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

AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - CALCULATION - COMPOUND PRODUCTS - CONSTITUENTS WHICH DO NOT SATISFY THE CONDITION OF DEPENDENCE CONTAINED IN ARTICLE 1 ( 2 ) ( B ) OF REGULATION NO 974/71 - TAKING INTO CONSIDERATION - PERMISSIBILITY - DISCRETIONARY POWER OF THE COMMISSION
( REGULATION NO 974/71 OF THE COUNCIL , ARTICLE 1 ( 2 ) ( B ); REGULATIONS NOS 2547/74 AND 539/75 OF THE COMMISSION )

THE IMPLEMENTATION BY THE COMMISSION OF ARTICLE 1 OF REGULATION NO 974/71 IMPLIES A WIDE DISCRETIONARY POWER AS RESPECTS THE DEPENDENCE OF THE PRICE OF THE PRODUCTS IN QUESTION ON THE PRICE OF ONE OR MORE AGRICULTURAL PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKET AND AS RESPECTS THE ASCERTAINMENT OR ANTICIPATION OF DISTURBANCES IN TRADE IN THE PRODUCTS OR PRODUCTS CONCERNED .

THE FACT THAT A PARTICULAR COMPOUND PRODUCT CONTAINS A MORE OR LESS SUBSTANTIAL PERCENTAGE OF A PRODUCT WHICH DOES NOT SATISFY THE CONDITION OF DEPENDENCE CONTAINED IN ARTICLE 1 ( 2 ) ( B ) OF REGULATION NO 974/71 DOES NOT HAVE THE RESULT OF IMPOSING ON THE COM- MISSION AN AUTOMATIC DUTY TO EXCLUDE THAT ELEMENT FROM THE CALCULATION OF MONETARY COMPENSATORY AMOUNTS . IN FACT , THE DETERMINATION OF THOSE AMOUNTS IS SUBJECT TO A COMPLEX ASSESSMENT MADE UP OF VARIOUS FACTORS RELATED TO THE NATURE OF THE FEEDINGSTUFFS AND THE RELATIONSHIP , IN TERMS OF VOLUME AND VALUE , OF THEIR VARIOUS CONSTITUENTS .

IN CASE 3/80
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ), MUNSTER , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
MILCHFUTTER GMBH & CO . KG , DIEPHOLZ ,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) GRONAU ,

ON THE VALIDITY OF ARTICLE 1 OF REGULATION NO 2547/74 OF THE COMMISSION OF 4 OCTOBER 1974 AND OF REGULATION NO 539/75 OF THE COMMISSION OF 28 FEBRUARY 1975 FIXING THE MONETARY COMPENSATORY AMOUNTS AND CERTAIN RATES FOR THEIR APPLICATION ,

1 BY ORDER OF 20 NOVEMBER 1979 , WHICH WAS RECEIVED AT THE COURT ON 8 JANUARY 1980 , THE FINANZGERICHT MUNSTER SUBMITTED FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE VALIDITY OF CERTAIN PROVISIONS OF REGULATION NO 2547/74 OF THE COMMISSION OF 4 OCTOBER 1974 ( OFFICIAL JOURNAL L 272 , P . 1 ) AND REGULATION NO 539/75 OF THE COMMISSION OF 28 FEBRUARY 1975 ( OFFICIAL JOURNAL L 57 , P . 2 ) FIXING THE MONETARY COMPENSATORY AMOUNTS AND CERTAIN RATES FOR THEIR APPLICATION .

2 THAT QUESTION HAS BEEN RAISED IN THE CONTEXT OF A DISPUTE CONCERNING THE DETERMINATION OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE ON THE IMPORTATION INTO GERMANY OF A CONSIGNMENT OF COMPOUND FEEDINGSTUFFS FROM THE NETHERLANDS WHICH FALLS WITHIN TARIFF SUBHEADING 23.07 B I A OF THE COMMON CUSTOMS TARIFF .

3 IT SHOULD BE RECALLED THAT AT AN EARLIER STAGE IN THE SAME DISPUTE THE FINANZGERICHT SUBMITTED CERTAIN QUESTIONS ON THE TARIFF CLASSIFICATION OF THE PRODUCT CONCERNED , WHICH THE COURT ANSWERED IN ITS JUDGMENT OF 4 JULY 1978 IN CASE 5/78 MILCHFUTTER GMBH & CO . KG V HAUPTZOLLAMT GRONAU ( 1978 ) ECR 1597 .
4 THE CLASSIFICATION OF THE PRODUCT BEING NOW SETTLED , THE PLAINTIFF IN THE MAIN ACTION HAS RAISED AN ISSUE CONCERNING THE CALCULATION OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE IN THIS CASE . FROM THE ORDER SEEKING THE PRELIMINARY RULING , IT APPEARS THAT THE PLAINTIFF CONSIDERS , WITH REFERENCE TO THE JUDGMENT OF THE COURT OF 3 MAY 1978 IN CASE 131/77 MILAC V HAUPTZOLLAMT SAARBRUCKEN ( 1978 ) ECR 1041 , THAT THE CHARGING OF A MONETARY COMPENSATORY AMOUNT IS CONTRARY TO REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ), IN SO FAR AS ACCOUNT IS TAKEN , IN THE CALCULATION OF THAT AMOUNT , OF THE QUANTITY OF POWDERED WHEY CONTAINED IN THE COMPOUND FEEDINGSTUFFS IN QUESTION . ACCORDING TO INFORMATION SUPPLIED BY THE PLAINTIFF , THOSE FEEDINGSTUFFS CONTAIN 652% SKIMMED-MILK POWDER AND 95% POWDERED WHEY .

5 THE PLAINTIFF CONSIDERS THAT , IN ACCORDANCE WITH THE PRINCIPLE WHICH EMERGES FROM THE MILAC JUDGMENT , THE WHEY CONTENT OUGHT TO BE EXCLUDED FROM THE CALCULATION OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO COMPOUND FEEDINGSTUFFS .

6 IT IS WITH A VIEW TO DECIDING THIS DISPUTE THAT THE FINANZGERICHT HAS SUBMITTED THE FOLLOWING QUESTION :
IN SO FAR AS THEY INCLUDE IN THE BASIS OF ASSESSMENT FOR MONETARY COMPENSATION THE CONTENT BY WEIGHT OF ANY WHEY IN COMPOUND FEEDINGSTUFFS WITHIN TARIFF SUBHEADINGS 23.07 B I A 3 AND 4 OF THE COMMON CUSTOMS TARIFF , ARE ARTICLE 1 OF REGULATION ( EEC ) NO 2547/74 OF THE COMMISSION OF 4 OCTOBER 1974 AND ARTICLE 1 OF REGULATION ( EEC ) NO 539/75 OF THE COMMISSION OF 28 FEBRUARY 1975 INVALID IN THAT THEY INFRINGE HIGHER RANKING COMMUNITY LAW , IN PARTICULAR ARTICLE 2 ( 2 ) OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971?

7 IN THE PROCEEDINGS BEFORE THIS COURT THE COMMISSION ARGUED , IN SUBSTANCE , THAT THE PRINCIPLES OF THE MILAC JUDGMENT , WHICH IS CONCERNED WITH THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS TO PURE WHEY FALLING WITHIN TARIFF HEADING 04.02 , MAY NOT BE EXTENDED TO FODDER PREPARATIONS . IN FACT , EVEN IF THOSE FEEDINGSTUFFS CONTAIN A MORE OR LESS SIGNIFICANT PROPORTION OF WHEY , THEIR PRICE IS ESSENTIALLY DEPENDENT ON OTHER BASIC PRODUCTS WHICH ARE SUBJECT TO THE COMMON ORGANIZATION OF THE MARKET . MOREOVER , ACCORDING TO THE COMMISSION , ACCOUNT MUST BE TAKEN OF THE FACT THAT THE CLASSIFICATION OF THOSE MIXTURES FOR THE PURPOSE OF APPLYING MONETARY COMPENSATORY AMOUNTS GIVES RISE TO VERY SPECIAL PROBLEMS OF ASSESSMENT AND CONTROL . IT IS FOR THAT TWOFOLD REASON THAT , FOR AN INITIAL PERIOD , THE COMMISSION FOLLOWED THE TREND IN THE PRICES OF THE FEEDINGSTUFFS IN QUESTION WITHOUT PERMITTING THE WHEY CONTENT TO BE EXCLUDED IN APPLYING MONETARY COMPENSATORY AMOUNTS . IT WAS ONLY FOLLOWING OBSERVATIONS WHICH HAD BEEN MADE AND AS A RESULT OF RECENT IMPROVEMENTS IN METHODS OF ANALYSIS AND CONTROL THAT , AS FROM THE BEGINNING OF 1978 , THE COMMISSION INTRODUCED DIFFERENTIATING RULES WHICH PERMITTED THE PROPORTION OF WHEY TO BE LEFT OUT OF THE CALCULATION OF MONETARY COMPENSATORY AMOUNTS .

8 THE QUESTION PUT BY THE FINANZGERICHT MUST BE ANSWERED IN THE LIGHT OF THE GUIDANCE PROVIDED BY REGULATION NO 974/71 , ARTICLE 1 ( 2 ) OF WHICH MAKES THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS SUBJECT TO A TWOFOLD CONDITION . IN EFFECT , IT IS NECESSARY
- ON THE ONE HAND , THAT THE PRODUCT INVOLVED SHOULD BE A PRODUCT COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS OR ONE THE PRICE OF WHICH IS DEPENDENT ON THAT OF SUCH A PRODUCT ;

- ON THE OTHER HAND , THAT IT SHOULD BE ESTABLISHED THAT MONETARY FLUCTUATIONS ARE CAPABLE OF LEADING TO DISTURBANCES IN TRADE IN THE AGRICULTURAL PRODUCT IN QUESTION .

9 HAVING REGARD TO THE CRITERIA ADOPTED BY THE REGULATION , THE IMPLEMENTATION BY THE COMMISSION OF THAT PROVISION IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 6 IMPLIES A WIDE DISCRETIONARY POWER AS RESPECTS THE DEPENDENCE OF THE PRICE OF THE PRODUCTS IN QUESTION IN THE PRICE OF ONE OR MORE AGRICULTURAL PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKET AND AS RESPECTS THE ASCERTAINMENT OR ANTICIPATION OF DISTURBANCES IN TRADE IN THE PRODUCT OR PRODUCTS CONCERNED .

10 PRECISELY BECAUSE OF THE NATURE OF COMPOUND FEEDINGSTUFFS FALLING WITHIN TARIFF SUBHEADING 23.07 B I A , EVALUATION OF THESE MATTERS GIVES RISE TO SPECIAL DIFFICULTY , NOT ONLY AS REGARDS THE ASSESSMENT OF ECONOMIC DATA , BUT ALSO AS REGARDS THE OPPORTUNITIES FOR PRACTICAL APPLICATION AND CONTROL . THE FACT THAT PARTICULAR FEEDINGSTUFFS CONTAIN A MORE OR LESS SUBSTANTIAL PERCENTAGE OF A PRODUCT WHICH DOES NOT SATISFY THE CONDITION OF DEPENDENCE CONTAINED IN ARTICLE 1 ( 2 ) ( B ) OF REGULATION NO 974/71 DOES NOT HAVE THE RESULT OF IMPOSING ON THE COMMISSION AN AUTOMATIC DUTY TO EXCLUDE THAT ELEMENT FROM THE CALCULATION OF MONETARY COMPENSATORY AMOUNTS . IN FACT , THE DETERMINATION OF THOSE AMOUNTS IS SUBJECT TO A COMPLEX ASSESSMENT MADE UP OF VARIOUS FACTORS RELATED TO THE NATURE OF THE FEEDINGSTUFFS AND THE RELATIONSHIP , IN TERMS OF VOLUME AND VALUE , OF THEIR VARIOUS CONSTITUENTS .

11 IT THEREFORE APPEARS THAT THE COMMISSION DID NOT EXCEED ITS DISCRETIONARY POWER BY REFRAINING FROM EXCLUDING THE WHEY CONTENT FROM THE BASIS OF CALCULATION OF THE MONETARY COMPENSATORY AMOUNT APPLICABLE TO FODDER PREPARATIONS FALLING WITHIN TARIFF SUBHEADING 23.07 B I A , EVEN AT A TIME AT WHICH IT HAD BECOME APPARENT THAT WHEY FALLING WITHIN TARIFF HEADING 04.02 MUST BE EXEMPT FROM THE APPLICATION OF SUCH AN AMOUNT . THE FACT THAT THE COMMISSION SUBSEQUENTLY INTRODUCED METHODS OF FIXING WHICH DREW FINER DISTINCTIONS AND PERMITTED THE WHEY CONTENT TO BE EXCLUDED FROM THE CALCULATION IS THE RESULT OF AN ASSESSMENT WHICH IS BOTH ECONOMIC AND PRACTICAL AND WHICH THE COMMISSION PROPERLY CARRIED OUT WITHIN THE FRAMEWORK OF ITS DISCRETIONARY POWER IN THIS MATTER .

12 ACCORDINGLY , NEITHER THE PRINCIPLES UNDERLYING THE MILAC JUDGMENT NOR EVEN THE FACT THAT THE COMMISSION SUBSEQUENTLY INTRODUCED A METHOD OF CALCULATION WHICH ALLOWED THE WHEY CONTENT IN FODDER MIXES TO BE EXCLUDED FROM THE FIXING OF MONETARY COMPENSATORY AMOUNTS CAN PROVIDE ANY ARGUMENT WHICH ALLOWS THE VALIDITY OF THE STATUTORY PROVISIONS DISPUTED BEFORE THE NATIONAL COURT TO BE CALLED IN QUESTION .

13 THE ANSWER TO THE QUESTION RAISED SHOULD THEREFORE BE THAT CONSIDERATION OF THE PROVISIONS OF COMMISSION REGULATIONS NOS 2547/74 OF 4 OCTOBER 1974 AND 539/75 OF 28 FEBRUARY 1975 HAS DISCLOSED NO FACTOR OF SUCH KIND AS TO AFFECT THE VALIDITY OF THOSE PROVISIONS IN SO FAR AS , IN THE CALCULATIONS OF THE MONETARY COMPENSATORY AMOUNTS , THEY DO NOT MAKE IT POSSIBLE TO ELIMINATE THE CONTENT BY WEIGHT OF ANY WHEY IN COMPOUND FEEDINGSTUFFS FALLING WITHIN TARIFF SUBHEADINGS 23.07 B I A 3 AND 4 OF THE COMMON CUSTOMS TARIFF .

14 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 ( SECOND CHAMBER )
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FINANZGERICHT MUNSTER BY ORDER OF 20 NOVEMBER 1979 , HEREBY RULES :
CONSIDERATION OF THE PROVISIONS OF COMMISSION REGULATIONS NOS 2547/74 OF 4 OCTOBER 1974 AND 539/75 OF 28 FEBRUARY 1975 FIXING THE MONETARY COMPENSATORY AMOUNTS AND CERTAIN RATES FOR THEIR APPLICATION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THOSE PROVISIONS IN SO FAR AS , IN THE CALCULATION OF THE MONETARY COMPENSATORY AMOUNTS , THEY DO NOT MAKE IT POSSIBLE TO ELIMINATE THE CONTENT BY WEIGHT OF ANY WHEY IN COMPOUND FEEDINGSTUFFS FALLING WITHIN TARIFF SUBHEADINGS 23.07 B I A 3 AND 4 OF THE COMMON CUSTOMS TARIFF .