1 BY AN ORDER DATED 4 JUNE 1975 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 24 JUNE 1975 , THE FINANZGERICHT BERLIN REFERRED TO THE COURT OF JUSTICE TWO QUESTIONS UNDER ARTICLE 177 OF THE EEC TREATY ON THE VALIDITY OF THE PROVISION WHICH IS CONTAINED IN PART 5 OF ANNEX I OF REGULATION NO 725/74 OF THE COMMISSION OF 29 MARCH 1974 ( OJ L 89 OF 1 . 4 . 1974 , PP . 1 AND 18 ) AMENDING THE MONETARY COMPENSATORY AMOUNTS AND ACCORDING TO WHICH THE COMPENSATORY AMOUNT TO BE IMPOSED ON THE IMPORTATION INTO THE FEDERAL REPUBLIC OF GERMANY OF PRODUCTS UNDER HEADING 04.04 E I ( B ) 4 OF THE COMMON CUSTOMS TARIFF ( CHEESE OF SHEEP ' S MILK OR BUFFALO MILK , IN CONTAINERS CONTAINING BRINE , OR IN SHEEP OR GOAT SKIN BOTTLES ) ( OJ L 1 OF 1 . 1 . 1974 ) IS FIXED AT DM 63.80 IN SO FAR AS THE PROVISION RELATES TO SUCH PRODUCTS IMPORTED FROM BULGARIA .
2 THESE QUESTIONS WERE PUT IN THE CONTEXT OF A CASE BROUGHT BY AN IMPORTER AGAINST THE CUSTOMS ADMINISTRATION OF THE FEDERAL REPUBLIC OF GERMANY RELATING TO THE CONFORMITY WITH COMMUNITY LAW OF THE IMPOSITION OF THE COMPENSATORY AMOUNT SET OUT ABOVE ON IMPORTS OF BULGARIAN SHEEP ' S CHEESE ON 25 APRIL 1974 . IT APPEARS FROM THE FILE THAT THE REASONS FOR QUESTIONING THE VALIDITY OF THE PROVISION IN QUESTION ARE BASED IN THE FIRST PLACE ON THE FACT THAT IN ESTABLISHING AND DETERMINING THE SCOPE OF APPLICATION OF THE COMPENSATORY AMOUNT AT ISSUE WITHOUT EXCEPTING THE PRODUCTS IN QUESTION COMING FROM BULGARIA , THE COMMISSION IS THOUGHT TO HAVE INFRINGED IN PARTICULAR THE SECOND PARAGRAPH OF ARTICLE 1 ( 2 ) OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ( OJ , ENGLISH SPECIAL EDITION ( 1971 ) I , P . 257 ) AS AMENDED , INTER ALIA , BY REGULATION NO 2746/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( OJ , ENGLISH SPECIAL EDITION , 1972 , 28/30 DECEMBER ) AND BY REGULATION NO 509/73 OF THE COUNCIL OF 22 FEBRUARY 1973 ( OJ L 50 OF 23 FEBRUARY 1973 ) CONCERNING THE ESTABLISHMENT , ORIGINALLY ON AN OPTIONAL BASIS BUT SUBSEQUENTLY MANDATORY , OF COMPENSATORY AMOUNTS IN TRADE IN CERTAIN AGRICULTURAL PRODUCTS BETWEEN MEMBER STATES AND BETWEEN MEMBER STATES AND THIRD COUNTRIES . THE ALLEGED ILLEGALITY MIGHT , IN THE SECOND PLACE , CONSIST IN THE DISCRIMINATION EMPLOYED AGAINST CHEESES UNDER TARIFF HEADING 04.04 E I ( B ) 4 IN COMPARISON WITH OTHER CHEESE COMING FROM ITALY AND FROM SWITZERLAND WHICH BENEFITED FROM AN EXEMPTION FROM COMPENSATORY AMOUNTS .
3 REGULATION NO 974/71 OF THE COUNCIL AS AMENDED , IN PARTICULAR , BY REGULATIONS NOS 2746/72 AND 509/73 OBLIGES THOSE MEMBER STATES WHICH PERMIT THE EXCHANGE RATE OF THEIR CURRENCY TO FLUCTUATE BY A MARGIN WIDER THAN THE ONE AUTHORIZED BY THE INTERNATIONAL RULES IN FORCE ON 12 MAY 1971 TO CHARGE OR GRANT AS APPROPRIATE , ON THE EXPORT OR IMPORT OF CERTAIN AGRICULTURAL PRODUCTS , COMPENSATORY AMOUNTS INTENDED TO NEUTRALIZE THE INCIDENCE OF CURRENCY FLUCTUATION ON THE PRICE OF THESE PRODUCTS IN TRADE BETWEEN MEMBER STATES OR WITH THIRD COUNTRIES . SUBPARAGRAPHS ( A ) AND ( B ) OF ARTICLE 1 ( 2 ) OF REGULATION NO 974/71 PROVIDE THAT THE CHARGE OR GRANT OF COMPENSATORY AMOUNTS SHALL APPLY TO THOSE AGRICULTURAL PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF THE MARKETS AND TO THOSE PRODUCTS THE PRICE OF WHICH DEPENDS ON THE PRICE OF THE PRODUCTS REFERRED TO UNDER ( A ) AND WHICH ARE GOVERNED BY A COMMON ORGANIZATION OF THE MARKETS OR ARE THE SUBJECT OF A SPECIFIC ARRANGEMENT UNDER ARTICLE 235 OF THE TREATY . AS TO THE FIRST QUESTION
4 IT APPEARS FROM THE PREAMBLE TO THE ORDER MAKING THE REFERENCE THAT THE FIRST QUESTION IS CONCERNED IN THE FIRST PLACE WITH WHETHER THE VALIDITY OF THE PROVISION IN QUESTION COULD BE AFFECTED BECAUSE OF THE FACT THAT ITS SCOPE OF APPLICATION EXTENDS TO THE PRODUCT IN QUESTION WHEREAS THE CURRENCY MEASURES WHICH CAUSED THE SYSTEM OF COMPENSATORY AMOUNTS TO BE ESTABLISHED , IN PARTICULAR THE APPRECIATION IN VALUE OF THE DM , COULD NO LONGER ON 25 APRIL 1974 HAVE THE CONSEQUENCE THAT THE IMPORTATION FROM BULGARIA OF THE PRODUCT IN QUESTION COULD BE SUCH AS TO CAUSE DISTURBANCES ON THE GERMAN MARKET FOR AGRICULTURAL PRODUCTS .
5 IT IS SAID THAT THE CHEESE IN QUESTION IS NOT PRODUCED IN THE COMMUNITY AND DOES NOT COMPETE WITH CHEESES WHICH ARE PRODUCED THERE . MOREOVER , THE ACTUAL FREE-AT-FRONTIER OFFER PRICE OF THE PRODUCT IN QUESTION WAS , IN PARTICULAR FOLLOWING THE INCREASE IN THE COSTS OF PRODUCTION IN THE EXPORTING COUNTRY , INCREASED SO THAT ANY DISTORTIONS IN COMPETITION WITHIN THE COMMUNITY WERE EXCLUDED . THIS IS ALL THE MORE SO WITH REGARD TO THE IMPORT IN QUESTION SINCE THE IMPORTED GOODS WERE CHARGED IN DM .
6 IT IS NOT DISPUTED THAT THE PRODUCT THE CHARGING OF WHICH IS THE SUBJECT-MATTER OF THE MAIN ACTION BELONGS TO THE CATEGORY OF THOSE IN RESPECT OF WHICH THE CHARGE OR GRANT OF COMPENSATORY AMOUNTS IS MANDATORY UNDER ARTICLE 1 OF REGULATION NO 974/71 . IT IS ALSO NOT DISPUTED THAT THE CONDITIONS TO WHICH ARTICLE 8 ( 2 ) OF THIS REGULATION SUBJECTS THE TERMINATION OF ITS APPLICATION WERE NOT FULFILLED AT THE DATE OF THE IMPORTATION IN QUESTION .
7 THE SECOND SUBPARAGRAPH OF ARTICLE 1 ( 2 ) OF REGULATION NO 974/71 , AS AMENDED BY ARTICLE 1 ( 3 ) OF REGULATION NO 2746/72 , PROVIDES THAT THE GRANT OR THE IMPOSITION OF COMPENSATORY AMOUNTS ' SHALL APPLY ONLY WHERE APPLICATION OF THE MONETARY MEASURES REFERRED TO IN PARAGRAPH ( 1 ) WOULD LEAD TO DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS ' . UNDER ARTICLE 6 OF REGULATION NO 974/71 THE COMMISSION , DECIDING IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE OF MANAGEMENT COMMITTEES , SHALL RULE AS TO THE EXISTENCE OF A RISK OF DISTURBANCE .
8 AS THE EVALUATION OF A COMPLEX ECONOMIC SITUATION IS INVOLVED , THE COMMISSION AND THE MANAGEMENT COMMITTEE ENJOY , IN THIS RESPECT , A WIDE MEASURE OF DISCRETION . IN REVIEWING THE LEGALITY OF THE EXERCISE OF SUCH DISCRETION , THE COURT MUST CONFINE ITSELF TO EXAMINING WHETHER IT CONTAINS A MANIFEST ERROR OR CONSTITUTES A MISUSE OF POWER OR WHETHER THE AUTHORITY DID NOT CLEARLY EXCEED THE BOUNDS OF ITS DISCRETION .
9 ARTICLE 1 ( 2 ) OF REGULATION NO 974/71 ( AS AMENDED ) CANNOT BE INTERPRETED AS OBLIGING THE COMMISSION TO DECIDE CASE BY CASE , OR IN RESPECT OF EACH PRODUCT INDIVIDUALLY , AND MAKING DISTINCTIONS ACCORDING TO THE COUNTRY OF EXPORT , WHETHER THERE IS A RISK OF DISTURBANCE . THE VERY TERMS OF THIS PROVISION SHOW THAT EVALUATIONS OF A GENERAL NATURE MAY BE MADE IN THIS RESPECT . IN PARTICULAR , COMPELLING REASONS RELATING TO THE PRACTICABILITY OF THE SYSTEM OF COMPENSATORY AMOUNTS ENABLE GROUPS OF PRODUCTS TO BE TAKEN INTO CONSIDERATION IN ASSESSING THE POSSIBILITY OF DUSTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS . SUCH MAY ESPECIALLY BE THE CASE FOR A GROUP OF PRODUCTS UNDER THE SAME TARIFF HEADING WHICH ARE SUBJECT TO THE SAME LEVY RULES .
10 IN ADDITION , A DIFFERENT ASSESSMENT OF THE POSSIBILITIES OF DISTURBANCES WHICH MIGHT BE CAUSED BY THE IMPORTATION OF ONE AND THE SAME PRODUCT ACCORDING TO ITS GEOGRAPHICAL ORIGINS WOULD HAVE THE EFFECT OF ENCOURAGING DEFLECTIONS OF TRADE APART FROM THE FACT THAT IT WOULD ITSELF ALSO ENDANGER THE PRACTICABILITY OF THE SYSTEM . FINALLY , THE COMMISSION MUST NOT ONLY TAKE INTO CONSIDERATION THE EFFECT OF THE DEPRECIATION OR THE APPRECIATION OF THE CURRENCY OF A MEMBER STATE ON TRADE BETWEEN THIRD STATES AND THIS STATE BUT IT MUST ALSO TAKE ACCOUNT OF THE EFFECT OF THIS DEPRECIATION OR APPRECIATION ON TRADE BETWEEN DIFFERENT MEMBER STATES WITH REGARD TO THE GROUP OF PRODUCTS IN QUESTION . INDEED IT APPEARS FROM THE DOCUMENTS PRODUCED BY THE COMMISSION THAT IF THE COMPENSATORY AMOUNTS HERE CRITICIZED WERE NOT MAINTAINED TRADE MIGHT BE DEFLECTED THROUGH THOSE MEMBER STATES WITH A DEVALUED CURRENCY AND THIS MIGHT CAUSE DISTORTIONS IN TRADE . FINALLY , IN ORDER TO ASSESS THE DANGER OF DISTURBANCE , THE COMMISSION MUST NOT NECESSARILY SOLELY TAKE ACCOUNT OF THE ACTUAL FREE-AT-FRONTIER PRICE OF A PARTICULAR EXPORT BUT MAY RELY ON STANDARD BUT JUSTIFIED FACTORS FOR ASSESSMENT , SUCH AS THE LOWEST FREE-AT-FRONTIER PRICES WHICH ARE FIXED , IN REALITY BY AGREEMENT WITH THIRD COUNTRIES , UNDER REGULATION NO 664/74 OF THE COUNCIL OF 28 MARCH 1974 IN IMPLEMENTATION OF ARTICLE 8 OF REGULATION NO 823/68 OF THE COUNCIL OF 28 JUNE 1968 ( OJ , ENGLISH SPECIAL EDITION ( 1968 ) I , P . 199 ).
11 THUS , EVEN IF IT WERE SHOWN THAT THE IMPORTATION FROM BULGARIA INTO THE FEDERAL REPUBLIC OF GERMANY IN APRIL 1974 OF THE PRODUCT AT ISSUE AT THE FREE-AT-FRONTIER PRICE STATED IN THE DOCUMENTS PRODUCED BY THE PLAINTIFF WAS NOT IN ITSELF OF SUCH A NATURE AS TO CAUSE DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS IN THE FEDERAL REPUBLIC OF GERMANY , IT BY NO MEANS FOLLOWS THAT THE COMMISSION MADE AN OBVIOUS MISTAKE OR CLEARLY EXCEEDED THE BOUNDS OF ITS DISCRETION IN HOLDING THAT THE IMPORTATION FROM THIRD COUNTRIES , IN GENERAL , OF THE GROUP OF PRODUCTS DERIVED FROM MILK WHICH INCLUDED CHEESE OF SHEEP ' S MILK WAS , IN THE ABSENCE OF COMPENSATORY AMOUNTS , OF SUCH A NATURE AS TO DISTURB TRADE IN AGRICULTURAL PRODUCTS IN THE COMMUNITY .
12 IN ADDITION , THERE DO EXIST WITHIN THE COMMUNITY CHEESES OF A SIMILAR NATURE TO THOSE WHICH FORM THE SUBJECT-MATTER OF THE DISPUTE BUT IT HAS NOT BEEN ESTABLISHED THAT THE PRODUCT AT ISSUE WOULD NOT , BY REASON OF ITS PARTICULAR CHARACTERISTICS , BE CAPABLE OF COMPETING WITH THE CHEESES PRODUCED WITHIN THE COMMUNITY .
13 REFERRING TO THE EXEMPTION FROM PAYMENT OF COMPENSATORY AMOUNTS GRANTED TO CERTAIN ITALIAN AND SWISS VARIETIES OF CHEESE , THE GERMAN COURT THEN ASKS WHETHER , IN REFUSING THE SAME TREATMENT TO CHEESE OF SHEEP ' S MILK COMING FROM BULGARIA , THE COMMISSION DID NOT VIOLATE THE PRINCIPLE OF EQUALITY OF TREATMENT . IN THIS CONNEXION IT REFERS TO THE ARGUMENT THAT IF THE VARIETIES OF CHEESE WHICH WERE EXEMPTED DO NOT , IN THE OPINION OF THE COMMISSON , CAUSE DISTURBANCES , IT FOLLOWS THAT THE IMPORTATION OF BULGARIAN CHEESE OF SHEEP ' S MILK , TOO , CANNOT HAVE SUCH AN EFFECT .
14 ALTHOUGH ARTICLE 2 OF REGULATION NO 974/71 OF THE COUNCIL , BY SPECIFYING THE METHOD OF CALCULATING THE COMPENSATORY AMOUNTS , DETERMINES THE AMOUNTS WHICH CANNOT BE EXCEEDED , IT DOES NOT FOLLOW THAT THE COMMISSION COULD NOT UNDERTAKE TO APPLY LOWER AMOUNTS OR TO GRANT NEGOTIATED EXEMPTIONS IN RESPECT OF CERTAIN THIRD COUNTRIES AND FOR REASONS RELATING TO THE EXERCISE OF OTHER POWERS WHICH IT HOLDS UNDER THE TREATY . IN THE TREATY THERE EXISTS NO GENERAL PRINCIPLE OBLIGING THE COMMUNITY , IN ITS EXTERNAL RELATIONS , TO ACCORD TO THIRD COUNTRIES EQUAL TREATMENT IN ALL RESPECTS AND IN ANY EVENT TRADERS DO NOT HAVE THE RIGHT TO RELY ON THE EXISTENCE OF SUCH A GENERAL PRINCIPLE .
15 IN PARTICULAR , WITH REGARD TO CHEESE COMING FROM ITALY , THE GENERAL PRINCIPLE OF COMMUNITY PREFERENCE JUSTIFIES A DIFFERENT ASSESSMENT OF THE POSSIBILITIES OF DISTURBANCE ACCORDING TO WHETHER THE PRODUCTS INVOLVED COME FROM ANOTHER MEMBER STATE OR FROM A THIRD STATE . WITH REGARD TO PRODUCTS COMING FROM THE SWISS CONFEDERATION , IT MUST FIRST BE NOTED THAT THE EXAMINATION OF THE PRINCIPLE OF EQUALITY OF TREATMENT MUST RELATE NOT TO THE EXISTENCE OR ABSENCE OF COMPETITION BETWEEN SWISS AND BULGARIAN CHEESES BUT TO THEIR COMPARABILITY AS REGARDS THE DISTURBANCE WHICH THEIR IMPORTATION MAY CAUSE IN TRADE IN AGRICULTURAL PRODUCTS . IN THIS RESPECT THE COMMISSION BELIEVES THAT BECAUSE OF THEIR HIGH FREE-AT-FRONTIER OFFER PRICE ( 165.54 U . A . FOR EMMENTAL ) THE IMPORTATION OF SWISS CHEESES CAUSES LESS DANGER OF DISTURBANCE THAN THAT OF BULGARIAN CHEESE OF SHEEP ' S MILK FOR WHICH THE FREE-AT-FRONTIER OFFER PRICE IS SUBSTANTIALLY LOWER . AS HAS BEEN STATED ABOVE , IN ASSESSING THE EXISTENCE OF RISKS OF DISTURBANCES THE COMMISSION MAY TAKE ACCOUNT OF FIXED STANDARD FREE-AT-FRONTIER OFFER PRICES . THEREFORE IT IS IRRELEVANT WHETHER , AS MAINTAINED BY THE PLAINTIFF IN THE MAIN ACTION BUT CONTESTED BY THE COMMISSION , THE ACTUAL FREE-AT-FRONTIER OFFER PRICES OF BULGARIAN CHEESE OF SHEEP ' S MILK WERE IN APRIL 1974 HIGHER THAN THE ACTUAL FREE-AT-FRONTIER OFFER PRICE FOR EMMENTAL . AS TO THE SECOND QUESTION
16 IT IS SUBSEQUENTLY ASKED WHETHER ' THE ( MONETARY ) COMPENSATORY CHARGE OF DM 63.80 PER 100 KG LEVIED ON 25 APRIL 1974 ON IMPORTS OF CHEESE OF SHEEP ' S MILK FROM THIRD COUNTRIES ( IS ) JUSTIFIED ' , AND ' IN PARTICULAR HOW CAN THIS RATE OF CHARGE BE JUSTIFIED ARITHMETICALLY? '
17 THE PLAINTIFF IN THE MAIN ACTION ALLEGES THAT THE RATE OF DM 63.80 PER 100 KG IS IN BREACH OF THE PRINCIPLE CONTAINED IN THE FINAL RECITAL OF THE PREAMBLE TO REGULATION NO 974/71 OF THE COUNCIL ACCORDING TO WHICH ' THE COMPENSATORY AMOUNTS SHOULD BE LIMITED TO THE AMOUNTS STRICTLY NECESSARY TO COMPENSATE THE INCIDENCE OF THE MONETARY MEASURES ON THE PRICES OF BASIC PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS ' .
18 IN ITS JUDGMENT OF 24 OCTOBER 1973 ( CASE 5/73 , BALKAN-IMPORT EXPORT V HAUPTZOLLAMT BERLIN-PACKHOF ( 1973 ) ECR 1091 AT P . 1118 ) THE COURT RULED THAT EXAMINATION OF THE METHODS OF COMPUTATION OF THE COMPENSATORY AMOUNT IN FORCE IN MARCH 1972 ON IMPORTS OF BULGARIAN CHEESE OF SHEEP ' S MILK HAD NOT REVEALED ANY ELEMENTS CAPABLE OF AFFECTING THE VALIDITY OF THIS CHARGE . SINCE THAT DATE SUBSEQUENT REGULATIONS HAVE IN TWO RESPECTS FURTHER DEFINED THE METHOD OF COMPUTATION . ON THE ONE HAND REGULATION NO 648/73 OF THE COMMISSION OF 1 MARCH 1973 ( OJ L 64 OF 9 . 3 . 1973 , P . 1 ) AND REGULATION NO 1463/73 OF THE COMMISSION OF 30 MAY 1973 ( OJ L 146 OF 4 . 6 . 1973 , P . 4 , ARTICLE 4 ( 4 )) PROVIDE THAT THE COMPENSATORY AMOUNTS DESCRIBED AS THE ' BASIC COMPENSATORY AMOUNT ' SHALL , IN THE EVENT OF AN APPRECIATION IN VALUE OF THE NATIONAL CURRENCY , BE REDUCED BY A COEFFICIENT EXPRESSING THE INCIDENCE OF THE CURRENCY SITUATION OF THE MEMBER STATE CONCERNED ON THE LEVY . ON THE OTHER HAND , REGULATION NO 3259/73 OF THE COMMISSION OF 30 NOVEMBER 1973 ( OJ L 332 OF 3 . 12 . 1973 , P . 1 ) REPLACED THE SYSTEM OF A SINGLE STANDARD COMPENSATORY AMOUNT FOR ALL VARIETIES OF CHEESE BY A SYSTEM DIVIDING CHEESES INTO VARIOUS GROUPS ACCORDING TO THEIR FAT AND ALBUMIN CONTENT AND SUBJECTING EACH GROUP TO A SPECIFIC COMPENSATORY AMOUNT . FOR THE REST , THE MEANS OF DERIVING THE COMPENSATORY AMOUNT EMPLOYED IN COMPUTING THE AMOUNT AT ISSUE IN THE MAIN ACTION CORRESPONDS ENTIRELY WITH THAT USED IN CASE 5/73 . IN THE CASE OF IMPORTATION INTO A MEMBER STATE WHOSE CURRENCY RATE FLUCTUATES UPWARDS , THE MODIFICATIONS MENTIONED ABOVE HAVE THE EFFECT OF MAKING THE COMPENSATORY AMOUNT LOWER THAN IT WAS BEFORE .
19 IN VIEW OF THESE CONSIDERATIONS EXAMINATION OF THE QUESTIONS REFERRED HAS REVEALED NOTHING CAPABLE OF AFFECTING THE VALIDITY OF THE COMPENSATORY AMOUNT IN QUESTION .