1 BY ORDER DATED 10 FEBRUARY 1977 , REGISTERED AT THE COURT ON 23 FEBRUARY 1977 , THE FINANZGERICHT BERLIN HAS REFERRED TO THE COURT FOUR QUESTIONS FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OJ ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ), OF REGULATION NO 823/68 OF THE COUNCIL OF 28 JUNE 1968 DETERMINING THE GROUPS OF PRODUCTS AND THE SPECIAL PROVISIONS FOR CALCULATING LEVIES ON MILK AND MILK PRODUCTS ( OJ , ENGLISH SPECIAL EDITION 1968 ( I ), P . 199 ), AS AMENDED BY REGULATION NO 467/75 OF THE COUNCIL OF 27 FEBRUARY 1975 ( OJ L 52 , P . 10 ), AND OF REGULATION NO 1073/78 OF THE COMMISSION OF 24 JULY 1968 LAYING DOWN DETAILED RULES FOR DETERMINING FREE-AT-FRONTIER PRICES AND FOR FIXING LEVIES IN RESPECT OF MILK AND MILK PRODUCTS ( OJ , ENGLISH SPECIAL EDITION 1968 ( II ), P . 359 ) IN RELATION TO THE FIXING OF THE LEVY ON A CONSIGNMENT OF CHEESE OF SHEEP ' S MILK FALLING WITHIN SUBHEADINGS 04.04 E I ( B ) ( 3 ) AND ( 4 ) OF THE COMMON CUSTOMS TARIFF IMPORTED ON 28 JULY 1976 FROM BULGARIA .
2 THE PARTIES TO THE PROCEEDINGS HAVE STATED THAT CONTRARY TO THE PARTICULARS GIVEN IN THE ORDER MAKING THE REFERENCE FOR A PRELIMINARY RULING THE SAID IMPORTATION WAS ONLY OF PRODUCTS FALLING WITHIN SUBHEADING 04.04 E I ( B ) ( 4 ). IT IS FOR THE COURT MAKING THE REFERENCE TO INQUIRE INTO THIS MATTER , WHICH DOES NOT AFFECT THE ANSWER TO THE QUESTIONS OF INTERPRETATION RAISED .
3 THE PLAINTIFF IN THE MAIN ACTION OBJECTS TO THE LEVY IMPOSED BY THE HAUPTZOLLAMT BERLIN-PACKHOF , BELIEVING IT TO BE TOO HIGH IN VIEW OF THE MOVEMENT IN THE FREE-AT-FRONTIER OFFER PRICE OF THE GOODS IN QUESTION . IN THIS RESPECT IT CLAIMS THAT THE FACT THAT THE RESPONSIBLE COMMUNITY AUTHORITIES DID NOT ALIGN THE FREE-AT-FRONTIER OFFER PRICE , ON WHICH THE CALCULATION OF THE LEVY IS BASED , ON THE MOVEMENT OF THE ACTUAL PRICES HAD THE RESULT THAT AN UNJUSTIFIED BURDEN WAS PLACED ON THE PLAINTIFF AND THE VOLUME OF ITS IMPORTS ADVERSELY AFFECTED . IT THEREFORE DEMANDS THAT THE LEVY BE ADJUSTED IN ACCORDANCE WITH THE ACTUAL IMPORT PRICE .
4 ACCORDING TO THE SECOND SUBPARAGRAPH OF ARTICLE 14 ( 3 ) OF REGULATION NO 804/68 , WHICH AT THE RELEVANT TIME DETERMINED THE BASES OF THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS , THE GENERAL LEVY SYSTEM MAY BE DISTINGUISHED FROM THE ' SPECIAL PROVISIONS ' LAID DOWN BY THE COUNCIL PURSUANT TO ARTICLE 14 ( 6 ) IN ARTICLE 8 OF REGULATION NO 823/68 AS AMENDED AT THAT TIME BY ARTICLE 2 OF REGULATION NO 467/75 ( REFERRED TO HEREINAFTER AS ' ARTICLE 8 OF REGULATION NO 823/68 ' ). IN VIEW OF THE DUAL NATURE OF THE SYSTEM IT IS APPROPRIATE FIRST TO CONSIDER THE SECOND QUESTION PUT BY THE FINANZGERICHT . THE SECOND QUESTION , RELATING TO THE DISTINCTION BETWEEN THE GENERAL SYSTEM AND THE SPECIAL SYSTEM
5 IN SUBSTANCE , THE SECOND QUESTION ASKS WHETHER THE SYSTEM APPLIED UNDER ARTICLE 14 OF REGULATION NO 804/68 TO PRODUCTS FALLING WITHIN SUBHEADINGS 04.04 E I ( B ) ( 3 ) AND ( 4 ) OF THE COMMON CUSTOMS TARIFF IS A SPECIAL PROVISION WITHIN THE MEANING OF ARTICLE 14 ( 6 ) OF THAT REGULATION OR A RULE UNDER THE GENERAL SYSTEM LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 14 ( 3 ). TO ANSWER THIS QUESTION THE NATURE OF THE TWO SYSTEMS MUST BE DETERMINED MORE PRECISELY AND THEIR RESPECTIVE FIELDS OF APPLICATION DEFINED .
6 ARTICLE 14 ( 2 ) OF THE BASIC REGULATION NO 804/68 PROVIDES THAT A LEVY SHALL BE CHARGED ON IMPORTS OF THE PRODUCTS LISTED IN ARTICLE 1 OF THE SAID REGULATION . THE FIRST SUBPARAGRAPH OF ARTICLE 14 ( 3 ) PROVIDES THAT , FOR THE PURPOSES OF THE APPLICATION OF THE LEVY , THE SAID PRODUCTS MAY BE DIVIDED INTO GROUPS AND THAT A ' PILOT PRODUCT ' SHALL BE DETERMINED FOR EACH GROUP . THOSE GROUPS AND PILOT PRODUCTS WERE DETERMINED BY REGULATION NO 823/68 , ANNEX I TO WHICH LISTS 12 GROUPS , FIVE OF WHICH ( GROUPS 7 TO 11 ) COMPRISE THE VARIOUS KINDS OF CHEESES WITH THE PILOT PRODUCTS LISTED ALONGSIDE . CONSIDERATION OF THE TARIFF HEADINGS TO WHICH REGULATION NO 823/68 IN ITS ORIGINAL VERSION REFERS SHOWS THAT THE KINDS OF CHEESE WITH WHICH THE MAIN ACTION IS CONCERNED ORIGINALLY FELL WITHIN GROUP 11 AND AS SUCH WERE SUBJECT TO THE GENERAL SYSTEM . THE SECOND PARAGRAPH OF ARTICLE 14 ( 3 ) OF REGULATION NO 804/68 PROVIDES THAT THE LEVY ON THE PRODUCTS IN ANY ONE GROUP SHALL BE EQUAL TO THE THRESHOLD PRICE FOR THE CORRESPONDING PILOT PRODUCT , LESS THE FREE-AT-FRONTIER PRICE . ARTICLE 14 ( 4 ) PROVIDES THAT THE COMMUNITY FREE-AT-FRONTIER PRICE SHALL BE DETERMINED ON THE BASIS OF THE MOST FAVOURABLE PURCHASING OPPORTUNITIES IN INTERNATIONAL TRADE . WITH REGARD TO THE ACTION PENDING BEFORE THE NATIONAL COURT IT SHOULD BE EMPHASIZED THAT THIS RULE FOR DETERMINING THE LEVY BASED ON A COMPARISON BETWEEN THE FRONTIER OFFER PRICE AND THE PRICE WITHIN THE COMMUNITY APPLIES ONLY TO PRODUCTS FALLING WITHIN THE GENERAL SYSTEM .
7 ON THE AUTHORITY OF THE BASIC REGULATION NO 804/68 , ARTICLE 8 OF REGULATION NO 823/68 IN THE VERSION APPLYING AT THE TIME OF THE IMPORTATION IN QUESTION PROVIDES FOR A SPECIAL SYSTEM FOR FIXING THE LEVY IN RELATION TO CERTAIN THIRD COUNTRIES IN SO FAR AS THE PRODUCTS FALL WITHIN CERTAIN TARIFF HEADINGS , INCLUDING SUBHEADINGS 04.04 E I ( B ) ( 3 ) ' KASHKAVAL ' AND ( 4 ) ' CHEESE OF SHEEP ' S MILK ' . HAVING REGARD TO A MISUNDERSTANDING ON THE PART OF THE PLAINTIFF IN THE MAIN ACTION TO WHICH THE COUNCIL AND COMMISSION HAVE RIGHTLY DRAWN ATTENTION IT SHOULD BE STRESSED IN THIS CONNEXION THAT THAT SYSTEM ( IN CONTRAST TO THE GENERAL SYSTEM BASED ON A COMPARISON BETWEEN THE IMPORT PRICE AND THE THRESHOLD PRICE ) DOES NOT RELATE TO THE IMPORT PRICE BUT ONLY TO A ' MINIMUM PRICE ' AS A CONDITION OF APPLICATION AND TO THE THRESHOLD PRICE AS THE BASIS FOR CALCULATING THE LEVY . FROM THE TARIFF HEADINGS EXPRESSLY REFERRED TO IN ARTICLE 8 OF REGULATION NO 823/68 IN THE VERSION APPLICABLE AT THE TIME OF THE IMPORTATION IN QUESTION IT IS QUITE CLEAR THAT THE DETERMINATION OF THE LEVY ON THE IMPORTATION OF THE PRODUCTS WITH WHICH THE MAIN ACTION IS CONCERNED IS GOVERNED NOT BY THE GENERAL SYSTEM LAID DOWN BY REGULATION NO 804/68 BUT BY THE ABOVEMENTIONED SPECIAL SYSTEM .
8 THE SECOND QUESTION MUST ACCORDINGLY BE ANSWERED TO THE EFFECT THAT THE SYSTEM APPLICABLE AT THE TIME OF THE FACTS WITH WHICH THE MAIN ACTION IS CONCERNED TO PRODUCTS FALLING WITHIN SUBHEADINGS 04.04 E I ( B ) ( 3 ) AND ( 4 ) OF THE COMMON CUSTOMS TARIFF IN THE CONTEXT OF ARTICLE 14 OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 CONSTITUTES A ' SPECIAL PROVISION ' WITHIN THE MEANING OF THE SECOND SUBPARAGRAPH OF ARTICLE 14 ( 3 ) AND THE SECOND INDENT OF ARTICLE 14 ( 6 ), AS SUBSEQUENTLY DEFINED BY ARTICLE 8 OF REGULATION NO 823/68 AS AMENDED BY ARTICLE 2 OF REGULATION NO 467/75 OF 27 FEBRUARY 1975 .
9 THE THIRD QUESTION , WHICH ARISES ONLY IN THE EVENT OF THE PRODUCTS IN QUESTION FALLING WITHIN THE GENERAL SYSTEM ESTABLISHED BY REGULATION NO 804/68 , DOES NOT IN CONSEQUENCE CALL FOR AN ANSWER . THE FIRST AND FOURTH QUESTIONS , RELATING TO THE FIXING OF THE LEVY
10 QUESTION 1 SEEKS , IN SUBSTANCE , A DECISION ON WHETHER THE LEVIES IMPOSED FOR THE 1976/77 MILK YEAR ON THE IMPORTATION OF KASHKAVAL AND CHEESE OF SHEEP ' S MILK SHOULD HAVE BEEN ALIGNED ON THE MOVEMENTS IN THE FREE-AT-FRONTIER PRICES FOR THOSE PRODUCTS . QUESTION 4 ( WHICH ASSUMES THE EXISTENCE OF A SPECIAL PROVISION PURSUANT TO ARTICLE 8 OF REGULATION NO 823/68 ) ASKS AT LETTER ( A ) WHETHER THE FREE-AT-FRONTIER PRICES FOR THE SAID PRODUCTS ARE TO BE FIXED ONLY BY AGREEMENT WITH THE THIRD COUNTRIES CONCERNED OR WHETHER , UNDER ARTICLE 14 OF REGULATION NO 804/68 AND THE SUBSEQUENT REGULATIONS THERETO , THE PLAINTIFF , HAS A RIGHT TO ASK THE COMMISSION TO ALIGN THE PRICES IN QUESTION .
11 ARTICLE 8 OF REGULATION NO 823/68 PROVIDES THAT WHERE , ON IMPORTATION INTO THE COMMUNITY , THE PRICE OF THE PRODUCTS IN QUESTION IS NOT LESS THAN 130 U . A . OR , WHERE APPROPRIATE , 115 U . A . PER 100 KG , AS IS ACCEPTED TO BE THE CASE HERE , THE LEVY PER 100 KG SHALL BE EQUAL ' TO THE THRESHOLD PRICE LESS 130 U . A . ' . ACCORDING TO THE WORDING OF THIS PROVISION , THEREFORE , THE LEVY IS EQUAL TO THE THRESHOLD PRICE ( THAT IS TO SAY , A PRICE DETERMINED , IN ACCORDANCE WITH ARTICLE 4 OF REGULATION NO 804/68 , IN TERMS OF THE TARGET PRICE FOR MILK APPLICABLE WITHIN THE COMMUNITY ) LESS A STANDARD AMOUNT INDICATED BY THE REGULATION . FROM THIS IT FOLLOWS THAT THE LEVIES ON THE PRODUCTS IN QUESTION , DETERMINED UNDER THE ABOVEMENTIONED STANDARD PROCEDURE , ARE FIXED WITHOUT REGARD TO THE FREE-AT-FRONTIER PRICE AND THUS WITHOUT REGARD TO ANY CONSIDERATIONS WHICH INTERESTED THIRD COUNTRIES OR AN IMPORTER COULD PUT FORWARD WITH REGARD TO A PRICE FACTOR EXTRANEOUS TO THE DETAILED RULES FOR CALCULATION ADOPTED BY REGULATION NO 823/68 .
12 THIS PART OF QUESTION 4 MUST ACCORDINGLY BE ANSWERED TO THE EFFECT THAT UNDER THE SPECIAL SYSTEM OF ARTICLE 8 OF REGULATION NO 823/68 , IN THE VERSION APPLICABLE AT THE TIME OF THE FACTS WITH WHICH THE MAIN ACTION IS CONCERNED , THE LEVY MUST BE CALCULATED ON THE BASIS OF THE THRESHOLD PRICE FIXED PURSUANT TO REGULATION NO 804/68 WITHOUT REGARD TO THE FREE-AT-FRONTIER PRICE OF THE PRODUCTS SUBJECT TO THAT SPECIAL SYSTEM , PROVIDED ONLY THAT THE REQUIREMENT AS TO MINIMUM PRICES LAID DOWN BY REGULATION NO 823/68 IS OBSERVED .
13 QUESTION 4 ( B ) ASKS WHETHER REGULATION NO 1073/68 ALSO APPLIES IN FIXING FREE-AT-FRONTIER PRICES UNDER ARTICLE 14 ( 6 ) OF REGULATION NO 804/68 AND ARTICLE 8 OF REGULATION NO 823/68 .
14 REGULATION NO 1073/68 WAS ADOPTED BY THE COMMISSION TO LAY DOWN DETAILED RULES FOR DETERMINING THE FREE-AT-FRONTIER PRICES USED IN CALCULATING THE LEVY IN THE CONTEXT OF THE GENERAL SYSTEM . IT HAS BEEN SHOWN ABOVE THAT THE FREE-AT-FRONTIER PRICES ARE IRRELEVANT FOR THE DETERMINATION OF THE LEVIES IN THE CONTEXT OF THE SPECIAL SYSTEM UNDER ARTICLE 8 OF REGULATION NO 823/68 , WHICH , AS STATED , RESTS NOT ON THE DIFFERENCE BETWEEN THE THRESHOLD PRICE AND THE FREE-AT-FRONTIER PRICE OF THE PILOT PRODUCT BUT ON THE THRESHOLD PRICE LESS A STANDARD AMOUNT OF 130 U . A . PER 100 KG .
15 SINCE THE PROVISIONS OF REGULATION NO 1073/68 DO NOT APPLY IN FIXING THE LEVY IMPOSED ON THE IMPORTATION OF THE PRODUCT IN QUESTION , THIS PART OF THE QUESTION IS DEVOID OF OBJECT .
16 QUESTION 4 ( C ) ASKS , FINALLY , WHETHER THE COUNCIL AND THE COMMISSION WERE OBLIGED IN FIXING PRICES FOR THE 1976/77 MILK YEAR TO RAISE THE FREE-AT-FRONTIER PRICES FOR PRODUCTS UNDER TARIFF SUBHEADINGS 04.04 E I ( B ) ( 3 ) AND ( 4 ) OF THE COMMON CUSTOMS TARIFF TO AT LEAST 150/135 U . A .
17 IN VIEW OF THE ABOVE CONSIDERATIONS , SINCE THE FREE-AT-FRONTIER PRICES OF THE PRODUCTS IN QUESTION ARE IN NO WAY INVOLVED IN FIXING THE LEVY IN ACCORDANCE WITH THE SPECIAL SYSTEM OF ARTICLE 8 OF REGULATION NO 823/68 , THE COUNCIL AND COMMISSION HAD NO CAUSE TO FIX OR AMEND THE FREE-AT-FRONTIER PRICES FOR THOSE PRODUCTS , THE LEVY ON WHICH WAS DETERMINED ACCORDING TO STANDARD CRITERIA ON THE BASIS OF THE THRESHOLD PRICE AND WITHOUT ANY REGARD BEING PAID TO THE ACTUAL OFFER PRICE ON IMPORTATION INTO THE COMMUNITY . WITH REGARD TO THE ARGUMENTS PUT FORWARD BY THE PLAINTIFF IN THE MAIN ACTION IN THIS RESPECT IT MUST BE OBSERVED THAT NOT ONLY IS WHAT IT SAYS COMPLETELY IRRELEVANT , BUT THAT THE APPLICATION OF THE SPECIAL SYSTEM PROVIDED FOR IN ARTICLE 14 OF THE BASIC REGULATION NO 804/68 AND IMPLEMENTED BY ARTICLE 8 OF REGULATION NO 823/68 AS SUBSEQUENTLY AMENDED ENSURES PREFERENTIAL TREATMENT FOR THE GOODS IN QUESTION IN COMPARISON WITH GOODS FALLING WITHIN THE GENERAL SYSTEM , EVEN AFTER THE INCREASE IN IMPORT PRICES STRESSED BY THE PLAINTIFF . IF THE PREFERENTIAL MARGIN EXISTING AT A PARTICULAR TIME IS REDUCED BY THE MOVEMENT OF PRICES IN THE PRODUCING COUNTRY , IT SHOULD BE STRESSED THAT THE IMPORTER HAS NO VESTED RIGHT TO HAVE THAT ADVANTAGE MAINTAINED AND , WITHOUT PREJUDICE TO UNDERTAKINGS WHICH MAY HAVE BEEN ENTERED INTO WITH REGARD TO THIRD COUNTRIES , THE COMMUNITY MUST ALWAYS RESERVE ITS FREEDOM TO DETERMINE THE CONDITIONS OF IMPORTATION FOR AGRICULTURAL PRODUCTS ORIGINATING IN THIRD COUNTRIES , HAVING REGARD TO THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS AND THE NEEDS OF ITS COMMERCIAL POLICY .
18 THIS PART OF QUESTION 4 MUST ACCORDINGLY BE ANSWERED TO THE EFFECT THAT , THERE WAS NO OBLIGATION ON THE COMPETENT INSTITUTIONS OF THE COMMUNITY AT THE TIME OF THE FACTS WITH WHICH THE MAIN ACTION IS CONCERNED TO AMEND THE IMPORT SYSTEM APPLICABLE UNDER ARTICLE 8 OF REGULATION NO 823/68 TO PRODUCTS FALLING WITHIN TARIFF SUBHEADINGS 04.04 E I ( B ) ( 3 ) AND ( 4 ). APPLICATION TO REOPEN THE ORAL PROCEDURE
19 BY LETTER DATED 4 OCTOBER 1977 , RECEIVED AT THE COURT REGISTRY ON 6 OCTOBER 1977 , THE PLAINTIFF IN THE MAIN ACTION APPLIED TO HAVE THE ORAL PROCEDURE REOPENED ON THE GROUNDS OF TWO NEW FACTS WHICH WERE NOT KNOWN AT THE TIME OF THE ORAL PROCEDURE .
ON THE ONE HAND , IT ALLEGES THAT THE COUNCIL , BY REGULATION NO 1683/77 OF 18 JULY 1977 AMENDING ARTICLE 8 OF REGULATION NO 823/68 , HAS RAISED THE ' MINIMUM PRICES ' APPLICABLE TO CERTAIN KINDS OF CHEESE BUT LEFT THE MINIMUM PRICES OF KASHKAVAL AND CHEESE OF SHEEP ' S MILK UNCHANGED . IN THIS RESPECT IT MUST BE OBSERVED NOT ONLY THAT THAT MEASURE WAS ADOPTED AFTER THE LEVIES IN QUESTION WERE FIXED BUT ALSO THAT IT IS IRRELEVANT TO THE QUESTIONS REFERRED TO THE COURT BY THE FINANZGERICHT BERLIN WITH REGARD TO TAKING ACCOUNT OF THE FREE-AT-FRONTIER PRICE AS DETERMINED BY REGULATION NO 804/68 . THIS FURTHER SUBMISSION , WHICH RESTS ON A MISUNDERSTANDING OF THE PRINCIPLES RELATING TO THE TEMPORAL APPLICATION OF LEGAL RULES AND ON A CONFUSION BETWEEN THE FUNCTIONS PERFORMED IN THE LEVY SYSTEM IN QUESTION BY THE ' MINIMUM PRICES ' WITHIN THE MEANING OF ARTICLE 8 OF REGULATION NO 823/68 AND THE ' FREE-AT-FRONTIER PRICES ' WITHIN THE MEANING OF REGULATION NO 804/68 , MUST THEREFORE BE REJECTED .
21 FURTHER THE PLAINTIFF IN THE MAIN ACTION ALLEGES THAT IT IS IN POSSESSION OF A COPY OF A LETTER FROM THE BULGARIAN GOVERNMENT TO THE COMMISSION INFORMING THE LATTER OF THE MOVEMENT IN PRICES OF CHEESE OF SHEEP ' S MILK AND KASHKAVAL IN ORDER TO OBTAIN AN AMENDMENT OF THE IMPORT SYSTEM . SUCH INFORMATION MIGHT LEAD TO A FUTURE AMENDMENT OF THE SYSTEM IN QUESTION BY THE COMPETENT COMMUNITY AUTHORITIES , BUT IT HAS IN ANY EVENT NO INFLUENCE ON THE OUTCOME OF THE ACTION PENDING BEFORE THE FINANZGERICHT BERLIN . THE DOCUMENT PRODUCED IS THEREFORE IRRELEVANT TO THE PRESENT PROCEEDINGS .
22 FOR THESE REASONS THERE IS NO CAUSE TO ACCEDE TO THE APPLICATION TO REOPEN THE ORAL PROCEDURE .