1.

First let us look closer at the first objection. As I have already explained in my opinion of 13 July 1971, an authorization to make compensatory payments to sugar factories was made under Article 2 of Regulation No 769/68 only in the case where the national price of white sugar calculated in a particular manner was on 30 June 1968 above the target price valid from 1 July 1968. At least it can be so stated summarily as regards the territory of the Federal Republic. It would have been right in the applicant's view on the other hand to take the intervention price and not the target price as the criterion. To this objection it must be said immediately that its validity is not supported by the wording of Article 37 of Regulation No 1009/67. This provision states simply as follows: ‘The Council, acting in accordance with the voting procedure laid down in Article 43 (2) of the Treaty on a proposal from the Commission, shall, in respect of sugar in stock on 1 July 1968, adopt provisions concerning the measures needed to offset the difference between national sugar prices and prices valid from 1 July 1968.’ Mention is made quite generally of ‘measures necessary’ which properly understood refers to a discretion on the part of the legislature. The prices, too, are not stipulated; it is not stated which of the various prices applicable with their price margins under the market organization (target prices, intervention prices, derived intervention prices, etc.) comes into consideration. This also appears reasonable because at the time Regulation No 1009/67 was adopted (18 December 1967) the prices for the marketing year beginning on 1 July 1968 had not yet been fixed. This was done only later namely on 9 April 1968 in Regulations Nos 430 and 432 (OJ 1968 L 89, p. 2 and p. 4) and on 18 June 1968 in Regulation No 767 (OJ 1968 L 143, p. 11). There is accordingly no support from the wording of Article 37 of Regulation No 1009/67 for the correctness of the applicant's view. Further, and here I come to a second point, it cannot be said in my view that a compelling indication that the intervention prices should be the criteria may be derived from Regulation No 769/68 itself, since in Article 2 (2) thereof the intervention price is mentioned in connexion with the determination of the compensatory amount. On the other hand there is the clear wording of Article 2 (1) which refers to the difference between the national prices and the target prices. Further, it should not be overlooked that in Article 2 (2) it is simply stated: ‘The amount of this compensatory payment … shall be calculated on the basis of the difference …’. It is thus not said that the compensatory amount should be equal to this difference. Seen in this light it appears more reasonable to see the function of the said paragraph, as does the Council, as determining the conditions of calculating the intervention price, that is, as one of the factors mentioned in paragraph 1. Similarly there is no merit in the applicant's argument which refers to the relationship between the minimum price of beet and the sugar price. It was stated, as you know, that previously, that is under the national organization, a fixed relationship existed between the minimum, price of beet which was guaranteed to beet-growers and the fixed price of white sugar; the fixed price was so calculated that the minimum price of beet could be paid out of it. Now this function has been taken over by the intervention price; the minimum price of beet stands, as may be seen from various Community regulations, in a particular relationship to the intervention price and it must accordingly appear obvious in the context of a compensation system to compare the previous national price with the intervention price of the common organization of the market. To this, at first sight impressive inference, the Council has nevertheless objected that in truth the function of the intervention price is not identical to the previous German fixed price simply because it provides only the lower limit of a price margin within which the sugar price should be determined by the market (I shall return to this fact in a later connexion). Moreover, the beet price represents only one of several cost factors. Had in fact compensation with regard to the various beet prices been intended then the relevant provisions would certainly have been worded accordingly. In my opinion the validity of these objections can scarcely be questioned and therefore indeed the viewpoint just dealt with fails as a basis of the application. Finally, it is clear that no support can be derived from the applicant's reference to the system of compensation for losses resulting from revaluation which was laid down in a decision of the Commission of 4 December 1969 and which took the intervention price as a basis. As the Council rightly stresses it is here a question of a different kind of rule for a different kind of problem. Moreover, it would have easily been possible to base this compensation, with another percentage rate, on the target price, because this is laid down at a fixed relationship to the intervention price. Further and in particular, the essential characteristics of the common organization of the market in sugar militate against the applicant 's argument (compensation on the basis of the intervention prices). These include the already-mentioned fact that they have no fixed prices but seek to allow the market laws to prevail within the margins formed by the target and intervention prices: to this extent the prices should vary freely on the market. Prices have obviously followed the corresponding trend after the coming into force of the organization of the market in sugar. This may be inferred from the declarations of the Council according to which the actual prices for white sugar in the Federal Republic in the months after the coming into force of Regulation No 1009/67 were higher than even the previous national fixed price. A similar picture appears from the observations of the applicant even when it stresses that the slight increase in the average price of white sugar in the months of July to November 1968 did not apply in North Germany where the prices in the months of July to October 1968 were less than the old fixed price. This drop in the price was in fact to only a quite small extent (DM 0.21 per 100 kg ( 2 ). Had the compensation in view of this situation, as the applicant considers right, been allowed on the basis of the intervention price, then an additional profit would obviously have been provided for those in receipt of the compensation (namely to the amount of the difference between the actual prices and the intervention price). This could however certainly not be the intention of the compensatory measures in question here and thus it is clear that the intervention price was not the appropriate criterion. It is in my view likewise clear that compensation on the basis of the prices actually obtained could not come into question. To this extent the fact is significant that Article 37 of Regulation No 1009/67 speaks of the prices valid, that is fixed by the law. Moreover, such a rule would probably have led to the sugar factories concerned making no special efforts to obtain prices for their old stock higher than the intervention prices. The price structure would thus not have developed, as the basic principles of the organization of the market in sugar, provide, on the basis of the laws of the market and above the level of the intervention prices and this would have been at the expense of the public purse, that is, the taxpayer who finally had to provide the compensation. I therefore think — no other conclusion is possible—that it was quite justified according to the intention and objective of the organization of the market to provide for any price compensation for the so-called countries with high prices on the basis of the target price, that is the upper limit of the price margin in Community law, as the contested regulation has done. In any case there is nothing which would appear invalid according to the basic Regulation No 1009/67 by reason of the introduction of this system and the failure to introduce the system which the applicant considers right. For the sake of completeness it could moreover be observed in this connexion that compensation was intended only for considerable differences in price. This appears from the recitals to Regulation No 769/68 and this cannot be challenged because it is both economically reasonable and in accordance with the principles of the rule of law. If the figures are compared it must however appear extremely questionable whether the difference between the former raw sugar price and the intervention price may be said to be considerable. The intervention price of raw sugar (converted to the price of white sugar) was in fact 20.11 u.a., whereas the former national price (according to the applicant's calculation) was 20.76 and (according to the calculations of the Council) 20.55 u.a. Regarded thus, the view does not in fact seem unreasonable that even taking the intervention price as the basis of the compensation it would not necessarily have led to the result desired by the applicant. This represents, however, I can say quite clearly, only an additional and not a conclusive consideration in deciding the present case.