1BY SEPARATE ORDERS OF 3 MAY AND 6 JUNE 1978 WHICH WERE RECEIVED AT THE COURT ON 9 AND 26 JUNE 1978 RESPECTIVELY THE SEVENTH SENATE OF THE HESSISCHES FINANZGERICHT ( FINANCE COURT OF THE LAND OF HESSE ) REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY THE FOLLOWING QUESTIONS FOR A PRELIMINARY RULING : ( IN CASE 131/78 ) ' ' IS REGULATION ( EEC ) NO 1173/75 OF THE COUNCIL OF 28 APRIL 1975 FIXING THE THRESHOLD PRICES FOR CEREALS FOR THE 1975/76 MARKETING YEAR ( OFFICIAL JOURNAL 1975 L 117 , P . 6 ) INVALID AND THEREFORE INAPPLICABLE IN SO FAR AS IT RELATES TO COMMON WHEAT BECAUSE IT INFRINGES ARTICLE 5 ( 1 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 33 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 85/75 ( OFFICIAL JOURNAL 1975 L 11 , P . 1)? ' ' ( IN CASE 150/78 ) ' ' IS REGULATION ( EEC ) NO 1427/74 OF THE COUNCIL OF 4 JUNE 1974 FIXING THE THRESHOLD PRICES FOR CEREALS FOR THE 1974/75 MARKETING YEAR ( OFFICIAL JOURNAL L 151 , P . 1 ) INVALID AND THEREFORE INAPPLICABLE IN SO FAR AS IT RELATES TO SORGHUM BECAUSE IT INFRINGES ARTICLE 5 ( 1 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 33 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 1125/74 ( OFFICIAL JOURNAL L 128 , P . 12)? ' '
2THESE QUESTIONS HAVE BEEN RAISED WITHIN THE CONTEXT OF TWO ACTIONS IN WHICH THE PLAINTIFF IN THE MAIN ACTION CONTESTED THE RATES OF LEVY FIXED IN ADVANCE FOR THE MONTHS OF AUGUST , SEPTEMBER AND OCTOBER 1975 AND FOR THE MONTHS OF JULY , AUGUST AND SEPTEMBER 1974 BY THE GERMAN INTERVENTION AGENCY , THE DEFENDANT IN THE MAIN ACTION , IN LICENCES WHICH IT ISSUED RELATING TO THE IMPORTATION INTO THE COMMUNITY OF CERTAIN QUANTITIES OF COMMON WHEAT ( IN 1975 ) AND SORGHUM ( IN 1974 ).
3BOTH BEFORE THE NATIONAL COURT AND BEFORE THE COURT OF JUSTICE , THE PLAINTIFF HAS CLAIMED THAT THE LEVIES IN QUESTION WERE FIXED AT TOO HIGH A LEVEL BECAUSE THE ABOVE-MENTIONED REGULATIONS , ON THE BASIS OF WHICH THE RATES OF LEVY WERE CALCULATED , FIXED THE THRESHOLD PRICE INACCURATELY BECAUSE THE MARKETING COSTS BORNE BY THE IMPORTER WERE NOT TAKEN INTO SUFFICIENT CONSIDERATION IN INFRINGEMENT OF THE OBJECTIVES OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS . THE FIRST QUESTION
4THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ESTABLISHED BY REGULATION NO 120/67/EEC AIMS IN PARTICULAR TO ENSURE A FAIR STANDARD OF LIVING FOR COMMUNITY PRODUCERS BY STABILIZING THE PRICES ON THE DOMESTIC MARKET IN THE COMMUNITY FOR CERTAIN PRODUCTS , PARTICULARLY COMMON WHEAT , AT THE LEVEL OF A TARGET PRICE . UNDER ARTICLE 2 ( 3 ) OF REGULATION NO 120/67/EEC THIS TARGET PRICE IS FIXED FOR ' ' DUISBURG AT THE WHOLESALE STAGE , GOODS DELIVERED TO WAREHOUSE , NOT UNLOADED ' ' .
5UNDER ARTICLE 5 ( 1 ) OF THAT REGULATION A THRESHOLD PRICE DERIVED FROM THE TARGET PRICE IS FIXED INTER ALIA FOR COMMON WHEAT IN SUCH A WAY THAT THE SELLING PRICE ON THE DUISBURG MARKET IS THE SAME AS THE TARGET PRICE , DIFFERENCES IN QUALITY BEING TAKEN INTO ACCOUNT . THIS THRESHOLD PRICE , WHICH IS CALCULATED FOR ROTTERDAM ACCORDING TO ARTICLE 5 ( 4 ), IS INTENDED TO FIX BY MEANS OF LEVIES THE LEVEL TO WHICH THE PRICE OF THE IMPORTED PRODUCT MUST BE RAISED TO PRECLUDE ITS BEING OFFERED FOR SALE ON THE MARKET IN QUESTION AT A PRICE LOWER THAN THE TARGET PRICE . TO MEET THIS CONDITION THE PRICE OF THE IMPORTED PRODUCT AFTER CROSSING THE FRONTIER MUST BE THE SAME AS THE TARGET PRICE AND THUS THE THRESHOLD PRICE MUST BE EQUAL TO THE TARGET PRICE LESS THE MARKETING COSTS INCURRED BY THE IMPORTER BETWEEN THE STAGE OF THE C.I.F . PRICE FOR ROTTERDAM AND THE WHOLESALE STAGE AT DUISBURG FOR WHICH THE TARGET PRICE HAS BEEN FIXED . UNDER ARTICLE 13 ( 1 ) OF THE REGULATION , THE LEVY IMPOSED ON IMPORTS INTO THE COMMUNITY IS EQUAL TO THE THRESHOLD PRICE LESS THE C.I.F . PRICE ON THE WORLD MARKET FOR ROTTERDAM .
6MARKETING COSTS INCLUDE THOSE EXPENSES INHERENT IN THE PROCEDURES AND FORMALITIES OF IMPORT WHICH EVERY IMPORTER MUST INEVITABLY INCUR AS WELL AS THE NORMAL EXPENSE OF TRANSPORTING THE IMPORTED GOODS TO THE WHOLESALE STAGE AT DUISBURG . MOREOVER , IN ACCORDANCE WITH THE GENERAL SYSTEM OF LEVIES INTRODUCED BY REGULATION NO 120/67/EEC , MARKETING COSTS SHOULD NOT BE CALCULATED ON THE BASIS OF COSTS ACTUALLY INCURRED BY THE IMPORTER FOR A SPECIFIC DELIVERY WHICH ARE LARGELY DEPENDENT UPON DECISIONS MADE BY THE IMPORTER BUT SHOULD BE CALCULATED AT A FLAT RATE IN RELATION TO THOSE EXPENSES WHICH AN IMPORTER OF THE PRODUCTS IN QUESTION MUST INEVITABLY INCUR IN RESPECT OF THE IMPORTATION .
7THE TARGET PRICE FOR COMMON WHEAT WAS FIXED BY REGULATION NO 666/75 OF THE COUNCIL OF 4 MARCH 1975 ( OFFICIAL JOURNAL L 72 , P . 14 ) AT 139.44 UNITS OF ACCOUNT PER TONNE FOR THE 1975/76 MARKETING YEAR . UNDER THE SOLE ARTICLE OF REGULATION NO 1173/75 , THE THRESHOLD PRICE OF COMMON WHEAT AND MESLIN WAS FIXED AT 136.45 UNITS OF ACCOUNT PER TONNE FOR THE SAME MARKETING YEAR . IT FOLLOWS FROM THE FIRST RECITAL OF THE PREAMBLE TO THAT REGULATION THAT THIS PRICE WAS OBTAINED BY DEDUCTING FROM THE TARGET PRICE AS MARKETING COSTS THE MOST ADVANTAGEOUS TRANSPORT COSTS BETWEEN ROTTERDAM AND DUISBURG , TRANSHIPMENT CHARGES AT ROTTERDAM AND A TRADING MARGIN .
8THE PLAINTIFF IN THE MAIN ACTION CONSIDERS THAT FOR THE PURPOSE OF FIXING THE THRESHOLD PRICE FOR COMMON WHEAT FOR THE 1975/76 MARKETING YEAR BY MEANS OF REGULATION NO 1173/75 , THE MARKETING COSTS , CALCULATED AT A FLAT RATE OF 2.99 UNITS OF ACCOUNT ( THAT IS , DM 10.70 ) PER TONNE , WERE CALCULATED ON THE BASIS OF INCORRECT INFORMATION AND THAT THE FORESEEABLE INFLATIONARY DEVELOPMENT IN THE VARIOUS COST FACTORS WAS NOT TAKEN INTO SUFFICIENT CONSIDERATION .
9IT IS THEREFORE NECESSARY TO EXAMINE THE VALIDITY OF THAT REGULATION HAVING REGARD TO EACH OF THESE FACTORS BY REFERRING ON THE ONE HAND TO THE COSTS ADOPTED BY THE COMMISSION FOR THE PURPOSE OF ITS PROPOSAL FOR THE FIXING OF THE THRESHOLD PRICES WHICH WAS SUBMITTED TO THE COUNCIL AND ON THE BASIS OF WHICH THE COUNCIL ADOPTED REGULATION NO 1173/75 AND ON THE OTHER TO THE COSTS WHICH THE PLAINTIFF CONSIDERS CORRECT . THE TRANSPORT COSTS BETWEEN ROTTERDAM AND DUISBURG
10IT FOLLOWS FROM THE FIGURES SUPPLIED BY THE COMMISSION THAT THE VALUES DETERMINED FOR TRANSPORT COSTS SINCE THE 1969/70 MARKETING YEAR HAVE RISEN SLIGHTLY , IN PARTICULAR FROM THE 1974/75 TO THE 1975/76 MARKETING YEAR , FOR WHICH AN AMOUNT OF 1.30 UNITS OF ACCOUNT ( THAT IS , DM 4.76 ) PER TONNE WAS ADOPTED . ACCORDING TO THE STATEMENTS MADE BY THE COMMISSION AT THE HEARING THESE FIGURES ARE THE RESULT OF PERMANENT CONTACTS WITH ECONOMIC CIRCLES ACTIVE IN THIS FIELD . THE COMMISSION MOREOVER EXPLAINED WITHOUT BEING CONTRADICTED ON THIS POINT THAT THE ACTUAL TRANSPORT COSTS , WHICH ARE INFLUENCED BY FIERCE COMPETITION IN PARTICULAR BECAUSE OF DUMPING BY CERTAIN THIRD COUNTRIES AND EXCESS CARGO CAPACITY ON THE RHINE , HAVE NOT BEEN AFFECTED BY INFLATIONARY INCREASES .
11ACCORDING TO THE PLAINTIFF , THE FIGURE OF 2.47 UNITS OF ACCOUNT ( THAT IS , DM 8.86 ) PER TONNE SHOULD HAVE BEEN ADOPTED FOR THE MARKETING YEAR IN QUESTION ; THE CALCULATION OF THAT FIGURE IS BASED , AS REGARDS THE SECTION OF THE ROUTE LYING WITHIN THE FEDERAL REPUBLIC OF GERMANY , ON THE FRACHTEN- UND TARIFANZEIGER DER BINNENSCHIFFAHRT ( INLAND NAVIGATION FREIGHT AND CARRIAGE RATES GAZETTE ) OF 20 JUNE 1975 AND , AS REGARDS THE SECTION OF THE ROUTE LYING WITHIN FOREIGN TERRITORY , ON THE RATES OF CHARGE PER KILOMETRE INDICATED FOR THE 1975/76 MARKETING YEAR BY THE DIRECTIVES OF THE FEDERAL MINISTER FOR FOOD RELATING TO THE GRANT OF AID TO FREIGHT RATES FOR CEREALS . HOWEVER , ACCORDING TO THE ORAL STATEMENTS MADE BY THE COMMISSION THIS FIGURE DOES NOT CORRESPOND TO THE ACTUAL FREIGHT RATES BUT IS THE RESULT OF A ' ' NOTIONAL ' ' CALCULATION MADE BY CARRIERS IN THE FEDERAL REPUBLIC OF GERMANY SO AS TO OBTAIN A TRANSPORT SUBSIDY . IN REPLY TO A QUESTION PUT BY THE COURT , THE PLAINTIFF CONFIRMED THAT THE CALCULATION OF THE ABOVE-MENTIONED AMOUNT IS THEORETICAL IN NATURE .
12MOREOVER , ACCORDING TO AN ASSESSMENT PUT FORWARD BY THE PLAINTIFF ITSELF AND MADE BY A GERMAN SHIPPING UNDERTAKING , THE SHIP ' S FREIGHT RATES APPLIED AS REGARDS THE TRANSPORT OF CONSIGNMENTS OF 300 TO 500 TONNES OF CEREALS FROM ROTTERDAM TO DUISBURG WERE OF THE ORDER OF DM 4.80 PER TONNE FOR A CONTRACT FROM FEBRUARY 1975 TO JANUARY 1976 . THE DIFFERENCE BETWEEN THAT FIGURE AND THE FIGURE OF DM 4.76 ADOPTED BY THE COMMISSION , WHICH MOREOVER REFERS , ACCORDING TO THE COMMISSION ' S EXPLANATIONS , TO CONSIGNMENTS OF 500 TO 1 500 TONNES , IS TRIFLING .
13IT FOLLOWS FROM ALL THE FOREGOING FACTS WHICH WERE VERIFIED AFTER BOTH PARTIES HAD PUT FORWARD THEIR ARGUMENTS AT THE HEARING THAT THE CRITICISMS MADE BY THE PLAINTIFF OF THE ASSESSMENT OF THE TRANSPORT COSTS BY THE COMMUNITY AUTHORITIES ARE UNFOUNDED . THE TRANSHIPMENT CHARGES AT ROTTERDAM
14AS REGARDS THE CHARGES FOR TRANSHIPMENT FROM SEA-GOING VESSELS TO RIVER VESSELS AT ROTTERDAM , THE COMMISSION BASED ITS CALCULATIONS FOR THE PURPOSE OF ITS PROPOSAL FOR THE FIXING OF THE THRESHOLD PRICE ON THE TRANSHIPMENT RATES OF GRAINWAVE BV , ROTTERDAM , ACCORDING TO WHICH THE AMOUNT ADOPTED IN THE CASE OF COMMON WHEAT ROSE FROM HFL 1.43 PER TONNE ON 1 JULY 1974 TO HFL 1.64 PER TONNE ON 1 MAY 1975 . ON THE BASIS OF THAT INFORMATION THE COMMISSION ADOPTED AN AMOUNT OF HFL 1.72 ( DM 1.83 ) WHEREAS THE PLAINTIFF , RELYING UPON THE RATES OF CHARGE OF THE VERENIGING VAN NEDERLANDSE GRANFACTORS EN GRANEXPEDITEURS , CONSIDERS THAT THE AMOUNT SHOULD HAVE BEEN FIXED AT A FIGURE OF DM 3.15 PER TONNE .
15IT IS NECESSARY HOWEVER TO OBSERVE THAT THE PRICES LISTED IN THE RATES OF CHARGE UPON WHICH THE PLAINTIFF RELIES ARE FIXED INCLUDING ' ' WEIGHING , RECEIPT AND INSPECTION , EVENING , NIGHT AND WEEK-END WORK ' ' . IT IS CLEAR FROM THE FILE THAT THE COMMISSION TOOK INTO CONSIDERATION THE FACTORS OF WEIGHING AND INSPECTION WITHIN THE CONTEXT OF THE TRADING MARGIN . MOREOVER , SPECIAL COSTS RESULTING FROM NIGHT WORK AND WEEK-END WORK CANNOT BE CONSIDERED AS COSTS WHICH AN IMPORTER MUST INEVITABLY BEAR AND WHICH THE COMMUNITY AUTHORITIES MUST TAKE INTO ACCOUNT IN THE ASSESSMENT OF THE MARKETING COSTS .
16ON ACCOUNT OF THESE CONSIDERATIONS , IT MAY BE STATED THAT THE PLAINTIFF HAS NOT SUCCEEDED IN ESTABLISHING THAT THE COMMUNITY AUTHORITIES UNDERESTIMATED THE TRANSHIPMENT CHARGES IN THE PORT OF ROTTERDAM . THE TRADING MARGIN AND OTHER COSTS
17THE DIFFERENCE BETWEEN THE FLAT RATE AMOUNT ADOPTED IN THIS RESPECT BY THE COMMUNITY AUTHORITIES ( DM 4.40 ) AND THE FIGURE QUOTED BY THE PLAINTIFF ( DM 4.55 ) IS NEGLIGIBLE ; IT CANNOT THEREFORE CONSTITUTE AN INDICATION OF A MISTAKEN APPRAISAL BY THE COMMUNITY AUTHORITIES WHEN FIXING THE MARKETING COSTS .
18IT FOLLOWS FROM ALL THE FOREGOING STATEMENTS THAT CONSIDERATION OF THE FIRST QUESTION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 1173/75 OF THE COUNCIL IN SO FAR AS IT RELATES TO COMMON WHEAT . THE SECOND QUESTION
19IN THE SECOND QUESTION THE NATIONAL COURT ASKS WHETHER REGULATION NO 1427/74 OF THE COUNCIL FIXING THE THRESHOLD PRICES FOR CEREALS FOR THE 1974/75 MARKETING YEAR IS INVALID IN SO FAR AS IT RELATES TO SORGHUM BECAUSE IT INFRINGES ARTICLE 5 ( 1 ) OF REGULATION NO 120/67/EEC .
20SORGHUM , THE PRODUCTION OF WHICH IS ALMOST NON-EXISTENT WITHIN THE COMMUNITY , IS NOT ONE OF THE CEREALS LISTED IN ARTICLE 5 ( 1 ) OF REGULATION NO 120/67/EEC BUT COMES WITHIN ARTICLE 5 ( 2 ) OF THAT REGULATION ACCORDING TO WHICH A THRESHOLD PRICE IS FIXED FOR THAT PRODUCT FOR THE COMMUNITY IN SUCH A WAY THAT THE PRICE FOR THOSE CEREALS MENTIONED IN PARAGRAPH 1 WHICH ARE IN COMPETITION WITH SORGHUM REACHES THE TARGET PRICE ON THE DUISBURG MARKET . IT IS THEREFORE NECESSARY TO REPLY TO THE QUESTION REFERRED TO THE COURT BY EXAMINING THE VALIDITY OF REGULATION NO 1427/74 IN RELATION TO ARTICLE 5 ( 2 ) OF REGULATION NO 120/67/EEC .
21UNDER THE SOLE ARTICLE OF REGULATION NO 1427/74 , THE THRESHOLD PRICE FOR SORGHUM WAS FIXED AT 105.55 UNITS OF ACCOUNT PER TONNE FOR THE 1974/75 MARKETING YEAR . THE PLAINTIFF CLAIMS THAT FOR THE PURPOSE OF FIXING THE THRESHOLD PRICE THE COMMUNITY AUTHORITIES DID NOT TAKE ADEQUATE ACCOUNT OF THE MARKETING COSTS INCURRED BY IMPORTERS OF SORGHUM , WITH THE RESULT THAT THAT PRICE WAS FIXED AT TOO HIGH A LEVEL . IN SUPPORT OF THIS ARGUMENT THE PLAINTIFF RELIES UPON ARGUMENTS AND DOCUMENTS ANALOGOUS TO THOSE WHICH IT PUT FORWARD FOR THE PURPOSE OF CONTESTING THE VALIDITY OF THE FIXING OF THE THRESHOLD PRICE FOR COMMON WHEAT FOR THE 1975/76 MARKETING YEAR .
22IT FOLLOWS HOWEVER FROM THE WORDING OF ARTICLE 5 ( 2 ) OF REGULATION NO 120/67/EEC THAT THE THRESHOLD PRICE FOR SORGHUM , WHICH IS A PRODUCT FOR WHICH THERE IS NO TARGET PRICE , CANNOT BE FIXED IN THE SAME WAY AS THE THRESHOLD PRICE FOR COMMON WHEAT . THEREFORE THE ARGUMENTS PUT FORWARD BY THE PLAINTIFF REST ON ERRONEOUS PREMISES BECAUSE THEY ARE BASED ESSENTIALLY ON THE EXTENT OF THE DEDUCTIONS FROM THE TARGET PRICE WHICH IN ITS VIEW SHOULD HAVE BEEN MADE AS MARKETING COSTS . IT IS IN FACT NECESSARY TO FIX THE THRESHOLD PRICE FOR SORGHUM IN SUCH A WAY THAT THE PRICES OF COMMUNITY PRODUCTS WHICH ARE IN COMPETITION BECAUSE OF THEIR SIMILAR NUTRITIVE VALUE , IN OTHER WORDS MAIZE AND BARLEY , REACH THE TARGET PRICE FIXED FOR THE LATTER PRODUCTS ON THE DUISBURG MARKET .
23ACCORDING TO THE EXPLANATIONS GIVEN BY THE COUNCIL AND THE COMMISSION THE COMMUNITY AUTHORITIES BASED THEIR CALCULATIONS FOR THE PURPOSES OF FIXING THE THRESHOLD PRICE OF SORGHUM FOR THE 1974/75 MARKETING YEAR ON THE CONDITIONS OF COMPETITION OF THAT PRODUCT IN RELATION TO BARLEY AND MAIZE AS REFLECTED IN THE PRICES ON THE WORLD MARKET CONVERTED TO THE C.I.F . ROTTERDAM PRICES FOR A PERIOD CORRESPONDING TO THE PREVIOUS MARKETING YEAR . ACCORDING TO A LIST OF THOSE PRICES SUPPLIED BY THE COMMISSION , THE ACCURACY OF WHICH HAS NOT BEEN CONTESTED BY THE PLAINTIFF , THE PRICES OF SORGHUM FLUCTUATED BETWEEN 83 % AND 107 % OF THE PRICES OF MAIZE AND BARLEY . THE COUNCIL FIXED BY REGULATION NO 1427/74 THE THRESHOLD PRICES OF MAIZE AND BARLEY FOR THE 1974/75 MARKETING YEAR AT 106.60 AND 107.70 UNITS OF ACCOUNT PER TONNE RESPECTIVELY AND THE THRESHOLD PRICE OF SORGHUM AT 105.55 UNITS OF ACCOUNT PER TONNE , AN AMOUNT WHICH IS CONSEQUENTLY MORE FAVOURABLE FOR THAT PRODUCT . IN THESE CIRCUMSTANCES , HAVING REGARD TO THE OBJECTIVE OF ARTICLE 5 ( 2 ) OF REGULATION NO 120/67/EEC , THERE IS NOTHING TO SUPPOSE THAT BY FIXING THE THRESHOLD PRICE OF SORGHUM AT THE ABOVE-MENTIONED AMOUNT THE COUNCIL WENT BEYOND THE LIMITS OF THE PROPER EXERCISE OF ITS DISCRETION IN THE MATTER .
24IT IS THEREFORE NECESSARY TO CONCLUDE THAT CONSIDERATION OF THE SECOND QUESTION SUBMITTED TO THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 1427/74 IN SO FAR AS IT RELATES TO SORGHUM .