2.

Seen in that light the real question in the present case is thus whether, after what has been said in the present proceedings, the general findings in the above-cited judgment must be rectified, which naturally could only be properly done by the full court, even if the remarks in the judgment in Case 217/78 ( 4 ) in so far as they go beyond the problems of the main proceedings in that case amount only to obiter dicta. However, I can see no grounds for such a rectification. Several considerations lead me to take this view. (a) There seems to be agreement that if the Commission's view is followed then in certain circumstances it is possible that purchasers of butter may face increased charges if butter at a reduced price is acquired in a country having a hard currency and the diversion from the prescribed use occurs in a country with a weak currency or if after the butter is bought in a country having a hard currency preliminary processing is carried out in a country with a weak currency and then the goods are re-imported into the country with the hard currency and are there diverted from the prescribed use. Contrary to what the Commission thinks, I consider this for various reasons to be unacceptable. (i) Certainly it is not permissible merely to point out, as the Commission has done, that if the butter is diverted from its prescribed use — the Commission uses the term “deceit” — there is no interest in avoiding higher charges which merits protection. To argue so is to overlook the fact that the first purchaser of the butter is not necessarily the same person as the one who diverts it from its prescribed use and therefore additional charges in respect of monetary compensation may fall upon the wrong person. (ii) Further it is true that under the system of Regulation No 1259/72 in the event of diversion from the prescribed use no specific limitation on subsequent charges applies because the rules on deposits are so framed that not only the difference between the minimum selling price and the market price but also an additional amount may come into consideration and because, in addition, the actual price offered and paid is frequently higher than the minimum selling price. If, however, as the Commission has itself emphasized, the actual rules on checking and penalties contained in Regulation No 1259/72 may be considered sufficient to achieve their purpose it is hard to understand how additional penalties in the monetary sphere can be justified in the event of a diversion of butter from its prescribed use. (iii) Not least of all, it may be pointed out, as against the opinion that the latter was in fact intended, that there is no rule in Article 20 similar to that in Article 18 to the effect that the deposit is not forfeited in the event of force majeure. It must further be admitted that the consequences considered by the Commission to be correct would be discriminatory because such additional penalties would arise only if a frontier were crossed, that is if the butter were exported from a country with a hard currency before being diverted from its prescribed use, whereas if the diversion occurred in the State in which the butter was bought without any crossing of a border the forfeit of the deposit would be the only penalty. That however can scarcely be regarded as appropriate. (b) On the other hand it also became clear in the proceedings that the subsequent granting of monetary compensation, in the form at issue in the main action, is surely not likely to frustrate the aim of Regulation No 1259/72. This — namely that forfeiture of the deposit, at least in conjunction with the subsequent levying of monetary compensation, is sufficient to exclude unjustified profits even in the event of the subsequent grant of monetary compensation — has been demonstrated by the plaintiff with the aid of various examples and even the Commission has admitted that the subsequent grant of monetary compensation does not lead in normal circumstances to a currency profit. When the Commission, however, in addition expresses the view that the situation might be different in very special circumstances, for instance where price increases on the butter market are to be observed from one marketing year to the next or where the person who lodges the deposit and the person responsible for the crossing of the frontier, which gives rise to the payment or levying of monetary compensation, are not identical or where price increases occur in a country where the currency is devalued because the green rate of the currency is adjusted to the normal rate, it is still possible to raise against the Commission in regard to those considerations, and against the conclusion that its view can be justified by them, the following matters : (i) If I have understood the position correctly, it is precisely the flexibility introduced in the course of time in the rules on deposits which should cover the first-mentioned situation; should that however not be possible in a completely satisfactory manner, then the obvious course is to amend the rules on deposits rather than accept the disadvantages which are clearly involved in the interpretation of Article 20 of Regulation No 1259/72 which the Commission considers to be correct. (ii) With regard to the second case mentioned it is quite certain that the first purchaser of butter at a reduced price who has to lodge the deposit will pass the burden on, by means of an appropriate agreement, to subsequent purchasers and thus no doubt also to intermediary users engaged in operations involving the crossing of the frontier and the first processing. It is therefore hard to imagine that, where it is subsequently ascertained that the butter has been diverted from its prescribed use, such an intermediary buyer from a country with a weak currency would, without being affected by the forfeiture of the deposit, only receive the balance of the full monetary compensatory amount and thus receive an unjustified benefit. (iii) Finally, as regards the third case, it must be borne in mind that in practice it has as yet apparently never happened that monetary compensation has been demanded a posteriori where butter has been exported to a country with a weak currency and then used otherwise than as prescribed. In fact, as we have heard, the practice, which is not approved by the Commission, occurs only in the Federal Republic of Germany after temporary export to a country with a weak currency and then it is a condition that subsequent decisions imposing a charge must have become operative. Even the Commission admits that the cases it mentions are rare exceptions where speculations with a view to a currency gain are essentially the result of a fortuitous development. If, however, it should in fact not be possible to find a special remedy, such as the Commission considers indispensable, within the ambit of the rules on monetary compensatory amounts, then in my view the currency gains feared by the Commission in exceptional cases are more acceptable than the other disadvantages to which I have previously referred and which are associated with the Commission's interpretation of Article 20 of Regulation No 1259/72.