II —

The second question put by the national court arises from the fact that the rate of exchange applied at that time in the Federal Republic of Germany in agricultural matters was slightly lower (DM 3.57 per unit of account) than the rate applied in customs matters (DM 3.66 per unit of account). This disparity will only appear strange to those who are not familiar with the pragmatism with which the Council acts in economic matters and with the considerations which led it on 30 May 1968 to adopt Regulation (EEC) No 653/68 on conditions for alterations to the value of the unit of account used for the common agricultural policy. The agricultural unit of account is formally defined by the same weight of fine gold (0.88867088 grammes) as the gold parity unit of account declared to the International Monetary Fund, which is used in particular for the implementation of the budget and for the application of the Common Customs Tariff; however, for the purposes of conversion into the currencies of the Member States of amounts fixed in units of account by measures adopted under the common agricultural policy (common prices, levies, export refunds, production refunds, aids etc.), the unit of account is converted into national currency by means of a representative rate which tends to converge with the rate resulting from the actual rates of exchange dealt with on the market. That representative rate, which is progressively substituted for the conversion rate of the gold parity unit of account, is modified from time to time by decision of the Council to reflect more closely exchange relationships on the markets (thus it was that quite recently the ‘green rate’ of the French franc was adapted), and this brings about an increase in the expenses of the European Agricultural Guidance and Guarantee Fund which are expressed in units of account converted at the rate resulting from the parities declared to the International Monetary Fund. At the time in question the conversion rate for the ‘general’ unit of account, used in particular for the application of the Common Customs Tariff, was DM 3.66). As from 3 March 1975 (Regulation (EEC) No 475/75 of the Council of 27 February 1975), for the common agricultural policy the representative rate (‘green rate’) of the German mark was fixed at 0.279429 units of account for 1 Deutsche Mark, whereas it had previously been 0.242806 units of account, which corresponded to the parity declared to the International Monetary Fund. It can therefore be seen that the application of the conversion rate of the ‘general’ unit of account (DM 3.66) or, on the contrary, a recourse to the ‘representative’ rate of the ‘agricultural’ unit of account (DM 3.57) is a matter of some interest for the plaintiff in the main action. (1) The fact that under Article 1 of Commission Regulation (EEC) No 485/76 of 3 March 1976 laying down detailed rules for the application of Regulation (EEC) No 348/76, the provisions of Regulation No 645/75 of the Commission of 13 March 1975 apply to the tax introduced by Article 1 of Regulation No 348/76 is not decisive. Those provisions are in fact only intended ‘to ensure the uniform management of the market’ and in particular to determine the date from which the goods must be considered as ‘placed under customs control … until they leave the Community’. That date is the one on which the customs authority accepts the document in which the declarant states his intention to export the products. That acceptance is considered as ‘the completion of customs export formalities’ (Article 4). Nor is it decisive that, as the Commission explains, at the time when Regulation No 348/76 was drafted, the competent authorities took as the basis the ‘green’ exchange rate of national currencies; such an argument seems to me to amount to begging the question. (2) On the other hand it is clear that potatoes are an agricultural product suitable for treatment under a common organization of the markets. Moreover at the time of the situation which gave rise to the dispute in the main action the potato was, and still is today, the subject of more or less well defined national organizations of the markets: — In France, in the Federal Republic of Germany and in the Belgo-Luxembourg Economic Union there is a minimum price system; — In France there is a buffer stock system; — In the United Kingdom there is a quota system for the area planted with potatoes and sales control. In the United Kingdom too the Potato Marketing Board has the duty of purchasing surplus stocks and prohibiting exports except for new potatoes; when market prices are lower than a certain reference price the government pays the Board a ‘deficiency payment’. But the fact that potatoes come under national organizations of the market is not a sufficient ground for stating that there exists a common agricultural policy concerning it. The scope generally attributed to the Court's judgments in the cases of Charmasson ([1974] ECR 1383), Rewe-Zentrale ([1976] ECR 181), Miritz ([1976] ECR 217) and Commission v French Republic ([1977] ECR 515) should simply mean that the maintenance by Member States, after the end of the transitional period, of obstacles to trade in potatoes is illegal even if such trade is still not the subject of ‘Community rules’. (3) In the proposal for a regulation on the common organization of the market in potatoes, which the Commission submitted to the Council on 23 January 1976, it was stated that the application of the Common Customs Tariff duties should suffice, as a rule, to stabilize the Community market as in the case of other fruit and vegetables. The specific duties charged on the importation of certain fruit and vegetables are fixed in gold parity units of account. The export tax in question is the counterpart of the customs duty on imports the charging of which was suspended by the regulations to which I have referred. Potato imports are of course subject only to an ad valorem duty, which is not fixed in units of account. But the fact that the application of the regulation is limited to products coming under tariff heading 07.01 A II indirectly but necessarily implies a reference to the unit of account defined in the General Rules of the Common Customs Tariff (Part I, Section I, C), even if in this case there is no need to have recourse to that criterion to define the products in question. (4) The only measures which have been adopted hitherto at Community level are temporary and are in the nature of tariffs, as Mr Advocate General Franco Capotorti pertinently reminded us in his opinion in Case 68/76, Commission v French Republic ([1977] ECR 538). Regulations Nos 128/76 and 288/76 refer to Article 28 of the EEC Treaty. Regulation No 348/76 bases the tax in question exclusively on Articles 103 and 113 which deal with conjunctural policy and commercial policy and not on Article 39 (1) (d) or (e), which deals with the agricultural policy, or on Article 235. Consequently the ‘green’ rate applies only to dealings to be carried out in implementation of measures concerning the common agricultural policy. The application of that rate to the tax in question would result in potatoes being treated as a product subject to a common organization of the market whereas in all other respects they are considered in the case-law of the Court as products subject only to the ordinary law. Finally I would add that, if Commission Regulations Nos 458/76 and 890/76 were to be considered as measures of the common agricultural policy they would very probably have had to be adopted according to quite a different procedure, for example after the opinion of a ‘Potato Management Committee’.