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 REFERENCE 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 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 .
3 RAMEL IMPORTS INTO FRANCE WINE FROM ALGERIA WHICH IT BUYS FROM THE OFFICE NATIONAL . THE CONTRACTS OF SALE PROVIDE UNDER THE HEADING ' ' AGREED PRICES ' ' :
' ' IT IS AGREED THAT ANY SUM ARISING FROM A MONETARY COMPENSATORY AMOUNT GRANTED BY ONIVIT SHALL BE PAID BY THE BUYER DIRECTLY INTO THE ACCOUNT OF THE SELLER ON THE BASIS OF A SUPPLEMENTARY INVOICE MADE OUT FOR THAT PURPOSE . AS THE COMPENSATORY AMOUNT IS FIXED ON THE DAY OF IMPORTATION , THE BUYER UNDERTAKES TO INFORM THE SELLER OF THAT AMOUNT IMMEDIATELY UPON CLEARANCE THROUGH CUSTOMS . . . ' '
4 UP TO AND AFTER THE BEGINNING OF 1978 RAMEL COMPLIED WITH THESE PROVISIONS AND DULY PAID , IN PURSUANCE OF THE CLAUSE CITED ABOVE , THE SUMS PAYABLE BY WAY OF MONETARY COMPENSATORY AMOUNTS . HOWEVER , AS FROM MAY 1978 , WHILST PAYING THE PRICE AGREED IN THE CONTRACTS , IT REFUSED TO PAY TO THE OFFICE NATIONAL THE SUM REPRESENTING THE MONETARY COMPENSATORY AMOUNTS , BASING ITS POSITION INTER ALIA ON THE FACT THAT SUCH PAYMENT WAS CONTRARY TO THE COMMUNITY RULES AND THAT THE CLAUSE CITED ABOVE WAS AT ONCE UNLAWFUL AND VOID .
5 FACED WITH THIS REFUSAL , AND AFTER SUBMITTING TO RAMEL THE INVOICES CORRESPONDING TO THE SUMS REPRESENTING THE MONETARY COMPENSATORY AMOUNTS WHICH THAT COMPANY HAD IN FACT RECEIVED , THE OFFICE NATIONAL SUED RAMEL BEFORE THE TRIBUNAL DE COMMERCE , BOURG-EN-BRESSE , WITH A VIEW TO OBTAINING THE PAYMENT OF THE SUMS AT ISSUE .
6 BY JUDGMENT OF 11 JUNE 1982 THAT COURT STAYED THE PROCEEDINGS AND DECIDED TO REFER TO THE COURT OF JUSTICE THE FOLLOWING TWO QUESTIONS FOR A PRELIMINARY RULING :
' ' ( 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 .
8 AS THE COURT HAS HELD REPEATEDLY , IT IS NOT FOR THE COURT TO RULE ON THE EXPEDIENCY OF A REQUEST FOR A PRELIMINARY RULING . AS REGARDS THE DIVISION OF JURISDICTION BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY IT IS FOR THE NATIONAL COURT WHICH IS ALONE IN HAVING A DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS PUT FORWARD BY THE PARTIES , AND WHICH WILL HAVE TO GIVE JUDGMENT IN THE CASE , TO APPRECIATE , WITH FULL KNOWLEDGE OF THE MATTER BEFORE IT , THE RELEVANCE OF THE QUESTIONS OF LAW RAISED BY THE DISPUTE BEFORE IT AND THE NECESSITY FOR A PRELIMINARY RULING SO AS TO ENABLE IT TO GIVE JUDGMENT .
THE ANSWER TO BE GIVEN TO THE FIRST PART OF QUESTION 1 PUT BY THE COURT MAKING THE REFERENCE
9 THE NATIONAL COURT ASKS THE COURT OF JUSTICE TO STATE WHETHER A SALES ORGANIZATION IN A MAGHREB NON-MEMBER COUNTRY IS ENTITLED TO EXPORT WINES TO A MEMBER STATE AT AN IMPORT PRICE LOWER THAN THE REFERENCE PRICE , WITHOUT ANY CUSTOMS DUTIES BEING LEVIED ON THOSE WINES .
10 IN PURSUANCE OF ARTICLE 9 OF REGULATION ( EEC ) NO 816/70 OF THE COUNCIL OF 28 APRIL 1970 LAYING DOWN ADDITIONAL PROVISIONS FOR THE COMMON ORGANIZATION OF THE MARKET IN WINE , WHICH IS APPLICABLE IN THIS CASE , REFERENCE PRICES FOR WINES ARE TO BE FIXED ANNUALLY AND EXPRESSED IN UNITS OF ACCOUNT PER DEGREE/HL ON THE BASIS OF THE GUIDE PRICES FOR THE TYPES OF WINE MOST REPRESENTATIVE OF COMMUNITY PRODUCTION . IN RESPECT OF EACH WINE FOR WHICH A REFERENCE PRICE IS FIXED , A FREE-AT-FRONTIER OFFER PRICE FOR ALL IMPORTS IS TO BE DETERMINED . WHERE THE FREE-AT-FRONTIER OFFER PRICE FOR A WINE IS LOWER THAN THE REFERENCE PRICE , A COUNTERVAILING CHARGE EQUAL TO THE DIFFERENCE BETWEEN THE REFERENCE PRICE AND THE FREE-AT-FRONTIER OFFER PRICE IS TO BE LEVIED .
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 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 .
14 BY VIRTUE OF ARTICLE 17 ( 3 ) OF REGULATION NO 1380/75 , IN THE AMENDED VERSION SET OUT IN ARTICLE 1 OF REGULATION NO 1577/76 , WHICH IS APPLICABLE TO THE ISSUE IN THE MAIN ACTION :
' ' ( 3 ) IN THE WINE SECTOR THE FREE-AT-FRONTIER REFERENCE PRICES SHALL BE CONSIDERED TO HAVE BEEN OBSERVED AT THE TIME OF IMPORT FROM THIRD COUNTRIES IF , FOR THE PRODUCT CONCERNED THE OFFER PRICE :
( A ) IN THE CASE OF APPRECIATION OF THE CURRENCY OF THE IMPORTING MEMBER STATE , INCREASED OR
( B)IN THE CASE OF DEPRECIATION OF THAT CURRENCY , REDUCED
BY THE AMOUNT REFERRED TO IN THE FOLLOWING SUBPARAGRAPH IS NOT LESS THAN THE FREE-AT-FRONTIER REFERENCE PRICE .
THE AMOUNT REFERRED TO IN THE PRECEDING SUBPARAGRAPH IS THE MONETARY COMPENSATORY AMOUNT APPLICABLE IN INTRA-COMMUNITY TRADE . ' '
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 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 COMPENSATORY 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 .
19 CONVERSELY , 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 IS A NECESSARY CONDITION FOR COMPLIANCE WITH THE PROVISIONS OF COMMUNITY LAW CITED ABOVE .
20 CONSEQUENTLY , IN THAT CASE , NAMELY WHERE THE TRANSACTION IS EFFECTED AT THE MINIMUM PRICE , AND PROVIDED THAT THE MONETARY COMPENSATORY AMOUNT RELATING THERETO AND APPLICABLE ON THE DAY ON WHICH THE CUSTOMS FORMALITIES FOR RELEASE INTO FREE CIRCULATION ARE COMPLETED CAN BE KNOWN ONLY AFTER THE PERFORMANCE OF THE TRANSACTION , A CONTRACTUAL PROVISION FOR THE TRANSFER OF THE SUM REPRESENTING THAT MONETARY COMPENSATORY AMOUNT CANNOT BE REGARDED AS CONTRARY TO COMMUNITY LAW THE OBSERVANCE OF WHICH IT IS , ON THE CONTRARY , DESIGNED TO ENSURE .
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 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 .
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 ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DE COMMERCE , BOURG-EN-BRESSE , BY JUDGMENT OF 11 JUNE 1982 HEREBY RULES :
1 . IT IS CONTRARY TO THE COMBINED PROVISIONS OF ARTICLE 9 OF REGULATION NO 816/70 OF THE COUNCIL OF 28 APRIL 1970 AND 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 FOR A SALES ORGANIZATION IN A NON-MEMBER COUNTRY , SUCH AS ALGERIA , TO EXPORT 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 .
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 .
