2.

The plaintiff in the main action considers that in fixing the threshold price for common wheat in 1975 the marketing costs which must, according to case-law, be taken into consideration, were incorrectly determined as regards the cost of transport from Rotterdam to Duisburg, the transhipment charges at Rotterdam and the importer's trading margin which also includes a series of smaller items such as charges for customs formalities, costs of the security lodged and expenses with regard to the inspection on receipt. In this connexion it is necessary to state the following: (a) As regards transport costs (aa) If I have understood correctly the statements made by the plaintiff at the hearing, it had doubts as to the accuracy of the transport costs taken into consideration, arising in particular from a working document of which it had obtained knowledge and which was intended for a meeting held in May 1974 which concerned the fixing of the threshold prices. It was possible to deduce from this document intended for the German delegation that the Italian delegation hoped that higher freight rates than proposed by the Commission would be taken into consideration, in other words 3.10 units of account instead of 1.02 units of account, and that the Danish delegation also considered correct higher freight rates (1.80 units of account) than had been taken as the basis of the Council decision (1.25 units of account). This cannot however be decisive with regard to the present case. First, it is impossible to deduce from the abovementioned document that the higher values quoted by the Italian and Danish delegations originate in concrete investigations carried out on the transport market. On the contrary, it is possible that they arose under the influence of considerations of commercial policy because both above mentioned Member States had an interest in the reduction of the price of imports which could be achieved by lowering the threshold price and lessening the margin between that price and the c.i.f. price. Secondly, it must be borne in mind that the values quoted related to the 1974/75 marketing year whereas the main action concerns the 1975/76 marketing year. The values which were relevant for that year were however, according to the assurances given by the Council and Commission, fixed unanimously; accordingly therefore no delegation took the view that the freight rates for which a slightly higher amount was laid down than in the previous year (1.30 units of account instead of 1.25 units of account) were calculated at too low a level. (bb) The plaintiff then complains in general that in fixing the threshold prices insufficient account was taken of foreseeable inflationary developments. However, this argument is certainly irrelevant too as regards the transpon costs, as has been shown at the hearing. In this connexion reference may be made to Annex I to the Commission's observations in which are compiled the figures which have been taken into account since the 1969/70 marketing year. They show that the values did not remain unchanged but rose to a certain extent; in fact they also rose as it happens from the 1974/75 marketing year to the 1975/76 marketing year. Secondly, an important factor is the convincing observation made by the Commission that, mainly through the effect of dumping by Eastern European States, there is keen competition in navigation on the Rhine which has excess capacities; this keeps the freight rates constantly low. This explains why it is impossible to record any developments corresponding to the general inflationary development in costs and it is therefore not surprising that, as the Commission stated without contradiction, freight rates of between DM 4.75 and DM 5 per tonne still applied in 1978. (cc) In support of its argument that the freight charges were fixed at too low a level the plaintiff relies in addition on a calculation consisting of the freight for the domestic route between Emmerich and Duisburg deduced from the Frachten- und Tarifanzeiger der Binnenschiffahrt [Inland Navigation Freight and Carriage Rates Gazette] of 20 June 1975 and the freight rates for the section of the route lying outside the Federal Republic of Germany (Rotterdam to Emmerich), calculated on the basis of the rate per kilometre applicable under the Directives on aid to freight issued by the Federal Ministry for Food applicable for the year 1975/76. This results in freight charges of DM 8.86 per tonne; compared with these the DM 4.76 per tonne which forms the basis of the regulation on the threshold price is, the plaintiff claims, much too low. As the plaintiff itself admits, the abovementioned figures are a notional calculation prepared for a very definite purpose; the calculation has nothing to do with the actual freight charges, which alone are important in this case. In fact, on the Rhine there is, in the case of traffic crossing the frontier, no such split calculation but solely international freight rates which have been freely negotiated. For the purpose of appraising the validity of the regulation on threshold prices a notional calculation such as this cannot therefore be decisive but solely the freight rates actually calculated. In this connexion I would refer to a calculation from the inland navigation undertaking Rhenus AG produced by the plaintiff itself. According to that calculation the ship's freight rate for consignments of 300 to 500 tonnes amounted to approximately DM 4.80 per tonne in the case of annual contracts for the transpon of cereals from Rotterdam to Duisburg at the beginning of 1975. On the other hand the Commission stated that the freight charges which it had suggested and which were taken into consideration in fixing the threshold price were the result of continual contacts with relevant business circles (the Nederlandse Particuliere Rijnvaart Centrale and Peterson's Havenbedrijf) and in particular with two undertakings which own a large number of boats on the Rhine. In this connexion it is certainly necessary to take into consideration the fact that the amount of DM 4.76 per tonne used as the basis refers to shipments of between 500 and 1500 tonnes. If these values of DM 4.76 per tonne and DM 4.80 per tonne are compared however, there is in fact only a minimal difference which is easily explained by the fact that the different amounts of freight charges refer to different sizes of vessel. The plaintiff has therefore shown by the calculation which it itself produced that the Community authorities took appropriate values as their starting point. For this reason it is in my opinion unimportant whether the Commission should have used as the basis of its calculation the average of the two most advantageous months of the reference period or the yearly average; even the latter, as shown by the Commission by means of the freight rates compiled for the year 1974, were not appreciably different from the first of the above-mentioned values. It is therefore very difficult to raise any objections to the factor of transport costs in the examination of the threshold price of interest in this case. (b) As regards the transhipment charges at the port of Rotterdam In this connexion the Community authorities took DM 1.83 per tonne as the starting-point whilst the plaintiff considers that DM 3.15 per tonne is correct. The plaintiff relies in this connexion on the scale of charges of the Vereniging van Nederlandse Graanfactors en Graanexpediteurs and claims that it is necessary to take into consideration the fact that according to the conditions of the Rotterdam corn exchange in the port of Rotterdam it is unavoidable and customary in the trade to use a shipping agent. In contrast the Commission referred to the transhipment tariffs of Grainwave BV according to which the actual transhipment charges for common wheat from 1 July 1974 amounted to Hfl 1.43 per tonne and from 1 May 1975 Hfl 1.64 per tonne. I have the impression that the plaintiffs criticism is also unjustified in this respect. The higher values quoted by it are in fact explained partially by the fact that prices are listed in the tables referred to ‘inclusive of weighing, inspection and evening, night and weekend work’. They therefore cover special services which do not always arise and which cannot therefore be regarded as ‘inevitable’. In addition they refer to procedures the costs of which the Commission has taken into consideration in the context of the trading margin, such as the cost of weighing and inspections. Should they be justified however as for the rest because of the need to use a shipping agent at the port of Rotterdam it is necessary to bear in mind that according to the assurances made by the Commission Netherlands importers in Rotterdam do not need any agent so that these costs are not inevitable either. Furthermore, the Commission was able to point out that the sharp increase in the margin as early as the 1974/75 marketing year should be sufficient to cover this cost factor too. It is therefore impossible to state that insufficient account was taken of the transhipment charges. (c) As regards the trading margin and other costs arising The figure of DM 4.55 mentioned by the plaintiff in this connexion differs only very slightly from the amount of DM 4.40 used by the Community authorities. Such a difference may of course be readily disregarded in the legal appraisal, chiefly in view of the considerable variations in the c.i.f. prices of which the Commission spoke at the hearing. Moreover, I do not have the impression that the difference is caused by the fact that some items mentioned by the plaintiff were not taken into consideration by the Community authorities. In any case the plaintiff did not go into this further at the hearing and did not in addition oppose the Commission's view that the difference may basically be attributed to different conceptions as to the size of the profit margin. In this respect however the Community authorities certainly have a certain margin of discretion. In addition, a misuse of discretion can hardly be based upon DM 0.15.