C-108/77

meaning that the export refund in the percentage used to calculate the sugar sector, fixed in national currency monetary compensation. for each exporter individually on the

In Case 108/77

Reference to the Court under Article 177 of the EEC Treaty by the Finanz­ gericht (Finance Court) Hamburg for a preliminary ruling in the action pending before that court between

Hans-Otto Wagner GmbH, Agrarhandel KG, Bad-Homburg,

and

Hauptzollamt (Principal Customs Office) Hamburg-Jonas

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the present

JUDGMENT

Facts and Issues

The facts of the case, the course of the Paris to Jean Lion et Compagnie (Paris) procedure and the observations and assigned by the latter to Wagner submitted under Article 20 of the and the remainder were issued directly Protocol on the Statute of the Court of to Wagner by the Einfuhr- und Justice of the European Economic Vorratsstelle fur Zucker und Rohtabak Community may be summarized as (Import and storage agency for sugar follows: and raw tobacco). In pursuance of several decisions taken I — Facts and written procedure between 15 March and 15 April 1976 on the basis of Regulations Nos Between 1 and 25 March 1976 the 2719/75 and 572/76 of the Commission Wagner company, the applicant in the of 24 October 1975 and 15 March 1976 main action, exported to Bulgaria respectively fixing the monetary 4 000 000 kilograms of undenatured compensatory amounts and certain rates white sugar coming under tariff sub­ for their application (Official Journal heading 17.01-B-I of the Common Nos L 276, p. 7, and L 68, p. 5), the Customs Tariff. Some of the export Hauptzollamt Hamburg-Jonas granted licences were issued by the Fonds the plaintiff in the main action d'Intervention et de Régularisation du monetary compensation amounting to Marché du Sucre (Fund for intervention DM 10.90 per 100 kg. It also granted and stabilization of the sugar market) in export refunds amounting to DM

WAGNER v HAUPTZOLLAMT HAMBURG-JONAS

shall be multiplied by a coefficient...". What are the effects of the partial The refunds at issue in the main action invalidity of Article 4 (3) of Regu­ were, according to the Hauptzollamt, lation (EEC) No 1380/75 of the Commission?" also fixed in units of account, the maximum amount of the refund having The Finanzgericht takes the view that if been, within the context of the pre­ the interpretation of the plaintiff in the scribed procedure for tendering, fixed in main action were to be followed doubts units of account. The application to the would arise as to the validity of Article refund of the coefficient is explained by 4 (3) of Regulation No 1380/75. In the fact that compensatory amounts are fact, in the case of exports from calculated on the basis of the Member States whose currencies have intervention price which includes export appreciated beyond the limit of fluc­ refunds. That part of the compensatory tuation, exporters would receive, apart amount which related to the export from the export refund, the whole of refunds therefore had to be deducted. the monetary compensation whereas, in the case of exports from Member States The Finanzgericht Hamburg, before which the matter came, decided by whose currencies have depreciated beyond the limit of fluctuation, order of 19 August 1977 to stay the proceedings and in pursuance of Article exporters would receive the export refund only subject to a deduction of 177 of the EEC Treaty to submit the the whole of the monetary following questions to the Court of compensation. The absence of a Justice for a preliminary ruling: corrective factor for the monetary "1. Is Article 4 (3) of Regulation (EEC) compensatory amounts might infringe No 1380/75 of the Commission the prohibition on discrimination read in conjunction with Regulation contained in Article 7 of the Treaty and (EEC) No 2101/75 of the constitute a breach of the general Commission to be interpreted as principle of equality. meaning that the export refund, Apart from Regulation No 1380/75, the which in the sugar sector is Community legislation applicable to the determined separately for each main action is as follows: exporter in national currency on the basis of an invitation to tender, is to (a) In the sugar sector the refund is be multiplied by the monetary fixed by tender (Article 4 (1) of coefficient fixed by the Regulation (EEC) No 766/68 of Commission, which is derived from the Council of 18 June 1968 laying the percentage used to calculate the down general rules for granting monetary compensation? export refunds on sugar (Official Journal, English Special Edition 2. If the answer to Question 1 is in the 1968 (I), p. 155). Export refunds are negative: expressed in national currency in Is Article 4 (3) of Regulation (EEC) tenders (Article 5 (2) (d) of Regu-

lation No 2101/75). The statement financial obligations which it had of award of the tender also states in undertaken by contract with regard to national currency the refund to be the plaintiff in the main action resulting granted (Article 11 (2) (c) of Regu­ from the export licences transferred. lation No 2101/75). Only the The wording of Article 4 (3) of Regu­ maximum amount of refund — lation No 1380/75 is unequivocal. which serves to limit the group of There is not to be found in that regu­ tenderers to whom the contract is to lation or in Regulations Nos 766/68 be awarded — is fixed in units of and 2101/75 or in Notice of Invitation account (Article 9 (1) of Regulation to Tender No 9/1975 any possibility of No 2101/75); applying the monetary coefficient to the (b) According to the sixth recital in the refunds to be granted in the case of the preamble to the basic Regulation main action, which were not fixed in (EEC) No 974/71 of the Council of units of account. 12 May 1971 on certain measures of The above interpretation corresponds conjunctural policy to be taken in also to the meaning and purpose of the agriculture following the temporary said provisions. The principle of legal widening of the margins of fluc­ tuation for the currencies of certain certainty already constitutes an argument in favour of this view. Since Member States (Official Journal, transfers of export licences are auth­ English Special Edition 1971 (I), p. orized, to reduce a posteriori the 257) the compensation should be amount of refunds fixed in national limited to the amounts strictly currency in export licences by applying necessary to compensate the to them a monetary coefficient which is incidence of the monetary measures valid only for refunds fixed in units of on the prices of basic products account would be quite simply irrec­ covered by intervention ar­ oncilable with that principle. rangements. In the case of the main action, which The order referring the matter to the relates to refunds granted in the context Court was lodged at the Court Registry of invitations to tender, special rules on 8 September 1977. and conditions apply which at first sight The Court, on hearing the report of the exclude the application of the general Judge-Rapporteur and the views of the rules relating to refunds. This appears from the third recital in the preamble to Advocate General, decided to open the Regulation No 2101/75. In the case of oral procedure without any preparatory inquiry. a tender, Article 4 of Regulation No 766/68 provides that the refund is not fixed in terms of the difference between

A person asking for the refund which he The same is true in cases in which levies needs ought therefore to obtain that or refunds are fixed in a general way by same refund and not a refund reduced regulation or by tender. Thus refunds by the effect of the monetary granted in the context of a tender also coefficient. constitute Community refunds and do not take account of the various To that is added the fact that sugar- exporting undertakings established in monetary relationships existing between countries which have revalued their the respective currencies of the States of currency are at a considerable disad

action being followed. It is only by the Commission level, the whole of the adoption, subsequently, of Regulation calculation must necessarily be carried No 2101/75 that it was established that, out on the basis of units of account. in the context of invitations to tender, Offers submitted have to be converted refunds to be granted must not have the into units of account by means of the monetary coefficient applied to them. "green" rates so that they may be Moreover, that would be contrary comparable.

This equality objections of the plaintiff in the main can only be attained by the application action are based on a literal and formal of the two monetary correctives: the interpretation of Community provisions basic compensatory amount and the which does not take into account either coefficient. Otherwise participants from the spirit or the objective of those countries whose currency has strongly provisions. appreciated would be at an advantage since they would obtain an over-valued To the extent to which monetary compensatory amount whilst parti compensation, calculated on the basis of cipants in the invitation to tender from the intervention price, is equal to the

JUDGMENT OF 24. 5. 1978 — CASE 101/77

account. The Commission adopts the obser Reference should also be made to the vations of the Finanzgericht with regard provisions of Article 4 of Regulation to the consequences which might follow (EEC) No 1134/68 of the Council of the adoption of an interpretation similar 30 July 1968 laying down rules for the to that of the plaintiff in the main action. That is an additional reason for implementation of Regulation (EEC) No 653/68 on conditions for alterations seeking an "interpretation in conformity to the value of the unit of account used with Community law".

Such an alteration, for its sugar sector, expressed in national part, would involve an alteration in the currency for each exporter individually amount expressed in national currency on the basis of a tender, is to be precisely in those cases in which refunds multiplied by the monetary coefficient are fixed by way of tender. There is a fixed by the Commission". special interaction between these two The plaintiff in the main action, provisions. Regulation No 1134/68 represented by K. Landry, constitutes a special rule whereas in Rechtsanwalt, Hamburg, and the Regulation No 1380/75 the application

WAGNER v HAUPTZOLLAMT HAMBURG-JONAS

Decision

1 By order of 19 August 1977, lodged at the Court on 8 September 1977, the Finanzgericht Hamburg submitted to the Court in pursuance of Article 177 of the EEC Treaty several questions relating to the interpretation and validity of Article 4 (3) of Regulation (EEC) No 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts (Official Journal No L 139, p. 37), in conjunction with Regulation (EEC) No 2101/75 of the Commission of 11 August 1975 on a standing invitation to tender in order to determine a levy and/or refund on exports of white sugar (Official Journal No L 214, p. 5).

2 These questions were raised in the context of an action relating to the calcu­ lation of export refunds granted to the German company Wagner, the plaintiff in the main action, on the occasion of the export to Bulgaria of 4 000 000 kilograms of undenatured white sugar.

The Hauptzollamt Hamburg-Jonas, the defendant in the main action, granted Wagner monetary compensation amounting to DM 10.90 per 100 kg.­

It also granted export refunds amounting to DM 657 470.33, multiplying the amounts resulting from the refund rates indicated in the export licences by the coefficient 0.9.

4 For the calculation of monetary compensatory amounts in intra-Community trade the Commission takes as a reference value the guarantee prices, in particular the intervention prices.

On the other hand, during the first stage of application of the system, in trade with non-member countries levies and refunds expressed in units of account and translated into the national currencies of the various Member States by the application of the so-called "green" conversion rates, offset the difference between world prices and the price in the Member State concerned, which involved a partial monetary compensation and made necessary the fixing of different monetary compensatory amounts for such trade.

As from 1 March 1973 the Commission, with a view to simplifying administration, decided to fix, both for intra-Community trade and for trade with non-member countries, uniform basic monetary compensatory amounts calculated with reference to the Community guarantee prices.

The seventh recital in the preamble to Regulation No 1380/75 refers to the situation created by that decision in the following terms:

"Accession compensatory amounts, fixed components as referred to in Article 61 of the Act of Accession (Journal Officiel No L 73 of 27 March 1972, p. 14), import charges, export refunds and all other amounts charged or granted in units of account in respect of trade with third countries are, like the prices in the Member States concerned, converted into the currencies of those Member States by applying the exchange rates provided for under the common agricultural policy; ... therefore, in calculating the

In order that the coefficient may be applied it is therefore necessary to establish that, in the present case, the refunds were fixed in units of account.

5 Regulation No 766/68 of the Council of 18 June 1968 (Official Journal, English Special Edition 1968 (I), p. 155) provided for the fixing of export refunds for sugar by tender.

In Regulation No 2101/75 the Commission adopted the necessary provisions regarding a standing invitation to tender in order to determine a levy or refund on exports of white sugar.

Article 5 (2) (d) of that regulation provides that the tender must indicate "the amount of the export levy or, where applicable, of the export refund, per 100 kilograms of white sugar, expressed in the currency of the Member State where the tender is submitted".

JUDGMENT OF 24. 5. 1978 — CASE 108/77

Article 9 provides that the Commission is to fix either a minimum export levy or a maximum export refund, account being taken of the current state and foreseeable development of the Community sugar market and of the world sugar market and that, where a maximum export refund is fixed, a contract shall be awarded to every tenderer whose tender indicates a rate of refund equal to or less than such maximum refund and to every tenderer who has tendered for an export levy.

Second question

7 In the course of the oral procedure the Commission pointed out that, if the Court were to take the view that the provisions of Article 4 (3) of the regu­ lation were to be interpreted in the sense contended for by the plaintiff in the main action, the provisions must be declared at least partially void for breach of the principle of non-discrimination set out in Article 40 (3) of the

WAGNER v HAUPTZOLLAMT HAMBURG-JONAS

Treaty inasmuch as Article 4 would then produce discrimination between exporters of sugar according to the country of export.

8 Regulation No 1380/75 is a regulation of general scope laying down detailed rules for the application of monetary compensatory amounts in the whole of the agricultural sector.

In providing that, in trade with third countries, levies and refunds "fixed in units of account" are to be multiplied by a coefficient, Article 4 (3) of Regu­ lation No 1380/75 did not commit a breach of the rule of non-discrimi­ nation as all levies and refunds are in principle fixed in units of account.

As the procedure is, in so far as the parties to the main action are concerned, a step in the action pending before the Finanzgericht Hamburg, the decision on costs is a matter for that court.

OPINION OF MR WARNER — CASE 108/77

On those grounds,

THE COURT,

in answer to the questions submitted to it by the Finanzgericht Hamburg by order of 19 August 1977, hereby rules:

1. Article 4 (3) of Regulation No 1380/75, read in conjunction with Regulation No 2101/75, must be interpreted as meaning that the export refund in the sugar sector, fixed in national currency for each exporter individually on the basis of a tender, is not to be multiplied by a monetary coefficient, fixed by the Commission, derived from the percentage used to calculate the monetary compensation.

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 18 APRIL 1978

My Lords, those of the legislation on monetary compensatory amounts (or "mca's"). In this case the Court has to plunge, once again, into the complexities of the The case comes to the Court by way of Community legislation on the organi­ a reference for a preliminary ruling zation of the sugar market and into made by the Finanzgericht of Hamburg.