1BY AN ORDER OF 3 MAY 1978 , WHICH WAS RECEIVED AT THE COURT ON 7 JUNE 1978 , THE HESSISCHES FINANZGERICHT REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY A PRELIMINARY QUESTION ON THE VALIDITY OF REGULATION ( EEC ) NO 3092/76 OF THE COMMISSION OF 17 DECEMBER 1976 ON THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS TO CERTAIN BEEF AND VEAL PRODUCTS ( OFFICIAL JOURNAL L 348 , P . 18 ).
2THIS QUESTION WAS RAISED IN THE COURSE OF AN ACTION CONCERNING THE CHARGING OF MONETARY COMPENSATORY AMOUNTS IN RESPECT OF IMPORTATIONS OF FOREQUARTERS OF BOVINE ANIMALS AND BONED OR BONELESS CUTS OF BEEF AND VEAL , SEASONED WITH PEPPER , FALLING WITHIN TARIFF SUBHEADING 16.02 B III ( B ) 1 OF THE COMMON CUSTOMS TARIFF WHICH WERE EFFECTED BY SPITTA & CO ., THE PLAINTIFF IN THE MAIN ACTION , FROM FRANCE INTO THE FEDERAL REPUBLIC OF GERMANY ON 29 DECEMBER 1976 AND 7 JANUARY 1977 . THE COMPETENT CUSTOMS OFFICE , THE DEFENDANT IN THE MAIN ACTION , IN PURSUANCE OF REGULATION NO 3092/76 CHARGED A SUM OF DM 13 655.01 IN RESPECT OF MONETARY COMPENSATORY AMOUNTS . SPITTA & CO CONTESTED THE RELEVANT NOTICES OF ASSESSMENT BEFORE THE HESSISCHES FINANZGERICHT ON THE GROUND THAT REGULATION NO 3092/76 WAS INVALID .
3THE QUESTION SUBMITTED BY THE HESSISCHES FINANZGERICHT INQUIRES WHETHER REGULATION NO 3092/76 IS EITHER INVALID OR INAPPLICABLE : ( A ) FOR ABSENCE OF THE CONDITIONS REQUIRED BY ARTICLE 1 ( 1 ) OF REGULATION NO 974/71 OF THE COUNCIL ; ( B)FOR FAILURE TO MAKE ANY PROVISION FOR OLD CONTRACTS ; OR ( C)FOR RESTRICTION OF INTRA-COMMUNITY TRADE . THE FIRST PART OF THE QUESTION
4FRESH , CHILLED OR FROZEN BOVINE MEAT COMING UNDER SUBHEADING 02.01 A II ( CHAPTER 2 : ' ' MEAT AND EDIBLE MEAT OFFALS ' ' ) OF THE COMMON CUSTOMS TARIFF WAS BROUGHT IN 1971 WITHIN THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS SET UP BY REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1971 ( I ) P . 257 ). ON THE OTHER HAND THAT SYSTEM WAS APPLIED TO PRODUCTS COMING UNDER SUBHEADING 16.02 B III ( B ) 1 OF THE COMMON CUSTOMS TARIFF ( CHAPTER 16 : ' ' OTHER PREPARED OR PRESERVED MEAT OR MEAT OFFAL : OTHER : CONTAINING BOVINE MEAT OR OFFAL ' ' ) ONLY BY REGULATION NO 3092/76 , THE VALIDITY OF WHICH IS CHALLENGED . ARTICLE 1 OF THAT REGULATION STATES : ' ' FOR FRESH , CHILLED OR FROZEN PRODUCTS , OTHER THAN MINCED PRODUCTS , WHICH FALL WITHIN SUBHEADING 16.02 B III ( B ) 1 OF THE COMMON CUSTOMS TARIFF AND WHICH ARE EXCLUDED FROM CLASSIFICATION IN CHAPTER 2 THEREOF SOLELY BY REASON OF SIMPLE SEASONING ( E.G . WITH SALT AND PEPPER ), OR THE ADDITION OF OTHER SUBSTANCES ( E.G . VEGETABLES , FLOURS OR OIL ), MONETARY COMPENSATORY AMOUNTS SHALL APPLY IN TRADE BETWEEN MEMBER STATES AT THE LEVEL APPLICABLE TO PRODUCTS OF THE SAME DESCRIPTION WITHOUT SUCH TREATMENT WHICH FALL WITHIN SUBHEADING 02.01 A II OF THE COMMON CUSTOMS TARIFF . ' '
5THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS IS SUBJECT TO THE CONDITION PRESCRIBED IN ARTICLE 1 ( 1 ) OF REGULATION NO 974/71 , AS AMENDED BY REGULATION NO 509/73 OF THE COUNCIL OF 22 FEBRUARY 1973 ( OFFICIAL JOURNAL L 50 , P . 1 ) THAT A MEMBER STATE ALLOWS THE EXCHANGE RATE OF ITS CURRENCY TO FLUCTUATE BY A WIDER MARGIN THAN THAT PERMITTED BY INTERNATIONAL RULES IN FORCE ON 12 MAY 1971 . CONTRARY TO THE CLAIMS OF THE PLAINTIFF IN THE MAIN ACTION , THAT PROVISION DOES NOT PRESCRIBE AS A CONDITION FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS THAT THERE SHOULD HAVE BEEN A RECENT ALTERATION IN THE EXCHANGE RATE OF THE CURRENCY OF THE MEMBER STATE IN QUESTION . IT IS SUFFICIENT THAT AT THE TIME WHEN THE MONETARY COMPENSATORY AMOUNTS ARE APPLIED THE EXCHANGE RATE EXCEEDS THE FLUCTUATION MARGINS PERMITTED BY THE INTERNATIONAL RULES IN FORCE ON 12 MAY 1971 . IT IS COMMON GROUND THAT AT THE TIME WHEN THE COMMISSION ADOPTED REGULATION NO 3092/76 THE CURRENCIES WERE CONTINUING TO FLUCTUATE BEYOND THE MARGINS LAID DOWN IN ARTICLE 1 ( 1 ) OF REGULATION NO 974/71 .
6ACCORDING TO THE SECOND SUBPARAGRAPH OF ARTICLE 1 ( 2 ) OF REGULATION NO 974/71 AS AMENDED BY REGULATION NO 2746/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 28-30 DECEMBER ) P . 64 ) MONETARY COMPENSATORY AMOUNTS MAY ONLY BE APPLIED IF THE MONETARY MEASURES REFERRED TO IN PARAGRAPH ( 1 ) WOULD LEAD TO DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS , A CONDITION WHICH THE PLAINTIFF MAINTAINS HAD NOT BEEN FULFILLED AT THE TIME WHEN REGULATION NO 3092/76 WAS ADOPTED . ACCORDING TO THE COMMISSION , SINCE SEASONED MEAT WAS IN REALITY ONLY FRESH MEAT COMING UNDER CHAPTER 2 OF THE COMMON CUSTOMS TARIFF SEASONED WITH A LITTLE SPICE OR SOME OTHER SUBSTANCE , AN ABNORMAL PATTERN OF TRADE IN ' ' SEASONED ' ' MEAT , TO WHICH MONETARY COMPENSATORY AMOUNTS DID NOT APPLY , DEVELOPED AT THE END OF 1976 , IN PARTICULAR FROM IRELAND AND THE UNITED KINGDOM TO THE FEDERAL REPUBLIC OF GERMANY . WHEN IN JANUARY 1977 MONETARY COMPENSATION WAS APPLIED TO THE SAID PRODUCT FOLLOWING THE ADOPTION OF REGULATION NO 3092/76 SUCH IMPORTATIONS RETURNED TO A NORMAL LEVEL .
7ON THE BASIS OF THOSE CONSIDERATIONS THE COMMISSION WAS JUSTIFIED IN FIXING MONETARY COMPENSATORY AMOUNTS IN RESPECT OF THE PRODUCTS IN QUESTION . THE SECOND PART OF THE QUESTION
8THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT REGULATION NO 3092/76 MAKES NO PROVISION FOR EXEMPTION IN RESPECT OF CONTRACTS ALREADY CONCLUDED AND THEREBY BREACHES THE PRINCIPLES OF THE PROTECTION OF GOOD FAITH AND OF LEGITIMATE EXPECTATION AND THAT IN FACT IT CONCLUDED THE CONTRACT FOR THE PURCHASE OF THE GOODS IN QUESTION ON 30 NOVEMBER 1976 , THAT IS , BEFORE THE PUBLICATION OF REGULATION NO 3092/76 .
9HOWEVER , THE IMPORT SYSTEM AT ISSUE IN THIS CASE DID NOT REQUIRE ANY PREVIOUS AUTHORIZATION OR ANY FIRM COMMITMENT ON THE PART OF THE PERSON CONCERNED WITH RESPECT TO THE AUTHORITIES RESPONSIBLE FOR THE MANAGEMENT OF THE ORGANIZATION OF THE MARKETS IN QUESTION AND THE COMMISSION GAVE IMPORTERS NO INDICATION WHICH COULD HAVE JUSTIFIED THE EXPECTATION THAT , REGARDLESS OF THE DEVELOPMENT OF CONDITIONS ON THE MARKET , THE PREVIOUS RULES WOULD BE MAINTAINED WITHOUT ALTERATION . FURTHERMORE , THE MEASURE ADOPTED BY THE COMMISSION COULD NOT HAVE SURPRISED PRUDENT TRADERS WHO COULD NOT BE UNAWARE THAT THE PRODUCTS IN QUESTION , COMING UNDER SUBHEADING 16.02 B III ( B ) 1 , CONSTITUTED A SENSITIVE AREA AND WERE NO DIFFERENT IN PRACTICE FROM THE FRESH MEAT COMING UNDER CHAPTER 2 OF THE COMMON CUSTOMS TARIFF . IN THOSE CIRCUMSTANCES THE ESTABLISHMENT OF A TRANSITIONAL PERIOD WOULD PROBABLY HAVE PROMPTED TRADERS TO IMPORT SIGNIFICANT QUANTITIES OF ' ' SEASONED ' ' MEAT BEFORE THE COMPENSATORY AMOUNTS WERE IN FACT APPLIED , THEREBY RENDERING INEFFECTIVE THE MEASURE ADOPTED BY THE COMMISSION . THE THIRD PART OF THE QUESTION
10ARTICLE 1 ( 1 ) OF REGULATION NO 974/71 CANNOT BE INTERPRETED AS REQUIRING THAT MONETARY COMPENSATORY AMOUNTS SHOULD BE APPLIED SIMULTANEOUSLY IN INTRA-COMMUNITY TRADE AND IN TRADE WITH NON-MEMBER COUNTRIES EVEN WHEN THE SITUATIONS ARE DIFFERENT .
11FURTHERMORE , FOLLOWING THE ADOPTION OF THE REGULATION IN DISPUTE , ' ' SEASONED ' ' MEAT PRACTICALLY CEASED TO FEATURE IN TRADE WITH NON-MEMBER COUNTRIES SINCE IT WAS BROUGHT WITHIN THE SCOPE OF THE PROTECTIVE MEASURES BY REGULATION NO 2033/75 OF THE COMMISSION OF 5 AUGUST 1975 ( OFFICIAL JOURNAL L 207 , P . 8 ). AT THE TIME THERE WAS ACCORDINGLY NO LONGER ANY RISK THAT THE MONETARY MEASURES WOULD ENTAIL DISTURBANCES IN TRADE WITH THIRD COUNTRIES .