1.

It must first of all be emphasized that the parties are correct in agreeing to proceed on the basis that a flat-rate system is to be applied in fixing the free-at-frontier price and that regard is not to be had for the data obtained from any particular import transaction (a view which indeed has already been approved in the decisions of the Court). Likewise they agree on a series of facts taken into account by the Commission in its calculations. Although I do not wish to go into details at this point, mention should be made of the offer price for maize in Bayonne, which is the most representative French market for exports to the Federal Republic. On the other hand, there is disagreement over certain parts of the transport costs in their widest acceptation (including loading and unloading costs) as well as the question whether the exporter's profit margin should be included in the marketing costs. The plaintiff complains first — to go into greater detail — that the Commission adopted an amount of only FF 6.60 for the loading costs in Bayonne. In reality it ought to have accepted FF 11 for this and should probably have added FF 2 for bringing the goods from the ship's rail to the hold. Further the plaintiff considers it incorrect to take into consideration an amount of only FF 4.32 for the unloading costs in Rotterdam (where the goods had to be transferred from ship to barge). An amount of FF 0.50 for supervision of unloading and FF 2.00 for free-out costs (that is, for removing the goods from the hold to the ship's rail) were also concerned. Nor does the plaintiff consider that the costs of transport from Rotterdam to Emmerich (the relevant German frontier crossing point) should be estimated at a mere FF 4.64 and that FF 8.50 should in fact be taken into account. Finally the plaintiff criticizes the Commission for including the profit margin of FF 6.25, as it emerges, whilst deducting certain marketing costs from the FF 10 established by the Commission as a fixed amount for marketing costs (that is, the interest paid by the exporter on the financing of the purchase price until it is paid by the importer — FF 2.50; bank and collection charges — FF 0.25 and brokerage — FF 1). On the contrary, the plaintiff considers that one must proceed on the basis of a fixed amount of FF 22 for marketing costs which gives a profit margin of FF 8.93 when certain costs are taken into account (more precisely: transport insurance — FF 0.50, exporter's interest — FF 2.50, supervision of unloading — FF 0.50, brokerage — FF 1, bank and collection charges — FF 0.25, free-out costs Bayonne and Rotterdam — each FF 2 and unloading costs Rotterdam — FF 4.32). With regard to the data which it has mentioned, the plaintiff principally takes as its source the reports communicated by ONIC (Office National Interprofessionnel des Céréales) (the ‘National Cereals Trade Board’) that is to say the competent French authority under the organization of the markets, which, in this capacity, is required under Article 7 of Regulation No 89 to provide the Commission with data on the market and proposals for determining the free-at-frontier prices. In addition the plaintiff justifies its objections by the fact that the cereal is transported from Bayonne to Rotterdam in coasters which are not fitted with their own unloading equipment. Only net freight charges are calculated in this respect, excluding the costs of loading and unloading the ship: accordingly the said costs are not usually included in such cases in the free-onboard clause. The Commission counters this by claiming that the plaintiff ought not simply to have adopted the figures supplied by ONIC. Instead, it was its duty to check the data supplied to it with the assistance of its own experts who are in constant touch with trade and unloading circles. It is clear that this claim is justified from the mere fact that ONIC continued to communicate the same data although the freight rates frequently fluctuated. It also appears significant that ONIC, despite communicating the fixed sum for marketing costs, accepted, in discussions with the experts of the Commission and from other Member States within the framework of the Management Committee, a fixed sum of FF 10 for marketing costs. Finally the fact that, when allowance is made for the level of prices in Duisburg, the free-at-frontier prices calculated by the Commission coincided with the level prevailing at that time for offer prices cif Duisburg, which constitutes persuasive evidence that the Commission was not mistaken in its determination of the free-at-frontier price When we consider the attitude to be adopted to this dispute it must be confessed from the outset that it certainly appears questionable that, despite the undeniable fluctuations of freight prices over a lengthy period, ONIC should comnunicate data which was plainly un-altered. It also provides food for thought hat in the Management Committee ONIC accepted a fixed amount of FF 10 for marketing costs (this, at any rate, has not been disputed) and thereby departed from he figure of FF 22 which it has itself communicated. It may further be stated hat with regard to the Rhine freight another disputed issue) ONIC probably has a less reliable impression than the Commission is able to obtain through its more direct contacts and that ONIC possibly took as its basis the national freight rates, which are fixed by tariff and consequently higher, for the Rotterdam-Emmerich route, instead of the lower quotations prevailing in international transport, as supplied by the Rotterdam and Duisburg freight markets. This undoubtedly weakens the plaintiff's argument to the extent to which it is based exclusively ONIC's data There are in addition the following considerations which likewise contradict the plaintiff's argument. The plaintiff states mat in Bayonne-Rotterdam transport coasters are used as a rule and that net freight rates are usually taken into account. This does not rule out that transport costs might sometimes be lower than those adopted by the plaintiff. It is consequently important for the application of Regulation No 89 because according to that provision the lowest costs are decisive. With regard to the loading and unloading costs (for bringing the goods from the rail to the hold of the ship and vice versa) which, it is alleged, the Commission failed to take into account, it must be stated that the plaintiff itself adopted the figure of Fl. 2 (FF 5.43) for each trans-shipment of cereal into barges at Rotterdam. When it is considered in this context that the Commission estimated the unloading costs in Rotterdam at FF 4.32 it is scarcely clear, in comparing it with the figures mentioned by the plaintiff, that an additional FF 2 should be taken into account for free-out costs. Viewed in this light it further seems extremely doubtful whether for the loading costs in Bayonne there should be assessed, in addition to the FF 6.60 mentioned by the Commission or indeed to the costs of FF 11 mentioned by the plaintiff, an additional FF 2 for transferring the goods from the rail to the hold of the ship (a view which the plaintiff itself only considers as a possibility arising from a particular interpretation of the fob clause). It should finally be remarked that the divergence in profit margins arising from comparison of the Commission's data with that of the plaintiff is relatively insignificant. When it is also borne in mind that the Commission is in this respect further obliged to proceed on the basis of the lowest possible figures and that the figures adopted by it, which remained unchanged for a long period, never appear to have given rise to difficulties it can scarcely be alleged in this connexion that an erroneous appraisal was made. Nevertheless I hesitate to base a conclusive decision solely on these considerations and thereby to consider the plaintiff's complaints incontestably disproved. This could scarcely be defended under the rules of procedure. Instead it appears evident that in a situation such as that with which we are faced further investigation must be carried out in order to clarify matters completely. For this purpose consideration might for example be given to questioning ONIC in order that it might thereby explain its point of view or to take the opportunity of carrying out direct investigations in trade circles with regard to the data, especially concerning freight rates and loading and unloading costs. Ultimately I consider it by no means necessary to recommend this course and thereby to bring the matter to a final decision. This is because there is reason to doubt the efficacy of such an investigation in view of the period which has elapsed in the meantime. Furthermore — and this is indeed more important — on another view an entirely admissible solution appears possible. In this respect I recall that the Commission stated that in determining the disputed free-at-frontier price it acquired its data on the offer price in January 1966 for goods arriving cif Duisburg from trade circles (the Deutsches Getreidekontor) and from the Einfuhr- und Vorratsstelle. However, these prices coincided with the data which it was possible to obtain through converting the free-at-frontier prices on the basis of Duisburg. In my view this is an important factor in the appraisal of the present case, and it cannot be excluded from consideration — as the plaintiff endeavours to do — by the objection that the Commission should not have proceeded in its calculations on the sole basis of the figures for the market in the exporting country together with the transport and marketing costs which have been ascertained. In fact it is clear from Article 8 of Regulation No 89 that the Commission ‘in determining the free-at-frontier price … shall also have recourse to any data which may be communicated to it by the importing Member States’. Consequently the plaintiff cannot succeed in its objections when it states that there were higher quotations on the German market at this time and that the data produced by the Commission can be explained in the circumstances by special factors such as importations carried out earlier or carried out on the basis of certificates fixed in advance. With regard to the last part of this submission, although this can in my view explain certain particular quotations, it cannot explain the general impression of the market as it is reflected in the data mentioned by the Commission. In addition the higher quotations mentioned by the plaintiff must be ignored since, as I have said, the Commission is obliged under the common organization of the market to adopt as its basis the lowest figures, which are those most endangering the market It may finally be held, when the conclusions based on the figures mentioned by the Commission as characteristic of the market in the Federal Republic are apposed to the doubts relating to the plaintiff's argument, that the accuracy of the Commission's decision on the free-at-frontier price cannot be doubted with regard to the relevant data on the market.