REGULATION IS ALLEGED TO BE INVALID BECAUSE OF THE MANNER IN WHICH THE COMMISSION, IN FIXING THE COUNTERVAILING CHARGE, TOOK INTO CONSIDERATION THE PRICES RECORDED ON THE REPRESENTATIVE MARKETS DURING THE MARKET DAYS PRIOR TO THE ENTRY INTO FORCE OF THAT CHARGE . IN PARTICULAR THE COMPLAINT IS MADE THAT THE COMMISSION REFERRED ESSENTIALLY TO THE MUNICH MARKET WHERE THE PRICES WERE PARTICULARLY LOW, INSTEAD OF ACTING ON THE BASIS OF THE QUANTITIES OF BULGARIAN TABLE GRAPES SOLD ON EACH REPRESENTATIVE MARKET AND THUS OF ARRIVING AT A " WEIGHTED AVERAGE ".
UNDER THE TERMS OF THE SIXTH SUBPARAGRAPH OF ARTICLE 11(2 ) ( AS AMENDED ) OF REGULATION NO 23 THE ENTRY PRICE IS TO BE FIXED " ON THE BASIS OF THE LOWEST PRICES RECORDED ON THE REPRESENTATIVE IMPORT MARKETS ", LESS THE AMOUNT OF CUSTOMS DUTIES, OTHER TAXES ON IMPORTS AND TRANSPORT COSTS . IT FOLLOWS FROM THIS THAT THE COMMISSION MUST TAKE INTO ACCOUNT THE LOWEST PRICES RULING ON EACH MARKET DURING THE OBSERVATION PERIOD .
IT IS ACCEPTED THAT, DURING THE PERIOD FROM 11 TO 15 OCTOBER 1965, PRICES FOR BULGARIAN TABLE GRAPES WERE ONLY ABLE TO BE RECORDED ON FOUR REPRESENTATIVE MARKETS OF THE COMMUNITY, NAMELY DUESSELDORF, FRANKFURT, HAMBURG AND MUNICH . DURING THAT PERIOD AND FOR EACH OF THE SAID MARKETS THE LOWEST PRICES, LESS THE DEDUCTIONS WHICH HAVE BEEN MENTIONED, AMOUNTED RESPECTIVELY TO 12, 4, 14.8, 15.6 AND 10.7 U.A . ALL THESE PRICES WERE THUS LOWER THAN THE REFERENCE PRICE OF 15.9 U.A . AND WITH REGARD MORE PARTICULARLY TO THE MARKETS AT DUESSELDORF AND MUNICH, THIS DIFFERENCE AMOUNTED TO 3.5 AND 5.2 U.A . RESPECTIVELY, THUS EXCEEDING TO AN APPRECIABLE EXTENT THE AMOUNT OF 2 U.A . AT WHICH FIGURE THE DISPUTED COUNTERVAILING CHARGE WAS FIXED .
IT MUST BE ADDED THAT DURING THE ENTIRE PERIOD FROM 11 TO 15 OCTOBER INCLUSIVE THE PRICES ON THE MUNICH MARKET, WHICH IS WITHOUT DOUBT OF PARTICULAR IMPORTANCE IN TRADE IN THE PRODUCT IN QUESTION, WERE AT LEAST 4.8 U.A . LOWER THAN THE REFERENCE PRICE .
IT IS NOT POSSIBLE THEREFORE TO COMPLAIN THAT THE COMMISSION DISREGARDED THE LIMITS OF ITS DISCRETION BY CONSIDERING THAT, IN VIEW OF THE DATA RELATING TO THE PERIOD FROM 11 TO 15 OCTOBER 1965, IT WAS NECESSARY, FOR THE PERIOD TO COME, TO FIX THE ENTRY PRICE AT 13.9 U.A . AND CONSEQUENTLY TO INTRODUCE FOR THAT PERIOD A COUNTERVAILING CHARGE EQUAL TO THE DIFFERENCE BETWEEN 15.9 AND 13.9, THAT IS, 2 U.A .
2 . THE STATEMENT OF REASONS FOR REGULATION NO 144/65
IT IS ALLEGED THAT THE DISPUTED REGULATION DID NOT ENABLE THE CRITERIA OR THE FACTS WHICH LED TO THE FIXING OF THE ENTRY PRICE AT 13.9 U.A . TO BE ASCERTAINED . THE COMMISSION DID NOT SPECIFY WHETHER IT REGARDED BOTH THE GERMAN TURNOVER EQUALIZATION TAX AND THE COMMUNITY COUNTERVAILING CHARGE AS " OTHER TAXES ON IMPORT ", WITHIN THE MEANING OF THE SIXTH SUBPARAGRAPH OF ARTICLE 11(2 ) ( AS AMENDED