1 By order of 8 August 1991, received at the Court on 8 January 1992, the Finanzgericht Hamburg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Commission Regulation (EEC) No 900/84 of 31 March 1984 fixing the monetary compensatory amounts and certain coefficients and rates required for their application (OJ 1984 L 92, p. 2), in conjunction with Commission Regulation (EEC) No 1371/81 of 19 May 1981 laying down detailed rules for the administrative application of monetary compensatory amounts (OJ 1981 L 138, p. 1).
2 Those questions were raised in proceedings between General Milk Products GmbH and the Hauptzollamt (Principal Customs Office) Hamburg-Jonas in respect of the non-application of monetary compensatory amounts to exports.
3 In 1984, General Milk Products GmbH (hereinafter "the company"), a company which markets in Europe the dairy products of the New Zealand Dairy Board, of which it is a subsidiary, imported into the Federal Republic of Germany several consignments of cheddar cheese from New Zealand to be partly marketed in the State of importation and partly re-exported to other European States.
4 Until 16 December 1984, the date on which the amendments to the Joint Discipline Arrangement between New Zealand and the Community concerning cheese and the consequent amendments to the Community regulations concerning the calculation and fixing of monetary compensatory amounts on milk and milk products came into force, the company was able to qualify for the application of monetary compensatory amounts on the re-exportation of New Zealand cheddar cheese from the Federal Republic of Germany to other Community Member States.
5 The company was subsequently unable to qualify for the application of monetary compensatory amounts on the immediate re-exportation to Denmark and France of cartons of cheddar cheese which were part of a consignment imported on 18 December 1984 from New Zealand to the Federal Republic of Germany.
6 Since it took the view that the amendments to the Arrangement between New Zealand and the Community and the amendments to the Community regulations which came into force should not deprive it of these monetary compensatory amounts on exports, the company contested the rejection by the Hauptzollamt Hamburg-Jonas of its application for monetary compensatory amounts and referred its dispute with the Hauptzollamt to the Finanzgericht Hamburg.
7 The Finanzgericht Hamburg took the view that the decision in the case involved an interpretation of the relevant Community legislation. It accordingly decided to stay the proceedings and referred the following question to the Court for a preliminary ruling: "Must the provisions of Regulation (EEC) No 900/84, in conjunction with Regulation (EEC) No 1371/84, be interpreted as meaning that positive monetary compensatory amounts are not applicable to the exportation of New Zealand cheddar cheese, if the product was previously imported into the exporting Member State and at the time neither a negative compensatory amount nor minimum price rules were applied?"
8 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the facts of the case before the national court, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
9 In accordance with the Joint Discipline Arrangement between New Zealand and the Community concerning cheese, approved by Council Decision 80/272/EEC of 10 December 1979 concerning the conclusion of the Bilateral Agreements resulting from the 1973 to 1979 trade negotiations (OJ 1980 L 71, p. 129), imports of cheddar cheese were subject to the application of minimum price rules and tariff quotas prior to introduction of the amendments to this agreement at the end of 1984. Moreover, in accordance with Article 8 of Commission Regulation No 1767/82 of 1 July 1982 laying down detailed rules for applying specific import levies on certain milk products (OJ 1982 L 196, p. 1), and in accordance with Note (12) to Part 5 of Annex I to above Regulation No 900/84, no monetary compensatory amounts were applied to such imports.
10 However, re-exportation of the cheese to other Member States could, prior to 16 December 1984, qualify for the application of monetary compensatory amounts under Article 1 of Regulation (EEC) 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 the margins of fluctuation for the currencies of certain Member States (OJ, English Special Edition 1971 (I), p. 257), in conjunction with Article 2 of Regulation No 1371/81 and Article 1 of Regulation No 900/84. The cheddar cheese in dispute is included among the products falling within Common Customs Tariff subheading 04.04 E I b) 1 in Part 5 of Annex I to Regulation No 900/84. This tariff subheading number sets out the amounts to be charged on imports into Germany and granted on exports from Germany and refers to Notes (5) and (12). Note (5) simply disallows the granting of monetary compensatory amounts on exports of "cheese of low value" with a price below ECU 140 per 100 kg. Note (12), as already mentioned in the previous paragraph, provides that monetary compensatory amounts are not applicable to specified imported cheeses, including cheddar cheese.
11 The amendments to the Arrangement between New Zealand and the Community were approved by Council Decision 84/561/EEC of 22 November 1984 concerning the conclusion of an Agreement in the form of an exchange of letters between the European Economic Community and the Government of New Zealand amending the Joint Discipline Arrangement between New Zealand and the Community concerning cheese (OJ 1984 L 308, p. 59). Those amendments essentially suspended the minimum price rules and retained solely the tariff quotas. In order to comply with the new obligations thereby undertaken by the Community, Council Regulation (EEC) No 3340/84 of 28 November 1984 amending Regulation (EEC) No 2915/79 as regards the implementation of new rules for importing certain cheeses from Australia and New Zealand (OJ 1984 L 312, p. 5) removed all references to a minimum free-at-frontier value from the description of the goods concerned.
12 In referring this question to the Court, the national court seeks to ascertain whether, taking into account the non-application of monetary compensatory amounts on imports of New Zealand cheddar cheese into a Community Member State, the suspension of the minimum price rules has had the result that monetary compensatory amounts do not apply to exports of this product from the importing State to other Community Member States.
13 The plaintiff company in the main proceedings and the Commission take the view essentially that, in the light of the applicable Community provisions, the re-exportation of that cheese in such circumstances may continue to give rise to the application of monetary compensatory amounts, unless there is evidence of fictitious transactions effected solely for the purpose of wrongfully obtaining monetary compensatory amounts.
14 These observations are well founded.
15 As stated in paragraph 10 of this judgment, the provisions in force prior to the suspension of the minimum price rules made it possible through the combined effect of Regulations No 974/71, No 1371/81 and No 900/84 for monetary compensatory amounts to apply to such exports. Subject only to the above exception regarding "cheese of low value", no specific provision excluded the granting of monetary compensatory amounts on exports under those regulations.
16 The suspension of the minimum price rules expresses no more than the Commission' s economic judgment on price compatibility between New Zealand cheeses and those of the common organization of the markets in the milk and milk products sector. It does not in itself have any direct and necessary effect on the granting of monetary compensatory amounts on exports which were intended to offset the effects which the fluctuation of national currencies may have had on trade in agricultural products within the Community.
17 The conclusion that monetary compensatory amounts on exports of cheddar cheese were maintained after 16 December 1984 is confirmed by the wording of certain specific provisions.
18 Commission Regulation (EEC) No 3522/84 of 14 December 1984 amending Regulation (EEC) No 900/84 with regard to the non-application of monetary compensatory amounts on certain cheeses imported from Australia and New Zealand (OJ 1984 L 328, p. 18) amends only Note (12) to Part 5 of Annex I to that regulation in order to adapt it to the new situation resulting from the suspension of the minimum price rules. The new text, which maintains the rule of non-application of monetary compensatory amounts to certain imported cheeses, does not include, any more than the original text, any provision regarding the re-exportation of those cheeses within the Community. Its effect could therefore not have been to prevent the granting of monetary compensatory amounts on exports made possible by the combined provisions of the earlier regulations.
19 However, it should be noted that, as amended by Commission Regulation (EEC) No 611/88 of 4 March 1988 amending Regulations (EEC) No 1767/82 and (EEC) No 3938/87 as regards the non-application of monetary compensatory amounts for certain cheeses imported under special conditions (OJ 1988 L 60, p. 19), Article 8 of Regulation No 1767/82, while it no longer applies to cheddar cheese from Australia and New Zealand, expressly states that for other products no monetary compensatory amounts shall be applied to products despatched or re-exported to another Member State. This express reference can be interpreted as recognition that monetary compensatory amounts are applicable to exports of cheeses not referred to therein.
20 There is for that reason nothing to prevent positive monetary compensatory amounts from being applied to exports of New Zealand cheddar cheese which were not subject to minimum price rules or negative monetary compensatory amounts when they were imported.
21 As stated by the plaintiff company in the main proceedings and the Commission, the position would be different only if it could be shown that the importation and re-exportation of that cheese were not realised as bona fide commercial transactions but only in order wrongfully to benefit from the grant of monetary compensatory amounts (see, by analogy, the judgment in Case 250/80 Anklagemyndigheden v Toepfer [1981] ECR 2465). The bona fide nature of those transactions is a question of fact to be decided by the national court.
22 The reply to the question referred to the Court must therefore be that Commission Regulation (EEC) No 900/84 of 31 March 1984 fixing the monetary compensatory amounts and certain coefficients and rates required for their application and Commission Regulation (EEC) No 1371/81 of 19 May 1981 laying down detailed rules for the administrative application of monetary compensatory amounts must be interpreted as meaning that positive monetary compensatory amounts may be applied to exports of New Zealand cheddar cheese when no negative compensatory amounts or minimum price rules were applied to the product at the time of its importation, unless it can be shown that the import and export transactions were effected for the sole purpose of wrongfully securing an advantage under the above regulations.