1 BY AN ORDER OF 6 JUNE 1984 , WHICH WAS RECEIVED AT THE COURT ON 11 JULY 1984 , THE HESSISCHES FINANZGERICHT SUBMITTED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF REGULATION NO 1608/74 OF THE COMMISSION OF 26 JUNE 1974 ON SPECIAL PROVISIONS IN RESPECT OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1974 , L 170 , P . 38 ).
2 THOSE QUESTIONS WERE RAISED IN THE COURSE OF AN ACTION BROUGHT BEFORE THE FINANZGERICHT BY SOHNLEIN REHINGOLD AGAINST THE HAUPTZOLLAMT WIESBADEN CONCERNING THE REFUSAL BY THE NATIONAL AUTHORITIES RESPONSIBLE FOR THE PAYMENT AND LEVYING OF MONETARY COMPENSATORY AMOUNTS TO GRANT THE PLAINTIFF ' S APPLICATION TO BE ALLOWED TO BENEFIT FROM THE EQUITABLE MEASURE PROVIDED FOR IN REGULATION NO 1608/74 . THAT APPLICATION SOUGHT TO OBTAIN EXEMPTION FROM THAT PART OF THE MONETARY COMPENSATORY AMOUNTS WHICH REPRESENTED THE DIFFERENCE BETWEEN THE AMOUNTS APPLICABLE AT THE DATE AT WHICH THE PLAINTIFF CONCLUDED CERTAIN CONTRACTS FOR THE IMPORTATION OF WINE FROM FRANCE AND ITALY AND THE AMOUNTS IN FORCE AT THE DATE AT WHICH THOSE IMPORTATIONS WERE CARRIED OUT .
3 ARTICLE 1 OF REGULATION NO 1608/74 , WHICH WAS APPLICABLE AT THE MATERIAL TIME , PROVIDES THAT : ' WHERE MONETARY COMPENSATORY AMOUNTS ARE INTRODUCED OR INCREASED AS A RESULT OF THE FIXING OR THE AMENDMENT OF THE CENTRAL RATE OR OF THE REPRESENTATIVE RATE OF THE CURRENCY OF A MEMBER STATE USED IN THE CONTEXT OF THE COMMON AGRICULTURAL POLICY , OR WHERE THE DECISION OF A MEMBER STATE TO PERMIT ITS CURRENCY TO FLOAT IN RELATION TO THE CURRENCIES OF THE MEMBER STATES WHERE THE FLUCTUATION OF THE RATES OF EXCHANGE IS KEPT WITHIN A MAXIMUM SPREAD OF 2.25% , THE MEMBER STATE IN QUESTION SHALL BE AUTHORIZED TO WAIVE , ON A DISCRETIONARY BASIS AND ACCORDING TO THE FOLLOWING CONDITIONS , THE MONETARY COMPENSATORY AMOUNT OR SO MUCH THEREOF AS CORRESPONDS TO THE INCREASE . '
4 THE CONDITIONS FOR THE GRANT OF THAT WAIVER ARE TO BE FOUND IN ARTICLE 2 ( 2 ) OF THE REGULATION , ACCORDING TO WHICH : ' 1 . ARTICLE 1 SHALL APPLY ONLY TO IMPORTS AND EXPORTS CARRIED OUT PURSUANT TO BINDING CONTRACTS CONCLUDED BEFORE THE MONETARY MEASURE REFERRED TO IN THAT ARTICLE . 2 . THE AUTHORIZATION PROVIDED FOR IN ARTICLE 1 MAY BE MADE USE OF ONLY AT THE REQUEST OF THE INTERESTED PARTY AND IF SUCH PARTY AT THE TIME OF MAKING THE REQUEST , FURNISHED PROOF THAT : ( A ) IN THE CASE IN QUESTION IT IS NOT NECESSARY TO LEVY THE NEWLY INTRODUCED OR INCREASED MONETARY COMPENSATORY AMOUNTS TO COMPENSATE FOR THE EFFECTS OF THE MONETARY MEASURES REFERRED TO IN THAT ARTICLE ON THE PRICE OF THE PRODUCT ; AND THAT ( B)TO LEVY SUCH AMOUNT WOULD CONSTITUTE AN EXCESSIVE ADDITIONAL BURDEN FOR HIM , WHICH HE COULD NOT AVOID EVEN TAKING ALL THE NECESSARY AND NORMAL CARE . '
5 FOLLOWING THE ADJUSTMENT OF THE CENTRAL RATE FOR THE GERMAN MARK ON 29 JUNE 1973 , WHICH ENTAILED AN INCREASE IN THE MONETARY COMPENSATORY AMOUNTS AS FROM 3 JULY 1973 , THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY DECIDED , BY A NOTICE OF 3 JULY 1974 , TO MAKE USE OF THE AUTHORIZATION CONTAINED IN ARTICLE 1 OF REGULATION NO 1608/74 AND TO GRANT REIMBURSEMENT OR WAIVER OF THAT PART OF THE MONETARY COMPENSATORY AMOUNTS WHICH WAS DUE TO THE INCREASE UNDER THE CONDITIONS LAID DOWN IN ARTICLE 2 .
6 THE PLAINTIFF IN THE MAIN PROCEEDINGS , WHICH HAD IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY BETWEEN JULY AND OCTOBER 1973 A QUANTITY OF TABLE WINE FROM FRANCE AND ITALY ON THE BASIS OF CONTRACTS CONCLUDED BETWEEN NOVEMBER 1972 AND MARCH 1973 , REQUESTED THE COMPETENT AUTHORITIES TO GRANT IT THE BENEFIT OF THE PROVISIONS OF REGULATION NO 1608/74 .
7 THAT REQUEST WAS REJECTED BY THE HAUPTZOLLAMT . THE PLAINTIFF SUBMITTED A COMPLAINT AGAINST THAT REJECTION TO THE OBERFINANZDIREKTION ( PRINCIPAL REVENUE OFFICE ) FRANKFURT , WHICH , BY A DECISION DATED 7 JUNE 1978 , REJECTED THE COMPLAINT .
8 THE PLAINTIFF THEN BROUGHT AN ACTION BEFORE THE HESSISCHES FINANZGERICHT SEEKING THE ANNULMENT OF THE DECISIONS REJECTING ITS CLAIM .
9 BEFORE THAT COURT THE DEFENDANT OPPOSED THE APPLICATION BY ADVANCING , IN ADDITION TO THE GROUNDS STATED IN SUPPORT OF THE DECISION OF THE OBERFINANZDIREKTION FRANKFURT , TWO ARGUMENTS .
10 ACCORDING TO THE FIRST ARGUMENT , THE EQUITABLE MEASURE PROVIDED FOR IN REGULATION NO 1608/74 IS INAPPLICABLE TO CONTRACTS CONCLUDED BEFORE 3 JUNE 1973 , AS IS CLEAR FROM A JUDGMENT OF THE FINANZGERICHT HAMBURG OF 7 APRIL 1981 ( IV 37/79 ).
11 ACCORDING TO THE SECOND ARGUMENT , THE PLAINTIFF MAINTAINED THE SAME PRICES FOR MANY YEARS WITHOUT TAKING ACCOUNT OF THE BURDEN OF MONETARY COMPENSATORY AMOUNTS AND OTHER INCREASES IN COSTS . ACCORDING TO THE ORDER FOR REFERENCE , THAT ARGUMENT MAY MEAN THAT SUCH AN IMPORTER CANNOT RELY ON THE PROTECTION OF A LEGITIMATE EXPECTATION BECAUSE HE DID NOT REALLY BELIEVE THAT THE RATES OF LEVY WOULD REMAIN STABLE . HOWEVER , IN THE VIEW OF THE NATIONAL COURT , SUCH AN ARGUMENT COULD ONLY BE ACCEPTED IF REGULATION NO 1608/74 COULD BE CONSTRUED AS GRANTING A MARGIN OF DISCRETION TO THE ADMINISTRATION , SOMETHING WHICH WAS NOT ACCEPTED BY THE FINANZGERICHT HAMBURG IN ANOTHER JUDGMENT ( IV 99/H ) OF THE SAME DATE .
12 SINCE IT HAD DOUBTS ABOUT THOSE TWO ARGUMENTS , THE HESSISCHES FINANZGERICHT , BY AN ORDER OF 6 JUNE 1984 , STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING TWO QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING : ' ( 1 ) MUST REGULATION ( EEC ) NO 1608/74 BE INTERPRETED AS MEANING THAT THE WAIVER OR REFUND ON EQUITABLE GROUNDS OF MONETARY COMPENSATORY AMOUNTS LEVIED ON IMPORTS MAY BE CONSIDERED ONLY WHERE THE CONTRACTS IN PURSUANCE OF WHICH THE IMPORTS WERE CARRIED OUT WERE CONCLUDED AFTER 3 JUNE 1973? ( 2)MUST REGULATION ( EEC ) NO 1608/74 BE INTERPRETED AS MEANING THAT , WHERE THE RELEVANT CONDITIONS ARE SATISFIED , A RIGHT TO THE WAIVER OR THE REFUND OF MONETARY COMPENSATORY AMOUNTS EXISTS , OR DO THE MEMBER STATES HAVE DISCRETION AS REGARDS NOT ONLY THE DECISION CONCERNING THE APPLICATION IN PRINCIPLE OF THE REGULATION BUT ALSO THE DECISION AS TO THE WAIVER OR REFUND IN INDIVIDUAL CASES? ' FIRST QUESTION
13 THE PLAINTIFF IN THE MAIN PROCEEDINGS OBSERVES THAT , ACCORDING TO THE SECOND SENTENCE OF ARTICLE 6 , REGULATION NO 1608/74 ' SHALL APPLY TO IMPORTS OR EXPORTS CARRIED OUT AS FROM 4 JUNE 1973 ' , OF NECESSITY THE CONTRACTS ON THE BASIS OF WHICH IMPORTS OR EXPORTS WERE CARRIED OUT ON 4 JUNE 1973 COULD ONLY HAVE BEEN CONCLUDED BEFORE THAT DATE . IT ADDS THAT , ACCORDING TO ARTICLE 4 ( 1 ), THE REGULATION ALSO APPLIES TO CONTRACTS OF THE TYPE KNOWN AS ' LONG-TERM CONTRACTS ' , THE DURATION OF WHICH IS GENERALLY IN EXCESS OF THREE MONTHS . IF REGULATION NO 1608/74 APPLIED ONLY TO CONTRACTS CONCLUDED AFTER 3 JUNE 1973 , LONG-TERM CONTRACTS COULD ONLY BE REGARDED AS SUBJECT TO THOSE PROVISIONS IN RESPECT OF IMPORTATIONS CARRIED OUT AFTER 3 SEPTEMBER 1973 , SOMETHING WHICH CONTRADICTS THE CLEAR TERMS OF THE SECOND SENTENCE OF ARTICLE 6 .
14 MOREOVER , THE APPLICANT EMPHASIZES THAT THE RETROACTIVE EFFECT , GOING BACK TO 4 JUNE 1973 , GIVEN TO THE REGULATION , WHICH WAS PUBLISHED ON 27 JUNE 1974 , DOES NOT MEAN THAT THE COMMUNITY LEGISLATURE INTENDED TO REFER SOLELY TO CONTRACTS CONCLUDED AFTER 3 JUNE 1973 . SUCH AN INTENTION WOULD BE INEXPLICABLE . THE CORRECT EXPLANATION OF THE RETROACTIVE EFFECT AND OF THE CHOICE OF 4 JUNE 1973 AS THE DECISIVE DATE IS TO BE FOUND IN THE FACT THAT , BESIDES THE REVALUATION OF THE MARK , WHICH TOOK PLACE ON 29 JUNE 1973 , ANOTHER MONETARY CHANGE TOOK EFFECT AS FROM 4 JUNE 1973 : THE SYSTEM OF FLUCTUATING MONETARY COMPENSATORY AMOUNTS WAS REPLACED BY A SYSTEM OF FIXED MONETARY COMPENSATORY AMOUNTS BY REGULATION NO 1112/73 OF 30 APRIL 1973 AND THE NEW SYSTEM ENTERED INTO FORCE , IN ACCORDANCE WITH ARTICLE 19 OF REGULATION NO 1463/73 , ON 4 JUNE 1973 . ACCORDING TO THE PLAINTIFF IN THE MAIN PROCEEDINGS , IT WAS FOR THAT REASON THAT ARTICLE 6 OF REGULATION NO 1608/74 PROVIDED FOR RETROACTIVE EFFECT AS FROM 4 JUNE 1973 .
15 THE COMMISSION CONSIDERS THAT THE TERMS OF ARTICLE 6 OF REGULATION NO 1608/74 CONTRADICT THE ARGUMENT TO THE EFFECT THAT THE CONTRACTS UNDER WHICH THE IMPORT AND EXPORT TRANSACTIONS CONCERNED TOOK PLACE HAD TO HAVE BEEN CONCLUDED AFTER 3 JUNE 1973 .
16 IT OBSERVES THAT THE PURPOSE OF THE RULES INTRODUCED BY REGULATION NO 1608/74 WAS TO ALLOW THE IMPORT AND EXPORT TRADE TO AVOID THE DIFFICULTIES WHICH MONETARY CHANGES MIGHT CAUSE TO CONTRACTS IN THE COURSE OF EXECUTION . THAT REGULATION THUS CONSTITUTED A MORE SOLID BASE THAN THAT PROVIDED BY THE TRANSITIONAL MEASURES ADOPTED ON EACH OCCASION IN ORDER TO ATTENUATE THE CONSEQUENCES OF THE ADJUSTMENTS TO THE MONETARY COMPENSATORY AMOUNTS .
17 IT OBSERVES IN THAT REGARD THAT THE ENTRY INTO FORCE OF REGULATION NO 1608/74 WAS SUBSEQUENT TO THE AGREEMENT ON THE ' CURRENCY SNAKE ' LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE NEW SYSTEM OF MONETARY COMPENSATORY AMOUNTS , WHICH HAD BEEN BROUGHT INTO FORCE BY REGULATION NO 1463/73 OF 4 JUNE 1973 AND CONSTITUTED THE LAST MAJOR AMENDMENT TO THE SYSTEM BEFORE THE ADOPTION OF REGULATION NO 1608/74 . IT EXPLAINS THAT IT THEREFORE CONSIDERED THAT IT WAS APPROPRIATE TO MAKE REGULATION NO 1608/74 APPLICABLE RETROACTIVELY TO IMPORTATIONS CARRIED OUT AFTER 3 JUNE 1973 AND EMPHASIZES THAT THAT OBJECTIVE COULD ONLY BE ACHIEVED IF ACCOUNT WAS ALSO TAKEN OF CONTRACTS CONCLUDED BEFORE THAT DATE .
18 IT SHOULD BE NOTED THAT , AS THE PLAINTIFF IN THE MAIN PROCEEDINGS AND THE COMMISSION RIGHTLY OBSERVE , THE PROVISIONS OF REGULATION NO 1608/74 ARE , ACCORDING TO ARTICLE 6 , APPLICABLE RETROACTIVELY TO ' IMPORTS OR EXPORTS CARRIED OUT AS OF 4 JUNE 1973 ' . CONSEQUENTLY , SUCH TRANSACTIONS COULD ONLY BE CARRIED OUT ON THAT DATE IN EXECUTION OF CONTRACTS NECESSARILY CONCLUDED AT AN EARLIER DATE .
19 TO THAT CONCLUSION BASED ON THE TERMS OF ARTICLE 6 MUST BE ADDED THE CONSIDERATIONS WHICH FLOW FROM THE STATEMENT OF REASONS ON WHICH THE REGULATION IS BASED AND FROM THE PURPOSE FOR WHICH IT WAS ADOPTED , WHICH , AS THE COMMISSION AND THE PLAINTIFF IN THE MAIN PROCEEDINGS OBSERVE , WASTO MITIGATE THE EFFECTS ON CONTRACTS IN THE COURSE OF EXECUTION OF THE ADJUSTMENTS TO THE MONETARY COMPENSATORY AMOUNTS WHICH TOOK EFFECT ON 4 JUNE 1973 . IS IT THAT PURPOSE WHICH JUSTIFIES THE APPLICATION OF REGULATION NO 1608/74 TO IMPORTS AND EXPORTS CARRIED OUT ON OR AFTER 4 JUNE 1973 IN EXECUTION OF CONTRACTS CONCLUDED AT AN EARLIER DATE .
20 THE REPLY TO THE FIRST QUESTION SUBMITTED BY THE HESSISCHES FINANZGERICHT MUST THEREFORE BE THAT REGULATION NO 1608/74 OF THE COMMISSION OF 26 JUNE 1974 MUST BE INTERPRETED AS MEANING THAT THE WAIVER OR REFUND ON EQUITABLE GROUNDS OF MONETARY COMPENSATORY AMOUNTS LEVIED ON IMPORTS MAY BE GRANTED EVEN IF THE CONTRACTS IN PURSUANCE OF WHICH THE IMPORTS WERE CARRIED OUT WERE CONCLUDED BEFORE 4 JUNE 1973 . SECOND QUESTION
21 THE PLAINTIFF IN THE MAIN PROCEEDINGS CLAIMS THAT THE DECISION TO MAKE USE OF THE AUTHORIZATION PROVIDED FOR IN ARTICLE 1 OF REGULATION NO 1608/74 , ONCE ADOPTED BY MEMBER STATES , DEPRIVES THE COMPETENT AUTHORITIES IN THOSE STATES OF ANY DISCRETION IN INDIVIDUAL CASES WHEN CONSIDERING APPLICATIONS FROM PERSONS CLAIMING THE BENEFIT OF THE EQUITABLE RELIEF PROVIDED FOR IN ARTICLE 1 OF THE REGULATION AND OBLIGES THEM TO APPLY THE PROVISIONS OF THAT REGULATION . IT OBSERVES THAT , IF IT WERE ACCEPTED THAT MEMBER STATES STILL HAD SUCH A DISCRETION IN INDIVIDUAL CASES , THEY COULD INTERPRET AND APPLY REGULATION NO 1608/74 IN DIFFERENT WAYS ACCORDING TO THEIR OWN CONCEPTIONS AND NATIONAL PROVISIONS REGARDING EQUITY .
22 THE COMMISSION , ON THE OTHER HAND , CONSIDERS THAT MEMBER STATES HAVE A DISCRETION IN EACH CASE IN REGARD TO THE APPLICATION OF REGULATION NO 1608/74 . IT OBSERVES THAT THAT INTERPRETATION FLOWS NOT ONLY FROM THE FOURTH AND SIXTH RECITALS IN THE PREAMBLE TO THE REGULATION AND FROM ARTICLE 2 ( 2 ), BUT ALSO FROM THE JUDGMENT OF THE COURT OF 10 MAY 1978 ( CASE 137/77 , EXPORTATION DES SUCRES V COMMISSION , ( 1978 ) ECR 1061 ), THE JUDGMENT OF 2 MARCH 1978 ( JOINED CASES 12 , 18 AND 21/77 DEBAYSER V COMMISSION ( 1978 ) ECR 553 ) AND THE JUDGMENT OF 20 MAY 1981 ( CASE 152/80 DEBAYSER V FIRS ( 1981 ) ECR 1291 ).
23 IN THE COMMISSION ' S VIEW , THE FACT THAT IN THE JUDGMENTS IN QUESTION THE COURT DID NOT EMPLOY THE EXPRESSION ' DISCRETIONARY POWER ' BUT RECOGNIZED THAT THE MEMBER STATES HAD A ' MARGIN OF DISCRETION ' WHICH PERMITTED THEM TO JUDGE THE APPLICATION TO EACH INDIVIDUAL CASE OF THE EQUITABLE MEASURE IS PURELY A PROBLEM OF TERMINOLOGY . THE ESSENTIAL QUESTION IS WHETHER THE COMPETENT AUTHORITIES HAVE A DECISION-MAKING POWER WHEN APPLYING THE EQUITABLE MEASURE TO INDIVIDUAL CASES WHICH IS SUBJECT TO ONLY A LIMITED POWER OF REVIEW BY THE COURTS . THE COMMISSION CONSIDERS THAT THE REPLY TO THAT QUESTION SHOULD BE IN THE AFFIRMATIVE . THE NATIONAL AUTHORITIES ' DISCRETION INCLUDES THE RIGHT NOT TO GRANT , OR TO GRANT ONLY PARTIALLY , THE WAIVER OR REFUND OF THE MONETARY COMPENSATORY AMOUNTS , EVEN THOUGH ALL THE CONDITIONS FOR THE APPLICATION OF THE RULE ARE FULFILLED , WHERE THAT WOULD BE SUFFICIENT IN THE CASE IN QUESTION TO COMPENSATE FOR THE EXCESSIVE ADDITIONAL BURDEN JUSTIFYING THE APPLICATION OF THE EQUITABLE MEASURE UNDER ARTICLE 2 ( 2 ) ( B ) OF THE REGULATION .
24 IT SHOULD BE NOTED THAT ARTICLE 2 ( 2 ) LEAVES THE COMPETENT NATIONAL AUTHORITIES A CERTAIN MARGIN OF DISCRETION IN DETERMINING WHETHER THE CONDITIONS REQUIRED ARE OR ARE NOT FULFILLED . HOWEVER , ONCE IT IS ACCEPTED THAT THE CONDITIONS ARE IN FACT FULFILLED , THE COMPETENT AUTHORITY HAS NO POWER TO REFUSE THE WAIVER OR REFUND .
25 A DIFFERENT INTERPRETATION FINDS NO SUPPORT EITHER IN THE TEXT OF THE PARAGRAPH AT ISSUE OR IN THE OBJECTIVES WHICH THE COMMUNITY LEGISLATURE SOUGHT TO ACHIEVE .
26 THE REPLY TO THE SECOND QUESTION SUBMITTED BY THE HESSISCHES FINANZGERICHT MUST THEREFORE BE THAT REGULATION NO 1608/74 MUST BE INTERPRETED AS MEANING THAT THE COMPETENT NATIONAL AUTHORITIES HAVE A DEGREE OF DISCRETION IN ASSESSING WHETHER THE CONDITIONS LAID DOWN IN ARTICLE 2 ( 2 ) ARE SATISFIED BUT IT DOES NOT EMPOWER THOSE AUTHORITIES TO REFUSE TO GRANT A WAIVER OR A REFUND WHERE THEY HAVE ACCEPTED THAT THE CONDITIONS CREATING A RIGHT TO SUCH A WAIVER OR REFUND ARE SATISFIED .