1 BY ORDER OF 21 MARCH 1972 LODGED AT THE REGISTRY OF THE COURT ON 12 APRIL 1973 THE HESSISCHES FINANZGERICHT REFERRED TWO QUESTIONS PURSUANT TO ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE GRADUAL ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ 1962, NO 30 ).
2 THE FIRST QUESTION ASKS WHETHER ARTICLE 11 OF REGULATION NO 19/62 OF THE COUNCIL IS TO BE INTERPRETED IN SUCH A WAY THAT IN THE CALCULATION OF THE LEVY ON DURUM WHEAT THE TURNOVER EQUALIZATION TAX PAYABLE ON IMPORTS SHOULD HAVE BEEN TAKEN INTO ACCOUNT .
3 ARTICLE 11 ( 1 ) AND ( 2 ) OF REGULATION NO 19/62 LAYS DOWN THE CRITERION FOR CALCULATION WHICH ESTABLISHES THE AMOUNT OF THE LEVY TO BE APPLIED TO IMPORTS OF DURUM WHEAT INTO THE MEMBER STATES .
TO THIS END, THIS PROVISION STATES THAT AS REGARDS DURUM WHEAT THE AMOUNT OF THE LEVY SHALL BE EQUAL TO THE DIFFERENCE BETWEEN THE THRESHOLD PRICE IN THE IMPORTING MEMBER STATE AND THE FREE-AT-FRONTIER PRICE OF THE PRODUCT ON ARRIVAL FROM ANOTHER MEMBER STATE OR THE C.I.F . PRICE OF THE PRODUCT WHEN IMPORTED FROM THIRD COUNTRIES .
IN LAYING DOWN THE CRITERIA TO BE APPLIED TO THE FIXING OF THE THRESHOLD PRICE FOR DURUM WHEAT THE SAID ARTICLE 11 DOES NOT REPRODUCE THE PROVISIONS CONTAINED IN ARTICLE 4, RELATING TO THE CALCULATION OF THE THRESHOLD PRICE FOR IMPORTS OF COMMON WHEAT, BARLEY, MAIZE AND RYE, BUT PROVIDES THAT THE THRESHOLD PRICE FOR DURUM WHEAT SHALL BE FIXED BY THE MEMBER STATES, FOR AN IDENTICAL STANDARD OF QUALITY, AT A LEVEL NOT LESS THAN 5 PER CENT ABOVE THAT FOR COMMON WHEAT .
UNLIKE ARTICLE 4, ARTICLE 11 ( 4 ) PROVIDES THAT THE THRESHOLD PRICE FOR DURUM WHEAT SHALL BE FIXED IN RELATION NOT ONLY TO THE LEVEL OF THE TARGET PRICE BUT ALSO TO A MINIMUM DIFFERENTIAL BETWEEN THE THRESHOLD PRICE FOR THAT CEREAL AND THAT FOR COMMON WHEAT, BELOW WHICH FIGURE THE THRESHOLD PRICE FOR DURUM WHEAT MAY NOT BE FIXED .
ALTHOUGH THE PURPORT OF THIS RULE IS THAT THE AMOUNT OF THE LEVY CAN VARY IN VIEW OF FLUCTUATIONS IN WORLD PRICES AND OF THE THRESHOLD PRICE, PROVIDED THAT THESE VARIATIONS OCCUR ABOVE THE BEFORE-MENTIONED MINIMUM DIFFERENTIAL, A DECREASE IN THE LEVY DUE TO ACCOUNT BEING TAKEN OF INEVITABLE MARKETING COSTS, SUCH AS THE TURNOVER EQUALIZATION TAX, IS PROHIBITED IF THIS DECREASE RESULTS IN THE AMOUNT OF THE LEVY IN QUESTION NO LONGER CORRESPONDING TO A THRESHOLD PRICE FOR DURUM WHEAT WHICH IS AT LEAST 5 PER CENT HIGHER THAN THAT FOR COMMON WHEAT .
4 ACCORDINGLY THE FIRST QUESTION SHOULD BE ANSWERED TO THE EFFECT THAT ARTICLE 11 OF REGULATION NO 19/62 NEITHER REQUIRES NOR PROHIBITS THAT A MEMBER STATE SHOULD TAKE ACCOUNT OF THE TURNOVER EQUALIZATION TAX IN CALCULATING THE LEVY APPLICABLE TO DURUM WHEAT, PROVIDED THAT THE THRESHOLD PRICE FOR THAT CEREAL IS MAINTAINED AT A LEVEL AT LEAST 5 PER CENT ABOVE THAT FOR COMMON WHEAT .
5 THE SECOND QUESTION ASKS WHETHER ARTICLE 8 ( 1 ) OF REGULATION NO 19/62 IS TO BE INTERPRETED IN SUCH A WAY THAT THE THRESHOLD PRICE FOR MAIZE IN MEMBER STATES IN WHICH THERE IS NO SIGNIFICANT PRODUCTION OF THAT CEREAL WAS TO BE FIXED IN SUCH A WAY THAT IT CORRESPONDED TO THE THRESHOLD PRICE FOR BARLEY, OR WAS THERE A CERTAIN LATITUDE OF VALUATION FOR THE PARTICULAR TYPES OF CEREAL AT ISSUE .
6 ACCORDING TO ARTICLE 8 ( 1 ) THE THRESHOLD PRICE FOR PRODUCTS LISTED AT ARTICLE 1 ( A ) AND WHICH ARE NOT " COVERED BY ARTICLE 4, INCLUDING MAIZE AND RYE, IN MEMBER STATES IN WHICH THERE IS NO SIGNIFICANT PRODUCTION OF THOSE CEREALS, SHALL BE FIXED FOR EACH PRODUCT SO THAT, TAKING INTO ACCOUNT THE STANDARD AMOUNT PROVIDED FOR UNDER ARTICLE 2 ( 1 ), THE LEVEL OF TARGET PRICES FIXED FOR HOME-GROWN CEREALS REFERRED TO IN ARTICLE 4 MAY BE ATTAINED ".
AS REGARDS MAIZE, THE TARGET PRICE TO BE ATTAINED IS THAT FOR BARLEY .
THE PHRASE " SO THAT ... MAY BE ATTAINED " SHOWS THAT THE OBJECTIVE OF ARTICLE 8 ( 1 ) IS ESSENTIALLY THAT OF ENSURING THAT THE THRESHOLD PRICE FOR MAIZE, IN MEMBER STATES IN WHICH THERE IS NO SIGNIFICANT PRODUCTION OF THAT CEREAL, SHALL NOT BE FIXED AT A LOWER LEVEL THAN THAT FOR BARLEY .
WERE THIS NOT SO NOT ONLY WOULD THE STABILITY OF PRICES WITHIN THE COMMUNITY BE JEOPARDIZED, BUT ALSO THE PREFERENCE ESTABLISHED BY REGULATION NO 19/62 FOR COMPETITIVE HOME-GROWN PRODUCTS .
7 IT APPEARS THEREFORE, FROM THE WORDING AND THE OBJECTIVES OF ARTICLE 8 ( 1 ), THAT THE MEMBER STATES ARE NOT PERMITTED TO TAKE ACCOUNT OF THE CHARACTERISTIC QUALITIES OF THE VARIOUS KINDS OF FODDER CEREALS IF BY SO DOING THEY ALLOW THE AMOUNT OF THE LEVY TO DECREASE TO SUCH AN EXTENT THAT IT NO LONGER CORRESPONDS TO A THRESHOLD PRICE FOR MAIZE WHICH WOULD ALLOW BARLEY TO REACH ITS TARGET PRICE .
8 ACCORDINGLY THE SECOND QUESTION SHOULD BE ANSWERED TO THE EFFECT THAT ARTICLE 8 ( 1 ) OF REGULATION NO 19/62 IS TO BE INTERPRETED AS MEANING THAT MEMBER STATES IN WHICH THERE IS NO SIGNIFICANT PRODUCTION OF MAIZE COULD NOT, WHEN FIXING THE THRESHOLD PRICE FOR MAIZE, TAKE ACCOUNT OF THE CHARACTERISTICS OF THE DIFFERENT VARIETIES OF CEREALS IN QUESTION IF THE FACT OF TAKING ACCOUNT OF THESE CHARACTERISTICS WOULD HAVE LED TO A THRESHOLD PRICE FOR MAIZE WHICH WOULD HAVE MADE IT IMPOSSIBLE FOR BARLEY TO REACH ITS TARGET PRICE .
9 THE COSTS INCURRED BY THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE 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, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE HESSISCHES FINANZGERICHT BY ORDER OF THAT COURT DATED 21 MARCH 1973, HEREBY RULES :
1 . ARTICLE 11 OF REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962 NEITHER REQUIRES NOR PROHIBITS THAT A MEMBER STATE SHOULD TAKE ACCOUNT OF THE TURNOVER EQUALIZATION TAX IN CALCULATING THE LEVY APPLICABLE TO DURUM WHEAT, PROVIDED THAT THE THRESHOLD PRICE FOR THAT CEREAL IS MAINTAINED AT A LEVEL AT LEAST 5 PER CENT ABOVE THAT FOR COMMON WHEAT .
2 . ARTICLE 8 ( 1 ) OF REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962 IS TO BE INTERPRETED AS MEANING THAT MEMBER STATES IN WHICH THERE IS NO SIGNIFICANT PRODUCTION OF MAIZE COULD NOT, WHEN FIXING THE THRESHOLD PRICE FOR MAIZE, TAKE ACCOUNT OF THE CHARACTERISTICS OF THE DIFFERENT VARIETIES OF CEREALS IN QUESTION IF THE FACT OF TAKING ACCOUNT OF THESE CHARACTERISTICS WOULD HAVE LED TO A THRESHOLD PRICE FOR MAIZE WHICH WOULD HAVE MADE IT IMPOSSIBLE FOR BARLEY TO REACH ITS TARGET PRICE .
