1BY AN ORDER OF 16 JUNE 1977 WHICH WAS RECEIVED AT THE COURT ON 6 JULY 1977 , THE FINANZGERICHT HAMBURG REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY TWO QUESTIONS ON THE VALIDITY AND INTERPRETATION OF COUNCIL REGULATION NO 348/76 OF 17 FEBRUARY 1976 ON MEASURES TO BE TAKEN OWING TO THE DIFFICULTIES AFFECTING POTATO SUPPLIES ( OJ L 43 , P . 14 ) AND OF COMMISSION REGULATION NO 890/76 OF 14 APRIL 1976 PROVIDING FOR EXEMPTION IN CERTAIN CASES FROM THE TAX ON EXPORTS OF POTATOES ( OJ L 191 , P . 40 ).
2THESE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF A DISPUTE BETWEEN THE HAUPTZOLLAMT HAMBURG-JONAS AND A HAULIER WHO AFTER EXPORTING 121 000 KG OF POTATOES TO SWEDEN ON 20 FEBRUARY 1976 WAS ASSESSED TO TAX UNDER REGULATION NO 348/76 , TO THE AMOUNT OF DM 108 256.60 WHICH WAS SUBSEQUENTLY INCREASED BY DM 2 456.30 .
3THE FIRST QUESTION ASKS WHETHER REGULATION NO 348/76 IN CONJUNCTION WITH REGULATION NO 890/76 , WITH SPECIAL REFERENCE TO THE RATE OF TAX LEVIED ON THE EXPORT OF POTATOES , INFRINGES THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , IN THAT IT DOES NOT PROVIDE FOR ANY GENERAL RULE EXEMPTING FROM THE SAID TAX EXPORTS OF POTATOES DELIVERED UNDER CONTRACTS CONCLUDED BEFORE 17 FEBRUARY 1976 .
4IT APPEARS FROM THE CASE FILE THAT ON 10 AND 16 FEBRUARY 1976 THE PLAINTIFF IN THE MAIN ACTION SOLD AT FIXED PRICES IN SWEDEN POTATOES WHICH IT HAD BOUGHT IN THE NETHERLANDS .
HAVING LEANT THAT COMMUNITY PROHIBITION OR TAXATION ON EXPORTS OF POTATOES WAS IMMINENT , THE PLAINTIFF TRIED BETWEEN 16 AND 20 FEBRUARY 1976 TO OBTAIN DEFINITE INFORMATION , BUT NOT HAVING BEEN ABLE TO OBTAIN IT , IT EXPORTED THE CONSIGNMENTS AT ISSUE ON 20 FEBRUARY 1976 .
ON THAT ACCOUNT , IT WAS CHARGED TAX ALLEGEDLY AMOUNTING TO ONLY SLIGHTLY LESS THAN THE CONTRACT SELLING PRICE .
5THE COUNCIL ADOPTED REGULATION NO 348/76 OWING TO THE SHORTAGE BROUGHT ABOUT BY THE VERY POOR POTATO HARVEST IN 1975 , WHICH CAUSED A VERY SHARP INCREASE IN PRICES AND SUPPLY DIFFICULTIES IN SOME REGIONS OF THE COMMUNITY AND THREATENED TO CAUSE AN INCREASE IN THE COST OF LIVING .
THAT SITUATION WAS AGGRAVATED BY THE EXPORT OF POTATOES TO NON-MEMBER COUNTRIES , ENCOURAGED , IN SOME NON-MEMBER COUNTRIES INCLUDING SWEDEN , BY IMPORT SUBSIDIES .
CONSEQUENTLY THE REGULATION INTRODUCED A TAX ON EXPORTS TO NON-MEMBER COUNTRIES AMOUNTING TO 25 UNITS OF ACCOUNT PER 100 KG .
ACCORDING TO ARTICLE 2 , THE REGULATION ENTERED INTO FORCE ON THE DAY OF ITS PUBLICATION IN THE OFFICIAL JOURNAL , NAMELY 19 FEBRUARY 1976 , AND APPLIED ' TO OPERATIONS IN RESPECT OF WHICH CUSTOMS EXPORT FORMALITIES HAVE BEEN COMPLETED FROM THE DAY FOLLOWING THAT OF ITS ENTRY INTO FORCE AND UNTIL 30 JUNE 1976 ' .
6IT FOLLOWS FROM THE STATED CIRCUMSTANCES THAT REGULATION NO 348/76 WAS ADOPTED PURSUANT TO AN OVERRIDING PUBLIC INTEREST , WHICH REQUIRED THAT THE RULES ADOPTED SHOULD ENTER INTO FORCE IMMEDIATELY .
INDEED , THE PROPER FUNCTIONING OF THE COMMON MARKET REQUIRED A MEASURE TO RESTRAIN A DEVELOPMENT WHEREBY RISING PRICES AND ABNORMAL EXPORTS TO NON-MEMBER COUNTRIES WERE STIMULATING EACH OTHER .
MOREOVER THAT MEASURE COULD NOT SURPRISE TRADE CIRCLES WHICH , EVEN IF THEY HAD NOT YET BEEN AWARE OF THE ABNORMAL SITUATION , HAD AT ALL EVENTS BEEN WARNED BY EARLIER COMMUNITY MEASURES ( SUSPENSION OF CUSTOMS DUTIES ON IMPORTS ) AND BY MEASURES ALREADY ADOPTED BY THE MEMBER STATES WHICH WERE TRADITIONAL EXPORTERS OF POTATOES .
CONSEQUENTLY THE ADOPTION OF STRICTER MEASURES WAS TO BE FORESEEN BY PRUDENT AND DISCRIMINATING TRADERS SO THAT IN THE PRESENT CASE THEY CANNOT PLEAD LEGITIMATE EXPECTATION .
7NOR COULD THE LEVEL OF THE EXPORT TAX SURPRISE INFORMED CIRCLES , SINCE AT THE TIME WHEN REGULATION NO 348/76 WAS ADOPTED IMPORT SUBSIDIES WERE ALREADY BEING GRANTED BY SEVERAL NON-MEMBER COUNTRIES , SUCH AS SWEDEN WHICH APPEARS TO HAVE GRANTED SUBSIDIES UP TO THE EQUIVALENT OF 18 UNITS OF ACCOUNT PER 100 KG .
IN ORDER TO NEUTRALIZE THE EFFECT OF SUCH MEASURES , THE COMMUNITY TAX HAD TO BE FIXED AT AN EVEN HIGHER LEVEL , SO THAT A RATE OF 25 UNITS OF ACCOUNT PER 100 KG CANNOT BE REGARDED AS EXCESSIVE .
8PURSUANT TO ARTICLE 1 ( 2 ) OF REGULATION NO 348/76 , THE COMMISSION AUTHORIZED MEMBER STATES BY ITS REGULATION NO 890/76 TO EXEMPT FROM THE EXPORT TAX ' EXPORTS . . . TO THE NON-MEMBER COUNTRIES OR TERRITORIES LISTED IN THE ANNEX HERETO EFFECTED BEFORE 3 MAY 1976 , PROVIDED THAT SUCH EXPORTS ARE EFFECTED PURSUANT TO CONTRACTS CONCLUDED BEFORE 17 FEBRUARY 1976 ' .
ACCORDING TO THE PREAMBLE , THAT PROVISION WAS ADOPTED ON THE BASIS THAT IT WAS NECESSARY ' TO PERMIT MEMBER STATES TO MAINTAIN CERTAIN TRADITIONAL TRADE FLOWS ' AND THAT ' THERE IS NO RISK THAT THE QUANTITIES WILL EXCEED THESE TRADITIONAL TRADE FLOWS ' .
9THE INTERIM MEASURE THUS ADOPTED CAN ALSO NOT BE REGARDED AS BEING MORE RESTRICTIVE THAN IS REQUIRED BY THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , SINCE ONLY TRADERS WHO HAD BEEN RELYING UPON THE CONTINUED EXISTENCE OF WELL-ESTABLISHED , CUSTOMARY ECONOMIC RELATIONS COULD HAVE HAD ANY SUCH EXPECTATION .
IT HAS NOT BEEN ALLEGED THAT SWEDEN IS ONE OF THE NON-MEMBER COUNTRIES WITH WHICH THERE ARE TRADITIONAL EXPORT FLOWS IN POTATOES AND THAT IT SHOULD THEREFORE HAVE BEEN MENTIONED IN THE ANNEX TO REGULATION NO 890/76 .
10THEREFORE THE APPROPRIATE ANSWER IS THAT CONSIDERATION OF THE FIRST QUESTION RAISED HAD DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATIONS NO 348/76 AND NO 890/76 .
11QUESTION 2 ( A ) ASKS WHETHER , FOR THE PURPOSE OF CONVERTING THE TAX ON EXPORTS EXPRESSED IN UNITS OF ACCOUNT , THE EXCHANGE RATE APPLICABLE TO CUSTOMS DUTY IN PART I , TITLE 1 , C . 3 OF REGULATION NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 ON THE COMMON CUSTOMS TARIFF , ( JO , L 172 ) OR THE EXCHANGE RATE SPECIFIED IN REGULATION NO 475/75 OF THE COUNCIL OF 27 FEBRUARY 1975 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE ( OJ L 52 , P . 28 ) IS TO BE APPLIED .
THE REASON FOR THE QUESTION IS THAT AT THE MATERIAL TIME THE EXCHANGE RATE APPLICABLE UNDER REGULATION NO 950/68 WAS SLIGHTLY HIGHER THAN THE EXCHANGE RATE APPLICABLE UNDER REGULATION NO 475/75 FOR INSTRUMENTS RELATING TO THE COMMON AGRICULTURAL POLICY .
12REGULATION NO 348/76 DOES NOT CONTAIN ANY EXPRESS PROVISION AS TO THE EXCHANGE RATE TO BE APPLIED FOR THE PURPOSE OF CONVERTING INTO NATIONAL CURRENCY THE TAX OF 25 UNITS OF ACCOUNT WHICH IT LAID DOWN .
ON THE ONE HAND , THE FACT THAT IT WAS ADOPTED PURSUANT TO ARTICLES 103 AND 113 OF THE TREATY MARKS IT OUT AS A MEASURE COMING UNDER THE CONJUNCTURAL POLICY AND THE ECONOMIC POLICY RATHER THAN UNDER THE COMMON AGRICULTURAL POLICY .
ON THE OTHER HAND , POTATOES ARE AN AGRICULTURAL PRODUCT WITHIN THE MEANING OF THE TREATY , AND THE EXPORT TAX WAS DEVISED BY THE COMMISSION ' S DIRECTORATE GENERAL FOR AGRICULTURE AND ADOPTED BY THE COUNCIL COMPOSED OF THE MINISTERS OF AGRICULTURE IN ORDER TO KEEP PRICES WITHIN THE COMMUNITY AT A REASONABLE LEVEL AND TO ENSURE SUPPLIES ; THESE ARE THE OBJECTIVES MENTIONED IN ARTICLE 39 ( 1 ) ( D ) AND ( E ) OF THE TREATY AS OBJECTIVES OF THE COMMON AGRICULTURAL POLICY .
FURTHERMORE CONFUSION WAS INCREASED BY THE FACT THAT IN ITS IMPLEMENTING REGULATION NO 485/76 OF 3 MARCH 1976 ( OJ L 56 , P . 23 ) THE COMMISSION ITSELF DECLARED APPLICABLE TO THE CHARGING OF THE TAX AT ISSUE ITS REGULATION NO 645/75 OF 13 MARCH 1975 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE EXPORT LEVIES AND CHARGES ON AGRICULTURAL PRODUCTS ( OJ L 67 , P . 16 ).
THUS ALTHOUGH FORMALLY REGULATION NO 348/76 CANNOT BE REGARDED AS COMING UNDER THE COMMON AGRICULTURAL POLICY , IT WAS CLOSELY RELATED TO IT IN SUBSTANCE .
13THUS THE APPROPRIATE ANSWER IS THAT IN VIEW OF THE UNCERTAINTIES INHERENT IN REGULATION NO 348/76 , NATURAL JUSTICE DEMANDS THAT FOR THE PURPOSE OF CONVERTING THE TAX ON EXPORTS INTO NATIONAL CURRENCY THE EXCHANGE RATE WHICH AT THE MATERIAL TIME WAS LESS ONEROUS FOR THE TAXPAYER CONCERNED SHOULD BE APPLIED .
14QUESTION 2 ( B ) ASKS WHETHER THE FIXING OF THE TAX AT 25 UNITS OF ACCOUNT PER 100 KG INFRINGES THE PROHIBITION ON DISCRIMINATION LAID DOWN IN ARTICLE 7 OF THE TREATY IN SO FAR AS IN THIS MATTER THE CURRENCY SITUATION IN THE EXPORTING COUNTRY COMPARED TO THAT IN THE OTHER MEMBER STATES HAS NOT BEEN OFFSET OR HAS BEEN INSUFFICIENTLY OFFSET .
15THERE IS NO NEED TO EXAMINE IN GREATER DEPTH THE GENERAL QUESTION THUS RAISED AND TO CONSIDER THE EXTENT TO WHICH IT CAN AND MUST BE TAKEN INTO ACCOUNT IN COMMUNITY LEGISLATION , BECAUSE IT APPEARS FROM THE INFORMATION SUPPLIED BY THE COMMISSION THAT AS THE INTRODUCTION OF THE EXPORT TAX HAD A GENERAL PROHIBITIVE EFFECT THE TAX WAS APPLIED ONLY IN A FEW ISOLATED INSTANCES .
IT FOLLOWS THAT THE QUESTION IS PURELY THEORETICAL AND THAT IN FACT THE APPLICATION OF REGULATION NO 348/76 HAS NOT INFRINGED ANY PROHIBITION ON DISCRIMINATION .
16THUS CONSIDERATION OF THIS QUESTION HAS ALSO DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 348/76 .
17IN VIEW OF THE FOREGOING , IT DOES NOT APPEAR FEASIBLE WITHIN THE FRAMEWORK OF THE EXISTING RULES TO STATISFY THE REQUIREMENTS OF NATURAL JUSTICE IN POSSIBLY A FEW SPECIAL CASES , SINCE PROVISION CAN BE MADE FOR SUCH REQUIREMENTS ONLY BY THE COMMUNITY LEGISLATURE THROUGH APPROPRIATE HARDSHIP CLAUSES ( HARTEKLAUSELN ) OF THE KIND FOUND IN GERMAN REVENUE LAW AND IN THAT OF OTHER MEMBER STATES .
COSTS
18THE COSTS INCURRED BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
AS THESE PROCEEDINGS ARE , 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 AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY AN ORDER OF 16 JUNE 1977 , HEREBY RULES :
1 . CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATIONS NOS 348/76 AND 890/76 .
2 . IN VIEW OF THE UNCERTAINTIES INHERENT IN COUNCIL REGULATION NO 348/76 , FOR THE PURPOSE OF CONVERTING THE TAX ON EXPORTS INTO NATIONAL CURRENCY , OF THE TWO EXCHANGE RATES SPECIFIED RESPECTIVELY IN REGULATION NO 950/68 OF THE COUNCIL AND IN REGULATION NO 475/75 OF THE COUNCIL , THE ONE SHOULD BE APPLIED WHICH AT THE MATERIAL TIME WAS THE LESS ONEROUS FOR THE TAXPAYER CONCERNED .
