1 BY ORDER OF 24 NOVEMBER 1981 , WHICH WAS RECEIVED AT THE COURT ON 7 JANUARY 1982 , THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY : ' ' HOW WAS THE PRODUCTION REFUND TO BE CALCULATED FOR MAIZE WHICH WAS PLACED UNDER CUSTOMS SUPERVISION BEFORE 1 AUGUST 1974 BUT WAS ONLY AFTERWARDS PROCESSED INTO STARCH , WITHIN THE TIME-LIMIT LAID DOWN FOR PROCESSING? ' '
2 THAT QUESTION WAS RAISED IN THE COURSE OF PROCEEDINGS PENDING BEFORE THE BUNDESFINANZHOF BETWEEN THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) KREFELD AND MAIZENA GMBH , HAMBURG , CONCERNING A DECISION OF THE HAUPTZOLLAMT DATED 12 SEPTEMBER 1974 , WHEREBY IT HAD DEMANDED FROM MAIZENA A REPAYMENT OF DM 51.24 PER TONNE OF THE AMOUNT RECEIVED BY WAY OF REFUND ON 31 190.025 TONNES OF MAIZE PLACED UNDER OFFICIAL SUPERVISION IN THE PERIOD FROM 11 TO 31 JULY 1974 BUT NOT PROCESSED UNTIL AFTER THAT DATE .
3 THE HAUPTZOLLAMT ' S DECISION , WHICH IS CONTESTED BY MAIZENA , WAS BASED ON A NOTICE OF THE FEDERAL MINISTER FOR FOOD , AGRICULTURE AND FORESTRY DATED 9 JULY 1974 AND PUBLISHED IN THE BUNDESANZEIGER ( FEDERAL GAZETTE ) OF 10 JULY 1974 ; THE NOTICE WAS INTENDED TO MODIFY THE ESTABLISHED PRACTICE OF THE GERMAN AUTHORITIES OF TAKING INTO ACCOUNT IN CALCULATING REFUNDS THE THRESHOLD PRICE AND THE GUARANTEED SUPPLY PRICE IN FORCE AT THE TIME WHEN THE MAIZE WAS PLACED UNDER CUSTOMS SUPERVISION .
4 THE COMMUNITY RULES RELATING TO PRODUCTION REFUNDS FOR STARCH MADE FROM MAIZE ARE BASED ON REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 33 ), WHICH PROVIDED FOR THE PRINCIPLE OF REFUNDS .
5 THAT PRINCIPLE WAS PUT INTO EFFECT FOR THE FIRST TIME BY REGULATION NO 371/67 OF THE COUNCIL OF 25 JULY 1967 FIXING PRODUCTION REFUNDS ON STARCHES AND QUELLMEHL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 219 ) AND BY REGULATION NO 1060/68 OF THE COMMISSION OF 24 JULY 1968 ADOPTING CERTAIN DETAILED RULES FOR THE APPLICATION OF REGULATIONS NOS 367/67 AND 371/67 REGARDING PRODUCTION REFUNDS ON MAIZE PROCESSED INTO GROATS AND MEAL AND ON MAIZE AND COMMON WHEAT PROCESSED INTO STARCH AND QUELLMEHL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 352 ). ARTICLE 1 ( 1 ) OF REGULATION NO 371/67 PROVIDED THAT THE REFUND TO BE PAID IN RESPECT OF MAIZE WAS TO BE EQUAL TO THE DIFFERENCE PER 100 KG OF MAIZE BETWEEN THE THRESHOLD PRICE AND A GUARANTEED SUPPLY PRICE OF 6.80 UNITS OF ACCOUNT . ACCORDING TO REGULATION NO 1060/68 ( ARTICLES 1 AND 2 ( 4 )) A REFUND ADVANCE CALCULATED BY REFERENCE TO THE THRESHOLD PRICE IN FORCE AT THE START OF THE MARKETING YEAR WAS TO BE PAID NOT LATER THAN 30 DAYS FROM THE DATE ON WHICH THE STARCH MANUFACTURER REQUESTED IT AND FURNISHED PROOF THAT THE MAIZE INTENDED FOR THE MANUFACTURE OF STARCH HAD BEEN PLACED UNDER CUSTOMS SUPERVISION , WHEREAS THE REFUND ( ARTICLE 3 ) WAS TO BE CALCULATED BY REFERENCE TO THE THRESHOLD PRICE IN FORCE WHEN THE MAIZE WAS PROCESSED INTO STARCH AND WAS TO BE PAID WITHIN 30 DAYS FROM THE DATE ON WHICH THE MANUFACTURER FURNISHED PROOF THAT THE CEREAL HAD BEEN PROCESSED . THE SYSTEM PROVIDED FOR IN THE REGULATIONS CITED ABOVE APPLIED UNTIL 31 JULY 1974 AND WAS REPLACED WITH EFFECT FROM 1 AUGUST 1974 BY THE SYSTEM PROVIDED FOR IN REGULATIONS NOS 1132/74 AND 2012/74 .
6 REGULATION NO 1132/74 OF THE COUNCIL OF 29 APRIL 1974 ON PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTOR ( OFFICIAL JOURNAL 1974 , L 128 , P . 24 ) DEPARTED FROM REGULATION NO 371/67 INASMUCH AS IT PROVIDED THAT HENCEFORTH THE REFUND WAS TO BE EQUAL TO THE DIFFERENCE PER 100 KG OF MAIZE BETWEEN THE THRESHOLD PRICE AND A GUARANTEED SUPPLY PRICE FIXED AT 8.20 UNITS OF ACCOUNT . REGULATION NO 2012/74 OF THE COMMISSION OF 30 JULY 1974 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF REGULATION NO 1132/74 AS REGARDS PRODUCTION REFUNDS ON STARCHES ( OFFICIAL JOURNAL 1974 , L 209 , P . 44 ) MODIFIED THE RULES FOR OPERATING THE REFUNDS BY ABOLISHING THE SYSTEM OF ADVANCE PAYMENTS AND PROVIDED , IN ARTICLE 2 , THAT THE REFUND WAS TO BE CALCULATED BY REFERENCE TO THE THRESHOLD PRICE IN FORCE AT THE TIME WHEN THE PRODUCT WAS PLACED UNDER CUSTOMS SUPERVISION , SUBJECT TO AN ADJUSTMENT WHERE THERE WAS A CHANGE IN THAT PRICE BEFORE THE MAIZE WAS PROCESSED INTO STARCH .
7 AS THE COMMISSION HAS EMPHASIZED , BOTH ARTICLE 3 OF REGULATION NO 1060/68 AND ARTICLE 2 OF REGULATION NO 2012/74 DO IN FACT REFER TO THE SAME DATE FOR THE DETERMINATION OF THE THRESHOLD PRICE WHICH MUST BE TAKEN INTO ACCOUNT WHEN CALCULATING THE REFUND . SINCE ARTICLE 2 ( 3 ) OF REGULATION NO 2012/74 PROVIDES THAT THE REFUND ' ' SHALL , WHERE NECESSARY , BE ADJUSTED A POSTERIORI BY REFERENCE TO THE THRESHOLD PRICE VALID FOR ONE MONTH DURING WHICH PROCESSING TAKES PLACE ' ' , THAT ARTICLE TOO ATTACHES PARAMOUNT IMPORTANCE TO THE THRESHOLD PRICE IN FORCE AT THE DATE OF PROCESSING .
8 AS REGARDS THE SUPPLY PRICE , THE COMMISSION HAS RIGHTLY POINTED OUT THAT , WHILST BEFORE THE ENTRY INTO FORCE OF REGULATION NO 10/75 OF THE COMMISSION OF 31 DECEMBER 1974 , AMENDING REGULATION NO 2012/74 LAYING DOWN DETAILED RULES AS REGARDS PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS ( OFFICIAL JOURNAL 1975 , L 1 , P . 24 ), COMMUNITY LAW DID NOT EXPRESSLY DEAL WITH THE PROBLEM OF THE PRACTICAL EFFECTS OF CHANGES IN THAT PRICE OCCURRING BETWEEN THE TIME WHEN THE MAIZE WAS PLACED UNDER SUPERVISION AND THE TIME WHEN IT WAS PROCESSED , IT NEVERTHELESS FOLLOWS FROM THE CORPUS OF PROVISIONS ON THE PRODUCTION REFUND FOR STARCH IN FORCE SINCE 1967 THAT THE REFUND WAS TO BE CALCULATED ON THE BASIS OF THE RATES VALID ON THE DAY OF PROCESSING . UNLIKE THE THRESHOLD PRICE , WHICH CHANGES MONTHLY AND IN RESPECT OF WHICH IT WAS THEREFORE NECESSARY TO MAKE PROVISION FOR ADJUSTMENT , IN REGULATION NO 2012/74 THE SUPPLY PRICE IS FIXED BY THE COUNCIL FOR AN INDEFINITE PERIOD AND REMAINS UNCHANGED UNTIL THE COUNCIL DECIDES TO ALTER IT . IN THE ABSENCE OF ANY EXPRESS PROVISION CONCERNING THE SUPPLY PRICE TO BE USED WHEN CALCULATING THE REFUND , THAT PRICE MUST OBVIOUSLY BE DETERMINED BY REFERENCE TO THE SAME DATE AS THAT TAKEN INTO ACCOUNT IN DETERMINING THE THRESHOLD PRICE .
9 MAIZENA CONTENDED FIRST THAT THE INFERENCE TO BE DRAWN FROM THE COURT ' S JUDGMENT OF 12 JULY 1977 ( CASE 2/77 HOFFMANN ' S STARKEFABRIKEN AG V HAUPTZOLLAMT BIELEFELD ( 1977 ) ECR 1375 ) WAS THAT THE DATE WHICH HAD TO BE TAKEN INTO ACCOUNT IN CALCULATING THE REFUND WAS NECESSARILY THE DATE AT WHICH THE PRODUCT WAS PLACED UNDER CUSTOMS SUPERVISION .
10 HOWEVER , IN THE PASSAGE OF THE JUDGMENT TO WHICH MAIZENA REFERS , THE COURT MERELY STATES THAT ACCORDING TO ARTICLE 2 ( 1 ) AND ( 3 ) OF REGULATION NO 2012/74 THE PRODUCTION REFUND IS TO BE PAID AND CALCULATED AT THE MOMENT WHEN THE PERSON ENTITLED THERETO FURNISHES PROOF THAT THE BASIC PRODUCT HAS BEEN PLACED UNDER OFFICIAL SUPERVISION . HAVING REGARD TO THE RESERVATION CONTAINED IN THE SAME ARTICLE PERMITTING ADJUSTMENT OF THE REFUND , IT IS NOT POSSIBLE TO FIND IN THAT PASSAGE ANY SUPPORT FOR THE VIEW THAT THE DATE OF PROCESSING IS NOT TO BE THE DATE WHICH DETERMINES THE AMOUNT OF THE REFUND .
11 NOR IS IT POSSIBLE TO ACCEPT THE ARGUMENT CONCERNING REGULATION NO 10/75 , CITED ABOVE , NAMELY THAT IT WAS NOT UNTIL THE ADOPTION OF THAT REGULATION THAT A NEW REQUIREMENT WAS INTRODUCED THAT ACCOUNT BE TAKEN OF CHANGES IN THE SUPPLY PRICE OCCURRING BEFORE THE PROCESSING OF THE MAIZE . AS THE COMMISSION HAS RIGHTLY STRESSED , SUCH A REQUIREMENT WAS BY IMPLICATION CONTAINED IN THE PREVIOUS PROVISIONS .
12 MAIZENA ALSO CONTENDED THAT ONLY THE USE OF THE PRICE APPLICABLE AT THE TIME AT WHICH THE MAIZE IS PLACED UNDER OFFICIAL SUPERVISION WOULD BE CONSISTENT WITH THE PURPOSE OF THE REFUND , WHICH IS TO GUARANTEE TO STARCH PRODUCERS A SUPPLY PRICE WHICH ENABLES THEM TO REMAIN COMPETITIVE IN RELATION TO THEIR COMMERCIAL RIVALS , NAMELY STARCH PRODUCERS IN NON-MEMBER COUNTRIES AND MANUFACTURERS OF SUBSTITUTE PRODUCTS . HOWEVER , THE REQUIREMENT THAT EQUAL CONDITIONS OF COMPETITION BE MAINTAINED CLEARLY APPLIES AT THE TIME OF SUPPLY , WHICH MEANS THAT IN ORDER TO ACHIEVE ITS PURPOSE THE REFUND MUST NECESSARILY BE CALCULATED BY REFERENCE TO THE RATES IN FORCE AT THAT TIME .
13 AS REGARDS THE AIM OF MAINTAINING EQUAL CONDITIONS OF COMPETITION BETWEEN COMMUNITY MANUFACTURERS OF STARCH AND MANUFACTURERS IN NON-MEMBER COUNTRIES , IT IS NECESSARY TO CONSIDER WHETHER THE TAKING INTO ACCOUNT OF THE THRESHOLD AND SUPPLY PRICES APPLICABLE AT THE DATE WHEN THE MAIZE IS PROCESSED WOULD JEOPARDIZE THE ATTAINMENT OF THAT OBJECTIVE .
14 AS REGARDS THE THRESHOLD PRICE , THE APPLICATION , FOR REFUND PURPOSES , OF THE PRICE APPLICABLE AT THE TIME AT WHICH THE MAIZE IS PROCESSED SHOULD NOT NORMALLY INVOLVE ANY DISADVANTAGE FOR COMMUNITY PRODUCERS OF STARCH BECAUSE THE REGULATIONS ADOPTED BY THE COMMISSION ON THIS MATTER PROVIDE , AT THE START OF EACH MARKETING YEAR , FOR A SERIES OF MONTHLY PRICE INCREASES , AND THEREFORE , IF ANYTHING , COMMUNITY STARCH MANUFACTURERS ARE PLACED AT AN ADVANTAGE IN RELATION TO THEIR COMPETITORS ESTABLISHED IN NON-MEMBER COUNTRIES .
15 AS REGARDS THE SUPPLY PRICE , IT SHOULD BE BORNE IN MIND THAT , AS WAS RIGHTLY POINTED OUT BY THE COMMISSION , PRICE FLUCTUATIONS ON THE WORLD MARKET CAN BE REFLECTED IN THE COMMUNITY RULES ONLY AFTER SOME CONSIDERABLE DELAY . CONSEQUENTLY , TO APPLY THE SUPPLY PRICE IN FORCE AT THE TIME AT WHICH THE MAIZE IS PROCESSED , WHICH IS EX HYPOTHESI HIGHER THAN THE SUPPLY PRICE IN FORCE AT THE TIME AT WHICH IT IS PLACED UNDER OFFICIAL SUPERVISION , DOES NOT CAUSE UNWARRANTED DAMAGE TO COMMUNITY PRODUCERS OF MAIZE STARCH , BUT MERELY DEPRIVES THEM OF AN ADVANTAGE WHICH THEY WOULD HAVE IF THE REFUND WERE CALCULATED BY REFERENCE TO A SUPPLY PRICE WHICH , EVEN AT THE DATE AT WHICH THE MAIZE WAS PLACED UNDER OFFICIAL SUPERVISION , DID NOT CORRESPOND ANY LONGER TO THE ACTUAL PRICES ON THE WORLD MARKET .
16 NOR IS IT POSSIBLE TO ACCEPT MAIZENA ' S ASSERTION THAT THE INTERPRETATION ADOPTED OF THE WORDING OF THE PROVISIONS IN QUESTION LEADS TO A DIFFERENCE IN THE TREATMENT OF PRODUCERS OF MAIZE STARCH AND PRODUCERS OF POTATO STARCH WHICH IS CONTRARY TO THE PRINCIPLE OF NON-DISCRIMINATION CONTAINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY AND IS INCOMPATIBLE WITH THE REQUIREMENT , LAID DOWN IN THE PREAMBLES TO REGULATIONS NOS 120/67 AND 371/67 , THAT THE MAIZE-STARCH AND POTATO-STARCH INDUSTRIES BE GIVEN THE OPPORTUNITY OF MAINTAINING COMPETITIVE PRICES AS COMPARED WITH THE PRICES OF SUBSTITUTE PRODUCTS AND WITH THE REQUIREMENT , LAID DOWN IN THE THIRD RECITAL IN THE PREAMBLE TO REGULATION NO 1132/74 , THAT THE REFUNDS FOR MAIZE STARCH AND POTATO STARCH BE FIXED AT THE SAME LEVEL .
17 IN FACT IN THE JUDGMENT IN THE HOFFMANN CASE , CITED ABOVE , THE COURT , TAKING INTO ACCOUNT THE DIFFERENT FEATURES OF THE MAIZE-STARCH REFUND AS COMPARED WITH THE POTATO-STARCH REFUND , IN PARTICULAR THE DIFFERENT BASIS FOR THE CALCULATION THEREOF AND THE FACT THAT THE POTATO-STARCH REFUND WAS NOT PAID TO PRODUCERS UNLESS THEY FURNISHED PROOF THAT THE REFUND HAD BEEN PAID TO THE POTATO PRODUCERS , WHO , UNLIKE THE MAJORITY OF MAIZE PRODUCERS , OPERATED LARGELY WITHIN THE COMMUNITY , HELD THAT THERE WERE OBJECTIVE GROUNDS FOR THE DIFFERENCE BETWEEN THE TREATMENT ACCORDED TO POTATO-STARCH PRODUCERS AND THAT ACCORDED TO MAIZE-STARCH PRODUCERS , AND REJECTED ANY REQUIREMENT THAT THE AMOUNT OF THE REFUNDS BE THE SAME .
18 MAIZENA ALSO CONTENDED THAT IN THE LIGHT OF THE FIRST RECITAL IN THE PREAMBLE TO REGULATION NO 371/67 , WHICH DECLARES THE NEED FOR THE STARCH INDUSTRY TO KEEP ITS PRICES COMPETITIVE WITH THOSE FOR SUBSTITUTE PRODUCTS , THE TREATMENT ACCORDED TO STARCH MAY NOT BE ANY LESS FAVOURABLE THAN THAT ACCORDED TO A PRODUCT SUCH AS SACCHAROSE WHICH CAN BE USED INSTEAD OF STARCH IN THE MANUFACTURE OF CERTAIN CHEMICAL PRODUCTS . YET REGULATION NO 2478/74 OF THE COMMISSION OF 30 SEPTEMBER 1974 ( OFFICIAL JOURNAL 1974 , L 264 , P . 72 ), BY EXTENDING THE PERIOD OF VALIDITY OF REFUND CERTIFICATES FOR SACCHAROSE FOR WHICH APPLICATIONS HAD BEEN LODGED BEFORE 20 SEPTEMBER 1974 , ENABLED USERS OF SACCHAROSE TO OBTAIN FOR A LIMITED PERIOD A REFUND WHICH HAD NOT BEEN REDUCED DESPITE THE CHANGES IN THE SUPPLY PRICE OF SUGAR WHICH OCCURRED AT THE END OF 1974 . ACCORDING TO MAIZENA , STARCH PRODUCERS , ON THE OTHER HAND , WOULD BE THE SUBJECT OF DISCRIMINATION CONTRARY TO COMMUNITY LAW IF THEY HAD TO ACCEPT THE CONSEQUENCES OF A CHANGE IN THE SUPPLY PRICE FOR MAIZE .
19 THE COMMISSION REPLIED THAT IT MUST NOT BE FORGOTTEN THAT , PURSUANT TO ARTICLE 1 OF REGULATION NO 2477/74 OF THE COUNCIL OF 30 SEPTEMBER 1974 ( OFFICIAL JOURNAL 1974 , L 264 , P . 71 ), ACCORDING TO WHICH ' ' PRODUCTION REFUNDS SHALL BE FIXED ONLY IF THE TOTAL QUANTITY OF SURPLUS SUGAR AVAILABLE FOR THE COMMUNITY CHEMICAL INDUSTRY AND THE ECONOMIC ASPECTS OF THE PROPOSED FIXING ARE SUCH AS TO JUSTIFY SUCH FIXING ' ' , NO FURTHER REFUND WAS GRANTED FOR SACCHAROSE FOR A LONG PERIOD FROM OCTOBER 1974 , WHEREAS THE STARCH REFUND WAS NEVER MADE DEPENDENT EITHER ON THE EXISTENCE OF A PRODUCTION SURPLUS OR ON THE AMOUNT OF THAT SURPLUS .
20 IN THE LIGHT OF THE COMMISSION ' S EXPLANATION OF THE BACKGROUND TO THESE REGULATIONS , IT CAN BE SEEN THAT REGULATION NO 2478/74 WAS INTENDED TO COMPENSATE TO SOME EXTENT FOR THE DISADVANTAGES ARISING SOLELY FOR USERS OF SACCHAROSE FROM THE APPLICATION OF REGULATION NO 2477/74 AND THAT EQUAL CONDITIONS OF COMPETITION WERE , IN SUBSTANCE , MAINTAINED .
21 IT FOLLOWS FROM THE FOREGOING THAT TO CALCULATE THE REFUND ON THE BASIS OF THE PRICES APPLICABLE ON THE DAY ON WHICH THE MAIZE IS PROCESSED DOES NOT CONSTITUTE A BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION .
22 FINALLY , IT IS NOT POSSIBLE TO ACCEPT MAIZENA ' S ARGUMENT THAT THERE WAS A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION INASMUCH AS THE FEDERAL REPUBLIC OF GERMANY SUDDENLY DEPARTED FROM THE PRACTICE WHICH IT HAD FOLLOWED FOR SEVERAL YEARS AND WHICH HAD NOT BEEN CHALLENGED BY THE COMMISSION . A PRACTICE OF A MEMBER STATE WHICH DOES NOT CONFORM TO COMMUNITY RULES MAY NEVER GIVE RISE TO LEGAL SITUATIONS PROTECTED BY COMMUNITY LAW AND THIS IS SO EVEN WHERE THE COMMISSION HAS FAILED TO TAKE THE NECESSARY ACTION TO ENSURE THAT THE STATE IN QUESTION CORRECTLY APPLIES THE COMMUNITY RULES .
23 IT FOLLOWS FROM THE FOREGOING THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO INDICATE THAT CALCULATION OF THE REFUND BY REFERENCE TO THE PRICES IN FORCE AT THE TIME AT WHICH THE MAIZE IS PROCESSED IS CONTRARY TO ANY RULE OF COMMUNITY LAW .
24 CONSEQUENTLY , THE REPLY TO BE GIVEN TO THE QUESTION PUT BY THE BUNDESFINANZHOF IS THAT , BOTH UNDER THE COMMUNITY RULES IN FORCE UNTIL 31 JULY 1974 AND UNDER THOSE IN FORCE AFTER THAT DATE , THE PRODUCTION REFUND FOR MAIZE PROCESSED INTO STARCH MUST BE EQUAL TO THE DIFFERENCE BETWEEN THE THRESHOLD AND SUPPLY PRICES APPLICABLE AT THE DATE AT WHICH THE MAIZE IS PROCESSED .