1 BY ORDER DATED 21 SEPTEMBER 1971, RECEIVED AT THE COURT ON 5 OCTOBER 1971, THE HESSISCHES FINANZGERICHT RAISED UNDER ARTICLE 177 OF THE EEC TREATY THE QUESTION WHETHER THE PROVISIONS OF ARTICLE 20 OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ( JO 1962, NO 3 ) IN CONJUNCTION WITH ARTICLE 2 OF REGULATION NO 90 OF THE EEC COMMISSION OF 25 JULY 1962 ( JO 1962, NO 66 ) ENABLE MEMBER STATES TO FIX, WITH REGARD TO THE EXPORT OF CEREALS TO THIRD COUNTRIES, RATES OF REFUND DIFFERING FROM ONE COUNTRY TO ANOTHER .
2 ARTICLE 20 ( 2 ) OF REGULATION NO 19/62 PROVIDES THAT " IN ORDER TO ALLOW EXPORT TO THIRD COUNTRIES ON THE BASIS OF WORLD MARKET RATES THE DIFFERENCE BETWEEN THE PRICES OF THE EXPORTING MEMBER STATE MAY BE COVERED BY A REFUND ". UNDER THE EXPRESS TERMS OF THIS PROVISION MEMBER STATES WERE FREE TO FOREGO MAKING ANY GRANT AND THIS FREEDOM IMPLIES THE ENTITLEMENT TO ADD FURTHER CONDITIONS FOR THE GRANT OF THE REFUND PROVIDED FOR BY THE COMMUNITY RULES .
3 IT APPEARS, MOREOVER, FROM THE SECOND AND THIRD RECITALS TO REGULATION NO 90/62 ON REFUNDS APPLICABLE TO EXPORTS OF CEREALS THAT THE CONDITIONS UNDER WHICH THEY COULD BE GRANTED WERE ON THE ONE HAND TO MAKE POSSIBLE THE EXPORT OF THESE PRODUCTS TO THIRD COUNTRIES AND ON THE OTHER TO AVOID COMPETITION BETWEEN PRODUCERS IN MEMBER STATES FROM BEING DISTORTED ON THE WORLD MARKET . TO THIS END THE AFORESAID REGULATION LAID DOWN A GENERAL RULE LIMITING THE AMOUNT OF REFUND SO AS TO PREVENT MEMBER STATES FROM OUTBIDDING ONE ANOTHER IN THE MATTER OF REFUNDS, WITHOUT, HOWEVER, AFFECTING THE FREEDOM OF EACH MEMBER STATE TO USE IN FIXING THE REFUND RATES MORE RESTRICTIVE CRITERIA THAN THOSE PROVIDED FOR BY THE COMMUNITY RULES .
4 ALTHOUGH UNDER ARTICLE 7 ( 2 ) OF REGULATION NO 90/62 PARTICULARS OF EXPORT REFUNDS " SHALL BE NOTIFIED ACCORDING TO THE DESTINATION OF THE EXPORTS SEPARATELY IN RESPECT OF MEMBER STATES AND AS A TOTAL IN RESPECT OF EXPORTS TO THIRD COUNTRIES ", IT CANNOT BE INFERRED FROM THIS THAT IN THE LATTER CASE THE MEMBER STATES DID NOT HAVE THE RIGHT TO GRANT REFUNDS AT RATES OTHER THAN THOSE LAID DOWN BY THE COMMUNITY RULES . THE NOTIFICATIONS SERVED ONLY STATISTICAL PURPOSES AND WERE INTENDED TO ENABLE THE COMMISSION TO FOLLOW TRENDS ON THE CEREALS MARKET DURING A PERIOD IN WHICH THE MEASURES ESTABLISHING THE COMMON ORGANIZATION OF THE MARKET WERE GRADUALLY BEING IMPLEMENTED . ALTHOUGH DURING THIS IMPLEMENTATION PERIOD THE COMMISSION HAD AN INTEREST IN KNOWING THE COURSE OF TRADE WITHIN THE COMMUNITY BY REFERENCE TO EACH STATE SEPARATELY, IT WAS ENOUGH ON THE OTHER HAND FOR IT TO KNOW THE TOTAL QUANTITIES OF CEREALS EXPORTED TO THIRD COUNTRIES AND THE TOTAL AMOUNT OF REFUNDS GRANTED IN RESPECT OF THESE EXPORTS .
5 THE DISCRETION LEFT TO MEMBER STATES WHETHER OR NOT TO GRANT REFUNDS OR TO MAKE THE GRANT SUBJECT TO ADDITIONAL CONDITIONS IMPLIED DURING THE TRANSITIONAL PERIOD, DURING WHICH THE MEMBER STATES REMAINED COMPETENT IN MATTERS OF COMMERCIAL POLICY, THE POSSIBILITY OF GRANTING REFUNDS DIFFERING FROM ONE THIRD COUNTRY TO ANOTHER . IT IS THEREFORE RIGHT TO REPLY THAT THE PROVISIONS OF ARTICLE 20 OF REGULATION NO 19/62 AND IN CONJUNCTION WITH THOSE OF ARTICLE 2 OF REGULATION NO 90/62 ENABLE MEMBER STATES TO FIX RATES OF REFUND DIFFERING FROM ONE COUNTRY TO ANOTHER AND LOWER THAN THOSE PROVIDED FOR BY THE COMMUNITY REGULATIONS .
6 IT APPEARS FROM THE ORDER MAKING THE REFERENCE THAT THE QUESTION IN DISPUTE WHICH THE NATIONAL COURT HAS REFERRED TO THE COURT RELATES TO REFUNDS GRANTED IN THE FORM PROVIDED FOR BY ARTICLE 4 OF REGULATION NO 90/62 . SINCE THE FEDERAL REPUBLIC OF GERMANY AUTHORIZED THE IMPORT FREE FROM LEVY OF A QUANTITY OF MAIZE LESS THAN THE QUANTITY EXPORTED, THE PLAINTIFF OBJECTED THAT UNDER THE TERMS OF THE AFOREMENTIONED ARTICLE 4 THIS AUTHORIZATION COULD BE GRANTED ONLY IN RESPECT OF THE IMPORT OF A QUANTITY OF THE SAME PRODUCT EQUAL TO THE QUANTITY EXPORTED . IN ORDER TO ENABLE THE NATIONAL COURT TO RESOLVE THE PROBLEM WHICH IS BEFORE IT IS NECESSARY ALSO TO EXAMINE THE QUESTION RAISED IN THE LIGHT OF ARTICLE 4 OF REGULATION NO 90/62 .
7 UNDER THIS PROVISION THE REFUND MAY, IN DEROGATION FROM ARTICLE 2, BE GRANTED IN THE FORM OF AN AUTHORIZATION TO IMPORT FREE FROM LEVY A QUANTITY OF THE SAME PRODUCT EQUAL TO THE QUANTITY EXPORTED PROVIDED THAT THE EXPORT TAKES PLACE BEFORE THE IMPORT AND THE FREE-FROM-LEVY IMPORT IS EFFECTED DURING THE SAME MARKETING YEAR AND AT THE LATEST BEFORE THE EXPIRATION OF THE SECOND MONTH FOLLOWING THAT DURING WHICH THE EXPORT WAS MADE .
8 THE WORDING OF THIS PROVISION MAKES IT CLEAR THAT THE DEROGATION FROM ARTICLE 2 REFERS ONLY TO THE FORM IN WHICH THE REFUND MAY BE GRANTED AND DOES NOT AFFECT THE GENERAL SYSTEM OF THE REFUND AS DEFINED BY REGULATIONS NOS 19/62 AND 90/62 . ALTHOUGH THE REFUND IN THE FORM OF A FREE-OF-LEVY IMPORT DOES NOT INVOLVE, UNLIKE THAT REFERRED TO IN ARTICLE 2, ANY PAYMENT IN CASH, BOTH FOLLOW THE SAME OBJECTIVES AND LEAD TO THE SAME RESULT FROM THE ECONOMIC VIEW . THERE IS THEREFORE NOTHING TO JUSTIFY IN THE CASE OF ARTICLE 4 A LIMITATION ON THE DISCRETION LEFT TO MEMBER STATES BY REGULATIONS NOS 19/62 AND 90/62 TO ADD TO THE CONDITIONS FOR THE GRANT OF THE REFUND WHICH WERE PRESCRIBED BY THE COMMUNITY REGULATIONS .
9 MEMBER STATES WERE THEREFORE ENTITLED TO APPLY RATES OF REFUND LOWER THAN THOSE LAID DOWN BY REGULATION NO 90/62 BY AUTHORIZING, IN RESPECT OF EXPORTS TO THIRD COUNTRIES, FREE-OF-LEVY IMPORTS OF SMALLER QUANTITIES OF THE SAME PRODUCT THAN THE QUANTITIES EXPORTED .
10 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, 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 .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHES FINANZGERICHT BY ORDER OF THAT COURT DATED 21 SEPTEMBER 1971, HEREBY RULES :
1 . THE PROVISIONS OF ARTICLE 20 OF REGULATION NO 19/62 IN CONJUNCTION WITH THOSE OF ARTICLE 2 OF REGULATION NO 90/62 ENABLED MEMBER STATES TO FIX RATES OF REFUND DIFFERING FROM ONE THIRD COUNTRY TO ANOTHER AND LOWER THAN THOSE PROVIDED FOR BY THE COMMUNITY REGULATIONS;
2 . MEMBER STATES COULD IN THE CONTEXT OF ARTICLE 4 OF REGULATION NO 90/62 APPLY RATES OF REFUND LOWER THAN THOSE LAID DOWN BY REGULATION NO 90/62 BY AUTHORIZING IN RESPECT OF EXPORTS TO THIRD COUNTRIES, FREE-OF-LEVY IMPORTS OF SMALLER QUANTITIES OF THE SAME PRODUCT THAN THE QUANTITIES EXPORTED .
