1BY 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 ).
2THESE QUESTIONS WERE RAISED IN THE CONTEXT OF AN ACTION RELATING TO THE CALCULATION 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 .
IT DID SO IN RELIANCE ON THE PROVISIONS OF ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 , APPLICATION OF WHICH , ACCORDING TO THE DEFENDANT , MEANS THAT , AS COMPENSATORY AMOUNTS ARE CALCULATED ON THE BASIS OF THE INTERVENTION PRICE , WHICH INCLUDES EXPORT REFUNDS , THE PART OF THE COMPENSATORY AMOUNT RELATING TO THE EXPORT REFUNDS MUST BE DEDUCTED .
3 THE QUESTION IS WHETHER 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 , WHICH IS FIXED IN NATIONAL CURRENCY FOR EACH EXPORTER INDIVIDUALLY , ON THE BASIS OF A TENDER , IS TO BE MULTIPLIED BY THE MONETARY COEFFICIENT FIXED BY THE COMMISSION , WHICH IS DERIVED FROM THE PERCENTAGE USED TO CALCULATE THE MONETARY COMPENSATION .
IN THE EVENT OF A NEGATIVE REPLY TO THE FOREGOING QUESTION THE FURTHER QUESTION IS ASKED WHETHER ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 IS VOID IN SO FAR AS , IN THE CASES QUOTED IN THE ABOVE QUESTION , IT DOES NOT PROVIDE FOR THE EXPORT REFUND FIXED IN NATIONAL CURRENCY TO BE MULTIPLIED BY THE MONETARY COEFFICIENT .
IN THE EVENT OF AN AFFIRMATIVE REPLY TO THE LAST QUESTION THE COURT IS FURTHER ASKED WHAT ARE THE EFFECTS OF THE PARTIAL INVALIDITY OF ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 .
FIRST QUESTION
4FOR 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 MONETARY COMPENSATORY AMOUNT ONLY THE DIFFERENCE BETWEEN THE PRICE LEVEL AND THE AMOUNT IN QUESTION EXPRESSED IN UNITS OF ACCOUNT NEED BE TAKEN INTO CONSIDERATION ; . . . IN ORDER TO SIMPLIFY THE SYSTEM SO THAT THE SAME COMPENSATORY AMOUNT MAY BE APPLIED IN RESPECT OF THE TRADE OF A GIVEN MEMBER STATE WITH EVERY OTHER MEMBER STATE AND WITH THIRD COUNTRIES , ACCESSION COMPENSATORY AMOUNTS , FIXED COMPONENTS , IMPORT CHARGES , EXPORT REFUNDS AND ALL OTHER AMOUNTS CHARGED OR GRANTED IN RESPECT OF TRADE WITH THIRD COUNTRIES SHOULD BE CORRECTED BY A COEFFICIENT EXPRESSING THE POSITION OF THE CURRENCY OF THE MEMBER STATE WHICH IS TO APPLY THE MONETARY COMPENSATORY AMOUNT ' ' .
THEREFORE ARTICLE 4 ( 3 ) OF THAT REGULATION PROVIDES THAT :
' ' ( 3 ) HOWEVER ,
( A ) . . .
( B ) IN TRADE WITH THIRD COUNTRIES THE IMPORT CHARGES AND THE EXPORT REFUNDS AND LEVIES , FIXED IN UNITS OF ACCOUNT , . . . SHALL BE MULTIPLIED BY A COEFFICIENT . THIS COEFFICIENT SHALL BE DERIVED FROM THE PERCENTAGE USED TO CALCULATE THE MONETARY COMPENSATORY AMOUNT AND SHALL BE FIXED BY THE COMMISSION AT THE SAME TIME AS THAT AMOUNT ' ' .
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 .
5REGULATION 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 ' ' .
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 .
IN ITS NOTICE OF A STANDING INVITATION TO TENDER OF 14 AUGUST 1975 ( OFFICIAL JOURNAL NO C 185 , P . 23 ) THE COMMISSION PROVIDED IN ARTICLE V ( 8 ) THAT :
' ' IN ORDER TO ACHIEVE COMPARABILITY BETWEEN TENDERS AND FOR THE AWARD OF CONTRACTS BY MEMBER STATES , THE AMOUNT PROPOSED FOR THE EXPORT LEVY OR REFUND , EXPRESSED IN A NATIONAL CURRENCY , WILL BE CONVERTED INTO UNITS OF ACCOUNT BY APPLYING THE CONVERSION RATES APPLICABLE FOR THE PURPOSES OF THE COMMON AGRICULTURAL POLICY ' ' .
6THE EXPORTS IN QUESTION WERE EFFECTED ON THE BASIS OF NINE LICENCES , IN EIGHT OF WHICH THE AMOUNT OF THE REFUND WAS EXPRESSED IN FRENCH FRANCS AND IN THE REMAINING ONE OF WHICH IT WAS EXPRESSED IN GERMAN MARKS .
IT FOLLOWS FROM THESE CONSIDERATIONS THAT THE REFUNDS IN QUESTION WERE FIXED IN NATIONAL CURRENCY AND THAT THEIR CONVERSION INTO UNITS OF ACCOUNT CONSTITUTED ONLY AN INTERNAL OPERATION WITHIN THE COMMISSION IN ORDER TO MAKE TENDERS COMPARABLE .
ARTICLE 4 OF REGULATION NO 1380/75 PROVIDES FOR THE APPLICATION OF THE COEFFICIENT ONLY TO REFUNDS OR LEVIES FIXED IN UNITS OF ACCOUNT .
THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE IN THE NEGATIVE .
SECOND QUESTION
7IN 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 REGULATION 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 TREATY INASMUCH AS ARTICLE 4 WOULD THEN PRODUCE DISCRIMINATION BETWEEN EXPORTERS OF SUGAR ACCORDING TO THE COUNTRY OF EXPORT .
8REGULATION 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 REGULATION NO 1380/75 DID NOT COMMIT A BREACH OF THE RULE OF NON-DISCRIMINATION AS ALL LEVIES AND REFUNDS ARE IN PRINCIPLE FIXED IN UNITS OF ACCOUNT .
ANY DEROGATION FROM THIS SYSTEM BY REASON OF THE FACT THAT IN PURSUANCE OF REGULATION NO 2101/75 TENDERS FOR REFUNDS IN THE MATTER OF EXPORTS OF SUGAR TO THIRD COUNTRIES ARE FIXED IN NATIONAL CURRENCY CANNOT AFFECT THE VALIDITY OF ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 .
IN FACT , THE SYSTEM OF FIXING REFUNDS BY WAY OF TENDER WAS ESTABLISHED IN ORDER TO ALLOW THE FIXING OF DIFFERENT REFUNDS , ACCORDING TO THE TENDERS SUBMITTED , SO THAT THE NET PRICE RECEIVED BY THE EXPORTER MIGHT VARY FROM ONE TRADER TO ANOTHER .
THE SECOND QUESTION MUST THEREFORE BE ANSWERED IN THE NEGATIVE .
9HAVING REGARD TO THE REPLY TO THE SECOND QUESTION THE THIRD QUESTION HAS LOST ITS POINT .
COSTS
10THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
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 .
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 .
2 . CONSIDERATION OF THE SECOND QUESTION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 4 ( 3 ) OF REGULATION NO 1380/75 .
