C-170/82

defendant,

on the one hand, on the interpretation of the provisions of Community law relating to the determination of the free-at-frontier reference and offer prices upon the importation into a Member State of wines from a non-member country and on the effect of the monetaiy compensatory amounts on those price mechanisms and, on the other hand, on the compatibility with Community law of an agreement by which the defendant undertook to pay over the monetary compensatory amounts received by it to the plaintiff,

THE COURT (Third Chamber)

composed of: U. Everling, President of Chamber, Lord Mackenzie Stuart and Y. Galmot, Judges,

Advocate General: P. VerLoren van Themaat Registrar: J. A. Pompe, Deputy Registrar

gives the following

The facts, procedure and the written Up to and after the beginning of 1978 observations submitted in pursuance of Ramel complied with these contractual Article 20 of the Protocol on the Statute stipulations and regularly paid the sums of the Court of Justice of the European due under the clause cited above by way Economic Community may be of monetary compensatory amounts. summarized as follows: However, as from May 1978, whilst paying the price agreed under the I — Facts and written procedure contracts, it refused to pay over to the Office National the sum representing the Following the delivery of wines to the monetary compensatory amounts, basing company Les Fils d'Henri Ramel (here­ its attitude on the fact that such payment inafter referred to as "Ramel"), whose was contrary to the Community rules, registered office is at Charnoz, by the and in particular to the rules relating to Office National de Commercialisation the determination of the free-at-frontier des Produits Viti-Vinicoles [National reference price, and that the clause cited Office for the Marketing of Wine above was both illegal and void. In the Products] (hereinafter referred to as "the face of Ramel's refusal to continue to Office National"), an Algerian public pay over to it the sum in respect of the industrial and commercial undertaking monetary compensatory amounts the responsible, amongst other things, for Office National sued it before the the marketing of wines produced in Tribunal de Commerce [Commercial Algeria, the Office National submitted to Court], Bourg-en-Bresse, in order to Ramel invoices corresponding to obtain payment of the amounts in monetary compensatory amounts in the question. sums of FF 623 698.90 and FF 72 670.35 respectively which Ramel had in fact received. By judgment of 11 June 1982 that court stayed the proceedings and decided to The contracts pursuant to which those refer to the Court of Justice the deliveries had been made provided under following two questions for a pre­ the heading "Agreed prices": "It is liminary ruling : agreed that any sum arising from a monetary compensatory amount granted by ONIVIT shall be paid by the buyer (1) Is a sales organization in a Maghreb directly into the account of the seller on non-member country entitled to the basis of a supplementary invoice export wines to a Member State of made out for that purpose. As the the Community at import prices compensatory amount is fixed on the lower than the reference price, day of importation, the buyer undertakes without any customs duties, at full or to inform the seller of that amount reduced rate, being levied on those immediately upon clearance through wines? customs and for that purpose ,to forward to it a copy of the document DRANCEE If not, may it, in order to avoid the completed by the Customs Adminis­ application of that rule, stipulate in tration at the place of destination." its contract with an importer in a

The supplementary invoices relate to the Upon hearing the report of the Judge- sum representing the monetary com­ Rapporteur and the views of the pensatory amounts received by the Advocate General, the Court decided to importer, provided that the exact total of open the oral procedure without any the said amounts is known. preparatory inquiry.

By order of 1 December 1982 the Court The Office National and Ramel were, decided, in pursuance of Article 95 (1) however, invited to reply, before the and (2) of the Rules of Procedure, to hearing, to the following question: assign the case to the Third Chamber.

JUDGMENT OF 28. 4. 1983 — CASE 170/82

II — Summary of the written Algeria with the free-at-frontier offer observations submitted to price fixed having regard to the factors the Court to be taken into consideration (price of the wine, transportation costs, customs 1. Ramel, the defendant before the duty, incidental expenses), with the Tribunal de Commerce, Bourg-en- exception of the monetary compensatory Bresse, states that in practice the Office amounts which the Member State of National used to make out several export, importation may grant to the trader invoices, including in particular: importing wines from that country.

An official invoice including the amount In its view the device conceived by the of the delivery price of the wines — free- Office National takes no account of at-frontier reference price — intended those rules and has the effect of allowing for the customs authorities of the the importation of wines at a price lower country of importation. than the free-at-frontier price.

ONCV v RAMEL

13 February 1980 (Case 74/79 Office de country from procuring the payment Commercialisation et d'Exportation [1980] over to it by the Community importer of ECR 239) are different from the the monetary compensatory amounts situation in this instance since underlying received by the latter. Thus, as the Court the case which was then submitted for ruled in its judgment of 13 February the Court's consideration was the 1980 (Case 74/79 cited above), "the premise that the parties had complied question whether the gain derived from a with the free-at-frontier reference prices. monetary compensatory amount must be repaid by che trader who carries out the customs formalities to the party with whom he contracts comes within the That is why, according to Ramel, the sphere of contractual relations and not Court is invited to give the following of Community law". answer to the questions submitted to it:

In the opinion of the Office National there is, moreover, no point in the 2. The Office National, defendant Court's answering the preliminary before the Tribunal de Commerce, question as formulated. The logic of that Bourg-en-Bresse, contends that there is preliminary question is founded, on the no provision of Community law which one hand, on the idea that the contracts prohibits an exporter of a non-member concluded between Ramel and the Office

JUDGMENT OF 28. 4. 1983 — CASE 170/82

practical significance. rule on the Community reference price. For that purpose the Office National sets The reason for this, according to the out the applicable rules and, as regards Office National, is in the first place that more particularly wine-growing, relies all the contracts at issue were performed on the provisions of Article 17 (3) of in the normal manner and the imports of Regulation No 1380/75 of the Algerian wines were submitted in due Commission of 29 May 1975 (Official form to the French customs authorities Journal, L 139, p. 37) as amended by

price : the 80% reduction in customs duties which is granted in respect of the impor (a) in the case of appreciation of the tation of Algerian wines, would have to currency of the importing Member bear customs duties at the full rates and State, increased or pay the charges imposed by the Community rules. The Office National (b) in the case of depreciation of that stresses that in the matter of imports currency, reduced Community law is of direct concern only by the amount referred to in the to the trader who is in contact with the following subparagraph is not less than customs authorities of a Member State. the free-at-frontier reference price. Accordingly, and in any event, the only effect of a failure to comply with the The amount referred to in the preceding free-at-frontier reference price is that subparagraph is the monetary certain obligations are laid upon Ramel compensatory amount applicable in when the goods enter the territory of the intra-Community trade." Community but such failure can have no effect whatsoever on the validity of the In the opinion of the Office National, contract between the Office National when the importer receives monetary and Ramel. compensatory amounts, which will be deducted from the price paid to the For these reasons the Office National exporter in the non-member country, takes the view that there are no grounds and retains the benefit of those amounts, for the Court to give a ruling on the the real cost of the transaction then

becomes equal to the price stipulated in Community law thereby raised has the contract less the sums paid by way of no bearing upon the scope of the the monetary compensatory amounts. As contractual obligations of the parties; it is impossible for the exact sum of these amounts, which by their nature fluctuate, (c) In any event the obligation imposed to be known on the day on which the upon Ramel to pay over to the contract is concluded, the only way of Office National the monetary observing the free-at-frontier reference compensatory amounts received in price, in respect of a sale which is respect of the contracts with the intended to take place at the lower limit, latter is not in conflict with the is to frustrate the effect of the positive Community rules. On the contrary, monetary compensatory amounts by it is a lawful means of ensuring that stipulating that the price of the the free-at-frontier reference price is transaction is to be broken down on the observed. one hand into a predetermined element (the free-at-frontier reference price) and, on the other hand, into a sum to be 3. The Commission considers that the calculated later, namely the monetary preliminary questions submitted to the compensatory amount established on the Court may be examined from two points day of importation. In this way it will of view: not be possible for the charge on im­ portation borne by the Community On the one hand, as regards the importer to be lower than the level laid provisions relating to the rules on wine­ down by the Community provisions. growing and to the system applicable to the imports at issue; Thus the Office National considers that the clause providing for repayment of On the other hand, as regards the scope the monetary compensatory amounts of the contractual relations between the received by the importer, far from sales organization of the non-member constituting a "breach" of Community country and the French importer. law, is a lawful means of ensuring that the free-at-frontier reference price is (a) So far as the applicable provisions observed and of conferring effectiveness of Community law are concerned, these on the Community rules. consist, having regard to the date of the imports in question (1978), of the Accordingly the Office National following: considers that the question submitted by the court making the reference should be In respect of the system applicable to answered as follows: imports of wines, Regulation No 816/70 of the Council of 28 April 1970 (Official Journal, English Special Edition 1970 (I), (a) The parties are free to stipulate p. 234) which provides for the annual contractually that Ramel is to pay fixing of a reference price established on over to the Office National the the basis of the "guide prices" for the compensatory amounts received in types of wine most representative of respect of the contracts with, the Community production, increased by the latter; costs incurred by bringing Community wines to the same marketing stage as (b) There is no need to answer the pre­ imported wines. Those reference prices liminary question submitted to the form part of the system of trade with Court in so far as the problem of non-member countries and, in that

context, constitute one of the means (b) As regards the scope of the con­ available to the Community for the tractual relations between the seller in purpose of avoiding disturbances on the the non-member country and the internal market in wine products which importer, the Commission refers to Case are caused by offers made on the world 74/79, cited above, in which the Court market at abnormal prices. Where the held that the Community rules in the free-at-frontier offer price of a wine, agri-monetary sector in relation to plus customs duties, is lower than the monetary compensatory amounts are reference price, a countervailing charge concerned only with the relationship equal to the difference between them is between the trader and the public levied. Furthermore, as regards imports authority which levies or grants the from Algeria, Council Regulation No monetary compensatory amount and that 1287/76 of 28 May 1976 (Official to go beyond those provisions is to enter Journal, L 141, p. 1) reduced by 80 % the field of contractual relations which customs duties in respect of imported are governed by national law. As a wines of current consumption; result, the question whether the benefit of the monetary compensatory amount must be paid over by the trader to the party with whom he contracts comes As regards the effect of the monetary within the sphere of contractual relations compensatory amounts on the obser­ and not of Community law. vance of the reference prices of wines upon importation, Article 17 (3) (cited above) of Regulation No 1380/75 of the Commission of 29 May 1975, as amended by Commission Regulation No It follows, according to the Commission, 1577/76 of 30 June 1976 (cited above). that Ramel may not, for the purpose of establishing the unlawful nature of the contract binding it to the Office National, rely on an alleged breach of The Commission concludes from this, on Community law by the clause at issue, as the one hand, that the free-at-frontier that clause is not covered by Community prices are considered as complied with law. provided that, in the case of the imported wine, the offer price expressed in French francs, less the negative monetary compensatory amount, is not Accordingly, the Commission proposes lower than the free-at-frontier reference that the court should answer the price, itself converted into French francs questions submitted by the court making at the green rate, and, on the other the reference as follows : hand, that it is the importer who is responsible for producing, when the customs formalities take place, a contract in which the offer complies with these conditions, and finally that the price to "Upon importation from non-member be adopted is in fact that stipulated in countries of products coming within the the contract and made up by the price wine sector, the free-at-frontier initially invoiced plus the monetary reference prices are to be considered as compensatory amount granted by observed whenever, for the product ONIVIT in pursuance of the contractual concerned, the offer price, plus the clause at issue. That clause is therefore positive monetary compensatory amount not contrary to Community law. or less the negative monetary com-

Mr Séché, representing the Commission Apart from this, Ramel repeats its in the capacity of Agent, submitted conclusions and still considers that the observations which slightly modified the result of this "hybrid" system was that conclusions which the Commission had the free-at-frontier offer price, as reached in its written observations. invoiced, was lower than the free-at- frontier reference price at the time of importation into France, as the import­ The new conclusions of the Commission ation did not comply with the reference may be summarized as follows:

JUDGMENT OF 28. 4. 1983 — CASE 170/82

Decision

1 By judgment of 11 June 1982, received at the Court on 21 June 1982, the Tribunal de Commerce [ Commercial Court ], Bourg-en-Bresse , referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions relating , on the one hand , to the interpretation of the provisions of Community law concerning the determination of the free-at-frontier ref­ erence offer prices upon importation into a Member State of wines from a non-member country and to the effect of monetary compensatory amounts on those price mechanisms (in particular , Regulation No 816 / 70 of the Council of 28 April 1970 (Official Journal , English'Special Edition 1970 ( I ), p . 234) and Regulation No 1380 / 75 of the Commission of 29 May 1975 (Official Journal , 1975 , L 139, p . 37 ), as amended by Commission Regu-

ONCV v RAMEL

lation No 1577/76 of 30 June 1976 (Official Journal, 1976, L 172, p. 57) and, on the other hand, to the compatibility with Community law of a clause in a contract between two traders providing for the passing-on of monetary compensatory amounts.

2 Those questions are raised in the context of a dispute between the Office National de Commercialisation des Produits Viti-Vinicoles [National Office for the Marketing of Wine Products] (hereinafter referred to as "the Office National"), an Algerian public industrial and commercial undertaking responsible, amongst other things, for the marketing of wines produced in Algeria and the limited liability company Les Fils d'Henri Ramel (hereinafter referred to as "Ramel") whose registered office is at Charnoz Meximieux.

"(1) Is a sales organization in a Maghreb non-member country entitled to export wines to a Member State of the Community at import prices lower than the reference price, without any customs duties, at full or reduced rate, being levied on those wines?

If not, may it, in order to avoid the application of that rule, stipulate in its contract with an importer in a country which belongs to the EEC that the monetary compensatory amounts received upon importation are to be paid over to it, in order to enable it subsequently to prove to the Community that its invoice price accords with the reference price?

(2) May the monetary compensatory amounts received by the importer in an EEC country be included in that reference price?

If not, what value should be attributed to an agreement between a sales organization in a Maghreb non-member country and a French importer obliging the latter to transfer the compensatory amounts to the former in order to prove compliance with the reference price?"

The submissions as to inadmissibility presented by the Office National

7 The Office National has maintained that, in view of the threefold circumstance that no breach of the Community rules has been committed or ascertained, that any failure to observe the Community reference price would have no effect on the scope of the parties' contractual commitments and that therefore the answer to the question raised would in any event be irrelevant to the resolution of the dispute, there are no grounds for the Court to answer the preliminary question as formulated by the court making the reference.

11 Furthermore, by virtue of Article 13 of the Interim Agreement between the European Economic Community and the Democratic People's Republic of Algeria, annexed to Council Regulation (EEC) No 1287/76 of 28 May 1976 (Official Journal 1976, L 141, p. 1) the reduction in customs duties on the importation into the Community of wines of fresh grapes originating in Algeria is also subject to the requirement that the import prices must not be less than the Community reference prices.

12 It follows from an examination of these provisions, taken together, that the answer to the question set out above must be that those provisions prevent a

JUDGMENT OF 28. 4. 1983 — CASE 170/82

sales organization of a non-member country, such as Algeria, from exporting wines to a Member State of the Community at a free-at-frontier offer price lower than the reference price relating to those wines. In such a case, a countervailing charge equal to the difference between the reference price and the free-at-frontier offer price should be levied.

The answers to be given to the other questions put by the court making the reference

13 It seems to the Court that the second part of the first question and both parts of the second question raise the problem of the effect of monetary compensatory amounts on the price mechanisms examined earlier and on the conformity with Community law of the contractual provisions which are the subject-matter of the dispute. As these preliminary questions are closely related it is proper for the Court to examine them together and rule upon them by way of a single answer.

15 If follows from that provision that the monetary compensatory amounts must, depending on whether there has been an appreciation or depreciation of the currency of the importing Member State, be respectively added to or

ONCV v RAMEL

deducted from the free-at-frontier offer price and that, for the provisions of Community law to be complied with, the resulting figure must be higher than or equal to the free-at-frontier reference price.

16 In the case in point, it emerges from the written observations of the parties, as explained in greater detail in the course of the oral procedure, that the Office National would initially invoice to Ramel, upon importation, the free- at-frontier reference price, deemed to be known at the time of the transaction, and that Ramel would promptly pay that first invoice. Later, when the monetary compensatory amounts relating to the transaction were known precisely, the Office National would send Ramel a supplementary invoice relating to the sum representing the monetary compensatory amounts received by the latter.

17 In those circumstances, where the importation was carried out in a country whose currency had depreciated, the free-at-frontier offer price had at least to be equal to the free-at-frontier reference price increased by the monetary compensatory amounts relating to that importation in respect of a transaction which the traders wished to effect at the minimum price.

18 It follows that if the free-at-frontier offer price is equal to or higher than the free-at-frontier reference price plus the monetary compensatory amounts and if that price is immediately paid by the importer, the contractual provisions concerning the payment over of the monetary compensatoiy amounts by the French importer to the Algerian exporter do not fall within the field of Community law but within the ambit of the contractual relations governed by national law, as the Court has already held in its judgment of 13 February 1980 in Case 74/79 Samavins [1980] ECR 239.

21 The answer to the second part of the first question and to both parts of the second question put by the court making the reference should therefore be that where a transaction is carried out at the minimum price, the provisions of Article 17 (3) of Regulation No 1380/75, in the amended version set out in Article 1 of Regulation No 1577/76, are to be interpreted as meaning that if, at the time of importation, the importer has paid only a sum equal to the free-at-frontier reference price whereas the transaction must be carried out on terms under which the free-at-frontier offer price is equal to the free-at- frontier reference price plus the monetary compensatory amounts, the payment over by the French importer to the Algerian exporter of a sum representing the monetary compensatory amounts when the latter are known exactly is a necessary condition for compliance with the provisions of Community law cited above, and that, consequently, in that case, a con­ tractual provision for the transfer of the sum representing those monetary compensatory amounts cannot be regarded as contrary to Community law the observance of which it is, on the contrary, designed to ensure.

Costs

22 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court are not recoverable. As the 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 (Third Chamber),

2. Where the transaction is carried out at the minimum price, the provisions of Article 17 (3) of Regulation No 1380/75, in the amended version set out in Article 1 of Regulation No 1577/76, are to be interpreted as meaning that if, at the time of importation, the importer has paid only a sum equal to the free-at-frontier reference price whereas the transaction must be carried out on terms under which the free-at-frontier offer price is equal to the free-at-frontier reference price plus the monetary compensatory amounts, the payment over by the French importer to the Algerian exporter of a sum representing the monetary compensatory amounts when the latter are known exactly is a necessary condition for compliance with the provisions of Community law cited above, and that, consequently, in that case, a contractual provision for the transfer of the sum representing those monetary compensatory amounts cannot be regarded as contrary to Community law the observance of which it is, on the contrary, designed to ensure.

Everling Mackenzie Stuart Galmot

Delivered in open court in Luxembourg on 28 April 1983.

For the Registrar

H. A. Rühi U. Everling Principal Administrator President of the Third Chamber