C-292/81

LION AND LOIRET & HAENTJENS v FIRS

regulation, provided that those constitute a valid basis for the purpose matters fall within the general scheme of proving the complaint of discrimi­ of the whole of which it forms part. nation between dissimilar products, If the contested measure clearly which are subject to different rules discloses the essential objective and which, moreover, in no way pursued by the institution, it would be compete with each other. going too far to insist upon a specific statement of reasons for each of the 6. A difference of treatment which is technical choices for which it merely the consequence of a choice provides. between two systems offered to 5. As each of the common organizations traders under a common organization of the market embodies features of the market and freely chosen by specific to it, a comparison of the them according to their own require­ technical rules and procedures ments cannot constitute discrimi­ adopted in order to regulate the nation between producers or con­ various sectors of the market cannot sumers.

In Joined Cases 292 and 293 / 81

REFERENCES to the Court under Article 177 of the EEC Treaty by the Tribunal Administratif [Administrative Court ], Paris, for a preliminary ruling in the action pending before that court between

SOCIÉTÉ JEAN LION ET CIE , having its registered office in Paris (Case 292 / 81 ),

SOCIÉTÉ LOIRET & HAENTJENS SA,

COMPAGNIE COMMERCIALE " SUCRES ET DENRÉES ",

SOCIÉTÉ PIERRE PEETERS, SARL,

each having its registered office in Paris (Case 293 / 81 )

v

FONDS D'INTERVENTION ET DE RÉGULARISATION DU MARCHÉ DU SUCRE ( FIRS ) [Sugar Market Intervention and Stabilization Fund ], having its head office in Paris,

JUDGMENT OF 28. 10. 1982 — JOINED CASES 292 AND 293/81

Facts and Issues

The facts of the case, the course of the Sàrl, obtained from the competent procedure and the observations sub­ national body, the Fonds d'Intervention mitted pursuant to Article 20 of the et de Régularisation du Marché du Sucre Protocol on the Statute of the Court of (hereinafter referred to as "the Fund"), Justice of the EEC may be summarized certificates for the exportation of sugar as follows: to non-member countries, which were valid for a period of five months from the end of the month of issue. They qualified for the advance fixing, pursuant to a tendering procedure, of export refunds for the advance fixing of I — Facts and written procedure monetary compensatory amounts, in accordance with the applicable Com­ munity rules.

Between 7 February and 13 June 1979 Jean Lion et Cie, and before 28 Regulations concerning export refunds for September 1979 Loiret & Heantjens SA, sugar Jean Lion et Cie, Société Debman, "Ancienne Maison Marcel Bauche" SA, SCOA SA, Sucrimex SA, Philipp Brothers SA, Compagnie Commerciale Regulation No 3330/74 of the Council "Sucres et Denrés" and Pierre Peeters, of 19 December 1974 on the common

LION AND LOIRET & HAENTJENS v FIRS

organization of the market in sugar The general rules for the grant of export (Official Journal 1974, L 359, p. 1), like refunds on sugar were laid down by Regulation No 1009/67 of 18 December Regulation No 766/68 of the Council of 1967 (Official Journal, English Special 18 June 1968 (Official Journal, English Edition 1967, p. 304) which it replaced, Special Edition 1968 (I), p. 155). established a common system for trade with non-member countries, including measures intended to cover the According to Article 4 of that regulation, difference between the prices applied the refund may be fixed by means of an outside and inside the Community, invitation to tender relating to the where world prices are lower than amount of the refund. Community prices.

The terms of the invitation to tender are According to the fourth subparagraph of to include a time-limit for the submission Article 12 (1) of the regulation the issue of tenders. Within three working days of of a licence is conditional on the lodging the expiry of the prescribed period, the of a deposit guaranteeing that the expor­ maximum amount of the refund for the tation will be effected during the period tender in question is to be fixed on the of validity of the licence and that the basis of the tenders received. For the deposit is to be forfeited in full or in part calculation of the maximum amount, if the transaction is not effected or is account is taken of the supply situation only partially effected within that period. and prices within the Community, prices and potential outlets on the world market and costs incurred in exporting According to Article 19 (1) and (2) of sugar. the regulation, in the case of exports the difference between the quotations or prices on the world market and the According to Article 9 of Regulation No prices in the Community may be covered 766/68, tenders submitted in response to by an export refund which is to be the an invitation are not to be considered same for the entire Community but may unless a deposit is lodged, which is to be be varied according to destination. forfeited in whole or in part if tenderers have not fulfilled, or have only partially fulfilled, the obligations placed upon The refund may be fixed in advance. In them. such cases, the advance-fixing is to be noted on the licence, which serves as a supporting document for the advance- Article 10 provides that the refund fixed fixing (second subparagraph of Article 12 by tender is to be valid for the same (I))· period as the export licence.

The conversion rates resulting from the central rate; Regulations concerning monetary com- pensatory amounts (b) in respect of Member States other than those referred to in (a), the Regulation No 974/71 of the Council of average of the percentage differences 12 May 1971 on certain measures of between: conjunctural policy to be taken in agri­ culture following the temporary The relationship between the con­ widening of the margins of fluctuation version rate used under the common for the currencies of certain Member agricultural policy for the currency States (Official Journal, English Special of the Member State concerned and Edition 1971 (I), p. 257), as amended by the official parity, or, where this Regulation No 509/73 of the Council of parity is not observed, the central 22 February 1973 (Official Journal 1973, rate of each of the currencies of the L 50, p. 1), provides that if, for the Member States referred to in (a), purposes of commercial transactions, a and Member State allows the exchange rate of its currency to fluctuate by a margin wider than that permitted by the inter­ The spot market rate for the national rules in force on 12 May 1971, currency of the Member State in the Member State whose currency question in relation to each of the

LION AND LOIRET & HAENTJENS v FIRS

JUDGMENT OF 28. 10. 1982 — JOINED CASES 292 AND 293/81

The rules for the implementation of By virtue of Article 4 (2) of Regulation Regulation No 653/68 were laid down No 1134/68, for transactions carried out by Regulation No 1134/68 of the pursuant to provisions on the common Council of 30 July 1968 (Official agricultural policy or special trade Journal, English Special Edition 1968 systems for goods processed from agri­ (II), p. 396). cultural products, the sums owed to or by a Member State or a duly authorized body, expressed in national currency and representing amounts fixed in those According to Article 4 (1) of that regu­ provisions in units of account, are to be lation, in the case of an alteration of the paid on the basis of the relationship relationship between the parity of the between the unit of account and the currency of a Member State and the national currency which obtained at the value of the unit of account, the Member time when the transaction or part State concerned, using the new parity transaction was carried out. relationship, is to adjust the following amounts, given in units of account, if they appear in national currency in the documents or certificates issued in pursuance of the common agricultural According to Article 6 of Regulation No policy or the special trade systems for 1134/68, the time when a transaction is goods processed from agricultural carried out is to be considered as being products : the date on which occurs the event, as defined by Community rules or, in the absence of and pending adoption of such rules, by the rules of the Member State (a) Amounts which have been fixed in concerned, in which the amount involved advance for a transaction or part of a in the transaction becomes due and transaction still to be carried out payable. after alteration of that parity relationship;

the new representative rates is disadvan­ change in the price level expressed in tageous to the party concerned. Before units of account, adjustments of refunds the date of application of the new rate it fixed in advance are applicable to may be decided to offset that disad­ products falling, inter alia, within the vantage by an appropriate measure, in sugar sector. which case advance fixing and the certi­ ficate or document attesting thereto may not be cancelled. By virtue of Article 3 of Regulation No 1516/78, any adjustment of that kind is to be made on the basis of the price and With more specific reference to the representative rate valid at the time monetary compensatory amounts, the of completion of the customs formalities; detailed rules for compulsory adjustment the compulsory adjustment is to be thereof provided for in Article 7 (1) of altered when there is an optional Regulation No 243/78 were laid down adjustment. by Commission Regulation No 651/78 of 31 March 1978 (Official Journal 1978, L 86, p. 41), which was repealed and replaced by Commission Regulation Regulation No 243/78 was further No 1516/78 of 30 June 1978 on amended, in particular as regards the adjustments to monetary compensatory adjustment of monetary compensatory amounts fixed in advance (Official amounts fixed in advance, by Journal 1978, L 178, p. 63). Commission Regulation No 1544/78 of 4 July 1978 (Official Journal 1978, L 182, p. 7). In particular, the first subpara­ graph of Article 6 (2) was supplemented Regulation No 1516/78 linked the by a provision under which, for the adjustments to be made to monetary purpose of the adjustments referred to in compensatory amounts with the ad­ Article 7, the application for advance justment, if any, applicable to refunds fixing of the monetary compensatory fixed in advance to which the monetary amount is to be deemed to have been compensatory amounts fixed in advance lodged on the last day for the submission are related. of tenders.

Furthermore, since Articles 4 and 6 of by Council Regulation No 1266/79 of Regulation No 1134/68 were designed 25 June 1979 (Official Journal 1979, L to alter the parity of a currency and not 161, p. 4). It was reduced on a further to alter the representative rates and since occasion by 1.046%, with effect from 1 therefore they were not wholly sat­ October 1979, by Council Regulation isfactory in all cases, Regulation No No 2139/79 of 28 September 1979 976/78, by supplementing Article 4 of (Official Journal 1979, L 246, p. 76). Regulation No 878/77, provided for the possibility of the adoption, by means of a simplified procedure, of provisions dero­ By means of Council Regulation No gating from the existing system. 1288/79 of 25 June 1979 fixing the sugar prices for the 1979/80 sugar year (Official Journal 1979, L 162, p. 1), the Availing itself of the possibility created intervention price for sugar was by Article 4 of Regulation No 878/77, as increased from 40.49 European currency amended by Regulation No 976/78, the units (ECU) for the 1978/79 year to Commission, considering that it was 41.09 units per 100 kg. appropriate, with a view to the sound management of the sugar market, to specify for each kind of transaction in that sector the method for fixing the Procedure conversion rate applicable, decided to make an exception to the rule laid down in Article 6 of Regulation No 1134/68. By means of the combined provisions of Because of the increase of the in­ Article 1 and paragraph X (a) of the tervention price and the reductions in the Annex to Regulation No 3016/78 of 20 representative rate for the French franc, December 1978 laying down certain Jean Lion et Cie, on the one hand, and rules for applying conversion rates in the Loiret and Haentjens and eight other sugar and isoglucose sectors (Official companies dealing in sugar, on the other, Journal 1978, L 359, p. 11), it decided applied to the Fund for an adjustment of that the rate of exchange to be applied to the export refunds and, for Jean Lion et export refunds with advance fixing of Cie, an adjustment of the compensatory monetary compensatory amounts was the amounts, for the sugar exports effected representative rate applicable on the day by Jean Lion et Cie after 1 July 1979 and referred to in Article 6 of Regulation No by the other companies after 1 October 243/78, as amended by Regulation No 1979. 1544/78, that is to say the last day for the submission of tenders. No action was taken in response to their applications and the companies The representative rate for the French thereupon brought actions before the franc, which had already been reduced Tribunal Administratif, Paris, for an­ by 3.60% with effect from 1 July 1979 nulment of the Fund's implied decisions by Regulation No 976/78, was the of rejection and for payment of the subject of further reductions, which also amounts which they considered to be took effect as from 1 July 1979 and thus due to them. superseded the earlier reductions, namely 5.12% by Council Regulation No 643/79 of 29 March 1979 (Official In its defence, the Fund relied essentially Journal 1979, L 83, p. 1) and then 7 % upon the obligation incumbent upon it to

Is Regulation (EEC) No 3016/78 of 20 By a further order of the same date, the December 1978 valid with regard to the Court, pursuant to Article 95 (1) and (2) provisions contained in Article 190 of the of its Rules of Procedure, referred Treaty of Rome? Joined Cases 292/81 and 293/81 to the Second Chamber. Does it incorporate into the Community rules discriminatory measures such as to make them invalid? II — Written observations sub­ Does it conflict with the provisions of mitted to the Court Regulation (EEC) No 243/78 of 1 February 1978 providing for the advance fixing of monetary compensatory The plaintiff companies in the mam amounts, in relation to which it actions consider that Regulation No constitutes a measure of adaptation? 3016/78 is invalid by virtue of Articles 190 and 40 of the EEC Treaty and that The two judgments of the Tribunal certain of its provisions are incompatible Administratif, Paris, of 10 November with Regulation No 243/78.

JUDGMENT OF 28. 10. 1982 — JOINED CASES 292 AND 293/81

Statement of reasons on which Regulation statements of reasons on which regu­ No 3016/78 is based lations are based.

"... with a view to the sound management of the sugar and isoglucose markets it is appropriate to specify for (a) Regulation No 3016/78 is discrimi­ each kind of transaction in these sectors, natory in two ways: because of the agri­ the method for fixing the conversion rate cultural sector to which it refers and applicable; ... in certain cases it is because it affects a specific category of appropriate to make derogations from traders. Since it applies only to the sugar the rule laid down in Article 6 of Regu­ sector, it is incompatible with Article 40 lation (EEC) No 1134/68." (3) of the EEC Treaty, according to which any common organization of agri­ cultural markets is to exclude any discrimination between producers or Thus the Commission gives no expla­ consumers within the Community. nation why in certain cases it is appro­ Moreover, it provides for an unjustified priate to make exceptions, what the difference of treatment as between, on circumstances of those exceptions are or the one hand, traders who have fixed the why they are to be made in respect of monetary compensatory amounts in the sugar sector (and the isoglucose advance and, on the other, those who sector). have not availed themselves of that possibility.

(c) The references in the preamble to Regulation No 3016/78 are incomplete: (b) In other agricultural sectors, the paragraph X of the Annex mentions the exchange rate applicable in the event of day referred to in Article 6 of Regulation an alteration of the representative rate No 243/78, as amended by Regulation is the rate ruling on the day on which No 1544/78, but those two regulations the export customs formalities are are not mentioned in the references. completed, even if the monetary That fact is incompatible with the compensatory amounts were fixed in decisions of the Court regarding the advance.

In the absence of advance fixing of monetary compensatory amounts where the refund is fixed in advance, any (c) Paradoxically, Regulation No change in the representative rate for a 3016/78 creates a fundamental dis­ currency entails an adjustment of the tinction, as regards the rate of exchange monetary compensatory amounts and of the refunds fixed in advance, on the basis applicable to the transactions entered of the representative rate ruling at the into, depending on whether or not they time of the exportation. Where the involve the advance fixing of monetary refund and the compenstory amounts are compensatory amounts. That attitude has both fixed in advance at a time when a no economically defensible basis. new representative rate is already known and entered into force after the advance fixing, the monetary compensatory amounts should, pursuant to Article 7 (1) of Regulation No 243/78, undergo Traders who availed themselves of the compulsory adjustment; accordingly, it possibility offered by Regulation No follows that the refund must also be 243/78 to safeguard their export adjusted in order to ensure the general transactions have been denied any equilibrium of the system, as the adjustment of the amounts fixed in Commission has, moreover, expressly advance whereas traders who did not fix laid down in Regulation No 1516/78. the monetary compensatory amounts in advance have had the benefit of an adjustment thereof and of the export refund. It is contrary to the principle of non-discrimination for traders who, The effect of paragraph X of the Annex anticipating speculative gains and to Regulation No 3016/78 is to make accepting risks, have forgone the security the date on which the exportation is

Since the monetary compensatory Regulation No 243/78 does not preclude amounts and the refund are linked application of the previous rules relating within the general price system of the to refunds fixed in advance in circum­ common agricultural policy, Regulation stances where the monetary com­ No 3016/78 is invalid in so far as its pensatory amount is also fixed in result is either to repeal Article 7 (1) of advance. That regulation was adopted in Regulation No 243/78, although no such order to protect traders against risks repeal is mentioned in Regulation No deriving from the fluctuation of a 3016/78, or to dissociate compensatory currency on the exchange market, amounts from refunds, with an without any alteration of the represen­ adjustment being made in one case and tative rate for that currency being made. not in the other. It runs counter to the effectiveness of the system of advance fixing, which should enable the trader to be certain, when concluding a contract, of the economic conditions under which it will be performed, to freeze the refund and the (b) The system introduced by Regu­ compensatory amounts fixed in advance, lation No 1134/68, supplemented by when an alteration of the representative Regulation No 878/77 and not amended rate causes one of the components of the by Regulation No 243/78, is based on contract, namely the purchase price of the notion that, since certain factors the product, to undergo an increase. serving as a basis for contracts may undergo changes which traders have been unable to foresee, it is necessary to adapt them, by making adjustments to the monetary compensatory amounts and refunds fixed in advance, to the new The Commission certainly intended economic situation created by the entry Regulation No 3016/78 to extend to into forte of the new representative rate cases where an alteration of the rep­ or by an alteration of that rate, or indeed resentative rate involves no disadvantage by both factors at once. In the event of for traders. In the sugar sector, every an alteration of the representative rate alteration of the representative rate for a currency, such measures enable a affects the purchase price and involves

Therefore there are grounds for The compulsory adjustment of the contesting the validity of Regulation No compensatory amounts fixed in advance 3016/78 which, without stating specific which was imposed upon the reasons, provides for adjustment of Commission by Article 7(1) of Regu­ compensatory amounts fixed in advance lation No 243/78 was in this case on the basis of a rate which was decided certainly made at the time of the events upon but which never came into effect. of 1 July 1979, but the adjustment was made on a contestable basis. The Commission, for its part, takes the view that consideration of the questions referred to the Court discloses no factor Article 7 (1) of Regulation No 243/78 of such a nature as to affect the validity lays down two conditions for the of Regulation No 3016/78 as regards the adjustment of monetary compensatory provisions of paragraph X (a) of the amounts: a new representative rate must Annex thereto. have been decided upon at the time of the advance fixing and the new rate must come into effect. On 1 July 1979, the new representative rate decided upon The statement of reasons on which Regu- was that provided for by Regulations lation No 3016/78 is based Nos 976/78 and 643/79, whereas the rate which took effect on that date is the one referred to in Regulation No (a) It is immediately apparent from the 1266/79. The Commission adjusted the decisions of the Court that the extent of compensatory amounts fixed in advance the obligation to state the reasons on by the application of a rate which did which a measure is based, embodied in

Article 190 of the EEC Treaty, depends be taken into consideration is made in on the nature of the measure in question accordance with objective criteria which and on the context in which it is vary according to each situation. adopted. The requirements of Article 190 are satisfied provided that the reasons stated explain the essential aspects of the Where a trader has obtained advance rules adopted by the institutions; it is not fixing both of the refund and of the possible to require the statement of compensatory amount the situation in his reasons on which a regulation is based case is different from two other specifically to cover all the details, which situations which may be envisaged in the are frequently numerous, which may be case of an alteration of the representative embodied in such a measure. rate of a currency, namely the advance fixing of the refund only or the total absence of any advance fixing. The fact In the field of agriculture in particular, a that Regulation No 3016/78 makes no statement of reasons, however laconic it provision, in the first of the cases may be, must be considered and assessed mentioned above, for any adjustment within the framework of the body of may not be regarded as a breach of the rules of which the measure in question principle of equality of treatment. forms an integral part. Likewise, the fact that Article 7 (1) of Regulation No 243/78 imposes the requirement of an adjustment of the monetary compensatory amounts only in (b) Regulation No 3016/78 was the case of double advance fixing reflects adopted by way of derogation from a concern to ensure fairness. Regulation No 878/77, pursuant to Article 4 (3) of the latter; when Regu­ lation No 976/78 inserted the latter provision in Regulation No 878/77, it A trader who, like the plaintiffs in the stated the reasons at length in the main actions, has availed himself of the penultimate recital in its preamble. opportunity to project himself, by means of advance fixing, against unfavourable monetary developments is not entitled to Since the essential considerations re­ plead, in order to justify an application garding the need to provide for the for an adjustment, that the reduction of possibility of a derogation were set out the representative rate has ultimately in that way, the Commission was under been disadvantageous to him. Advance no obligation to give further details, in fixing always involves a risk, which the the preamble to Regulation No 3016/78, trader is in no way obliged to take, but if of the measures adopted in the 19 cases the risk materializes he must bear the provided for in the Annex thereto. consequences.

known in the case of exportation: The No 243/78 but to implement Council Commission therefore had to use, in that Regulation No 878/77; it was therefore sector, the powers conferred on it by the adopted in conformity with the Council Council in order to specify precisely the measure. By contrast, in the case of operative event to be used for the fixing Regulations Nos 3016/78 and 243/78, of the exchange rate. both adopted by the Commission, neither takes precedence. In the case of the system provided for in paragraph X (a) of the Annex to Regu­ lation No 3016/78, comparison with the system applicable to other agricultural products is possible only with respect to Moreover, from the substantive point of common organizations which, as far as view, there is no discernible con­ export refunds are concerned, are, as in tradiction between the rules laid down the case of sugar, based on a system of by the Commission by means of those tenders. The only system characterized two regulations: Regulation No 3016/78 by this twofold condition is the system may indeed exclude the possibility of an applicable in the cereals sector. In that adjustment but Regulation No 243/78 sector, two different systems are applied creates that possibility, on a compulsory at present, depending on the type of basis, in one case only, which is certainly exportation involved. Most cereals not comparable, or else on a merely exports are effected on the basis of optional basis. refunds awarded by tender. To date, the Commission has not seen fit, in the case of cereals, to adopt any measure dero­ gating from Regulation No 1134/68: The amounts fixed in advance in national currency are therefore, in the event of a change in the parity, adjusted III — Oral procedure when the exportation is actually carried out. The Commission is however preparing a draft regulation making provision, in the case of export refunds with advance fixing of monetary At the sitting on 8 July 1982 oral compensatory amounts in the cereals argument was presented and replies to sector, for a system analogous to that questions put by the Court were given on provided for in paragraph X (a) of the behalf of the plaintiff companies in the Annex to Regulation No 3016/78. main actions by Lise Funck-Bretano, of the Paris Bar, assisted by Alain Rozan, The definition adopted in paragraph X an expert and manager of Société pour (a) has now been adopted by l'Exportation des Sucres, Antwerp, and Commission Regulation No 1003/81 of for the Commission, represented by its 10 April 1981 defining the operative Legal Adviser, Jean-Claude Séché, event in the case of the sale of cereals assisted by Joachim Heine, expert and and rice held in store by intervention head of division in the Directorate for agencies (Official Journal 1981, L 100, p. Agricultural Legislation of the Direc­ 11). torate General for Agriculture. Compatibility of Regulation No 3016/78 with Regulation No 243/78

2 It appears from the file on the case that Jean Lion et Cie, the plaintiff in the main action which is the subject of Case 292/81, exported sugar during the sugar marketing year 1979 to 1980 and for that purpose obtained, between 7 February and 13 June 1979, from the competent national body, the Fonds d'Intervention et de Régularisation du Marché du Sucre [Sugar Market Intervention and Stabilization Fund — hereinafter referred to as "the Fund"] export certificates for sugar intended for non-member countries, with advance fixing, by a tendering procedure, of export refunds and advance fixing of the monetary compensatory amounts. After the issue of those cer­ tificates, the Community lowered the representative rate for the French franc (the so-called "green rate") and increased the intervention price for sugar, both of which measures took effect on 1 April 1979 (Regulation No 1266/79 of 25 June 1979, Official Journal 1979, L 161, p. 4, and Regulation No 1288/79 of 25 June 1979, Official Journal 1979, L 162, p. 1).

3 The plaintiff Jean Lion et Cie, considering that by means of those unfore­ seeable measures the Community institutions had changed the financial conditions for exports covered by the certificates at issue, submitted an application to the Fund for supplementary refunds for the exports of sugar which it had effected, so as to take account of the devaluation of the "green franc" and of the increased intervention price. Since the Fund did not respond to that application, the plaintiff brought an action against that implied decision of rejection before the Tribunal Administratif. In its defence, the Fund stated that it had merely applied the existing Community rules and the plaintiff challenged the validity of those rules, in so far as they contained no provisions allowing refunds to be adjusted for the benefit of undertakings which had availed themselves of the opportunity to obtain advance fixing.

Is Regulation (EEC) No 3016/78 of 20 December 1978 valid with regard to the provisions contained in Article 190 of the Treaty of Rome?

Does it incorporate into the Community rules discriminatory measures such as to make them invalid?

Does it conflict with the provisions of Regulation (EEC) No 243/78 of 1 February 1978 providing for the advance fixing of monetary compensatory amounts, in relation to which it constitutes a measure of adaptation?

6 It is appropriate in the first place to examine the third question, which concerns the substantive validity of the provision in question, in so far as the answer to that question affects the answer to the first question, which concerns the statement of the reasons on which that provision is based.

JUDGMENT OF 28. 10. 1982 — JOINED CASES 292 AND 293/81

The third question

9 It is not disputed that by adopting the contested provision contained in Regulation No 3016/78 the Commission acted within the limits of the powers conferred on it within the framework, on the one hand, of the common organization of the markets in the sector in question and, on the other, of the provisions of the regulations applicable in the case of an alteration of the value of the unit of account and in the case of an adjustment of the agricultural prices referred to in Regulation No 1134/68 of the Council of 30 July 1968 (Official Journal, English Special Edition 1968 (II), p. 396) as subsequently amended by Council Regulation No 878/77 of 26 April 1977 (Official Journal 1977, L 106, p. 27) and No 976/78 of 12 May 1978 (Official Journal 1978, L 125, p. 32), to which reference is made, directly or indirectly, in the preamble to the regulation in question.

LION AND LOIRET & HAENTJENS v FIRS

11 The choice of that day by the Commission is not open to dispute. That decision is wholly in conformity with the aim of the advance fixing procedure, in so far as the purpose of the contested provision is precisely to define the exporter's position at the time of tendering, so as to eliminate the element of uncertainty to which the exporter would be subject as a result of the application of the refund in force on the day of exportation. The Commission has rightly emphasized that since that position is determined in national currency the exporter is not thereby exposed to any exchange risk regarding the amount of the refund, which is adjusted upwards or downwards according to the circumstances on the basis of the monetary compensatory amount. It is to be noted that specifically by virtue of the reference contained in paragraph X (a) of the Annex to Regulation No 3016/78, there can be no discrepancy, in that regard, between that regu­ lation and Regulation No 243/78, since the applicable monetary compensator)' amount is, by virtue of Article 6 (2) of the latter regulation, also the amount in force on the last day of the period for the submission of tenders.

12 It must therefore be stated that in any case there is no conflict between the two regulations referred to in the third question submitted by the Tribunal Administratif.

13 However, the plaintiffs claim that the advance fixing of the refunds and compensatory amounts does not provide complete security for traders since

JUDGMENT OF 28. 10. 1982 — JOINED CASES 292 AND 293/81

14 These arguments put forward by the plaintiffs are based on a misunder­ standing of the machinery of the Community regulations and, more par­ ticularly, of the intervention machinery. The object of the latter is to maintain market prices at the desired level by the imposition on the intervention agencies of the obligation to accept sugar subject to the differences in system, depending on whether it is classified as "A", " B " or " C " sugar, in regard to the intervention price, but not to give producers a guarantee that they will obtain that price in every one of their transactions, still less to force purchasers to amend their contracts in the event of a change in the intervention price or in the rate of exchange. Determination both of the selling price on export and of the purchase price for the sugar is a matter of free choice and therefore a risk to be borne by the undertakings concerned. The existence of such a risk or of obligations resulting from trade agreements cannot therefore justify any adjustment of the amounts fixed on the basis of Community regulations in the form, in particular, of export refunds. That argument, put forward by the plaintiffs in the main actions, must therefore be rejected.

LION AND LOIRET & HAENTJENS v FIRS

15 It is clear from the foregoing that consideration of the third question submitted by the Tribunal Administratif has disclosed no factor of such a nature as to affect the validity of Regulation No 3016/78.

The first question

16 The first question submitted by the Tribunal Administratif seeks to determine whether Regulation No 3016/78 is valid, regard being had to the requirement imposed by Article 190 of the EEC Treaty that the reasons on which measures are based must be stated.

JUDGMENT OF 28. 10. 1982 — JOINED CASES 292 AND 293/81

for the application of the conversion rates with respect to the 32 different categories of economic or administrative transactions within the framework of the common organization of the market in sugar. If the contested measure clearly discloses the essential objective pursued by the institution, it would be going too far to insist upon a specific statement of reasons for each of the technical choices for which it provides. Moreover, it is clear from the foregoing that the Commission's choice, for the determination of export refunds, of the last day of the period for the submission of tenders is perfectly consistent with the scheme of the system as a whole.

20 It is apparent from the foregoing that the plaintiffs must have been in a position to realize the underlying reasons for the provisions which they allege to be unjustified and that they had the opportunity to decide, with full knowledge of the facts, upon how to defend their rights.

21 The validity of Regulation No 3016/78 cannot therefore be contested on the ground of infringement of the requirement imposed by Article 190 of the Treaty that the reasons upon which a measure is based must be stated.

The second question

22 The second question submitted by the Tribunal Administratif seeks to determine whether Regulation No 3016/78 is vitiated by discriminatory measures which render it invalid. It is apparent from the explanations given by the plaintiffs that the second question stems from a twofold objection raised before the Tribunal Administratif: on the one hand, the plaintiffs complain that the Commission has created special rules applicable to the sugar market without adopting parallel provisions for other market sectors; on the other hand, they claim that the Commission has made no provision for any adjustment of the refunds in favour of traders who opted for advance fixing, and therefore for certainty in their dealings, whilst for other traders the conversion rate which is valid on the day of the exportation is auto­ matically applied.

26 It is apparent therefore that the complaint of discrimination raised by the plaintiffs is without foundation and that the validity of Regulation No 3016/78 cannot be called in question in that regard.

27 It follows from the foregoing that consideration of the questions submitted by the Tribunal Administratif has not disclosed any factors of such a nature as to affect the validity of the contested regulation.

JUDGMENT OF 28. 10. 1982 — JOINED CASES 292 AND 293/81

Costs

28 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 actions are concerned, in the nature of a step in the actions pending before the national court, the decision on costs is a matter for that court.

On those grounds,

H. A. Rühi A. Chloros Principal Administrator President of the Second Chamber