Court of Justice of the European Communities (including Court of First Instance Decisions)

AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - BASIS OF CALCULATION - VALUE OF THE PRODUCTS CONCERNED - BUTTER FROM STORAGE - SALE AT REDUCED PRICE TO PROCESSING UNDERTAKINGS - REDUCTION OF MONETARY COMPENSATORY AMOUNTS - CONDITIONS - REDUCTION IN VALUE OF GOODS OWING TO THEIR COMPULSORY DESTINATION - RE-ASSESSMENT OF COMPENSATORY AMOUNTS - LEGAL BASIS
( REGULATION NO 974/71 OF THE COUNCIL , ART . 2 ; REGULATIONS NOS 1259/72 AND 232/75 , ARTS . 6 AND 20 )

THE DEFINITIVE APPLICATION OF THE REDUCED MONETARY COMPENSATORY AMOUNTS PROVIDED FOR BY ARTICLE 20 OF REGULATION NO 1259/72 OF THE COMMISSION ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS AND BY ARTICLE 20 OF REGULATION NO 232/75 OF THE COMMISSION ON THE SALE OF BUTTER AT REDUCED PRICES FOR USE IN THE MANUFACTURE OF PASTRY PRODUCTS AND ICE-CREAM PRE-SUPPOSES THAT THE GOODS IN QUESTION , HAVING REGARD IN PARTICULAR TO THE USE TO WHICH THEY ARE TO BE PUT , HAVE THE REDUCED VALUE ATTRIBUTED TO THEM BY VIRTUE OF THOSE REGULATIONS . IN SO FAR AS THE IMPORTER HAS NOT FURNISHED THE PROOF , WITHIN THE PERIOD PRESCRIBED IN ARTICLE 6 OF THE SAID REGULATIONS , THAT THE GOODS HAVE BEEN PUT TO THE USE TO WHICH THE REDUCTION OF THE COMPENSATORY AMOUNTS IS SUBJECT , THE GOODS CANNOT BE REGARDED AS HAVING THE CONVENTIONAL VALUE REFERRED TO ABOVE . IN SUCH A CASE THE LEGAL BASIS FOR THE RE-ASSESSMENT OF THE COMPENSATORY AMOUNTS IS TO BE FOUND IN THE GENERAL RULES GOVERNING THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , AS ESTABLISHED BY REGULATION NO 974/71 OF THE COUNCIL .

IN CASE 217/78
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) DUSSELDORF FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
S.A . NICOLAS CORMAN & FILS , GOE DOLHAIN , BELGIUM ,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) AACHEN-SUD ,

ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 559 ) AND OF REGULATION ( EEC ) NO 232/75 OF THE COMMISSION OF 30 JANUARY 1975 ( OFFICIAL JOURNAL 1975 , NO L 24 , P . 45 ) CONCERNING THE APPLICATION OF THE FAVOURABLE TARIFF PROVISIONS PROVIDED FOR IN THOSE REGULATIONS TO CONCENTRATED BUTTER FROM STORAGE ,

1 BY AN ORDER OF 18 JULY 1978 , WHICH WAS RECEIVED AT THE COURT OF JUSTICE ON 29 SEPTEMBER 1978 , THE FINANZGERICHT DUSSELDORF SUBMITTED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY TWO PRELIMINARY QUESTIONS ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 ON THE DISPOSAL OF BUTTER AT A REDUCED PRICE TO CERTAIN COMMUNITY PROCESSING UNDERTAKINGS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1972 ( II ), P . 559 ) AND OF REGULATION ( EEC ) NO 232/75 OF THE COMMISSION OF 30 JANUARY 1975 ON THE SALE OF BUTTER AT REDUCED PRICES FOR USE IN THE MANUFACTURE OF PASTRY PRODUCTS AND ICE-CREAM ( OFFICIAL JOURNAL 1975 NO L 24 , P . 45 ).

2 THESE QUESTIONS WERE RAISED IN THE COURSE OF AN ACTION BETWEEN THE CUSTOMS AUTHORITIES OF THE FEDERAL REPUBLIC OF GERMANY AND AN IMPORTER OF BUTTER FROM BELGIUM CONCERNING THE APPLICATION TO THAT BUTTER OF THE TARIFF PROVISIONS LAID DOWN IN ARTICLE 20 OF THE ABOVE-MENTIONED REGULATIONS NOS 1259/72 AND 232/75 .
3 THE GERMAN CUSTOMS AUTHORITIES FIRST CHARGED ON THE IMPORTATIONS OF THAT PRODUCT , WHICH WAS PRODUCED FROM BUTTER FROM STORAGE AND INTENDED FOR THE MANUFACTURE OF FINE BAKER ' S WARES AND ICE-CREAM IN ACCORDANCE WITH THE PROVISIONS OF REGULATIONS NOS 1259/72 AND 232/75 THE REDUCED MONETARY COMPENSATORY AMOUNTS PROVIDED FOR IN ARTICLE 20 OF THOSE REGULATIONS AND SUBSEQUENTLY , BY A NOTICE OF CORRECTIVE ASSESSMENT , CHARGED IN RESPECT OF THE IMPORTATIONS A SUM EQUAL TO THE DIFFERENCE BETWEEN THOSE REDUCED AMOUNTS AND THE AMOUNTS NORMALLY APPLICABLE OUTSIDE THE SYSTEM ESTABLISHED BY THE SAID REGULATIONS .

4 IN STATING THE REASONS FOR THE CORRECTIVE ASSESSMENT THE GERMAN AUTHORITIES CLAIMED THAT , SINCE THE BUTTER IN QUESTION HAD NOT BEEN PUT BY THE FINAL USER TO THE USE PRESCRIBED IN THE ABOVE-MENTIONED REGULATIONS , IT COULD NOT QUALIFY FOR THE REDUCED COMPENSATORY AMOUNTS FIXED BY THE SAID ARTICLE AND THAT IT BECAME LIABLE TO THE MONETARY COMPENSATORY AMOUNTS PRESCRIBED FOR BUTTER FREELY MARKETABLE WITHOUT RESTRICTIONS AS TO ITS USE .

5 THE PLAINTIFF IN THE MAIN ACTION OBJECTS INTER ALIA THAT THERE IS NO LEGAL BASIS FOR SUCH CORRECTIVE ASSESSMENT SINCE COMMUNITY LAW , IN PARTICULAR REGULATIONS NO 1259/72 AND NO 232/75 , DO NOT CONTAIN ANY INDEPENDENT PROVISIONS WHICH AUTHORIZE THE SUBSEQUENT RECOVERY OF THE DIFFERENCE BETWEEN THE NORMAL RATE AND THE REDUCED RATE OF THE COMPENSATORY AMOUNTS INITIALLY APPLIED TO THE PRODUCT WHERE IT IS DIVERTED FROM ITS DESTINATION LAID DOWN BY LAW .

6 IN ORDER TO HAVE THIS POINT CLARIFIED THE FINANZGERICHT DUSSELDORF HAS REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE :
' ' 1 . ARE ARTICLE 20 OF REGULATION ( EEC ) NO 1259/72 OF 16 JUNE 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( II ), P . 559 ) AND ARTICLE 20 OF REGULATION ( EEC ) NO 232/75 ( OFFICIAL JOURNAL NO L 24 OF 31 JANUARY 1975 , P . 45 ) TO BE INTERPRETED AS MEANING THAT THE DEFINITIVE PREFERENTIAL LEVY TREATMENT ( REDUCTION OF THE COMPENSATORY AMOUNTS ) IS SUBJECT ONLY TO THE CONDITION THAT THE PRODUCT BE MARKETED IN ACCORDANCE WITH ARTICLES 1 TO 19 OF THE REGULATION OR IS THERE THE FURTHER CONDITION THAT THE PRODUCT BE USED IN THE MANNER PRESCRIBED BY THE REGULATION?

2 . IN THE LATTER CASE :
IS ARTICLE 20 OF EACH REGULATION ITSELF AN INDEPENDENT PROVISION ALLOWING FOR THE LEVY OF A SUPPLEMENTARY CHARGE?
' '
7 SINCE THE QUESTIONS ARE RELATED THEY SHOULD BE CONSIDERED TOGETHER .

8 THE FIRST PARAGRAPH OF ARTICLE 20 OF REGULATION NO 1259/72 OF THE COMMISSION PROVIDES THAT :
' ' THE COMPENSATORY AMOUNTS APPLICABLE TO BUTTER , CONCENTRATED BUTTER AND CONCENTRATED BUTTER WITH ADDED SUGAR . . ., FOR THE PART CONSISTING OF BUTTER , SHALL BE EQUAL TO THE COMPENSATORY AMOUNTS FIXED PURSUANT TO REGULATION ( EEC ) NO 974/71 , MULTIPLIED BY A COEFFICIENT OF 0.3 ' ' .

ARTICLE 20 ( 1 ) ( A ) OF REGULATION NO 232/75 OF THE COMMISSION PROVIDES THAT
' ' WHEN THAT PART OF THE BUTTER AND CONCENTRATED BUTTER SPECIFIED IN ARTICLE 6 ( 1 ) ( A ) AND ( B ) WHICH CONSISTS OF BUTTER IS SOLD PURSUANT TO THIS REGULATION :
( A ) THE COMPENSATORY AMOUNTS FIXED PURSUANT TO REGULATION ( EEC ) NO 974/71 SHALL BE MULTIPLIED BY THE COEFFICIENT 0.5 ; HOWEVER , IN THE CASE OF THE UNITED KINGDOM THE COEFFICIENT SHALL BE 0.8 ' ' .

THESE PROVISIONS MUST BE INTERPRETED WITHIN THE FRAMEWORK NOT ONLY OF THE REGULATIONS OF WHICH THEY FORM PART BUT ALSO OF THE GENERAL RULES GOVERNING THE ARRANGEMENTS FOR MONETARY COMPENSATORY AMOUNTS .

9 REGULATION NO 1259/72 LAYS DOWN MEASURES OF CONJUNCTUAL ECONOMIC POLICY INTENDED TO PROMOTE THE DISPOSAL OF BUTTER FROM STORAGE , THE PROLONGED STORAGE OF WHICH ENTAILS HIGH COSTS FOR THE AGRICULTURAL INTERVENTION AGENCIES . IT PROMOTES SUCH DISPOSAL BY MAKING PROVISION , THROUGH ARRANGEMENTS FOR STANDING INVITATION TO TENDER , FOR THE SALE OF BUTTER FROM STORAGE AT A REDUCED PRICE BY THE AGRICULTURAL INTERVENTION AGENCIES TO BUTTER-PROCESSING UNDERTAKINGS IN THE COMMUNITY , WHEREBY THE SUCCESSFUL TENDERER UNDERTAKES TO PROCESS THE BUTTER PURCHASED INTO CONCENTRATED BUTTER HAVING THE COMPOSITION SPECIFIED IN ARTICLE 6 ( 1 ) ( B ) AND NOT TO USE IT OR TO ENSURE THAT IT IS NOT USED OTHERWISE THAN FOR THE MANUFACTURE OF THE PRODUCTS IN HEADING 19.08 OF THE COMMON CUSTOMS TARIFF . IN ORDER TO ENSURE THAT THE BUTTER THUS DISPOSED OF IS USED IN ACCORDANCE WITH THAT PURPOSE AND THAT IT IS NOT FREELY MARKETED THE REGULATION ESTABLISHES A SYSTEM OF SUPERVISION ENTAILING THE PROVISION OF A PROCESSING SECURITY , TO BE RELEASED ON THE CONDITIONS SET OUT IN ARTICLES 18 AND 19 OF THE REGULATION .

10 THAT REGULATION HAS UNDERGONE A NUMBER OF AMENDMENTS WHICH HAVE NOT , HOWEVER , AFFECTED THE BASIC PRINCIPLES GOVERNING THE SYSTEM WHICH IT ESTABLISHED . REGULATION NO 232/75 IS , AS IS MADE CLEAR BY THE PENULTIMATE RECITAL IN THE PREAMBLE THERETO , SOLELY CONCERNED , IN THE INTERESTS OF CLARITY AND EFFICIENT ADMINISTRATION , TO CONSOLIDATE THESE PROVISIONS CONCERNING BUTTER FOR USE IN THE MANUFACTURE OF PASTRY PRODUCTS AND ICE-CREAM .

11 MULTIPLICATION , IN ACCORDANCE WITH ARTICLE 20 OF THE SAID REGULATIONS , BY A CORRECTING COEFFICIENT WHICH APPLIES TO BUTTER FROM STORAGE SOLD ON THE ABOVE-MENTIONED CONDITIONS COMPENSATORY AMOUNTS CONSIDERABLY LESS THAN THOSE NORMALLY APPLIED TO BUTTER UNDER REGULATION NO 974/71 , DOES NOT CONSTITUTE ONE OF THE ABOVE-MENTIONED MEASURES INTENDED TO PROMOTE THE DISPOSAL AND MARKETING OF BUTTER FROM STORAGE BUT FORMS PART OF THE GENERAL RULES SET OUT IN REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 , ( I ), P . 257 ).

12 IT IS IN FACT CLEAR FROM THOSE RULES , IN PARTICULAR FROM ARTICLE 2 OF THAT REGULATION , THAT THE FIXING OF MONETARY COMPENSATORY AMOUNTS IS BASED INTER ALIA ON THE PRICES OF THE PRODUCTS IN QUESTION . THE PENULTIMATE RECITAL IN THE PREAMBLE TO REGULATION NO 1259/72 , WHICH STATES THAT ' ' AS REGARDS THE COMPENSATORY AMOUNTS FIXED PURSUANT TO COUNCIL REGULATION ( EEC ) NO 974/71 OF 12 MAY 1971 . . . ACCOUNT SHOULD BE TAKEN OF THE VALUE OF THE PRODUCTS CONCERNED ' ' , CLEARLY REFERS TO THE PRINCIPLE UNDERLYING THAT PROVISION WHEREBY COMPENSATORY AMOUNTS MUST BE ADJUSTED ON THE BASIS OF THE PRICES OF THE PRODUCTS IN QUESTION , REPRESENTING THEIR MARKET VALUE .

13 IT IS IN IMPLEMENTATION OF THOSE RULES THAT ARTICLE 20 OF BOTH REGULATION NO 1259/79 AND OF REGULATION NO 232/75 MAKES PROVISION , WITH REGARD TO THE BUTTER AND CONCENTRATED BUTTER REFERRED TO IN ARTICLE 6 ( 1 ) OF THE REGULATIONS , FOR THE APPLICATION OF A REDUCED MONETARY COMPENSATORY AMOUNT BECAUSE , HAVING REGARD TO THE RESTRICTIONS ON MARKETING TO WHICH THAT PRODUCT IS SUBJECT TO ITS MARKET VALUE , AND CONSEQUENTLY ITS PRICE , ARE PROPORTIONATELY REDUCED .

14 IT IS IN ACCORDANCE WITH THE SAME PRINCIPLE FOR THE COMPETENT CUSTOMS AUTHORITIES TO RE-ASSESS THE REDUCED COMPENSATORY AMOUNTS IF THE PRODUCTS IN QUESTION HAVE BEEN DIVERTED FROM THEIR DESTINATION OR IF THEY HAVE NOT BEEN USED IN ACCORDANCE THEREWITH WITHIN THE PERIOD PRESCRIBED BY ARTICLE 6 OF REGULATIONS NO 1259/72 AND NO 232/75 . IN FACT , IN SO FAR AS THE IMPORTER HAS FAILED TO FURNISH PROOF WITHIN THE ABOVE-MENTIONED PERIOD THAT THE GOODS HAVE REACHED THE DESTINATION WHICH WAS MADE A CONDITION OF THE REDUCTION OF THE COMPENSATORY AMOUNTS , THE GOODS CANNOT BE CONSIDERED AS HAVING THE CONVENTIONAL VALUE ATTRIBUTED TO THEM OM THE BASIS OF THE MINIMUM SELLING PRICE REFERRED TO IN REGULATIONS NO 1259/72 AND NO 232/75 AND THEY MUST BE CONSIDERED AS BUTTER SOLD AT THE NORMAL MARKET PRICE . IN THAT CASE THE COMPETENT CUSTOMS AUTHORITIES ARE REQUIRED UNDER REGULATION NO 974/71 OF THE COUNCIL TO APPLY THE COMPENSATORY AMOUNTS LAID DOWN FOR BUTTER MARKETED AT SUCH A PRICE AND THUS TO RE-ASSESS THE REDUCED COMPENSATORY AMOUNTS WHICH WERE INITIALLY APPLIED . SINCE THAT RE-ASSESSMENT HAS REGARD TO THE MARKET PRICE OF THE PRODUCTS IN QUESTION ITS LEGAL BASIS IS TO BE FOUND IN THE GENERAL RULES THEMSELVES WHICH GOVERN THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS .

15 FOR THESE REASONS THE REPLY TO THE QUESTIONS SUBMITTED MUST BE THAT THE DEFINITIVE APPLICATION OF THE REDUCED MONETARY COMPENSATORY AMOUNTS PROVIDED FOR BY ARTICLE 20 OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 AND IN ARTICLE 20 OF REGULATION ( EEC ) NO 232/75 OF THE COMMISSION OF 30 JANUARY 1975 PRE-SUPPOSES THAT THE GOODS IN QUESTION , HAVING REGARD IN PARTICULAR TO THE USE TO WHICH THEY ARE TO BE PUT , HAVE THE REDUCED VALUE ATTRIBUTED TO THEM BY VIRTUE OF THOSE REGULATIONS . IN SO FAR AS THE IMPORTER HAS NOT FURNISHED THE PROOF , WITHIN THE PERIOD PRESCRIBED IN ARTICLE 6 OF THE SAID REGULATIONS , THAT THE GOODS HAVE BEEN PUT TO THE USE TO WHICH THE REDUCTION OF THE COMPENSATORY AMOUNTS IS SUBJECT , THE LEGAL BASIS FOR THE SUBSEQUENT RE-ASSESSMENT OF SUCH AMOUNTS IS TO BE FOUND IN THE GENERAL RULES GOVERNING THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , AS ESTABLISHED BY REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 .

COSTS
16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT DUSSELDORF BY AN ORDER OF 18 JULY 1979 , HEREBY RULES :
THE DEFINITIVE APPLICATION OF THE REDUCED MONETARY COMPENSATORY AMOUNTS PROVIDED FOR BY ARTICLE 20 OF REGULATION ( EEC ) NO 1259/72 OF THE COMMISSION OF 16 JUNE 1972 AND IN ARTICLE 20 OF REGULATION ( EEC ) NO 232/75 OF THE COMMISSION OF 30 JANUARY 1975 PRE-SUPPOSES THAT THE GOODS IN QUESTION , HAVING REGARD IN PARTICULAR TO THE USE TO WHICH THEY ARE TO BE PUT , HAVE THE REDUCED VALUE ATTRIBUTED TO THEM BY VIRTUE OF THOSE REGULATIONS . IN SO FAR AS THE IMPORTER HAS NOT FURNISHED THE PROOF , WITHIN THE PERIOD PRESCRIBED IN ARTICLE 6 OF THE SAID REGULATIONS , THAT THE GOODS HAVE BEEN PUT TO THE USE TO WHICH THE REDUCTION OF THE COMPENSATORY AMOUNTS IS SUBJECT , THE LEGAL BASIS FOR THE SUBSEQUENT RE-ASSESSMENT OF SUCH AMOUNTS IS TO BE FOUND IN THE GENERAL RULES GOVERNING THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , AS ESTABLISHED BY REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 .