2.

As I have said, the appellant in the main action does not formally dispute any of these points. However, it maintains that since Regulation No 19 and the measures adopted for its application defined quite precisely the concept of import by one Member State of goods from another Member State, a definition of the concept of export to third countries, impliedly, admittedly by reasoning from the converse, but necessarily follows from this. In this respect, the appellant bases its argument essentially on the Commission's decision of 17 July 1962, that is to say, on the measure by which the Commission fixed the conditions for the issue of the so-called certificate “DD4” which enables imports into one Member State from another Member State to benefit from the levy, still in existence but relatively small, applicable to intra-Community imports. The reasoning on this point of the appellant in the main action is as follows: either traders have claimed and obtained the benefit of the advantages implied in the granting of a certificate DD4 or they have neither claimed nor obtained it. In the first case, and only in this case, as the Court has decided in its judgment in the Craeynest case of 22 October 1970 [1970] ECR 905, the transaction must be regarded as a Community export-import transaction. In the second case, since the transaction cannot be a Community export-import transaction, it must necessarily be an export-import transaction with third countries and therefore give rise as such to a right to the refunds instituted by the national authorities. The reasoning is brilliant, but, in my opinion, somewhat specious. The Commission has demonstrated to you at length and, in my opinion, very convincingly, why and how, both for technical reasons and in view of the clear intention of the draftsmen of the provisions applicable during this period, it is impossible to regard, as Rheinmühlen maintains, the system of exports to third countries as being “the symmetrical equivalent of the levy” (this is the expression used by the plaintiff in the main action). I fully agree on this point: one may indeed admit that the absence of the issue of a certificate DD4 is a necessary condition or at least a presumption in favour of an export's being accepted as an export to a third country, but in no case is it, in my opinion, a sufficient condition. The example given by the Commission, which shows that, for certain processed products, there could be legally both the issue of a certificate DD4 and the granting of a “third-country” refund, is significant. It shows the independence of the two systems. In order to avoid the needless protraction of these observations I shall not repeat in detail the other points in the Commission's argument which, on this question, I adopt entirely and I shall confine myself to one general observation. At the basis of Rheinmühlen's arguments we find a concept which I have already had occasion to oppose before the Court: the idea that the sole object of the entire organization of the common agricultural market was to institute between the Community and the Member States on the one hand, and those specializing in the external trade in cereals on the other hand, a vast “cat and mouse” game in which those engaged in the export-import trade could claim not only the profit resulting from their normal commercial activity but also a profit that might accrue to them through a defect in the Community legislation or a lack of coordination in the national provisions. It is precisely on this that the appellant's argument really relies. What does the firm fundamentally maintain in effect? During this difficult period when the agricultural common market was being set up, there may have been situations where importers or exporters were not interested in claiming the benefit of the relatively favourable rate of the levy applicable to intra-Community trade, but on the contrary, in obtaining the benefit of the relatively high refunds provided for exports to third countries, even if the goods were eventually to end up by being put into free circulation in one of the Member States. It is claimed that this benefit accrues to the firms concerned as of right. In my opinion, to concede them such a right would be to ignore all the objectives of the common agricultural policy which derive both from the provisions of the Treaty itself and from the interpretation which this Court has given them. What are these objectives? Article 39 lists them very clearly: (1) to increase agricultural productivity and the promotion of technical progress; (2) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (3) to stabilize markets; (4) to assure the availability of supplies; (5) to ensure that supplies reach consumers at reasonable prices. One would look in vain in these provisions, or in the interpretations which the Court has given to them, for confirmation that the measures taken to put this agricultural common market into effect must also enable exporters and importers to be subsidized for transactions which are of no economic interest to the agricultural common market. The appellant's representative began his oral observations to the Court by stressing that his clients were not defrauders and reproached the Commission's representatives for having brought up the dealings in which certain traders were able to indulge at certain times in view of the defects in Community and national provisions. I take due note of his statements, but would remind him—and I shall return to this in a moment—that in addition to fraud, which the national criminal courts have the duty and the power to curb, there also exists what might be termed the “abuse of the law” (“abus de droit”)— one might even be tempted to call it “legal fraud”, as does the Commission in one of its reports—which all courts, and especially the Court of Justice of the Communities, have the duty to forestall and to prevent.