1 BY AN ORDER DATED 24 NOVEMBER 1983 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 20 DECEMBER 1983 , THE FINANZGERICHT RHEINLAND-PFALZ ( FINANCE COURT , RHINELAND-PALATINATE ) REFERRED TWO QUESTIONS TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING ON THE VALIDITY OF COUNCIL REGULATION NO 1167/76 OF 17 MAY 1976 ( OFFICIAL JOURNAL 1976 , L 135 , P . 42 ) AND ON THE POSSIBILITY OF GIVING RETROACTIVE EFFECT TO COUNCIL REGULATION NO 2842/76 OF 23 NOVEMBER 1976 ( OFFICIAL JOURNAL 1976 , L 327 , P . 2 ).
2 THOSE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN FIRMA A . RACKE , OF BINGEN , AND THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) MAINZ RELATING TO THE CUSTOMS DUTY CHARGEABLE ON IMPORTED TOKAY LIQUEUR WINE FALLING UNDER SUBHEADING 22.05 C III ( B ) 2 OF THE COMMON CUSTOMS TARIFF .
3 IN THE PROCEEDINGS BEFORE THE FINANZGERICHT RACKE CONTENDED THAT REGULATION NO 1167/76 WAS NOT VALID IN SO FAR AS IT DID NOT EXTEND TO TOKAY THE RULE FOR THE CONVERSION OF CUSTOMS DUTIES INTO NATIONAL CURRENCY ON THE BASIS OF THE REPRESENTATIVE RATES , AS STIPULATED FOR OTHER WINES FALLING WITHIN SUBHEADING 22.05 OF THE COMMON CUSTOMS TARIFF .
4 AS GROUNDS FOR ITS DECISION TO REQUEST A PRELIMINARY RULING , THE FINANZGERICHT STATED THAT IT ENTERTAINED DOUBTS AS TO THE EXISTENCE OF A MARGIN OF DISCRETION ON THE PART OF THE COMMUNITY INSTITUTIONS IN THE EVENT OF ITS BEING OBVIOUS THAT THE APPLICATION OF TWO DIFFERENT EXCHANGE RATES WAS BOUND TO RESULT IN DISTORTIONS OF COMPETITION . THE FIRST QUESTION
5 THE FIRST QUESTION IS WORDED AS FOLLOWS : ' ' DOES COUNCIL REGULATION ( EEC ) NO 1167/76 OF 17 MAY 1976 ( OFFICIAL JOURNAL 1976 , L 135 , P . 42 ) INFRINGE THE SECOND AND THIRD SUBPARAGRAPHS OF ARTICLE 40 ( 3 ) OF THE EEC TREATY , IN SO FAR AS IT EXCLUDES TOKAY WINES FALLING UNDER SUBHEADING 22.05 C III ( B ) 2 OF THE COMMON CUSTOMS TARIFF FROM THE APPLICATION OF THE REPRESENTATIVE EXCHANGE RATE USED FOR THE CONVERSION INTO NATIONAL CURRENCIES ( HERE , GERMAN MARKS ) OF THE RATE OF CUSTOMS DUTY EXPRESSED IN UNITS OF ACCOUNT , AND RETAINS THE ARRANGEMENT UNDER GENERAL RULE C 3 IN PART I , SECTION I , OF REGULATION ( EEC ) NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 275)? ' '
6 THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY PROVIDES THAT THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ' ' SHALL BE LIMITED TO PURSUIT OF THE OBJECTIVES SET OUT IN ARTICLE 39 AND SHALL EXCLUDE ANY DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY ' ' . THE THIRD SUBPARAGRAPH OF ARTICLE 40 ( 3 ) STATES THAT ' ' ANY COMMON PRICE POLICY SHALL BE BASED ON COMMON CRITERIA AND UNIFORM METHODS OF CALCULATION ' ' . THEREFORE , THE QUESTION CAN BE DIVIDED INTO TWO PARTS , ONE CONCERNING THE MEANING OF THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ), THE OTHER CONCERNING THE MEANING OF THE THIRD SUBPARAGRAPH OF ARTICLE 40 ( 3 ).
7 AS FAR AS THE FIRST LIMB OF THE QUESTION IS CONCERNED , IT IS NECESSARY TO ASCERTAIN WHETHER TOKAY IS IN A COMPARABLE SITUATION TO THOSE WINES IN RESPECT OF WHICH CUSTOMS DUTIES EXPRESSED IN UNITS OF ACCOUNT WERE CONVERTED INTO NATIONAL CURRENCY AT THE REPRESENTATIVE RATE , SINCE , AS THE COURT HAS CONSISTENTLY HELD , DISCRIMINATION CONSISTS SOLELY IN THE APPLICATION OF DIFFERENT RULES TO COMPARABLE SITUATIONS OR IN THE APPLICATION OF THE SAME RULE TO DIFFERING SITUATIONS . IN THIS CASE , IT IS A QUESTION OF ESTABLISHING WHETHER THE APPLICATION OF A DIFFERENT CONVERSION RATE FOR CUSTOMS DUTIES IS JUSTIFIED BY DIFFERING SITUATIONS .
8 IN THIS REGARD , IT SHOULD BE BORNE IN MIND THAT ARTICLE 9 ( 3 ) OF REGULATION ( EEC ) NO 816/70 OF THE COUNCIL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 234 ) PROVIDES FOR A COUNTERVAILING CHARGE TO BE LEVIED ON WINES IMPORTED FROM NON-MEMBER COUNTRIES WHERE THEIR FREE-AT-FRONTIER OFFER PRICE , PLUS CUSTOMS DUTIES , IS LOWER THAN THE REFERENCE PRICE FIXED FOR WINE OF COMMUNITY ORIGIN . HOWEVER , REGULATION ( EEC ) NO 1019/70 OF THE COMMISSION OF 29 MAY 1970 ON DETAILED RULES FOR ESTABLISHING FREE-AT-FRONTIER OFFER PRICES AND FIXING THE COUNTERVAILING CHARGE IN THE WINE SECTOR ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 294 ) PROVIDES , IN ARTICLE 4 ( 4 ), THAT THE COUNTERVAILING CHARGE IS NOT TO BE LEVIED ON LIQUEUR WINES SUCH AS PORT , MADEIRA , SHERRY , TOKAY , SAMOS MUSCAT AND SETUBAL MUSCATEL FOR WHICH A CERTIFICATE OF ORIGIN IS PRODUCED . AS IS CLEAR FROM THE SIXTH RECITAL IN THE PREAMBLE TO THAT REGULATION , IT WAS CONSIDERED THAT THE PRICE - NORMALLY VERY HIGH - OF THE WINES IN QUESTION DID NOT WARRANT THE LEVYING OF A COUNTERVAILING CHARGE .
9 BY REGULATION NO 2506/75 OF 29 SEPTEMBER 1975 ( OFFICIAL JOURNAL 1975 , L 256 , P . 2 ) THE COUNCIL STIPULATED THAT THE EXPRESSION ' ' FREE-AT-FRONTIER REFERENCE PRICE ' ' MEANS THE COMMUNITY REFERENCE PRICE LESS CUSTOMS DUTIES ACTUALLY LEVIED . HOWEVER , AS FAR AS WINES SUBJECT TO THE COUNTERVAILING CHARGE WERE CONCERNED , THAT DEFINITION GAVE RISE TO PROBLEMS IN CONNECTION WITH THE CALCULATION OF THE CHARGE , SINCE THE COMMUNITY REFERENCE PRICE WAS CONVERTED INTO NATIONAL CURRENCY , PURSUANT TO COUNCIL REGULATION NO 475/75 OF 28 FEBRUARY 1975 ( OFFICIAL JOURNAL 1975 , L 52 , P . 28 ), ON THE BASIS OF THE REPRESENTATIVE EXCHANGE RATE WHILE THE CUSTOMS DUTY WAS CONVERTED ON THE BASIS OF THE PAR VALUE . THERE WAS THEREFORE AN OBVIOUS RISK OF DISTORTIONS BEING CAUSED BY CALCULATIONS CARRIED OUT USING NON-UNIFORM CRITERIA . TO AVOID THAT RISK , REGULATION NO 1167/76 PROVIDED THAT THE CUSTOMS DUTY SHOULD ALSO BE CONVERTED ON THE BASIS OF THE REPRESENTATIVE RATE .
10 IN CONTRAST , NO SUCH PROBLEM AROSE FOR WINES WHICH WERE NOT SUBJECT TO THE COUNTERVAILING CHARGE , AND HENCE NO COMPARISON BETWEEN THE TWO SITUATIONS APPEARS TO BE JUSTIFIED .
11 IT IS CLEAR FROM THE FOREGOING THAT THE APPLICATION OF DIFFERENT RULES TO THE TWO SITUATIONS DESCRIBED ABOVE DOES NOT RESULT IN A BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION .
12 CONSEQUENTLY , THE ANSWER TO THE FIRST LIMB OF THE QUESTION MUST BE THAT CONSIDERATION OF THE MATTERS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO SUGGEST THAT REGULATION NO 1167/76 IS CONTRARY TO THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF TREATY .
13 AS REGARDS THE SECOND LIMB OF THE QUESTION , IT MUST BE EMPHASIZED THAT THE FIRST SUBPARAGRAPH OF ARTICLE 40 ( 3 ) REFERS EXPRESSLY TO THE ' ' MEASURES REQUIRED ' ' , CONNECTION WITH THE COMMON ORGANIZATION OF THE MARKETS , ' ' TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 39 ' ' . THOSE MEASURES INCLUDE , IN THE FIRST PLACE , REGULATION OF PRICES . IT FOLLOWES THAT THE ' ' COMMON PRICE POLICY ' ' MENTIONED IN THE THIRD SUBPARAGRAPH OF ARTICLE 40 ( 3 ) CAN ONLY RELATE TO THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS . SINCE THE FIXING OF CUSTOMS DUTIES LIES OUTSIDE THAT SPHERE , IT FOLLOWS THAT IT IS NOT SUBJECT TO THE CRITERIA AND METHODS OF CALCULATION USED FOR AGRICULTURAL PRICES .
14 IN THE LIGHT OF THE FOREGOING , IT IS CLEAR THAT REGULATION NO 1167/76 IS NOT INCOMPATIBLE WITH THE THIRD SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE ECC TREATY EITHER .
15 THE CONCLUSION MUST THEREFORE BE THAT CONSIDERATION OF THE MATTERS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 1167/76 . THE SECOND QUESTION
16 IN VIEW OF THE FACT THAT THE SECOND QUESTION WAS ONLY RAISED IN CASE THE FIRST QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE , IT DOES NOT NEED TO BE ANSWERED .