C-41/72

Reference to the Court under Article 177 of the EEC Treaty by the Hessisches Finanzgericht (VIIth Senate) for a preliminary ruling in the action pending be­ fore that court between

GETREIDE-IMPORT-GESELLSCHAFT mbH, having its registered office at 41 Duis­ burg, Mercatorstraße 16-20, and

EINFUHR- UND VORRATSSTELLE FÜR GETREIDE UND FUTTERMITTEL, Frankfurt- on-Main, Adickesallee 40,

on the validity of the decision of the Commission of the EEC of 3 December 1965 (OJ Agricultural Supplement No 7/65 of 8 December 1965, pages 1612/­ 65 and 1625/65, Table B),

THE COURT

composed of: R. Monaco (President of Chamber), President, P. Pescatore, President of Chamber, A. M. Donner (Rapporteur), J. Mertens de Wilmars and H. Kutscher, Judges,

I — Facts and procedure Table B), by which it fixed the free-at-frontier price for imports of The facts and procedure may be summarized as follows: maize from Italy to the Federal Republic of Germany at 51 751 lire per metric ton At the end of 1965, the applicant in the as from 6 December 1965, valid or not?' main action imported maize from Italy By order dated 18 October 1972, the to Germany. The rate of levy charged on Court decided to join Cases 41/72 and those imports was fixed by two import 55/72 for the purposes of the oral licences dated 9 and 10 December 1965 proceedings. respectively. The Commission submitted its written Considering that the Commission had observations in accordance with the fixed in an incorrect manner the provisions of Article 20 of the Protocol free-at-frontier price serving as the basis on the Statute of the Court of Justice of for the calculation of the levy, the the EEC. applicant brought an action before the After hearing the report of the Hessisches Finanzgericht seeking a Judge-Rapporteur and the opinion of the reduction of that levy by DM 14 per Advocate-General, the Court decided to metric ton of maize. proceed without a preparatory inquiry. It claims that the free-at-frontier price The oral observations of the from 6 December for maize imported Commission, for which its Legal from Italy was not correct because the Adviser, P. Kalbe, appeared, were made Commission based the calculation of at the hearing on 16 November 1972. that price on the information on prices The Advocate-General delivered his ruling on the Italian export market of opinion at the hearing on 6 December Padua for maize from North America 1972. and not on the information on prices ruling for maize grown in Italy. Such a II — Observations submitted procedure, it is claimed, is illegal as the under Article 20 of the principles laid down by the Court of Protocol on the Statute Justice in Case 16/65, (Judgment of of the Court of Justice 1 December 1965 in Case 16/65 Fa. C. of the EEC Schwarze v. EVSt., Rec. 1965, p. 1081) do not apply in the case of Italy. The observations submitted under The Hessisches Finanzgericht, consider­ Article 20 of the Statute of the Court of ing that the determining of the Justice of the EEC may be summarized free-at-frontier price is a decision as follows: emanating from one of the institutions 1. The Commission explains that the of the European Communities, has, by aim of the levy in question, charged on order dated 12 June 1972 received at the imports of maize from Italy to Germany, Court Registry on 4 July 1972, decided is to compensate for the differences to apply for a preliminary ruling on the existing between the prices of cereals in following question: these two Member States. The amount 'Is the decision of the Commission of the of the levy corresponds to the difference EEC of 3 December 1965 (OJ, between the price of maize from Italy Agricultural Supplement No 7/65 of 8 delivered free-at-frontier in Germany December 1965, pages 1612 and 1625, and the German threshold price,

the most favourable price ruling on the The freight charges were calculated on most representative Italian markets for the basis of the official tariffs and the exports to Germany, taking freight data supplied through freight and trade charges into account (Article 2). By media according to the following representative markets is meant the specifications: Italian markets from which maize could Cost of freight by rail be exported to Germany at the most Padua—Venice 750 lire per metric ton favourable price (Article 3). The most Cost of loading on ship at favourable price is that which, taking Venice 1 051 lire per metric ton into account freight charges and Sea freight Venice—Rotterdam marketing costs, works out at the lowest 3 806 lire per metric ton figure in relation to the standard of quality (Article 4 (1)). Freight charges Insurance 64 lire per metric ton are defined in Article 5 of Regulation No Cost of transhipment at 89. These calculation data are regularly Rotterdam 547 lire per metric ton prepared by the Italian authorities, River freight Rotterdam— which determine the free-at-frontier Duisburg 647 lire per metric ton price and then supply the Commission 6 865 lire per metric ton with all this information (Article 7). From this total was deducted the figure After checking the information, the Commission determines the free-at-fron­ of 129 lire per metric ton, representing the proportion of the freight charges tier prices each Friday (Articles 8 and 9) between Duisburg and Emmerich, in and the competent German authorities accordance with Article 5 (2) of then calculate the amounts of the Regulation No 89. intra-Community levies in accordance After taking into account a trade margin with the provisions of Article 15 of of 1015 lire per metric ton, the Regulation No 19. free-at-frontier price was arrived at as The Commission emphasizes that this follows: system was applicable in all Member States without any exception being Market price at Padua provided for in respect of imports of 44 000 lire per metric ton maize from Italy to Germany. Freight Padua—Duisburg, corrected by freight Duisburg— 2. The Commission maintains that the Emmerich 6 736 lire per metric ton free-at-frontier price in question was Trade margin 1 015 lire per metric ton properly calculated and determined, in 51 751 lire per metric ton accordance with all relevant provisions. It was based on the market prices ruling 3. It follows from the foregoing that at Padua, the most representative market the Commission did not base its in this case. calculations on the lowest prices ruling

at the time at Padua for maize imported Since the introduction of the common from North America, which worked out organization of the market in the cereals at 41 500 lire per metric ton, but on the sector, exports to Germany of maize lowest prices for maize grown in Italy, as allegedly harvested in Italy had increased desired by the applicant. out of all proportion compared to This practice corresponded to that normal quantities from the domestic generally followed by the Commission in harvest and had been put on the market respect of the other Member States also. as maize fodder (from 211 metric tons in In the absence of any prices for 1962 to 503 738 metric tons in 1965). home-grown cereals in the exporting There was therefore a strong Member State, or if those prices were presumption that quantities of maize higher than those for imported cereals, grown in third countries had been the free-at-frontier prices were deter­ exported to Germany from Italy and had mined on the basis of the prices fixed for been falsely declared as produce imported cereals, in accordance with the harvested in Italy in order to take judgment of the Court in Case 16/65. advantage of the lower intra-Community As the threshold price in Italy in 1965 levy. was at a relatively low level (e.g. 40 500 In these circumstances, the Commission lire p.m.t.), certain types of maize considered it necessary to fill the gap in imported from third countries were the application of the levy system in regularly put on the market in Italy at Germany by basing the calculation of prices lower than the home-grown the free-at-frontier prices for exports of product (e.g. 41 250 lire p.m.t. to 42 500 maize from Italy to Germany on the lire p.m.t. for 'US — Yellow Corn 3' and prices ruling at Padua for 'US — Yellow 44 000 lire p.m.t. to 45 500 lire p.m.t. for Corn 3' as from 10 December 1965 (cf. homegrown hybrid maize). Article 1 of Regulation No 86 of the At first the Commission based its Commission embodying provisions to calculations on the lowest prices ruling prevent diversion of trade in cereals, OJ for home-grown maize, because the No 66 of 28. 7. 1962, p. 1864/62). intra-Community levies were only However it would be irrelevant to go applicable for cereals which, it could be into that question in this case, as the proved, had been harvested in the disputed free-at-frontier price of 3 exporting Member State. December 1965 has been calculated from In intra-Community trade in other the prices for home-grown cereals. cereals, the 'third country' levy is The Commission submits that the charged in order to prevent diversion of validity of its decision of 3 December trade. 1965 is beyond doubt.

4 Examination of the procedure followed by the Commission in preparing the decision in question does not reveal any other matter capable of affecting its validity.

5 The question should therefore be answered in this manner.

Costs

6 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, insofar as the parties to the main action are concerned, in the nature of a step in the action pending before a national court, the decision on costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Communi­ ties;

Mertens de Wilmars Kutscher

Delivered in open court in Luxembourg on 10 January 1973.

A. Van Houtte R. Lecourt

Registrar President