C-93/74
ECLI:EU:C:1975:79
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JUDGMENT OF THE COURT OF 17 JUNE 1975 1
Pastificio Triestino v Amministrazione delle Finanze dello Stato
(preliminary ruling requested by the Pretore di Trieste)
Case 93/74
Summary
1. Agriculture — Common organization of the market — Conjunctural policy — Currency fluctuations — Monetary compensatory amounts — Derived products — Charge on products imported from third countries — Meaning (Regulation No 974/71 of the Council, Article 4 (a) (2))
2. Agriculture — Common organization of the market — Conjunctural policy — Currency fluctuations — Basic products — Zero levy — Derived products — No compensatory amounts on exports (Regulation No 974/71 of the Council, Article 4 (1) (2))
1. The charge on products imported organization of agricultural markets from third countries referred to in — as consisting solely of the variable Article 4 (a) (2) of Regulation No component intended to take account 974/71 as amended by Regulation No of the prices of basic products. 509/73, must be understood — in respect of the products referred to in 2. When the levy on the basic Article 1 (2) (b) of the same regulation, agricultural products is zero, no whose price depends on the price of compensatory amount may be the products covered by intervention charged on exports of derived arrangements under the common products.
In Case 93/74
Reference to the Court under Article 177 of the EEC Treaty by the Pretore of Trieste for a preliminary ruling in the action pending before that court between
PASTIFICIO TRIESTINO
and
1 — Language of the Case: Italian.
JUDGMENT OF 17. 6. 1975 — CASE 93/74
AMMINISTRAZIONE DELLE FINANZE DELLO STATO
on the interpretation of the second paragraph of Article 4 (a) (2) of Regulation (EEC) 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 (OJ L 106 of 12. 5. 1971, p. 1), as amended by Regulation (EEC) No 509/73 of the Council of 22 February 1973 (OJ L 50 of 23. 2. 1973, p. 1).
THE COURT
composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore, H. Kutscher, M.Sørensen and A. O'Keeffe (Rapporteur), Judges,
Advocate-General: G. Reischl
Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The judgment making the reference and both to products covered by intervention the written observations submitted under arrangements under the common Article 20 of the Protocol on the Statute organization of agricultural markets and of the Court of Justice of the EEC may to products whose price depends on the be summarized as follows: price of those products and which are governed by the common organization of the market or are the subject of a specific I — Facts and written procedure arrangement under Article 235 of the Treaty. Regulation No 974/71 authorizes a Member State which allows the exchange Under the last recital of Regulation No rate of its currency to fluctuate by a 974/71, the compensatory amounts margin wider than the one permitted by should be limited to the amounts strictly international rules, to charge necessary to compensate for the compensatory amounts on imports and incidence of the monetary measures on grant them on exports. the prices of basic products covered by intervention arrangements and applied Under Article 1 (2) of the Regulation, only in cases where this incidence would compensatory amounts may be applied lead to difficulties.
PASTIFICIO TRIESTINO v AMMINISTRAZIONE DELLE FINANZE DELLO STATO
As for the way in which the In the belief that the imposition of the compensatory amounts should be said compensatory amounts was illegal, it calculated, Article 2 (2) of the regulation applied to the Pretore of Trieste for an provides that in the case of products not order for their repayment. covered by intervention arrangements, namely, processed products, the Holding that it was first of all necessary compensatory amounts shall be equal to to resolve certain questions of the incidence, on the prices of the Community law, the Pretore, by order of product concerned, of the application of 7 December 1974, stayed proceedings the compensatory amount to the prices and referred to the Court of Justice of the product on which they depend. under Article 177 of the EEC Treaty for a preliminary ruling on the following Regulation No 509/73 added an Article, questions: 4 (a), to Regulation No 974/71 under '1. Must the charge on imported pasta which, in trade between the Member for the purposes of the application of States and with third countries, the Article 4 (a) (2) of Regulation No compensatory amounts applicable due to 509/73 be considered as constituted the decrease in value of the currency solely by the variable component, or concerned may not be higher than the by the variable component plus the charge on products imported from third fixed component, both prescribed by countries. Regulation No 160/66? 2. If the charge on imports under Part 8 of Annex I of Regulation No question 1 above is constituted solely 2102/73 of the Commission of 31 July by the variable component, could 1973 (OJ L 213 of 1. 8. 1973, p. 1) Italy legitimately apply the monetary prescribed Lit. 3 365 per quintal as the compensatory amount, prescribed by compensatory amounts applicable from 1 Regulations Nos 974/71, 648/73 and August 1973 to exports of macaroni, 1463/73 and consisting in a charge of spaghetti and similar products (pasta) Lit. 3 365 per 100 kg of the product manufactured from durum wheat meal of concerned (see Regulation No Italian origin (tariff heading 19.03). 2102/73/EEC, Part 8, CCT heading No 19.03) to the export of pasta to On 6 August 1973, the plaintiff in the the Member States and to third
main action, whose registered office is at countries effected during the time Trieste, exported to the Federal Republic when the levies on the basic
of Germany a consignment of 202.05 agricultural product — durum wheat quintals of pasta manufactured from — (representing the variable durum wheat meal. component relating to pasta) were zero and, in any case, if the levy on On these exports the customs authorities the importation of the basic demanded payment of compensatory agricultural product were greater than amounts totalling Lit. 679 940. zero, could the monetary compensatory amount on exportation The plaintiff in the main action tried to be higher than that levy? avoid payment of this sum on the ground that, under Article 4 (a) of Regulation No The reference was registered at the Court 974/71, which had been added by on 13 December 1974.
Regulation No 509/73, these amounts could not be applied because Regulation The plaintiff in the main action No 2134/73 of 3 August 1973 (OJ L 216 submitted written observations pursuant of 4. 8. 1973, p. 1) had, for the period to Article 20 of the Protocol on the involved (from 4 to 7 August 1973), fixed Statute of the Court of Justice of the the levy on durum wheat at zero. EEC.
JUDGMENT OF 17. 6. 1975 — CASE 93/74
After hearing the report of the The same conclusion must apply in cases Judge-Rapporteur and the opinion of the where the variable component, likewise, Advocate-General, the Court decided to has no apparent connexion with currency proceed without a preparatory inquiry. fluctuations, which is the situation in the case of exports of pasta manufactured from basic products on which the said fluctuations have not had any real II — Summary of written incidence. observations submitted under Article 20 of the Protocol on the Statute of (b) Second question the Court of Justice The Commission maintains that the (a) First question question can be looked at from two points of view. In the Commission's view, there is no new factor which would justify 1. In the case where the charge on reconsideration of the question which, in imports consists of the variable its judgment of 12 November 1974, Case component alone, can a Member State 34/74, [1974] ECR 1217, SA. Roquette apply that part (if any) of the monetary Frères v French State, the Court compensatory amount which exceeds the answered in the following terms: amount of the variable component?
The 'charge on products imported' from The Commission claims that it is
third countries, referred to in Article 4 (a) impossible for it, in fixing the (2) of Regulation No 974/71, as amended compensatory amounts, to allow for the by Regulation No 509/73, must be principle of subtraction every time there understood — in respect of the products is a change in the charge on imports. referred to in Article 1 (2) (b) of the same The factors on which the compensatory Regulation, whose price depends on the amounts and the charge on imports price of the products covered by depend are different and they occur at intervention arrangements under the different times. Consequently, it is for common organization of agricultural the Member States to weigh the situation markets — as consisting solely of the up in each specific case. On this basis variable component intended to take the question must be answered in the account of the prices of basic products. negative since Article 4 (a) of Regulation No 974/71 leaves no room for discretion The plaintiff in the main action contends within which the Member States can
that in that judgment there is some work.
element of support from the Court for its contention that the charge on imports 2. If the charge on imports consists of referred to in Article 4 (a), as amended by the variable component alone, is Article Regulation No 509/73, must be related 4 (a) of Regulation No 974/71 to be to the basic product alone. interpreted in such a way as to permit application to a processed product of a The Court ruled, contrary to what the compensatory amount higher than the Commission stated in its observations, levy imposed on imports of the basic that the fixed component could not form product effected on the same date or, in one of the charges on imports since this any event, the application of any would mean that exporters of derived monetary compensatory amount in products would have to pay a charge circumstances where the levy imposed which was unrelated to currency on imports of the basic product on the fluctuations. date in question is nil?
PASTIFICIO TRIESTINO v AMMINISTRAZIONE DELLE FINANZE DELLO STATO
On 6 August 1973, the import levy on fixing the levies on each of the basic durum wheat was nil (Regulation No products in question, calculated for a 2134/73), the compensatory amounts period consisting of the first fifteen applicable to exports out of Italy of the days of the month preceding the same product were Lit. 20 151 per metric quarter for which the variable ton (Part 1 of Annex I of Regulation No component is fixed and the two 2102/73), the variable component months immediately preceding'. applicable to imports into Italy of pasta was Lit. 3 612 per quintal (Annex I of This system is necessary because of: Regulation No 2210/73), the fixed 1. the need to take into account the component was 12 % (Annex to period which elapses between the Regulation No 1/73), and the time when the processed product is compensatory amounts applicable to imported into the Community and exports from Italy of these commodities the earlier date when the basic was Lit. 3 365 per quintal (Part 8 of product was used for its manufacture; Annex I of Regulation No 2102/73). 2. compelling reasons of an
administrative nature; Thus the compensatory amounts 3. commercial considerations, which applicable to pasta were not in excess of means a guarantee that the charges the amount of the variable component, remain stable. and this accords with the Court's ruling in Roquette (Case 34/74). When the question is put in this form the reply must be that the appropriate In principle of course, when the levy on import charge is that applicable to the durum wheat is nil, the variable processed product and not to the basic component which is intended to allow product.
for the incidence on the price of the finished product of the difference in, on The plaintiff in the main action stresses the one hand, the price of the basic that the effectiveness of regulations made product within the Community and, on by the Commission under Article 155 of the other, on the world market, should the EEC Treaty depends wholly and also be nil, but the question cannot be exclusively on the interpretation placed answered in such general terms. While on the regulations made by the Council. the levy applicable to imports of durum So, in order to demonstrate that only wheat can be fixed daily; the variable levies imposed upon the basic product component applicable to the processed are meant to be included in the import product is fixed for each quarter by charge, the applicant endeavours to applying Article 6 (2) of Regulation No interpret the regulations of the Council 159/69 (OJ L 141 of 12. 6. 1969, p. 1), from several points of view. which replaced the regulation (No 160/66) cited by the national court, and 1.
Interpretation on the basis of under whose terms 'the variable objective component shall be calculated on the basis of the differences, for the quantity The application, during the period after 1 of each basic product to be taken into August 1973, of the compensatory consideration, between: amounts laid down by Regulation No (a) the average threshold price for each 2102/73 of the Commission to pasta of the three months of the quarter for produced results which were contrary to which the variable component is the objective which the Council was fixed; and hoping to achieve in Regulations Nos (b) the average cif price (excluding 974/71 and 509/73, which was to ensure special cif prices) or the normal development of market free-at-frontier price used when conditions in agriculture.
An example
JUDGMENT OF 17. 6. 1975 — CASE 93/74
illustrating this is that durum wheat to ensure that compensatory amounts on imported from third countries or imports coming from third countries Member States into Italy on 6 August were the same as those applied on 1973 and re-delivered in the form of exports to any country whatever. It must semolina into the Federal Republic of be applied in a manner which is Germany was, in accordance with Article consistent with economic reality, and to 4 (a); as modified by Regulation No make the application of compensatory 509/73, not subject to any compensatory amounts on the enormous volume of amount. Consequently the price of exports of Italian pasta subject to the semolina processed into pasta in the same treatment as the minute quantity of Federal Republic did not include any pasta imported into Italy would be to fly compensatory amount. On the other in the face of reality. hand, if the semolina had been processed into pasta in Italy, it would have been 3. Interpretation by analogy exported into the Federal Republic of Germany at a price enhanced by the A series of other Community measures, compensatory amount. interpreted by analogy, show that the basic product must, in all cases, be used The outcome is the same when durum as the basis on which common wheat used for processing into semolina mechanisms are applicable. comes from Italy itself and is exported direct to the Federal Republic. 4. Interpretation on an economic basis
In both cases competition is distorted The machinery of Community and the objectives of Regulation No agricultural legislation and the very 974/71 ignored. wording of the agricultural market organization identify derived products 2. Interpretation on the basis of with the basic product. wording As regards the second half of the second The last recital, as well as Article 2 (2), of question, Article 4 (a) lays down that the Regulation No 974/71 is concerned with compensatory amounts chargeable on the price of the basic product. In exports cannot be higher than the charge circumstances where there is no variation on imports of the product coming from of price in the basic product, to proceed third countries, regardless of whether this to apply a compensatory amount is not charge is nil or more. only pointless but, in view of the final phrase of the recital, prohibited. The applicant in the main action, According to the judgment in Roquette represented by G. M. Ubertazzi and F. (Case 34/74), 'this provision therefore Capelli, of the Milan Bar, and the imposes a parallelism between the Commission, represented by G. Marenco, application of compensatory amounts to submitted their oral observations at the basic products and their application to hearing on 29 April 1975. derived products'. The Advocate-General delivered his The original purpose of Article 4 (a) was opinion on 14 May 1975.
Law
1 By judgment of 7 December 1974, lodged at the Registry on 13 December 1973, the Pretore of Trieste referred to the Court for a preliminary ruling
PASTIFICIO TRIESTINO v AMMINISTRAZIONE DELLE FINANZE DELLO STATO
under Article 177 of the EEC Treaty two questions of interpretation concerning the first paragraph of Article 4 (a) (2) of Regulation (EEC) 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 (OJ L 106 of 12. 5. 1971, p. 1), as amended by Regulation (EEC) No 509/73 of the Council of 22 February 1973 (OJ L 50 of 23. 2. 1973, p. 1).
2 The first question asks whether, for the purposes of the application of Article 4 (a) (2) of the said regulation, the charge on imports of macaroni, spaghetti and similar products (pasta) must be considered as constituted solely by the variable component, or by the variable component plus the fixed component, both prescribed by Regulation No 160/66.
3 The second question asks whether, if the charge on imports is constituted solely by the variable component, Italy could legitimately apply the monetary compensatory amount, prescribed by Regulation Nos 974/71, 648/73 and 143/73 and consisting in a charge of Lit. 3 365 per 100 kg of the product concerned (see Regulation No 2102/73/EEC, part 8 CCT heading No 19.03) to the export of pasta to the Member States and to third countries effected during the time when the levies on the basic agricultural product — durum wheat — (representing the variable component relating to pasta), were zero and, in any case, if the levy on the importation of the basic agricultural products were greater than zero, could the monetary compensatory amount on exportation be higher than that levy?
4 These questions were raised in the course of proceedings for an injunction brought before the Pretore of Trieste by the applicant in the main action against the Amministrazione delle Finanze dello Stato (Italian Finance Authorities) with the object of obtaining repayment of the compensatory amounts which it had been compelled to pay on exports of pasta at a time when, as there was no charge on imports, no compensatory amount was, by virtue of the provisions of Regulation No 974/71, applicable to the basic product, durum wheat.
First question
5 By judgment of 2 November 1974, in Case 34/74, the Court ruled that the charge on products imported from third countries, referred to in Article 4 (a)
JUDGMENT OF 17. 6. 1975 — CASE 93/74
(2) of Regulation No 974/71, as amended by Regulation No 509/73, must — in respect of the products referred to in Article 1 (2) (b) of the same regulation, whose price depends on the price of the products covered by intervention arrangements under the common organization of agricultural markets — be understood as consisting solely of the variable component intended to take account of the prices of basic products.
Second question
6 In order to neutralize the effect on the working of the agricultural markets of the widening of the margins of fluctuation for the currencies of certain Member States, Regulation No 974/71, as supplemented subsequently, introduced compensatory amounts to be charged on imports of agricultural products and granted on exports.
7 The final recital of the preamble to the said regulation emphasizes that the compensatory amounts should be limited to the amounts strictly necessary to compensate the incidence of the monetary measures on the prices of basic products covered by intervention arrangements and that it is appropriate to apply them only in cases where this incidence would lead to difficulty.
8 According to Article 2 (1) of that Regulation, the compensatory amounts shall be fixed in relation of the currency fluctuations recorded for basic products covered by intervention arrangements under the common organization of agricultural markets.
9 According to Article 2 (2) compensatory amounts for derived products shall be equal to the incidence, on the prices of the products concerned, of the application of the compensatory amounts to the prices of the basic product on which they depend.
10 With a view to avoiding, in the case of a fall in value of the currency of a Member State, the application of excessive compensatory amounts likely to disturb markets within the Community, Regulation No 509/73, which supplemented Regulation No 974/71, contains an Article, 4 (a), of which paragraph (2) provides that 'in trade between the Member States and with third countries, the compensatory amounts applicable due to the decrease in value of the currency concerned may not be higher than the charge on products imported from third countries'.
PASTIFICIO TRIESTINO v AMMINISTRAZIONE DELLE FINANZE DELLO STATO
11 The result of the application of this provision, following the increase in price of cereals on the world market, was that compensatory amounts ceased to be charged in respect of trade in durum wheat from the moment when the cif price reached the threshold price, although those amounts remained in force.
12 Regulation No 2102/73 of the Commission of 31 July 1973 (OJ L 213, p. 1) fixed at Lit. 20 151 per metric ton the compensatory amounts applicable from 1 August 1973 to durum wheat (tariff heading 10.01 B) and at Lit. 3 365 per quintal those applicable to macaroni, spaghetti and similar products (tariff heading 19.03), notwithstanding that during the same period the levy on durum wheat had, pursuant to Regulation No 2031/73 of the Commission of 27 July 1973 (OJ No L 207 of 28. 7. 1973, p. 3), since 28 July 1973 been zero, whereas the levy on pasta was for the third quarter of 1973 fixed at Lit. 3 612 per quintal by Regulation No 2210/73 of the Commission of 27 July 1973 (OJ L 231 of 20. 8. 1973, p. 1).
13 It appears that in view of the fact that 167 kg of durum wheat are required for the manufacture of 100 kg of pasta, the compensatory amounts thus prescribed for pasta were necessary to compensate the incidence on these products of the application of compensatory amounts at the rate prescribed in the regulation for the basic product on which they depend.
14 As no compensatory amount had, pursuant to Article 4 (a) (2) of Regulation No 974/1971, been granted on imports or levied on exports of the basic product (durum wheat) as at 6 August 1973, the imposition of compensatory amounts on the derived products would have been contrary to the objective pursued in the final recital of the preamble and to Article (2) of Regulation No 974/71, which require that the compensatory amounts to be applied to the derived product by reason of depreciation of the currency concerned shall be equal to the incidence on the product concerned of the application of the compensatory amount to the prices of the basic product on which it depends.
15 In consequence, Article 4 (a) (2), which was added by Regulation No 509/73, must be taken as meaning that, if no compensatory amount has been charged on the basic product, no compensatory amount may be charged on the derived product.
16 The answer to the second question must, therefore, be that when the levy on the basic agricultural products is zero, no compensatory amount may be charged on exports of derived products.
JUDGMENT OF 17. 6. 1975 — CASE 93/74
Costs
17 The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable.
18 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, costs are a matter for that court.
On those grounds,
THE COURT
in answer to the questions referred .to it by the Pretore of Trieste, by order of that court dated 7 December 1974, hereby rules:
1. The charge on products imported from third countries referred to in Article 4 (a) (2) of Regulation No 974/71, as amended by Regulation No 509/73, must be understood — in respect of the products referred to in Article 1 (2) (b) of the same regulation, whose price depends on the price of the products covered by intervention arrangements under the common organization of agricultural markets — as consisting solely of the variable component intended to take account of the prices of basic products.
2. When the levy on the basic agricultural products is zero, no compensatory amount may be charged on exports of derived products.
Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco
Pescatore Kutscher Sørensen O'Keeffe
Delivered in open court in Luxembourg on 17 June 1975.
A. Van Houtte R. Lecourt
Registrar President