1 BY AN ORDER OF 10 JULY 1973 LODGED AT THE COURT ON 25 JULY 1973 THE HAMBURG FINANZGERICHT, IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY, REFERRED QUESTIONS RELATING TO THE VALIDITY AND INTERPRETATION OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971, ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES, AND OF REGULATION NO 2122/71 OF THE COMMISSION OF 1 OCTOBER 1971, FIXING THE COMPENSATORY AMOUNTS IN FORCE IN AGRICULTURE AS FROM 4 OCTOBER 1971 CONSEQUENT UPON THE SAME CIRCUMSTANCES .
AS TO THE FIRST QUESTION
2 BY THE FIRST QUESTION IT IS ASKED WHETHER REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 IS VALID INSOFAR AS IT AUTHORIZES THE CHARGING OF COMPENSATORY AMOUNTS ON IMPORTS FROM THIRD COUNTRIES .
3 THE VALIDITY OF REGULATION NO 974/71 HAS ALREADY BEEN EXAMINED BY THE COURT IN CASES 5/73, 9/73 AND 10/73 ON THE OCCASION OF PRELIMINARY REFERENCES BY THE FINANZGERICHTE OF BERLIN AND BADE-WURTEMBERG IN DISPUTES BETWEEN, ON THE ONE HAND, THE UNDERTAKINGS BALKAN-IMPORT-EXPORT, CARL SCHLUETER AND REWE-ZENTRALE AND, ON THE OTHER HAND, THE CUSTOMS AUTHORITIES OF THE FEDERAL REPUBLIC OF GERMANY .
IN ITS JUDGMENTS OF 24 OCTOBER 1973 IN THOSE CASES THE COURT HELD THAT EXAMINATION OF QUESTIONS REFERRED BY THE NATIONAL COURTS HAD NOT REVEALED ANY ELEMENTS CAPABLE OF AFFECTING THE VALIDITY OF REGULATION NO 974/71 .
IN THIS CASE NO NEW ELEMENT HAS BEEN ADDUCED CAPABLE OF CASTING DOUBT ON THAT DECISION .
AS TO THE SECOND QUESTION
4 BY THE SECOND QUESTION IT IS ASKED WHETHER THE AMOUNT OF 19.20 DM PER 1 000 KG FIXED IN ANNEX I TO REGULATION NO 2122/71 FOR IMPORTS OF COMMON WHEAT FROM THIRD COUNTRIES WAS IN CONFORMITY WITH THE CONDITIONS LAID DOWN IN ARTICLE 2 OF REGULATION NO 974/71 .
5 ARTICLE 2 ( 1 ) OF REGULATION NO 974/71 PROVIDES THAT THE COMPENSATORY AMOUNTS FOR THE PRODUCTS IN QUESTION SHALL BE EQUAL TO THE AMOUNTS OBTAINED BY APPLYING TO THE PRICES THE PERCENTAGE DIFFERENCE BETWEEN THE PARITY OF THE CURRENCY OF THE MEMBER STATE CONCERNED AND THE ARITHMETIC MEAN OF THE MARKETS RATES DURING A PERIOD TO BE DETERMINED .
THE POINT OF DISPUTE CONCERNS THE MEANING AND SCOPE OF THE WORD 'PRICES' IN THAT CONTEXT .
6 THE METHOD ADOPTED BY THE COMMISSION AT THE TIME IN QUESTION CONSISTED IN TAKING AN AVERAGE C.I.F . PRICE CALCULATED FOR A REFERENCE PERIOD OF ONE WEEK AND MODIFYING THAT AVERAGE PRICE ONLY IF AN APPRECIABLE CHANGE ( IN GENERAL, 10 PER CENT UP OR DOWN ) HAD OCCURRED IN RELATION TO THE PRICE FIXED PREVIOUSLY .
THE PLAINTIFF IN THE MAIN ACTION DISPUTES THE MERITS OF SUCH A METHOD, ASSERTING THAT NOT ONLY SHOULD THE C.I.F . PRICE HAVE BEEN CHOSEN AS REFERENCE PRICE, AS THE COMMISSION IN FACT DID, BUT THAT ACCOUNT SHOULD ALSO HAVE BEEN TAKEN OF PRICE VARIATIONS, IF NOT FROM DAY TO DAY, AT LEAST AT FREQUENT INTERVALS, WHICH WOULD REQUIRE FREQUENT PUBLICATION OF ADJUSTMENTS .
THE PLAINTIFF IN THE MAIN ACTION HAS INVOKED IN SUPPORT OF THIS ARGUMENT THE CRITERIA APPLIED FOR THE ASSESSMENT OF LEVIES ON THE IMPORTATION OF CEREALS, AS WELL AS THE RECITAL OF REGULATION NO 974/71 WHICH DECLARES THAT THE COMPENSATORY AMOUNTS SHOULD BE LIMITED TO THE AMOUNTS STRICTLY NECESSARY TO COMPENSATE THE INCIDENCE OF MONETARY MEASURES ON PRICES .
7 FROM AN EXAMINATION OF THE PROVISIONS OF REGULATION NO 974/71 IT IS CLEAR THAT THE COUNCIL DID NOT WISH TO LIMIT IN A STRICT AND DETAILED MANNER THE COMMISSION'S APPRAISAL OF THE DETAILED RULES FOR THE IMPLEMENTATION OF THE REGULATION .
IN FACT, BY USING THE CONCEPT OF 'PRICES' AS ITS STARTING POINT IN CALCULATING THE COMPENSATORY AMOUNTS, ARTICLE 2 OF REGULATION NO 974/71 DOES NOT NECESSARILY OBLIGE THE COMMISSION TO CHOOSE THE C.I.F . PRICE AS A REFERENCE PRICE, BUT LEAVES IT A CERTAIN DISCRETION TO ADOPT ANOTHER PRICE EVEN IF THE LATTER DIFFERS FROM THE CONTRACT PRICES ACTUALLY FIXED FOR COMMERCIAL TRANSACTIONS .
THAT SAME ARTICLE, BY PROVIDING AMONG THE CRITERIA FOR CALCULATING THE COMPENSATORY AMOUNTS THE ARITHMETIC MEAN OF MARKET RATES 'DURING A PERIOD TO BE DETERMINED', INTRODUCED ANOTHER ELEMENT OF A FLAT-RATE NATURE .
8 IT IS WITHIN THE COMMISSION'S LEGAL POWERS WHEN ENACTING DETAILED RULES FOR THE IMPLEMENTATION OF A SYSTEM SUCH AS THAT OF COMPENSATORY AMOUNTS LAID DOWN BY REGULATION NO 974/71, TO HAVE REGARD TO CERTAIN IMPERATIVE REQUIREMENTS OF AN ADMINISTRATIVE NATURE AND, IN PARTICULAR, TO TAKE CARE THAT THE MEASURES TAKEN ARE NOT SUBJECT TO MINIMAL MODIFICATIONS OCCURRING WITH EXCESSIVE FREQUENCY .
THIS IS ALL THE MORE SO AS THESE DETAILED RULES FOR IMPLEMENTATION, AND IN PARTICULAR THE FIXING OF THE COMPENSATORY AMOUNTS, ARE ESTABLISHED, AS IS THE CASE UNDER ARTICLE 6 OF REGULATION NO 974/71, ACCORDING TO THE SO-CALLED 'MANAGEMENT COMMITTEE' PROCEDURE PROVIDED FOR BY ARTICLE 26 OF REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967, ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ NO 117 OF 19 . 6 . 1967, P . 2269 ).
9 IT MUST THEREFORE BE CONCLUDED THAT THE COMMISSION, IN FIXING THE COMPENSATORY AMOUNT IN DISPUTE, DID NOT OVERSTEP THE LIMITS LAID DOWN FOR ITS ACTIVITY IN THIS FIELD BY THE PROVISIONS OF REGULATION NO 974/71 .
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, SO FAR AS THE PARTIES IN THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
HEREBY :
1 . DECLARES THAT EXAMINATION OF THE QUESTIONS REFERRED HAS NOT REVEALED ANY ELEMENTS CAPABLE OF AFFECTING THE VALIDITY OF REGULATION NO 974/71 OF THE COUNCIL .
2 . DECLARES THAT THE COMPENSATORY AMOUNT OF 19.20 DM PER 1 000 KG FIXED IN ANNEX I TO REGULATION NO 2122/71 OF 1 OCTOBER 1971 IN RESPECT OF IMPORTS OF COMMON WHEAT FROM THIRD COUNTRIES COMPLIED, AT THE TIME OF IMPORTATION, WITH THE CONDITIONS OF ARTICLE 2 OF REGULATION NO 974/71 .
