2.

Going on from this, that is, because the idea of a power conferred on the Member States in the field of refunds was obviously paramount, it is logical to assume in addition that the rates laid down by the Community represented simply an upper limit and that they could not be understood to exclude smaller refunds. Various arguments lead to this conclusion. It must first be observed that this assumption is on the same lines as that in the judgments in Cases 6/71 and 21/71. As we know, according to these judgments the Member States were entitled ‘to add further conditions to the conditions for a grant provided for by the Community rules’ and they are free ‘to adopt criteria more restrictive than those provided for by the Community rules’. Reference may then be made to the wording of the relevant provisions. In all the implementation rules (Article 2 of Regulation No 90, JO 1962, p. 1902, Article 1 of Regulation No 91, JO 1962, p. 1904, Article 1 of Regulation No 164, JO 1962, p. 2945) reference is made only to the fact that the refund should not exceed a particular amount. Moreover Article 20 of Regulation No 19 merely states that the export to third countries should be facilitated ‘on the basis of world market prices’. It may be inferred from this that it could not be the only standard. In the present context too, the requirements of economic and trade policy and the interests of the common organization of the market are important. Considerations of trade policy could, as may easily be seen, cause the Member States to have regard to the particular situation of the export markets (price structure, import provisions applicable, transport routes) and therefore to fix lower amounts of refund. As far as the interests of the common organization of the market are concerned, it should not be forgotten that there may have been certain shortcomings in its operation (the Federal Government has referred to these in respect of the fixings of the free-at-frontier price for certain Member States). Seen in this light, it might have seemed perfectly proper for the purpose of avoiding deflections of trade and endangering the whole supply of the Common Market to fix refunds below the maximum limits permitted by the Community rules. In this connexion it is again obvious that these considerations apply equally to refunds in kind as to refunds in cash and it would thus be wrong to base the former solely on budgetary criteria. With regard to refunds in kind it should also be borne in mind that they were provided as facilities for certain Member States which had previously made use of this practice. It would certainly not accord with the intention of the legislature to infer stricter conditions and in particular to hold that the rates laid down by the Community legislature were absolutely binding. Therefore the plaintiff's references to an interpretation in support of its argument suggested the wording of Article 4 of Regulation No 90 can be of no assistance in relation to refunds in kind. We know from variep experience what the value of such arguments is in Community law. In addition in the present case there is the fact that Article 4 of Regulation No 90 certainly permits the interpretation that the words ‘in derogation from’ relate only to the form of the refunds and not to the decisive principles, which justifies the argument that Article 4 introduced only an additional procedure for refunds. Finally the prohibition on quantitative restrictions contained in Article 18 of Regulation No 19 and the fact that it was expressly provided (Regulation No 90/62 and Regulation No 163/62) in certain cases that the maximum rates of refund could be exceeded do not contradict the view that Community law simply laid down maximum rates of refund below which refunds could be granted. With regard to the second of these arguments it must be said that it was necessary to provide such derogations expressly because the function of the maximum rates was to prevent the levy system from being undermined by the reduction of export prices. However, as far as Article 18 of Regulation No 19 and the prohibition on quantitative restrictions are concerned, the argument derived from them is quite obviously beside the point. It must certainly be conceded that the reduction of the rates of refund could have meant making exports more difficult. If, however, an incomprehensible contradiction between the provisions of Article 18 and the clear enabling provision of Article 20 of Regulation No 19 is not to be imputed to the Community legislature there remains in fact no alternative but to accept that refunds come within the special category of export aids and thus that the term ‘quantitative restrictions’ must be more narrowly defined so as to exclude refunds. Thus we arrive at the second essential conclusion that according to Regulation No 19 and the implementing regulations issued under it the Member States were still in principle free to fix rates of refund lower than those provided for in the Community regulations (a conclusion to which the Bundesfinanzhof, independently interpreting the Community provisions, apparently also came in its judgment of 14 February 1970).