THE HAMBURG FINANZGERICHT, IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY, REFERRED QUESTIONS RELATING TO THE VALIDITY AND INTERPRETATION OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971, ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES, AND OF REGULATION NO 2122/71 OF THE COMMISSION OF 1 OCTOBER 1971, FIXING THE COMPENSATORY AMOUNTS IN FORCE IN AGRICULTURE AS FROM 4 OCTOBER 1971 CONSEQUENT UPON THE SAME CIRCUMSTANCES .
AS TO THE FIRST QUESTION
2 BY THE FIRST QUESTION IT IS ASKED WHETHER REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 IS VALID INSOFAR AS IT AUTHORIZES THE CHARGING OF COMPENSATORY AMOUNTS ON IMPORTS FROM THIRD COUNTRIES .
3 THE VALIDITY OF REGULATION NO 974/71 HAS ALREADY BEEN EXAMINED BY THE COURT IN CASES 5/73, 9/73 AND 10/73 ON THE OCCASION OF PRELIMINARY REFERENCES BY THE FINANZGERICHTE OF BERLIN AND BADE-WURTEMBERG IN DISPUTES BETWEEN, ON THE ONE HAND, THE UNDERTAKINGS BALKAN-IMPORT-EXPORT, CARL SCHLUETER AND REWE-ZENTRALE AND, ON THE OTHER HAND, THE CUSTOMS AUTHORITIES OF THE FEDERAL REPUBLIC OF GERMANY .
IN ITS JUDGMENTS OF 24 OCTOBER 1973 IN THOSE CASES THE COURT HELD THAT EXAMINATION OF QUESTIONS REFERRED BY THE NATIONAL COURTS HAD NOT REVEALED ANY ELEMENTS CAPABLE OF AFFECTING THE VALIDITY OF REGULATION NO 974/71 .
IN THIS CASE NO NEW ELEMENT HAS BEEN ADDUCED CAPABLE OF CASTING DOUBT ON THAT DECISION .
AS TO THE SECOND QUESTION
4 BY THE SECOND QUESTION IT IS ASKED WHETHER THE AMOUNT OF 19.20 DM PER 1 000 KG FIXED IN ANNEX I TO REGULATION NO 2122/71 FOR IMPORTS OF COMMON WHEAT FROM THIRD COUNTRIES WAS IN CONFORMITY WITH THE CONDITIONS LAID DOWN IN ARTICLE 2 OF REGULATION NO 974/71 .
5 ARTICLE 2 ( 1 ) OF REGULATION NO 974/71 PROVIDES THAT THE COMPENSATORY AMOUNTS FOR THE PRODUCTS IN QUESTION SHALL BE EQUAL TO THE AMOUNTS OBTAINED BY APPLYING TO THE PRICES THE PERCENTAGE DIFFERENCE BETWEEN THE PARITY OF THE CURRENCY OF THE MEMBER STATE CONCERNED AND THE ARITHMETIC MEAN OF THE MARKETS RATES DURING A PERIOD TO BE DETERMINED .
THE POINT OF DISPUTE CONCERNS THE MEANING AND SCOPE OF THE WORD 'PRICES' IN THAT CONTEXT .
6 THE METHOD ADOPTED BY THE COMMISSION AT THE TIME IN QUESTION CONSISTED IN TAKING AN AVERAGE C.I.F . PRICE CALCULATED FOR A REFERENCE PERIOD OF ONE WEEK AND MODIFYING THAT AVERAGE PRICE ONLY IF AN APPRECIABLE CHANGE ( IN GENERAL, 10 PER CENT UP OR DOWN ) HAD OCCURRED IN RELATION TO THE PRICE FIXED PREVIOUSLY .
THE PLAINTIFF IN THE MAIN ACTION DISPUTES THE MERITS OF SUCH A METHOD, ASSERTING THAT NOT ONLY SHOULD THE C.I.F . PRICE HAVE BEEN CHOSEN AS REFERENCE PRICE, AS THE COMMISSION IN FACT DID, BUT THAT ACCOUNT SHOULD ALSO HAVE BEEN TAKEN OF PRICE VARIATIONS, IF NOT FROM DAY TO DAY, AT LEAST AT FREQUENT INTERVALS, WHICH WOULD REQUIRE FREQUENT PUBLICATION OF ADJUSTMENTS .