III —

The practice of the Commission with regard to the time-limits attached to the revocation or reduction of the financial benefits or burdens which the monetary compensatory amounts constitute are an illustration of the dual character. The Commission generally provides for fairly liberal transitional measures where the importation of a product gives rise to the levy of a monetary compensatory amount which is borne by the trader, provided that the additional burden was unforeseeable and the trader proves that he was bound by contract On the other hand, as it is the prospect of profit which is affected, transitional measures either do not exist or are, at least, much more limited in scope in the case of exports which give rise to the grant of a monetary compensatory amount which benefits the trader. The nature of the compensatory amounts as ‘fixable in advance’ is of decisive importance. Thus, in order to take account of the possible repercussions on import contracts of the measures to implement the provisions governing the application of compensatory amounts adopted by Regulation No 974/71 with effect from 12 May 1971, the Commission ruled out the levy of compensatory amounts on imports as regards those contracts which could validly be shown to have been concluded before 10 May 1971 (Regulation No 1013/71 of the Commission which was adopted on 17 May 1971 and entered into force on 18 May 1971, the day of its publication in the Official Journal of the European Communities, with effect from 12 May 1971). Similarly, Regulation No 2887/71 of the Commission of 30 December 1971, which extended the system of compensatory amounts to France and Italy and entered into force on 31 December 1971, excluded import transactions concluded before 28 December 1971. As regards export contracts, Regulation No 842/73 of the Commission of 27 March 1973, which entered into force three days after its publication in the Offical Journal on 30 March 1973, increased the refunds fixed in advance and relating to exports not yet affected by 13 February 1973, the date of the announcement of the devaluation of the dollar by the Government of the United States of America ‘as an exceptional measure’ in order ‘to prevent repercussions of the world monetary situation jeopardizing forward transactions planned’ before that date. In the light of the entry into force on 4 June 1973 of the new system of monetary compensatory amounts — under which operators had to cover themselves against the risk of exchange fluctuations in relation to the dollar, while under the former system the risk of changes in that rate of exchange was covered by the monetary compensatory amount — the Commission considered it fair to provide by means of Regulation No 2042/73 of 27 July 1973, published on 28 July 1973 and applying from 4 June 1973, that for all import or export transactions in respect of which the advance fixing of the levy or refund had been requested before 4 June 1973 the monetary compensatory amount applicable should be that applicable on 3 June. Here again, the regulation only applies to amounts fixed in advance in dollars for export refunds or import levies on goods going to or coming from third countries. After Regulation No 2497/74 of the Council of 2 October 1974 suspended with effect from 21 October 1974 the application of Article 4a (2) of Regulation No 974/71 of the Council (in the version contained in Regulation No 3450/73), which provides that in trade between the Member States and with third countries the compensatory amounts granted on imports and levied on exports as a result of the decrease in value of the currency concerned may not be higher than the charge on products imported from third countries, the Commission, which considered that for traders who before the adoption of that regulation had entered into contracts containing set conditions, the suspension of that provision had sometimes resulted in the levy on exports of charges which could not have been taken into account when the contracts were entered into, decided to adopt Regulation No 2966/74 of 25 November 1974 (OJ No L 316 of 26 November 1974) which authorized Member States not to charge either the monetary compensatory amount or the proportion of that amount which corresponds to the increase in the monetary compensatory amount applying to exports to Member States to be effected in performance of binding contracts entered into before 20 September 1974 and carried out within a period of three months from that date. It must be noted, however, that, here again, the compensatory amounts in question are levied on exports rather than granted and therefore represent an increased burden rather than a failure to make a profit. Regulation No 1026/75 (OJ No L 101, p. 1) was adopted by the Commission on 18 April 1975 in a similar context to the present one. In the light of the fact that ‘recent experience has shown that the method used heretofore for the calculation of monetary compensatory amounts for certain processed products has led to amounts the level of which is higher than the aforementioned incidence’ (that is, the incidence on the price of the processed product of the application of the compensatory amount to the prices of the relevant basic product), that ‘this results or could result in trade flows such that competition is distorted and the smooth functioning of the common organization of the market endangered’ and that ‘there should be fixed for the products concerned a compensatory amount based on data corresponding more closely to the actual situation’ Regulation No 751/75 of the Commission of 21 March 1975 (OJ No L 74, p. 37) lowered the monetary compensatory amounts applying to those products. That regulation, which was adopted on 21 March and published on 22 March, entered into force on 24 March 1975 with effect from 21 April 1975. It referred in particular to products falling within subheading 23.07 B I (c) 1, for which the amounts to be granted on exports were DM 4.14 per 100 kg. However, the monetary compensatory amount to be granted on the export of those products was not modified in relation to the level at which it was previously fixed by Regulation No 539/75 of 28 February 1975. It must be noted that the Management Committee for Cereals had not delivered an opinion within the time-limits set by its Chairman. In order to take into account the situation of dealers who had entered into undertakings on the basis of the compensatory amounts published, the Commission provided by Regulation No 1026/75 of 18 April 1975 (OJ No L 101, p. 1), that as regards certain products falling within subheading 11.02 E II (a) (rolled grains and flaked grains) for which the compensatory amounts had been lowered by Regulation No 751/75, the amounts formerly fixed by Regulation No 539/75 should be maintained for a limited period. To take account of undertakings existing in respect of those products before the entry into force of Regulation No 751/75, Regulation No 1026/75, which was also adopted in the absence of any opinion from the Management Committee for Cereals, extended the time-limit of 21 April 1975 until 19 May 1975. Thus, in that particular case the Commission allowed traders who had entered into undertakings on the basis of the compensatory amounts published the benefit of a transitional period of almost two months. It must be noted, however, that the regulation concerned only the products of the milling industry, which have gone through some form of processing, are intended for human consumption and require substantial investments and plant for their production. They are, furthermore, subject to a relatively high levy (rolled grains and wheat flakes). In short, I find that the Commission has only adopted transitional measures in the case of amounts levied on imports or exports, whether or not fixed in advance. However, in at least one case the Commission has to my knowledge adopted such measures in relation to compensatory amounts granted on exports.