15 JULY 1971 WHICH ALLOW A COUPAGE OF UP TO 25 % CAN BE TAKEN INTO ACCOUNT .

7IT IS THEREFORE APPROPRIATE TO ANSWER THAT FOR THE PURPOSES OF THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS UNDER REGULATION 2448/75 OF THE COMMISSION , ARTICLE 2 OF REGULATION 945/70 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT AT THE TIME OF THE FACTS IN QUESTION WINES ORIGINATING FROM THE COUPAGE OF TABLE WINES OF TYPES A II AND A I BELONGED TO TYPE A II TO THE EXTENT TO WHICH THE COUPAGE WAS AUTHORIZED BY NATIONAL PROVISIONS .

QUESTION 3

8THE THIRD QUESTION ASKS IN ESSENTIALS WHETHER , IF THE BLEND CANNOT , AS AN ENTITY , BE REGARDED AS FALLING UNDER TYPE A II , IT CAN IN SO FAR AS IT CONTAINS WINE OF TYPE A II NEVERTHELESS BE TREATED AS WINE OF THAT TYPE FOR WHICH A PROPORTIONATE PART OF THE MONETARY COMPENSATORY AMOUNT IS PAYABLE . THE PLAINTIFF IN THE MAIN ACTION TAKES THE VIEW THAT THIS QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE AND IN THIS RESPECT RELIES ON ARTICLE 6 OF REGULATION 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 ) AND ARTICLE 8 OF REGULATION 192/75 OF THE COMMISSION OF 17 JANUARY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS IN RESPECT OF AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL L 25 OF 31 JANUARY 1975 , P . 1 ). ACCORDING TO THE FIRST AFOREMENTIONED PROVISION IN TRADE WITH THIRD COUNTRIES THE RULES CONCERNING THE GRANTING OF EXPORT REFUNDS APPLY TO MONETARY COMPENSATORY AMOUNTS , WHILE THE SECOND PROVISION DEALS WITH THE CASE OF COMPOUND PRODUCTS FOR WHICH A REFUND IS TO BE FIXED ON THE BASIS OF A COMPONENT OR COMPONENTS .

9IN THIS RESPECT IT SUFFICES TO OBSERVE THAT THIS IS NOT THE CASE HERE , FOR NO MONETARY COMPENSATORY AMOUNT HAS BEEN FIXED EITHER FOR THE EXPORTED BLENDED WINE AS A COMPOUND PRODUCT OR FOR TABLE WINE OF TYPE A II EXPORTED AS A COMPONENT OF SUCH A PRODUCT .

10THE THIRD QUESTION MUST ACCORDINGLY BE ANSWERED TO THE EFFECT THAT THE COMBINED PROVISIONS OF ARTICLE 6 OF REGULATION 1380/75 OF THE COMMISSION AND ARTICLE 8 OF REGULATION 192/75 OF THE COMMISSION MUST BE INTERPRETED AS MEANING THAT A BLENDED WINE WHICH DOES NOT FULFIL THE CONDITIONS FOR BEING TREATED , AS AN ENTITY , AS TABLE WINE OF TYPE A II CANNOT BENEFIT , ON EXPORTATION TO A NON-MEMBER COUNTRY , FROM MONETARY COMPENSATORY AMOUNTS PROPORTIONATE TO THE QUANTITY OF WINE OF TYPE A II WHICH IT CONTAINS .

QUESTION 4

11THE FOURTH QUESTION ASKS WHETHER REGULATION 2448/75 OF THE COMMISSION IS VALID EVEN IF FROM ITS PROVISIONS IN CONJUNCTION WITH THE OTHER RELEVANT PROVISIONS IT APPEARS THAT ON THE EXPORT OF THE BLENDED WINE IN QUESTION NO MONETARY COMPENSATORY AMOUNT IS TO BE PAID . THIS QUESTION HAS BECOME DEVOID OF PURPOSE SINCE FROM THE ANSWERS GIVEN TO THE FIRST TWO QUESTIONS IT IS APPARENT THAT MONETARY COMPENSATORY AMOUNTS MAY BE PAID IN RESPECT OF BLENDS OF WINE .

12THERE IS , HOWEVER , NO GROUND FOR QUESTIONING THE VALIDITY OF REGULATION 2448/75 IN SO FAR AS THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS IS NOT PROVIDED FOR BECAUSE THE COUPAGE EXCEEDS THE LIMITS LAID DOWN BY NATIONAL PROVISIONS . THE COURT HAS ALREADY DECIDED IN ITS JUDGMENT OF 25 MAY 1978 IN CASE 136/77 RACKE V HAUPTZOLLAMT MAINZ (( 1978 ) ECR 1245 ) THAT THE COMMISSION DID NOT EXCEED THE BOUNDS OF ITS DISCRETION WHEN IT TOOK THE VIEW THAT IT WAS JUSTIFIED IN RETAINING THE MONETARY COMPENSATORY AMOUNTS ON IMPORTS AND EXPORTS OF WINE TO AND FROM GERMANY IN VIEW OF THE SITUATION EXISTING ON THE WINE MARKET AT THE TIME IN QUESTION . MORE PARTICULARLY , AS IT EXPLAINED DURING THE COURSE OF THE PROCEDURE , IN ADOPTING REGULATION 2448/75 , THE PROVISIONS OF WHICH WERE NECESSARILY TO APPLY EQUALLY TO IMPORTS AND EXPORTS , THE COMMISSION WAS GUIDED BY THE FACT THAT ALTHOUGH THE MARKET TREND ALLOWED IT AT THE TIME TO SUSPEND THE MONETARY COMPENSATORY AMOUNT AND THUS OPEN UP THE GERMAN MARKET TO FOREIGN TABLE WINES WHICH , BECAUSE OF THEIR SPECIAL QUALITIES , WERE SUFFICIENTLY DISTINGUISHABLE FROM THE TYPICAL DOMESTIC WINES OF TYPES A II AND A III , IT WAS NECESSARY TO MAINTAIN THE PROTECTION AGAINST FOREIGN WINES WHICH DIRECTLY CORRESPONDED TO AND WERE IN COMPETITION WITH THEM . SINCE THE RESULTING DIFFERENT TREATMENT OF WINES WHICH WERE NOT MARKETABLE AS WINES OF TYPE A II WAS OBJECTIVELY JUSTIFIED , IT CANNOT BE SAID THAT THE REGULATION HAS ANY DISCRIMINATORY EFFECT .

13NOR CAN THE VALIDITY OF THE REGULATION BE CHALLENGED BY THE PLAINTIFF IN THE MAIN ACTION IN RELIANCE ON THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION SINCE FREQUENT CHANGES IN MONETARY COMPENSATORY AMOUNTS IN ACCORDANCE WITH THE STATE OF THE MARKET AT THE TIME IS A CHARACTERISTIC FEATURE OF THE SYSTEM .

14THE ANSWER MUST ACCORDINGLY BE GIVEN THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION 2448/75 OF THE COMMISSION .

Decision on costs

COSTS

15THE 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 ( SECOND CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 28 FEBRUARY 1978 , HEREBY RULES :

1 . FOR THE PURPOSES OF THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS UNDER REGULATION 2448/75 OF THE COMMISSION , ARTICLE 2 OF REGULATION 945/70 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT AT THE TIME OF THE FACTS IN QUESTION WINES ORIGINATING FROM THE COUPAGE OF TABLE WINES OF TYPES A II AND A I BELONGED TO TYPE A II TO THE EXTENT TO WHICH THE COUPAGE WAS AUTHORIZED BY NATIONAL PROVISIONS .

2 . THE COMBINED PROVISIONS OF ARTICLE 6 OF REGULATION 1380/75 OF THE COMMISSION AND ARTICLE 8 OF REGULATION 192/75 OF THE COMMISSION MUST BE INTERPRETED AS MEANING THAT A BLENDED WINE WHICH DOES NOT FULFIL THE CONDITIONS FOR BEING TREATED , AS AN ENTITY , AS TABLE WINE OF TYPE A II CANNOT BENEFIT , ON EXPORTATION TO A NON-MEMBER COUNTRY , FROM MONETARY COMPENSATORY AMOUNTS PROPORTIONATE TO THE QUANTITY OF WINE OF TYPE A II WHICH IT CONTAINS .

3 . CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION 2448/75 OF THE COMMISSION .