Judgment of the Court of 14 December 1978. - N. G. J. Schouten BV v Hoofdproduktschap voor Akkerbouwprodukten. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Case 35/78.



European Court reports 1978 Page 02543

Greek special edition Page 00793

Portuguese special edition Page 00881



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MONETARY COMPENSATORY AMOUNTS - DETERMINATION - CONDITION - ALTERATION OF THE DIFFERENCE BETWEEN EXCHANGE RATES - EXCHANGE RATE TO BE TAKEN INTO ACCOUNT - REPRESENTATIVE RATES - DISCRETIONARY POWERS OF THE COMMISSION

( REGULATION NO 974/71 OF THE COUNCIL , ART . 2 ( 1 ) AND ART . 3 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - MANAGEMENT COMMITTEE - PROCEDURE - OPINION OF THE COMMITTEE - ABSENCE - MEASURES ADOPTED BY THE COMMISSION - COMMUNICATION TO THE COUNCIL - OBLIGATION - NONE

( REGULATION NO 2727/75 OF THE COUNCIL , ART . 26 )

Summary

1 . ARTICLE 3 OF REGULATION NO 974/71 OF THE COUNCIL MAY BE INTERPRETED AS MEANING THAT THE EXCHANGE RATES TAKEN INTO ACCOUNT IN ORDER TO ESTABLISH THE DIFFERENCE REFERRED TO MUST BE ASSESSED ON THE BASIS OF ECONOMICALLY JUSTIFIED CRITERIA AND THAT CONSEQUENTLY IT IS OPEN TO THE COMMISSION TO LEAVE OUT OF ACCOUNT RATES WHICH IT CONSIDERS TO BE UNREPRESENTATIVE . IT FOLLOWS THAT BY SO DOING IT DOES NOT EXCEED THE MARGIN OF DISCRETION CONFERRED UPON IT IN RELATION TO THE FIXING OF COMPENSATORY AMOUNTS .

2 . ACCORDING TO THE PROVISIONS OF ARTICLE 26 OF REGULATION NO 2727/75 IT IS ONLY IF THE COMMISSION ADOPTS MEASURES WHICH ARE NOT IN ACCORDANCE WITH THE OPINION OF THE COMMITTEE THAT THOSE MEASURES MUST BE COMMUNICATED TO THE COUNCIL . ACCORDINGLY THE ABSENCE OF AN OPINION BY THE COMMITTEE IN NO WAY AFFECTS THE VALIDITY OF THE MEASURES ADOPTED BY THE COMMISSION .

Parties

IN CASE 35/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

N . G . J . SCHOUTEN B.V ., GIESSEN ,

AND

HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN ( CENTRAL BOARD FOR AGRICULTURAL PRODUCTS ),

Subject of the case

ON THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 1356/76 OF 11 JUNE 1976 ON THE MONETARY COMPENSATORY AMOUNTS AND THE DIFFERENTIAL AMOUNTS APPLICABLE IN RESPECT OF MOVEMENTS IN THE IRISH POUND AND THE POUND STERLING ( OFFICIAL JOURNAL L 153 , P . 39 ),

Grounds

1BY AN ORDER OF 10 MARCH 1978 , WHICH WAS RECEIVED AT THE COURT ON 14 MARCH 1978 , THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS ON THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 1356/76 OF 11 JUNE 1976 ON THE MONETARY COMPENSATORY AMOUNTS AND THE DIFFERENTIAL AMOUNTS APPLICABLE IN RESPECT OF MOVEMENTS IN THE IRISH POUND AND THE POUND STERLING ( OFFICIAL JOURNAL 1976 , L 153 , P . 39 ).

2THESE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF AN ACTION BY A NETHERLANDS EXPORTER , THE APPELLANT IN THE MAIN ACTION ( HEREINAFTER REFERRED TO AS THE APPELLANT ), AGAINST A DECISION OF THE HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN ( CENTRAL BOARD FOR AGRICULTURAL PRODUCTS ), THE RESPONDENT IN THE MAIN ACTION ( HEREINAFTER REFERRED TO AS THE RESPONDENT ), WHICH WAS NOTIFIED TO THE APPELLANT BY A CIRCULAR OF 10 JUNE 1976 AND WHICH PROVIDED THAT THE MONETARY COMPENSATORY AMOUNTS TO BE PAID BY THE RESPONDENT FOR TRADE WITH THE UNITED KINGDOM WITH EFFECT FROM 14 JUNE 1976 WOULD NOT BE ALTERED ON THE BASIS OF THE AVERAGE OF THE SPOT MARKET RATES RECORDED ON THE FOREIGN EXCHANGE MARKETS DURING THE PERIOD FROM 2 TO 8 JUNE 1976 INCLUSIVE BUT FOR THE TIME BEING WOULD REMAIN UNCHANGED .

3ARTICLE 1 ( 1 ) OF REGULATION ( EEC ) 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 ), AS AMENDED BY SUBSEQUENT REGULATIONS , IN PARTICULAR REGULATION ( EEC ) NO 2746/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 28-30 DECEMBER ), P . 64 ), REGULATION ( EEC ) NO 509/73 OF THE COUNCIL OF 22 FEBRUARY 1973 ( OFFICIAL JOURNAL 1973 , L 50 , P . 1 ) AND REGULATION ( EEC ) NO 1112/73 OF THE COUNCIL OF 30 APRIL 1973 ( OFFICIAL JOURNAL 1973 , L 114 , P . 4 ), PROVIDES THAT :

' ' ( 1 ) IF , FOR THE PURPOSES OF COMMERCIAL TRANSACTIONS , A MEMBER STATE ALLOWS THE EXCHANGE RATE OF ITS CURRENCY TO FLUCTUATE BY A MARGIN WIDER THAN THAT PERMITTED BY INTERNATIONAL RULES IN FORCE ON 12 MAY 1971 ,

( A ) THE MEMBER STATE WHOSE CURRENCY INCREASES IN VALUE BEYOND THE PERMITTED FLUCTUATION MARGIN SHALL CHARGE ON IMPORTS AND GRANT ON EXPORTS ,

( B)THE MEMBER STATE WHOSE CURRENCY DECREASES BEYOND THE PERMITTED FLUCTUATION MARGINS SHALL CHARGE ON EXPORTS AND GRANT ON IMPORTS ,

COMPENSATORY AMOUNTS FOR THE PRODUCTS REFERRED TO IN PARAGRAPH ( 2 ), IN TRADE WITH THE MEMBER STATES AND THIRD COUNTRIES ' ' .

4AMONG THE PRODUCTS REFERRED TO IN ARTICLE 1 ( 2 ) OF THE SAME REGULATION ARE TO BE FOUND PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS .

5ARTICLE 2 ( 1 ) OF THE REGULATION PROVIDES THAT :

' ' ( 1 ) THE COMPENSATORY AMOUNTS FOR THE PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS SHALL BE EQUAL TO THE AMOUNTS OBTAINED BY APPLYING TO THE PRICES :

( A ) IN RESPECT OF THOSE MEMBER STATES THE CURRENCIES OF WHICH ARE MAINTAINED AMONG THEMSELVES WITHIN A SPREAD AT ANY GIVEN MOMENT OF 2.25% , THE PERCENTAGE DIFFERENCE BETWEEN :

- THE CONVERSION RATES USED UNDER THE COMMON AGRICULTURAL POLICY ,

AND

- THE CONVERSION RATES RESULTING FROM THE CENTRAL RATE ;

( B ) IN RESPECT OF MEMBER STATES OTHER THAN THOSE REFERRED TO IN ( A ), THE AVERAGE OF THE PERCENTAGE DIFFERENCES BETWEEN :

- THE RELATIONSHIP BETWEEN THE CONVERSION RATE USED UNDER THE COMMON AGRICULTURAL POLICY FOR THE CURRENCY OF THE MEMBER STATE CONCERNED AND THE OFFICIAL PARITY , OR , WHERE THIS PARITY IS NOT OBSERVED , THE CENTRAL RATE OF EACH OF THE CURRENCIES OF THE MEMBER STATES REFERRED TO IN ( A ), AND

- THE SPOT MARKET RATE FOR THE CURRENCY OF THE MEMBER STATE IN QUESTION IN RELATION TO EACH OF THE CURRENCIES OF THE MEMBER STATES REFERRED TO IN ( A ), AS RECORDED OVER A PERIOD TO BE DETERMINED ' ' .

6ARTICLE 3 OF REGULATION NO 974/71 PROVIDES THAT :

' ' IF THE DIFFERENCE REFERRED TO IN ARTICLE 2 ( 1 ) CHANGES BY AT LEAST 1 POINT FROM THE PERCENTAGE TAKEN AS A BASIS FOR THE PRECEDING DETERMINATION , THE COMPENSATORY AMOUNT SHALL BE ALTERED BY THE COMMISSION IN LINE WITH THE CHANGE IN THE DIFFERENCE ' ' .

7IN APPLICATION OF REGULATION NO 974/71 , ARTICLE 2 OF REGULATION NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 ( OFFICIAL JOURNAL 1975 L 139 , P . 37 ) PROVIDES THAT THE REFERENCES PERIOD REFERRED TO IN THE SECOND INDENT OF ARTICLE 2 ( 1 ) ( B ) OF REGULATION NO 974/71 SHALL RUN FROM A WEDNESDAY TO THE FOLLOWING TUESDAY .

8ARTICLE 3 OF REGULATION NO 1380/75 PROVIDES THAT :

' ' THE SPOT MARKET RATES AGAINST EACH OF THE CURRENCIES OF THE MEMBER STATES WHICH KEEP THEIR EXCHANGE RATES WITHIN A SPREAD AT ANY GIVEN MOMENT OF 2.25% SHALL BE :

. . .

( C ) FOR THE IRISH POUND AND THE POUND STERLING : THE AVERAGE RATES RECORDED EACH WORKING DAY AT NOON ON THE FOREIGN EXCHANGE MARKETS OF THE TWO MEMBER STATES CONCERNED ' ' .

9DURING THE PERIOD FROM 2 TO 8 JUNE 1976 INCLUSIVE , THE IRISH POUND AND THE POUND STERLING WERE SUBJECT TO SPECULATIVE MOVEMENTS , SO THAT THE DIFFERENCE FOR THAT WEEK CHANGED BY 2.69 POINTS FROM THE PERCENTAGE TAKEN AS A BASIS FOR THE PRECEDING DETERMINATION .

10SINCE THE SITUATION RAPIDLY RECOVERED TOWARDS THE END OF THAT PERIOD , THE COMMISSION CONSIDERED IT APPROPRIATE TO TAKE NO ACCOUNT OF THE RECENT MOVEMENTS IN THE TWO CURRENCIES IN QUESTION AND TO MAKE NO AMENDMENT TO THE LEVEL OF THE MONETARY COMPENSATORY AMOUNTS FIXED UP TO THAT TIME .

11ACCORDINGLY , ON 11 JUNE 1976 THE COMMISSION ADOPTED REGULATION NO 1356/76 , ARTICLE 1 OF WHICH PROVIDES :

' ' BY WAY OF DEROGATION . . . FROM ARTICLE 2 OF REGULATION ( EEC ) NO 1380/75 , THE COMPONENTS USED TO CALCULATE . . . THE MONETARY COMPENSATORY AMOUNTS RELATING TO MOVEMENTS IN THE IRISH POUND AND THE POUND STERLING AND APPLICABLE WITH EFFECT FROM 7 JUNE 1976 SHALL CONTINUE TO APPLY DURING THE PERIOD COMMENCING 14 JUNE 1976 ' ' .

12THE APPELLANT BROUGHT AN ACTION BEFORE THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN AGAINST THE RESPONDENT ' S DECISION NOT TO ALTER THE MONETARY COMPENSATORY AMOUNTS WITH EFFECT FROM 14 JUNE 1976 , AND THAT COURT REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

1 . ARE THE PROVISIONS OF COMMISSION REGULATION ( EEC ) NO 1356/76 INCOMPATIBLE WITH ARTICLES 1 , 2 , 2A , 3 , 6 OR 7 OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL AND/OR WITH THE PROVISIONS OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OR ELSE WITH ANY OTHER BINDING PROVISION OF COMMUNITY LAW?

IF SO IS THE SAID REGULATION THEREFORE INVALID?

2 . IS THE AMENDMENT MADE BY REGULATION ( EEC ) NO 1356/76 TO THE RULES FOR THE GRANTING OF MONETARY COMPENSATORY AMOUNTS INCOMPATIBLE WITH THE PRINCIPLE OF LEGAL CERTAINTY WHICH IS FUNDAMENTAL TO THE TREATY OR WITH THE PRINCIPLE OF EQUALITY BEFORE THE LAW WHICH IS ALSO FUNDAMENTAL TO THE TREATY :

IN ITSELF ;

OR BECAUSE OF THE ABRUPT NATURE OF THE AMENDMENT ;

OR BECAUSE OF THE FACT THAT THE AMENDMENT RELATED SOLELY TO THE IRISH POUND AND THE POUND STERLING?

IF SO IS THE REGULATION THEREFORE INVALID?

3 . MUST IT BE SAID THAT IN ADOPTING REGULATION ( EEC ) NO 1356/76 THE COMMISSION ACTED ARBITRARILY OR AT LEAST THAT IT EXPOSED TRADE AND INDUSTRY TO ARBITRARY DECISIONS AND THUS ABUSED ITS POWERS?

IF SO IS THE REGULATION THEREFORE INVALID?

4 . PROPERLY INTERPRETED DO THE PROVISIONS OF ARTICLE 26 OF REGULATION ( EEC ) NO 2727/75 OF THE COUNCIL MEAN THAT IF THE MANAGEMENT COMMITTEE HAS NOT DECIDED ON A DRAFT MEASURE SUBMITTED TO IT BY A MAJORITY OF 41 VOTES THE COMMISSION IS NOT OBLIGED TO NOTIFY THE MEASURE TO THE COUNCIL?

IF THAT QUESTION IS ANSWERED IN THE NEGATIVE IS REGULATION ( EEC ) NO 1356/76 , WHICH WAS NOT SUBMITTED TO THE COUNCIL , CONSEQUENTLY INVALID?

13THE APPELLANT EXPORTS CEREALS FROM THE NETHERLANDS TO THE UNITED KINGDOM , AND PAYMENT IS MADE IN POUNDS STERLING .

14ACCORDING TO THE APPELLANT , PAYMENT IS VERY OFTEN MADE A SHORT TIME AFTER THE DATE OF IMPORTATION UPON PRESENTATION OF DOCUMENTARY EVIDENCE .

15DURING THE REFERENCE PERIOD DEFINED IN ARTICLE 2 OF REGULATION NO 1380/75 OF THE COMMISSION , THE EXPORTER SEEKS TO SELL AN AMOUNT IN POUNDS STERLING EQUIVALENT TO THAT PART OF THE SELLING PRICE WHICH CORRESPONDS TO THE INTERVENTION PRICE .

16BY ACTING IN THIS WAY A PRUDENT EXPORTER MANAGES TO GUARD AGAINST ANY FALLS IN THE EXCHANGE RATE OF THE POUND STERLING BETWEEN THE REFERENCE PERIOD AND THE EXPORT PERIOD .

17THE APPELLANT SUBMITS THAT BY OMITTING TO FIX NEW MONETARY COMPENSATORY AMOUNTS FOR THE PERIOD COMMENCING 14 JUNE 1976 , REGULATION NO 1356/76 INVOLVLES NOT ONLY A DEROGATION FROM THE PROVISIONS OF REGULATION NO 1380/75 , BUT ALSO AND PRINCIPALLY A DEROGATION FROM THOSE OF REGULATION NO 974/71 , IN PARTICULAR ARTICLE 2 ( 1 ) ( PERIOD TO BE DETERMINED ) AND ARTICLE 3 OF THAT REGULATION .

18IT IS SUBMITTED THAT SINCE THE LATTER IS A COUNCIL REGULATION , THE COMMISSION CANNOT DEROGATE FROM IT .

19FURTHERMORE , REGULATION NO 1356/76 IS SAID TO VIOLATE THE PRINCIPLE OF LEGAL CERTAINTY .

20ACCORDING TO THE APPELLANT , BY RELYING ON THE SYSTEM EMBODIED IN REGULATION NO 974/71 EXPORTERS SHOULD HAVE BEEN ABLE ON THE BASIS OF THE PERCENTAGE FLUCTUATION DURING THE REFERENCE PERIOD FROM 2 TO 8 JUNE 1976 INCLUSIVE THEMSELVES TO CALCULATE THE VALUE OF THE MONETARY COMPENSATORY AMOUNTS WHICH OUGHT TO HAVE APPLIED TO TRADE WITH THE UNITED KINDGOM WITH EFFECT FROM 14 JUNE 1976 AND TO BASE THEIR TRANSACTIONS ON THAT VALUE .

21FURTHERMORE , REGULATION NO 1356/76 IS SAID TO BE CONTRARY TO THE SYSTEM EMBODIED IN REGULATIONS NOS 974/71 AND 1380/75 IN THAT IT RELATES ONLY TO THE POUND STERLING AND THE IRISH POUND AND NOT TO THE OTHER CURRENCIES , SO THAT MERCHANTS EXPORTING TO ITALY OR FRANCE ARE NOT AFFECTED , AND THIS IS SAID TO RESULT IN A VIOLATION OF THE PRINCIPLE OF EQUALITY BEFORE THE LAW .

22FOR THE REFERENCE PERIOD FROM 26 MAY 1976 TO 1 JUNE 1976 THE AVERAGE EXCHANGE RATES OF THE POUND STERLING SHOWED A REAL DIFFERENCE OF - 22.37% , THAT IS TO SAY A DIFFERENCE OF - 20.87% FOR THE PURPOSES OF THE SECOND INDENT OF ARTICLE 2 ( 1 ) ( B ) OF REGULATION NO 974/71 .

23SINCE THE DIFFERENCE TAKEN AS THE BASIS FOR THE PRECEDING DETERMINATION WAS - 19.2% , THE CHANGE IN THE DIFFERENCE PROMPTED THE COMMISSION TO FIX THE MONETARY COMPENSATORY AMOUNTS FOR THE PERIOD COMMENCING ON 7 JUNE 1976 ON THE BASIS OF AN ADJUSTED DIFFERENCE OF - 20.9% IN ITS REGULATION NO 1312/76 OF 3 JUNE 1976 ALTERING THE MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1976 , L 148 , P . 1 ).

24THE MOVEMENTS IN THE REAL DIFFERENCE DURING THE PERIOD FROM 1 JUNE TO 8 JUNE 1976 WERE THE FOLLOWING :

DATE REAL DIFFERENCE

1 JUNE - 22.98

2 JUNE - 25.51

3 JUNE - 25.86

4 JUNE - 26.04

7 JUNE - 25.76

8 JUNE - 22.35

25ON THE LAST OF THOSE DATES , THE DIFFERENCE WAS LESS THAN THAT ON 1 JUNE 1976 , AND IN THE DAYS PRECEDING THE ADOPTION OF REGULATION NO 1356/76 OF 11 JUNE 1976 , THE DIFFERENCE NEVER REACHED A LEVEL APPROACHING THAT OF 4 JUNE 1976 .

26CONSEQUENTLY , THE COMMISSION WAS ABLE TO STATE IN THE THIRD RECITAL IN THE PREAMBLE TO THE SAID REGULATION THAT ' ' THOSE RATES HAVE SINCE IMPROVED , THUS ELIMINATING THE DISPARITY RECORDED IN THE ABOVE-MENTIONED PERIOD ' ' .

27IN THESE CIRCUMSTANCES , THE COMMISSION CONSIDERED IT ' ' APPROPRIATE TO TAKE NO ACCOUNT ' ' OF THE RATES RECORDED DURING THE PERIOD COMMENCING ON 2 JUNE 1976 ' ' AND TO MAKE NO AMENDMENT FOR THE PRESENT TO THE MONETARY COMPENSATORY AMOUNTS . . . RELATING TO THE CURRENCIES IN QUESTION ' ' .

28HOWEVER , ARTICLE 3 OF REGULATION NO 974/71 OF THE COUNCIL PROVIDES THAT IF THE DIFFERENCE REFERRED TO CHANGES BY AT LEAST 1 POINT FROM THE PERCENTAGE TAKEN AS A BASIS FOR THE PRECEDING DETERMINATION , THE COMPENSATORY AMOUNTS SHALL BE ALTERED BY THE COMMISSION IN LINE WITH THE CHANGE IN THE DIFFERENCE .

29THE AVERAGE ADJUSTED DIFFERENCE WHICH WAS TO BE RECORDED FOR THE REFERENCE PERIOD FROM 2 JUNE 1976 TO 8 JUNE 1976 WAS - 23.59% AND DIVERGED BY 2.69 POINTS FORM THE PERCENTAGE TAKEN AS A BASIS FOR THE PRECEDING DETERMINATION .

30THEREFORE IT APPEARS THAT BY OMITTING TO FIX NEW COMPENSATORY AMOUNTS THE COMMISSION DEPARTED FROM THE PROVISIONS OF THE SAID ARTICLE , AND IT SHOULD BE EXAMINED WHETHER IT COULD LEGALLY DO SO .

31IT APPEARS FROM THE PREAMBLE TO REGULATION NO 974/71 THAT THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS WAS INTRODUCED IN ORDER TO OBVIATE THE RISK OF DISRUPTION FOR THE INTERVENTION SYSTEM AND ABNORMAL MOVEMENTS OF PRICES JEOPARDIZING A NORMAL TREND OF BUSINESS IN ARGRICULTURE .

32ACCORDING TO THE LAST RECITAL IN THE PREAMBLE TO THE SAID REGULATION ' ' 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 AND . . . IT IS APPROPRIATE TO APPLY THEM ONLY IN CASES WHERE THIS INCIDENCE WOULD LEAD TO DIFFICULTIES ' ' .

33CONSEQUENTLY IT MUST BE CONSIDERED WHETHER , WHERE A DIFFERENCE IN THE EXCHANGE RATE IS RECORDED OVER A SHORT PERIOD AND WHERE BEFORE THE DATE LAID DOWN FOR THE DETERMINATION OF THE COMPENSATORY AMOUNTS IN RESPECT OF THAT DIFFERENCE THE EXCHANGE RATE IMPROVES TO SUCH AN EXTENT THAT THERE IS NO LONGER ANY REASON TO FEAR RISKS TO THE INTERVENTION SYSTEM OR ABNORMAL MOVEMENTS OF PRICES , THE STRUCTURE OF THE COMPENSATORY AMOUNTS SYSTEM REQUIRES THAT NOTWITHSTANDING THAT IMPROVEMENT THE COMPENSATORY AMOUNTS MUST BE ALTERED IN LINE WITH THE DIFFERENCE RECORDED DURING THAT PERIOD .

34AS REGARDS TRADE WITH THE COUNTRY WHOSE CURRENCY HAD DEPRECIATED FOR A FEW DAYS DURING THE REFERENCE PERIOD , THE EFFECT OF SUCH AN ALTERATION WOULD BE THAT IMPORTS CARRIED OUT DURING THE PERIOD OF APPLICATION OF THE NEW COMPENSATORY AMOUNTS WOULD ENJOY MONETARY COMPENSATORY AMOUNTS AT A LEVEL WHICH WAS NOT JUSTIFIED BY THE EXCHANGE RATES APPLICABLE ON THE DAY OF IMPORTATION , AND THAT EQUALLY UNJUSTIFIED MONETARY COMPENSATORY AMOUNTS WOULD BE IMPOSED ON EXPORTS .

35IT EMERGES FROM THE PREAMBLE TO REGULATION NO 974/71 OF THE COUNCIL THAT SUCH A RESULT WOULD BE CONTRARY TO THE PURPOSE AND THE STRUCTURE OF THE COMPENSATORY AMOUNTS SYSTEM INTRODUCED BY THAT REGULATION .

36ACCORDINGLY , ARTICLE 3 OF THE REGULATION MAY BE INTERPRETED AS MEANING THAT THE EXCHANGE RATES TAKEN INTO ACCOUNT IN ORDER TO ESTABLISH THE DIFFERENCE REFERRED TO MUST BE ASSESSED ON THE BASIS OF ECONOMICALLY JUSTIFIED CRITERIA , AND THAT CONSEQUENTLY IT WAS OPEN TO THE COMMISSION TO LEAVE OUT OF ACCOUNT RATES WHICH IT CONSIDERED TO BE UNREPRESENTATIVE .

37IT FOLLOWS THAT BY SO DOING IT DID NOT EXCEED THE MARGIN OF DISCRETION CONFERRED UPON IT IN RELATION TO THE FIXING OF COMPENSATORY AMOUNTS .

38THE FOREGOING ALSO ANSWERS THE APPELLANT ' S ARGUMENT TO THE EFFECT THAT BY ADOPTING THE REGULATION AT ISSUE THE COMMISSION FAILED TO COMPLY WITH THE PROVISIONS OF ITS REGULATION NO 1380/75 WHICH FIXES THE REFERENCE PERIOD .

39AS REGARDS THE ALLEGED BREACH OF THE PRINCIPLE OF LEGAL CERTAINTY , ALTHOUGH AN EXPORTER IS ENTITLED TO TRY TO GUARD AGAINST ANY CHANGES IN THE EXCHANGE RATES IN THE MANNER DESCRIBED BY THE APPELLANT , IT SHOULD BE OBSERVED THAT THE MONETARY COMPENSATORY AMOUNTS SYSTEM HAS THE OBJECTIVES STATED ABOVE AND WAS NOT INTENDED TO GIVE TRADERS AN EXCHANGE GUARANTEE OR TO INDEMNIFY THEM AGAINST ANY LOSS .

40AS REGARDS THE ALLEGED BREACH OF THE PRINCIPLE OF EQUALITY BEFORE THE LAW , IT SUFFICES TO OBSERVE THAT IN A CASE SUCH AS THE PRESENT , IN WHICH IT APPEARS THAT ALTERATION OF THE COMPENSATORY AMOUNTS ON THE BASIS OF STATISTICS APPLYING TO ONE MEMBER STATE WOULD NOT BE ECONOMICALLY JUSTIFIED , THERE IS NOTHING IN THAT PRINCIPLE TO PREVENT THE APPLICATION TO OTHER MEMBER STATES OF THE RATE OF COMPENSATORY AMOUNTS WHICH IS ECONOMICALLY JUSTIFIED .

41THE FOURTH QUESTION ASKS WHETHER COMMISSION REGULATION NO . 1356/76 IS INVALID BECAUSE THE MANAGEMENT COMMITTEE DID NOT DECIDE IN FAVOUR OF THE MEASURE ADOPTED BY THE COMMISSION AND THE COMMISSION DID NOT COMMUNICATE THE MEASURE ADOPTED TO THE COUNCIL IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 26 OF REGULATION NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975 ( OFFICIAL JOURNAL 1975 , L 281 , P . 1 ).

42ARTICLE 6 OF REGULATION NO 974/71 PROVIDES THAT DETAILED RULES FOR THE APPLICATION OF THAT REGULATION SHALL BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 26 OF COUNCIL REGULATION NO 120/67 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS , AS LAST AMENDED BY REGULATION NO 2434/70 , OR , IF APPROPRIATE , THE CORRESPONDING ARTICLE OF THE OTHER REGULATIONS ON THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS .

43REGULATION NO 120/67 WAS REPEALED AND REPLACED BY REGUALTION NO 2727/75 , ARTICLE 26 OF WHICH CORRESPONDS TO ARTICLE 26 OF REGULATION NO 120/67 AND PROVIDES AS FOLLOWS :

' ' 1 . WHERE THE PROCEDURE LAID DOWN IN THIS ARTICLE IS TO BE FOLLOWED , THE CHAIRMAN SHALL REFER THE MATTER TO THE COMMITTEE , EITHER ON HIS OWN INITIATIVE OR AT THE REQUEST OF THE REPRESENTATIVE OF A MEMBER STATE .

2 . THE REPRESENTATIVE OF THE COMMISSION SHALL SUBMIT A DRAFT OF THE MEASURES TO BE ADOPTED . THE COMMITTEE SHALL DELIVER ITS OPINION ON THE DRAFT WITHIN A TIME-LIMIT SET BY THE CHAIRMAN ACCORDING TO THE URGENCY OF THE MATTER . AN OPINION SHALL BE DELIVERED BY A MAJORITY OF 41 VOTES .

3 . THE COMMISSION SHALL ADOPT MEASURES WHICH SHALL APPLY IMMEDIATELY . HOWEVER , IF THESE MEASURES ARE NOT IN ACCORDANCE WITH THE OPINION OF THE COMMITTEE , THEY SHALL FORTHWITH BE COMMUNICATED BY THE COMMISSION TO THE COUNCIL . IN THAT EVENT THE COMMISSION MAY DEFER APPLICATION OF THE MEASURES WHICH IT HAS ADOPTED FOR NOT MORE THAN ONE MONTH FROM THE DATE OF SUCH COMMUNICATION .

THE COUNCIL , ACTING BY A QUALIFIED MAJORITY , MAY TAKE A DIFFERENT DECISION WITHIN ONE MONTH . ' '

44IT APPEARS FROM THE LAST RECITAL IN THE PREAMBLE TO REGULATION NO 1356/76 THAT THE MANAGEMENT COMMITTEE DID NOT DELIVER AN OPINION WITHIN THE TIME-LIMIT SET BY ITS CHAIRMAN .

45ACCORDING TO THE PROVISIONS OF ARTICLE 26 OF REGULATION NO 2727/75 , IT IS ONLY IF THE COMMISSION ADOPTS MEASURES WHICH ARE NOT IN ACCORDANCE WITH THE OPINION OF THE COMMITTEE THAT THOSE MEASURES MUST BE COMMUNICATED TO THE COUNCIL .

46ACCORDINGLY THE ABSENCE OF AN OPINION BY THE COMMITTEE IN NO WAY AFFECTS THE VALIDITY OF THE MEASURES ADOPTED BY THE COMMISSION .

47THEREFORE THE ANSWER TO ALL THE QUESTIONS RAISED SHOULD BE THAT CONSIDERATION OF COMMISSION REGULATION NO 1356/76 HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT ITS VALIDITY .

Decision on costs

COSTS

48THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

49AS 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 REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY AN ORDER OF 10 MARCH 1978 , HEREBY RULES :

CONSIDERATION OF COMMISSION REGULATION NO 1356/76 HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT ITS VALIDITY .