CELEX: 61984CC0046
Language: en
Date: 1985-02-28 00:00:00
Title: Opinion of Mr Advocate General Lenz delivered on 28 February 1985. # Nordgetreide GmbH & Co. KG v Hauptzollamt Hamburg-Jonas. # Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. # Monetary compensatory amounts - Products derived from maize. # Case 46/84.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 28 February 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The third case on which I am to speak today also deals with problems concerning monetary compensatory amounts in connection with the processing of maize.
      
               A. 
            
            
               The problem in this case concerns production by the plaintiff of maize groats and meal for brewing which fall under heading 11.02 A V (a) 1 and 2 of the Common Customs Tariff, and the export of such products from Germany to Denmark, Great Britain and Sweden in the period from 29 May to 21 June 1979 and between 25 November 1980 and 15 March 1981. It also concerns the monetary compensatory amounts paid to the plaintiff for those products under Regulation (EEC) No 746/79 in respect of the first period (DM 67.01 per tonne of meal) and under Regulation (EEC) No 3013/80 — which the Court considered in Case 39/84 (
                     1
                  ) — in respect of the second period (DM 50.36 per tonne of groats or meal for brewing and DM 56.72 per tonne of other groats or meal).
               The plaintiff in this case also takes the view that those amounts are much too low in comparison with the monetary compensatory amounts applicable to imported maize. The amounts were calculated on the basis of an unrealistic chain of production and innappropriate rates of yield. Moreover, no account was taken of the fact that undertakings in countries with a strong currency have to meet production and processing costs in their national currency. In the plaintiff's view, those rules discriminate against German processors as compared with their French competitors, who are required to pay excessively low monetary compensatory amounts on exportation. Moreover, the plaintiff notes that there are no special rules for preexisting contracts in the regulations adjusting the monetary compensatory amounts, although such rules would seem appropriate having regard to the fact that it is usual to conclude long-term contracts.
               Since the objections lodged by the plaintiff against the decisions granting monetary compensation were dismissed, it instituted proceedings before the Finanzgericht [Finance Court] Hamburg.
               The Fourth Senate of the Finanzgericht — the same Senate which referred Case 39/84 (
                     1
                  ) to the Court — considered that there were legitimate doubts as to the validity not only of Regulation No 3013/80, but also of Regulation No 746/79. Therefore, by order of 6 January 1984, it stayed the proceedings and referred to the Court of Justice under Article 177 of the EEC Treaty the following questions for a preliminary ruling:
               
                        (2)
                     
                     
                        Should Question 1 be answered in the affirmative, what are the consequences of such invalidity?
                     
                  
         
               B. 
            
            
               My opinion on those questions is as follows :
               
                        1.
                     
                     
                        It should first be made clear that the complaint that the contested regulations did not contain any special provisions for preexisting contracts has not been raised by the court making the reference. It can therefore be disregarded when the validity of the regulations in question is assessed. I wish to state, however, that the Commission's views on that subject seem to me to be plausible and therefore that considerations of the kind relied upon by the plaintiff in that connection do not provide any basis for the conclusion that the regulations at issue are invalid.
                     
                  
                        2.
                     
                     
                        The plaintiff also states that the calculation of the monetary compensatory amounts for processed goods does not, as I said earlier, take account of the processing costs which it has to pay in hard currency. It considers that those costs, which are passed on to the purchaser and which represent about 10% of the cost of the raw material, should be taken into account in such a way as to increase the monetary compensation for the raw material by 10 to 15%. The amounts applicable to processed goods should have been calculated on that basis.
                        Having regard to the applicable rules, however, it is difficult to agree with that proposition. In the first place, account must be taken of Regulation (EEC) No 974/71 of the Council of 12 May 1971 (Official Journal, English Special Edition 1971 (I) p. 257). The final recital in the preamble to that regulation states as follows:
                        ‘Whereas the compensatory amounts should be limited to the amounts strictly necessary to compensate the incidence of the monetary measures on the prices of basic products covered by intervention arrangements and whereas it is appropriate to apply them only in cases where this incidence would lead to difficulties.’
                        The Court emphasized in its judgment in Case 4/79 (
                              2
                           ) that the compensatory amounts must be limited to the amounts strictly necessary to compensate for the incidence of the monetaiy measures on the prices of basic products (paragraph 18 of the decision).
                        It further stated that, in the case of processed products, the word ‘incidence’ merely permits account to be taken of the effect on the price of the dependent product of the monetary compensatory amounts applied to the basic product (paragraph 21 of the decision).
                        In its judgment in Case 145/79 (
                              3
                           ) the Court went on to state that in calculating the compensatory amounts applicable to processed products, account may not be taken of the economic situation in a particular sector of production. It added that in appraising the incidence on the price of processed products of the compensatory amounts applicable to the basic products, account may not be taken of factors which are extraneous to that situation (paragraph 24 of the decision).
                        Hence there is certainly no justification for taking account of the question whether or not the processing costs are incurred in a hard currency.
                     
                  
                        3.
                     
                     
                        The plaintiff has sought to demonstrate, by means of calculations, that serious doubts may be entertained as to the validity of Regulation No 746/79. If the processing chain prevalent in Germany and in the Benelux countries is taken as a basis, it appears that the monetary compensation for processed products has been fixed at an excessively low level, namely at DM 1.17 per tonne less than the amount paid in respect of maize.
                        Leaving aside the question whether or not the Commission took as a basis the right processing chain, in respect of which no such negative difference arises, there may be grounds in this case for the view that the amount as calculated by the plaintiff represents only a minor divergence which can scarcely be criticized, having regard to the fact that this is such a complex area to regulate.
                        The following considerations are also relevant for the assessment of the plaintiff's arguments :
                        It must be borne in mind that the monetary compensatory amounts for processed products were calculated, at the time when the regulation under consideration was adopted (April 1979), on the basis of the intervention price for maize without deducting the production refund (which must however be deducted in the light of the findings made by the Court in its judgment in Case 145/79 (
                              3
                           ) ). However, the plaintiff has not explained the impact of that necessary adjustment (which reduces the monetary compensatory amounts accordingly) on its comparative calculations, nor has it shown that even after the adjustment there would be a negative difference unfavourable to the German processing industry.
                        Moreover, the plaintiff did not take account in its comparative calculations either of the maize germ obtained through processing or of the monetary compensatory amounts applicable thereto. As I have already demonstrated in my Opinion in Case 39/84 (
                              1
                           ), that is not permissible. If, on the other hand, the monetary compensatory amounts for germ are taken into account (even to a limited extent, as the Commission has recently done), no negative difference, in the sense that the plaintiff uses the term, arises.
                        Finally, the plaintiff bases its calculations on a relatively high proportion of flour (tariff heading 23.02 Alb) and a smaller proportion of bran (tariff heading 23.02 A I a). If, however, the information supplied by the Commission concerning the chain of production in Germany (I am referring to the Commission's reply to the Court's questions which in this respect has not been contested by the plaintiff) is set against that, the plaintiff's calculations cannot be regarded as realistic because, according to the Commission, the German processing industry produces only screenings — in relatively large quantities — falling under tariff heading 23.02 A I a.
                        In those circumstances, therefore, the only conclusion to be drawn is that there is no evidence to support the proposition that Regulation No 746/79 should be declared invalid on the grounds advanced by the plaintiff. However, the fact that the regulation is to be regarded as invalid (according to the abovementioned case-law) because it fixes the monetary compensatory amounts for processed products on the basis of the intervention price for maize, without deducting the production refund, is immaterial as far as the plaintiff is concerned since, after the appropriate adjustment of the monetary compensatory amounts, there are no grounds for claiming any additional payments; instead, the result is a lower monetary compensatory amount for maize groats and meal.
                     
                  
                        4.
                     
                     
                        With regard to Regulation No 3013/80, the plaintiff has carried out two different calculations in order to demonstrate that it is defective. Because the monetary compensatory amounts for processed products have been fixed at a level which is too low having regard to the amounts applicable in respect of maize, German processors receive DM 7.40 per tonne less for groats or meal for brewing and DM 1.14 per tonne less for other groats or meal, on the basis of the processing chain described by the French processors in Case 4/79 (
                              2
                           ) (and also used by the Court). If, on the other hand, such calculations are based on the chain of production in Germany and in the Benelux countries (which must be regarded as prevalent in the Community), the difference amounts to DM 12.05 per tonne in the case of groats or meal for brewing and DM 5.79 per tonne in the case of other groats or meal, to the detriment of German processors.
                        The Commission, which emphasized that it did not rely upon the chain of production in France when adopting Regulation No 3013/80 but on other factors derived from the judgment of the Court in Case 4/79 (
                              2
                           ), conceded only that German processors were at a disadvantage with regard to groats or meal for brewing (that is to say, the monetary compensation for all processed products together was DM 3.11 per tonne lower than it was for maize). Moreover, it dispensed with a calculation in respect of other groats or meal apparently because it considered that, in view of the higher monetary compensatory amounts applicable to groats and meal, the processing industry in countries with a strong currency was in no way at a disadvantage in that respect.
                        
                                 (a)
                              
                              
                                 In that connection, simply on the basis of the facts relied upon by the Commission, the only possible course of action in this case is to declare Regulation No 3013/80 invalid in so far as it fixed the monetary compensatory amounts for groats or meal for brewing.
                                 Even though it is evidently impossible to expect the monetary compensatory amounts for processed products to correspond entirely to those applicable to the basic product, a variation of 4.3% in the monetary compensatory amount fixed for maize cannot be described as slight and consequently, as insignificant. That is particularly true, as I was to point out in my Opinion in Case 39/84 (
                                       1
                                    ), when, in addition, a corresponding advantage must be conferred on processors in countries with weak currencies, who thus have in all a considerable competitive advantage in the markets of nonmember countries.
                                 Even though, in this case too, the Commission has attempted to rely on the notion of a comprehensive balance of advantages and disadvantages, it is all the more difficult now to accept that notion in the light of the considerations put forward on points of principle. Moreover, in this case, unlike Case 39/84 (
                                       1
                                    ), the Commission is concerned not with Regulation (EEC) No 1372/81 of 19 May 1981 (Official Journal L 138 of 25 May 1981, p. 1) but with the argument that, because the production refund is not deductible from the intervention price for maize, a higher monetary compensatory amount applies to groats and meal upon exportation to nonmember countries, and for that reason the sum of all the monetary compensatory amounts payable in respect of processed products is DM 3.15 per tonne higher than the monetary compensatory amount for maize.
                                 A further objection to the Commission's reasoning is that it has not demonstrated that a corresponding situation exists in countries with a weak currency or, in particular, that the volume of transactions concluded there with nonmember countries is such as to offset the advantage which monetary compensation is recognized as conferring in intra-Community trade.
                              
                           
                                 (b)
                              
                              
                                 However, the observations made during the proceedings also raise the question whether further criticism of the calculation of the monetary compensatory amounts in respect of groats or meal for brewing is appropriate (particularly since German processors may well be at a greater disadvantage than the Commission cared to admit) and whether the monetary compensatory amounts fixed for other groats or meal, in respect of which the Commission has not made any calculations, are too low by comparison with the monetary compensatory amount for the primary product.
                                 According to the plaintiff, that is clearly the case because, it maintains, the Commission has taken as a basis an inappropriate chain of production. In its view, account should have been taken of the fact that there is no market for maize germ (which is why it is further processed by the plaintiff), that is to say the monetary compensatory amounts for germ should have been excluded from the comparative calculation carried out. Moreover, the Commission should in any event have taken a different chain of production as a basis. Hence it should not simply have worked out average values on the basis of the data supplied by the undertakings in the various Member States, but should have established a weighting based on the processing capacity, as a result of which modern processing methods used in Germany and Belgium would have carried more weight, since the greatest processing capacity is to be found there.
                                 Further remarks :
                                 
                                          (i)
                                       
                                       
                                          With regard to maize germ, I would in principle refer to the views which I expressed in my Opinion in Case 39/84 (
                                                1
                                             ). It must be recognized that there is a market for-maize germ and international trade in that product, even though it accounts for only a small proportion of total production. It must also be recognized that this cannot be a decisive factor because in that connection an important consideration for the Commission could be that the absence of monetary compensatory amounts for maize germ might lead to a substantial increase in exports from countries with weak currencies and result in a disturbance of the market. According to the relevant case-law the Commission undoubtedly has a discretion in that respect and it has not been shown that it exercised that discretion improperly.
                                          It is also difficult to agree with the plaintiff in this case when it states that a distinction must be drawn between germ obtained from the production of groats and meal (and constituting approximately one-fifth of total production) and germ obtained from the production of starch, which customers prefer because it is obtained by wet processing and is therefore of better quality. In both cases the goods in question fall under the same tariff heading and are evidently difficult to distinguish from one another. It should also be borne in mind that it is easy to prepare mixtures which make it possible to circumvent any distinctions made by the rules.
                                       
                                    
                                          (ii)
                                       
                                       
                                          Moreover, with regard to the chain of production in the manufacture of groats and meal, the Court has learnt, and the plaintiff has acknowledged, that it differs substantially from one country to another (see the tables submitted by the Commission in its reply to the Court's questions). Hence it was no easy matter for the Commission to take proper account of that factor in relation to monetary compensation. It must therefore be assumed that the notion of a comprehensive assessment, emphasized in the case-law, is applicable here and that the Commission enjoys a corresponding discretion. If, however, in this difficult area, the Commission was merely concerned with calculating average values, without establishing a weighting based on capacity, that does not necessarily constitute a serious error in the exercise of its discretion. Moreover, it is difficult to see how a weighting based on the tables compiled by the Commission (containing figures not contested by the plaintiff in so far as they concern Germany and Belgium) could militate in favour of the adoption of the chain of production advocated by the plaintiff (a larger proportion of flour and a smaller proportion of bran), when the tables show instead that German and Belgian processors produce no flour at all and must be assumed to produce a very high proportion of screenings falling under tariff heading 23.02 A I (a).
                                       
                                    
                                          (iii)
                                       
                                       
                                          Accordingly, there are no grounds for objecting to the monetary compensatory amounts fixed for other groats or meal and — as regards the disadvantage to which processors in countries with a strong currency are exposed in relation to groats or meal for brewing — there is no justification for taking as a basis a figure higher than that calculated by the Commission. Regulation No 3013/80 may therefore be regarded as invalid only in so far as it concerns the fixing of monetary compensatory amounts for groats or meal for brewing.
                                       
                                    
                           
                  
                        5.
                     
                     
                        In this case too, the question which now remains to be answered is: what are the consequences of the invalidity of that regulation?
                        In that regard, I would refer to my Opinion in Case 39/84 (
                              1
                           ). In other words, the Court should declare, by applying Article 174 of the EEC Treaty by analogy, that the invalidity takes effect only from the date on which judgment is given in this case. An exception can be permitted only in so far as the parties concerned have instituted proceedings in due time before the date of the judgment in this action in order to challenge decisions granting monetary compensatory amounts adopted on the basis of the contested regulation, and that is evidently the case as regards the plaintiff.
                     
                  
         
               C. 
            
            
               On the basis of the foregoing considerations, the questions submitted by the Finangericht, Hamburg, should be answered as follows:
               
                        (1)
                     
                     
                        The proceedings have disclosed no factor of such a kind as to call in question the validity of Regulation No 764/79 in so far as the monetary compensation for products falling under subheadings 11.02 A V (a) 1 and 2 of the Common Customs Tariff is no higher than the amount fixed by the regulation.
                     
                  
                        (2)
                     
                     
                        Regulation No 3013/80 is invalid in so far as it fixes a monetary compensatory amount for products falling under subheading 11.02 A V (a) 1 of the Common Customs Tariff.
                     
                  
                        (3)
                     
                     
                        The declaration of invalidity does not mean that monetary compensatory amounts charged or paid by the national authorities on the basis of the aforesaid regulation in respect of the period prior to the date of the judgment in this case may be called in question, unless proceedings challenging the decisions concerned have been instituted in due time before the date of this judgment.
                     
                  
         (
            *1
         )	Translated from the German.
      (
            1
         )	Judgment of 3 July 1985 in Case 39/84 Maizena GmbH and Others v Hauptzollamt Hamburg-Jonas [1985] ECR 2115.
      (
            2
         )	Judgment of 15 October 1980 in Case 4/79 Société Cooperative ‘Providence Agricole tic la Champagne’ v Office National Interprofessionnel des Céréales [1980] ECR 2823
      
      (
            3
         )	Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French Stale [1980) ECR 2917.