1 BY ORDER DATED 15 DECEMBER 1970, RECEIVED AT THE COURT REGISTRY ON 3 MARCH 1971, THE BUNDESFINANZHOF REFERRED TO THE COURT FOR A PRELIMINARY RULING SEVERAL QUESTIONS ON THE INTERPRETATION OF REGULATION NO 19 OF THE COUNCIL AND OF REGULATION NO 164/64/EEC OF THE COMMISSION AS WELL AS ON THE VALIDITY OF REGULATION NO 162/64/EEC OF THE COMMISSION . THE FIRST QUESTION
2 THE FIRST QUESTION ASKS THE COURT TO INTERPRET THE CONCEPT OF " EXPORTS TO THIRD COUNTRIES " IN ARTICLE 20 ( 2 ) OF REGULATION NO 19 AND TO DEFINE IT IN PARTICULAR IN RELATION TO THE CONCEPT OF " EXPORTS TO ANOTHER MEMBER STATE " WITHIN THE MEANING OF ARTICLE 19 ( 2 ) OF THAT REGULATION . MORE PARTICULARLY, THE COURT IS ASKED TO RULE WHETHER THE INTERPRETATION OF THE FIRST CONCEPT MUST BE BASED ON CERTAIN CRITERIA SET OUT IN THE QUESTION OR WHETHER THE INTERPRETATION SHOULD BE GOVERNED BY OTHER CRITERIA TO BE DETERMINED BY THE COURT .
3 ( 1 ) AT THE TIME OF THE TRANSACTIONS AT ISSUE THE PROVISIONS MENTIONED CONSTITUTED IN THE CEREALS SECTOR THE BASIC RULES FOR THE REFUNDS WHICH COULD BE GRANTED FOR " EXPORTS TO ANOTHER MEMBER STATE " OR FOR " EXPORTS TO THIRD COUNTRIES ". THE PROCEEDINGS IN THE NATIONAL COURT ARE CONCERNED WITH THE QUESTION WHETHER CERTAIN EXPORTS MADE BY THE APPELLANT IN THE MAIN ACTION WENT TO THIRD COUNTRIES - AND CONSEQUENTLY COULD QUALIFY FOR THE APPROPRIATE REFUNDS - OR WHETHER THEY WENT TO ANOTHER MEMBER STATE, AS IS ARGUED BY THE DEFENDANT IN THE MAIN ACTION .
4 ( 2 ) REGULATION NO 19 AND THE MEASURES ADOPTED FOR ITS IMPLEMENTATION MADE THE INTRA-COMMUNITY REFUND AND THE THIRD COUNTRY REFUND SUBJECT TO DIFFERENT CONDITIONS AS REGARDS BOTH THE GRANT THEREOF AND THE CEILING APPLICABLE . THIS FOLLOWS, IN PARTICULAR, FROM A COMPARISON BETWEEN ARTICLES 19 ( 2 ) AND 20 ( 2 ) OF REGULATION NO 19 AND BETWEEN REGULATIONS NOS 162/64 AND 164/64 . THE DISTINCTION THUS MADE BETWEEN THE TWO SYSTEMS OF REFUND ADEQUATELY SHOWS THAT THE DISTINCTION BETWEEN EXPORTS TO THIRD COUNTRIES AND EXPORTS TO MEMBER STATES HAS A SIGNIFICANCE IN COMMUNITY LAW, WITH THE RESULT THAT THE MEMBER STATES DID NOT HAVE AN UNLIMITED DISCRETION IN ITS APPLICATION .
5 NEVERTHELESS, ARTICLES 19 AND 20 OF REGULATION NO 19 PROVIDE THAT A REFUND " MAY " BE GRANTED FOR " EXPORTS TO THIRD COUNTRIES " OR EXPORTS " TO ANOTHER MEMBER STATE ". THUS THE MEMBER STATES WERE FREE COMPLETELY TO REFRAIN FROM GRANTING REFUNDS, WHICH A FORTIORI INCLUDED THE RIGHT TO ADD CONDITIONS FOR THE GRANT OF THE REFUND TO THOSE PRESCRIBED BY THE COMMUNITY REGULATIONS .
6 THEREFORE THE PRESENCE OF THE FACTORS DEFINING EXPORTS TO A THIRD COUNTRY WITHIN THE MEANING OF REGULATION NO 19, REGARDLESS OF WHAT THESE FACTORS WERE, WAS MERELY A NECESSARY PREREQUISITE TO, BUT NOT OF ITSELF A SUFFICIENT GROUND FOR, THE GRANT OF A REFUND . THUS EXPORT TO THIRD COUNTRIES WITHIN THE MEANING OF REGULATION NO 19 COULD NOT BE USED AS A GROUND FOR COMPELLING A MEMBER STATE TO EXERCISE THE POWER GRANTED TO IT BY THAT REGULATION .
7 BOTH THE PROVISIONS OF REGULATION NO 19 AND THE RECITALS IN THE PREAMBLE THERETO SHOW THAT THE REFUNDS PRESCRIBED BY THE REGULATION WERE INTENDED TO OFFSET THE PRICE DIFFERENCES BETWEEN THE MARKETS IN QUESTION . IT FOLLOWS THAT " EXPORTS TO THIRD COUNTRIES " WITHIN THE MEANING OF THAT REGULATION PRESUPPOSED THAT THE GOODS WERE OFFERED FOR SALE ON THE MARKET OF A THIRD COUNTRY, THAT IS TO SAY, THAT THEY MUST AT LEAST HAVE BEEN PUT INTO FREE CIRCULATION THERE . NEVERTHELESS, WITHOUT INFRINGING REGULATION NO 19 A MEMBER STATE COULD REQUIRE, IN ADDITION TO THIS MINIMUM COMMUNITY OBLIGATION, PROOF THAT THE GOODS WERE " USED OR CONSUMED, TREATED OR PROCESSED " IN THE COUNTRY OF DESTINATION .
8 IT WAS FOR THE MEMBER STATES TO DETERMINE INDEPENDENTLY THE EVIDENCE REQUIRED TO ESTABLISH THAT EXPORT TO A THIRD COUNTRY HAD TAKEN PLACE, PROVIDED THAT THEY DID NOT ACCEPT INSUFFICIENT PROOF .
9 THE NATURE OF THE PROOF WHICH CAN BE REGARDED AS SUFFICIENT CANNOT BE EXHAUSTIVELY SET OUT, FOR IT DEPENDS TO A LARGE EXTENT ON THE CIRCUMSTANCES OF EACH INDIVIDUAL CASE, AND IN PARTICULAR ON THE AVAILABLE EVIDENCE AS A WHOLE, WHETHER THE EVIDENCE OFFERED WAS RELEVANT OR NOT . NEVERTHELESS, IT MUST BE SAID THAT, IF THEY DID NOT WISH OPENLY TO INVITE ABUSES, THE NATIONAL AUTHORITIES COULD NOT BE SATISFIED, FOR PROOF OF THE " EXPORT TO A THIRD COUNTRY ", EITHER WITH THE MERE FACT THAT THE GOODS WERE EXPORTED WITHOUT A CERTIFICATE DD4 OR WITH THE FACT THAT THEY WERE NOT TRANSPORTED DIRECTLY FROM ONE MEMBER STATE TO ANOTHER ( SECOND ALTERNATIVE IN THE QUESTION, UNDER ( A ) AND ( B )).
10 AS REGARDS THE CERTIFICATE DD4, WHICH, MOREOVER, ACCORDING TO THE COMMISSION' S DECISION OF 17 JULY 1962 WAS MERELY INTENDED TO PROVE THE ORIGIN OF IMPORTED GOODS AND NOT THE DESTINATION OF EXPORTED GOODS, IT HAS BEEN SUBMITTED THAT IMPORTERS IN THE MEMBER STATES HAD AN INTEREST IN THE APPLICATION OF THE COMMUNITY LEVY, WHICH WAS LOWER THAN THE THIRD COUNTRY LEVY, AND THEREFORE WOULD ONLY HAVE FOREGONE THE ISSUE OF THE CERTIFICATE DD4 IF THEY HAD WISHED TO APPEAR SOLELY AS FORWARDING AGENTS, BECAUSE THE GOODS HAD BEEN INTENDED FOR A THIRD COUNTRY . THIS ARGUMENT IS ERRONEOUS, FOR IT IS POSSIBLE THAT IN CERTAIN CASES THE LOSS TO THE IMPORTER BY REASON OF THE APPLICATION OF THE THIRD COUNTRY LEVY COULD LARGELY BE OFFSET BY THE FACT THAT, BECAUSE OF THEIR THIRD-COUNTRY REFUND, THE EXPORTER WAS ABLE TO OFFER PRICES MORE FAVOURABLE THAN THOSE HE WOULD HAVE HAD TO OFFER WITHOUT THE REFUND .
11 WITH REGARD TO THE CRITERION OF NON-DIRECT TRANSPORT, REFERENCE NEED ONLY BE MADE TO THE EXAMPLE OF THE EXPORT OF GOODS FROM GERMANY TO ITALY OR VICE VERSA, WHICH OFTEN GO THROUGH AUSTRIA OR SWITZERLAND BUT THIS FACT, ARISING OUT OF THE GEOGRAPHICAL SITUATION OF THE STATES IN QUESTION, DOES NOT TURN THE TRANSACTION INTO AN EXPORT TO A THIRD COUNTRY . THE SECOND QUESTION
12 THE SECOND QUESTION OF THE BUNDESFINANZHOF IS WHETHER REGULATION NO 162/64 OF THE COMMISSION IS RENDERED INVALID BY THE FACT THAT IT RESTRICTED THE REFUNDS IN TRADE BETWEEN THE MEMBER STATES ON A FLAT RATE BASIS TO CERTAIN PERCENTAGES OF THE RATES OF REFUND PERMISSIBLE UNDER REGULATION NO 141/64, WHEREAS REGULATION NO 164/64 DID NOT PROVIDE A SIMILAR RESTRICTION FOR THE REFUNDS GRANTED IN TRADE WITH THIRD COUNTRIES .
13 FROM ITS WORDING AND FROM THE GROUNDS GIVEN IN THE ORDER REFERRING IT, THE QUESTION ASSUMES THAT THE ILLEGALITY OF REGULATION NO 162/64 MAY ARISE FROM THE FACT THAT THE REGULATION DISCRIMINATES AGAINST TRADE BETWEEN MEMBER STATES OR CONFLICTS WITH THE PRINCIPLE OF COMMUNITY PREFERENCE .
14 ( 1 ) THE NON-DISCRIMINATION RULE WOULD ONLY BE INFRINGED IF IT WERE SHOWN THAT THE COMMUNITY LEGISLATURE HAD TREATED COMPARABLE SITUATIONS DIFFERENTLY . THE COMPARABILITY OR OTHERWISE OF THE COMMUNITY REFUNDS ON THE ONE HAND, AND THE THIRD-COUNTRY REFUNDS ON THE OTHER HAND, MUST BE CONSIDERED IN THE LIGHT OF THE AIMS OF THE COMMUNITY AGRICULTURAL SYSTEM .
15 ACCORDING TO ARTICLE 3 ( D ) OF THE TREATY THE ACTIVITIES OF THE COMMUNITY ARE TO INCLUDE " THE ADOPTION OF A COMMON POLICY IN THE SPHERE OF AGRICULTURE " ; THE MEMBER STATES WERE TO DEVELOP THIS POLICY BY DEGREES DURING THE TRANSITIONAL PERIOD AND BRING IT INTO FORCE BY THE END OF THAT PERIOD AT THE LATEST, AS STATED IN ARTICLE 40 OF THE TREATY, WHICH ALSO PROVIDES FOR " A COMMON ORGANIZATION OF MARKETS " FOR THIS PURPOSE . IN ACCORDANCE WITH THESE AIMS REGULATION NO 19 PROVIDED, ACCORDING TO ITS TITLE, FOR " THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ".
16 THE GRADUAL REDUCTION OF THE INTRA-COMMUNITY REFUNDS CAME FULLY WITHIN THE SCOPE OF THE " PROGRESSIVE ESTABLISHMENT " OF SUCH AN ORGANIZATION; BUT THIS DOES NOT APPLY IN THE CASE OF EXPORTS TO THIRD COUNTRIES . SINCE THE TWO KINDS OF REFUND ARE ACCORDINGLY NOT COMPARABLE WITH ONE ANOTHER, THE REDUCTION OF THE CEILING OF THE INTRA-COMMUNITY REFUND EFFECTED BY REGULATION NO 162/64 IS NOT DISCRIMINATORY .
17 ( 2 ) AS REGARDS THE PRINCIPLE OF COMMUNITY PREFERENCE, IT IS TRUE THAT THE NINTH RECITAL IN THE PREAMBLE TO REGULATION NO 19 STATES THAT " THE SYSTEM TO BE INTRODUCED MUST ENABLE THE PREFERENCE RESULTING FROM THE IMPLEMENTATION OF THE TREATY TO BE MAINTAINED IN FAVOUR OF MEMBER STATES ". NEVERTHELESS IT FOLLOWS FROM THE CONTEXT THAT WITH THE STATE OF DEVELOPMENT OF THE MARKET AT THAT TIME THIS AIM MAINLY RELATED TO IMPORT TRANSACTIONS . THE RECITAL REFERRED TO DID NOT IN SUCH CIRCUMSTANCES PREVENT EXPORTS TO OTHER MEMBER STATES FROM BEING SUBJECT TO THE SAME OR EVEN LESS ADVANTAGEOUS CONDITIONS THAN THOSE WHICH GOVERNED EXPORTS TO THIRD COUNTRIES .
18 ACCORDINGLY, EXAMINATION OF THE QUESTION SUBMITTED BY THE BUNDESFINANZHOF DOES NOT REVEAL ANY FACTOR CAPABLE OF AFFECTING THE VALIDITY OF REGULATION NO 162/64 . THE THIRD QUESTION
19 IN ITS THIRD QUESTION THE BUNDESFINANZHOF ASKS THE COURT TO RULE WHETHER " IN VIEW OF THE LIMITATION INTRODUCED BY REGULATION NO 162/64 ON THE AMOUNT OF THE REFUND APPLIED IN TRADE BETWEEN MEMBER STATES AND OF THE AIM PURSUED BY THIS MEANS ( THE PROTECTION OF TRADE BETWEEN THE MEMBER STATES AND OF THE MARKETS OF IMPORTING MEMBER STATES AGAINST PRICE DISTORTIONS ) THE CONCEPT OF EXPORTS TO THIRD COUNTRIES WITHIN THE MEANING OF REGULATION NO 164/64 MUST BE INTERPRETED OTHERWISE THAN IN THE CASES MENTIONED IN QUESTION 1 - THAT IS TO SAY OTHERWISE THAN IN REGULATION NO 19 - IN PARTICULAR IN A NARROWER SENSE, AND BE DEFINED MORE STRICTLY THAN IN THOSE CASES IN RELATION TO THE CONCEPT OF EXPORTS TO A MEMBER STATE ".
20 ARTICLE 1 ( 1 ) OF REGULATION NO 164/64 MENTIONS " TRADE WITH THIRD COUNTRIES " AND PRESCRIBES RULES FOR THE REFUND WHICH " MAY BE ALLOWED ON EXPORTS OF THE PROCESSED PRODUCTS REFERRED TO IN REGULATION NO 141/64/EEC " IN TRADE WITH THESE COUNTRIES; THUS THE EXPRESSION " TRADE WITH COUNTRIES " IS USED HERE AS SYNONYMOUS WITH THE EXPRESSION " EXPORTS TO THIRD COUNTRIES ", WHICH ALSO APPEARS IN THE TITLE OF REGULATION NO 164/64 .
21 THIS REGULATION, WHICH ONLY APPLIES TO THIRD-COUNTRY REFUNDS, MUST BE INTERPRETED IN THE LIGHT OF ARTICLE 20 ( 2 ) OF REGULATION NO 19, A PROVISION WHICH IS ITS ESSENTIAL BASIS AND TO WHICH IT IS SUBORDINATE .
22 ALTHOUGH THIS REGULATION PROVIDES FOR THE ADOPTION OF IMPLEMENTING PROVISIONS REGARDING THE CONDITIONS FOR THE GRANTING OF THE REFUND AND THE DETERMINATION OF ITS AMOUNT, IT DOES NOT CONTAIN ANYTHING THAT WOULD PERMIT OF THE CONCLUSION THAT THE DRAFTSMEN OF THESE PROVISIONS WERE EMPOWERED TO GIVE THE EXPRESSION " EXPORTS TO THIRD COUNTRIES ", EVEN IF ONLY FOR ONE SECTOR, A MEANING OTHER THAN THAT WHICH IT HAS IN ARTICLE 20 . MOREOVER, EVEN IF THE EXISTENCE OF SUCH A POWER WERE TO BE ASSUMED, IT HAS NONE THE LESS NEVER BEEN EXERCISED .
23 THIS CONCLUSION IS CONFIRMED BY THE FACT THAT THE EXPRESSION " EXPORTS TO A MEMBER STATE " HAS NOT BEEN DEFINED IN ANY WAY WHATSOEVER IN ANY OF THE PROVISIONS ADOPTED UNDER REGULATION NO 19 .
24 IT MUST THEREFORE BE ASSUMED THAT IN REGULATION NO 164/64 THE EXPRESSION HAS THE SAME MEANING AS IN REGULATION NO 19 .