61977J0136

1 . COMPLEX ECONOMIC SITUATION - EVALUATION - ADMINISTRATION - DISCRETION - SCOPE - REVIEW BY THE COURT - BOUNDS

( REGULATIONS ( EEC ) NOS 722/75 AND 2021/75 OF THE COMMISSION )

2 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - NOT CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES

3 . REGULATION - STATEMENT OF REASONS UPON WHICH IT IS BASED - CONDITIONS

( EEC ) TREATY , ART . 190 )

1 . WHERE THE EVALUATION OF A COMPLEX ECONOMIC SITUATION IS INVOLVED , THE ADMINISTRATION ENJOYS A WIDE MEASURE OF DISCRETION . IN REVIEWING THE LEGALITY OF THE EXERCISE OF SUCH DISCRETION , THE COURT MUST CONFINE ITSELF TO EXAMINING WHETHER IT CONTAINS A MANIFEST ERROR OR CONSTITUTES A MISUSE OF POWER OR WHETHER THE AUTHORITY DID NOT CLEARLY EXCEED THE BOUNDS OF ITS DISCRETION . IT DOES NOT SEEM THAT THE COMMISSION EXCEEDED THE BOUNDS OF ITS DISCRETION BY ADOPTING THE PROVISIONS OF REGULATIONS ( EEC ) NOS 722/75 AND 2021/75 IN QUESTION .

2 . THE MONETARY COMPENSATORY AMOUNTS ARE NOT LEVIES INTRODUCED BY SOME MEMBER STATES UNILATERALLY BUT COMMUNITY MEASURES ADOPTED TO DEAL WITH THE DIFFICULTIES RESULTING FOR THE COMMON AGRICULTURAL POLICY FROM MONETARY INSTABILITY ; THEY ARE NOT THEREFORE COVERED BY THE PROHIBITIONS ON LEVYING CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES .

3 . ALTHOUGH THE DISCONTINUANCE OF THE MONETARY COMPENSATORY AMOUNTS IN THE CASE OF CERTAIN MEMBER STATES IS THE RESULT OF THE FACT THAT THE CONDITIONS FOR THEIR INTRODUCTION ARE NO LONGER FULFILLED , THEIR RETENTION WITH REGARD TO ANOTHER MEMBER STATE IS THE NORMAL RESULT OF THE CONTINUING EXISTENCE OF THE NECESSARY CONDITIONS AS FAR AS THAT OTHER STATE IS CONCERNED . IN THE ABSENCE OF AN EXPRESS INDICATION IT MAY BE ACCEPTED THAT THE RETENTION OF THE PREVIOUS RULES IS BASED ON THE SAME GROUNDS .

IN CASE 136/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT RHEINLAND-PFALZ FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FIRMA A . RACKE , BINGEN AM RHEIN

AND

HAUPTZOLLAMT MAINZ

ON THE VALIDITY OF REGULATION ( EEC ) NO 722/75 OF THE COMMISSION OF 19 MARCH 1975 AMENDING REGULATION ( EEC ) NO 539/75 FIXING THE MONETARY COMPENSATORY AMOUNTS AND CERTAIN RATES FOR THEIR APPLICATION ( OFFICIAL JOURNAL 1975 , L 71 OF 20 MARCH 1975 , P . 24 ),

1BY ORDER OF 4 OCTOBER 1977 , WHICH WAS RECEIVED AT THE COURT OF JUSTICE ON 8 NOVEMBER 1977 , THE FINANZGERICHT RHEINLAND-PFALZ REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE VALIDITY OF REGULATION ( EEC ) NO 722/75 OF THE COMMISSION OF 19 MARCH 1975 AMENDING REGULATION ( EEC ) NO 539/75 FIXING THE MONETARY COMPENSATORY AMOUNTS AND CERTAIN RATES FOR THEIR APPLICATION ( OFFICIAL JOURNAL 1975 , L 71 , P . 24 ) IN SO FAR AS IT EXCEPTS FROM THE DISCONTINUANCE OF THE MONETARY COMPENSATORY AMOUNTS IMPORTS INTO THE FEDERAL REPUBLIC OF GERMANY OF WINE COMING UNDER TARIFF SUBHEADING 22.05 C I OF THE COMMON CUSTOMS TARIFF . THESE QUESTIONS WERE RAISED WITHIN THE CONTEXT OF A DISPUTE BETWEEN A GERMAN UNDERTAKING AND THE GERMAN CUSTOMS AUTHORITIES OVER THE LEVYING OF MONETARY COMPENSATORY AMOUNTS ON THE IMPORTATION OF CERTAIN QUANTITIES OF TABLE WINE FROM YUGOSLAVIA AND HUNGARY IN SEPTEMBER 1975 .

2REGULATION ( EEC ) NO 722/75 AMENDING REGULATION NO 539/75 DISCONTINUED THE MONETARY COMPENSATORY AMOUNTS ON WINE COMING WITHIN TARIFF SUBHEADINGS 22.05 C I AND II IN ALL THE MEMBER STATES OTHER THAN THE FEDERAL REPUBLIC OF GERMANY AS FROM 24 MARCH 1975 .

AT THE DATE OF THE IMPORTS IN QUESTION REGULATION ( EEC ) NO 539/75 , AS AMENDED BY REGULATION ( EEC ) NO 722/75 , HAD BEEN REPLACED BY REGULATION ( EEC ) NO 2021/75 OF THE COMMISSION OF 31 JULY 1975 FIXING THE MONETARY COMPENSATORY AMOUNTS AND CERTAIN RATES FOR THEIR APPLICATION ( OFFICIAL JOURNAL 1975 , L 205 , P . 1 ), WHICH CAME INTO FORCE ON 4 AUGUST 1975 ; PART 6 OF ANNEX I TO THAT REGULATION , RELATING TO WINE , FIXED COMPENSATORY AMOUNTS FOR GERMANY ALONE AND THUS MAINTAINED THE SITUATION ALREADY ESTABLISHED BY REGULATION NO 722/75 . IT IS THEREFORE NECESSARY TO EXAMINE THE QUESTIONS WHICH HAVE BEEN REFERRED TO THE COURT HAVING REGARD NOT ONLY TO REGULATION ( EEC ) NO 722/75 BUT ALSO ABOVE ALL TO REGULATION ( EEC ) NO 2021/75 .

3THE PRINCIPAL QUESTION RAISED BEFORE THE NATIONAL COURT AND IN THE PROCEDURE BEFORE THE COURT OF JUSTICE WAS WHETHER THE CONDITION LAID DOWN IN ARTICLE 1 ( 3 ) OF THE BASIC REGULATION ON MONETARY COMPENSATORY AMOUNTS , IN OTHER WORDS REGULATION ( EEC ) 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 THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ), AS SUBSEQUENTLY AMENDED , STILL APPLIED IN SEPTEMBER 1975 TO IMPORTS OF WINE INTO THE FEDERAL REPUBLIC OF GERMANY . THAT ARTICLE PROVIDES THAT THE GRANT OR LEVYING OF MONETARY COMPENSATORY AMOUNTS DOES NOT APPLY WHERE APPLICATION OF THE MONETARY MEASURES REFERRED TO IN PARAGRAPH 1 OF THAT ARTICLE ' ' WOULD LEAD TO DISTURBANCES IN TRADE IN AGRICULTURAL PRODUCTS ' ' . UNDER ARTICLE 6 OF THE REGULATION IT IS FOR THE COMMISSION , ACTING ACCORDING TO THE PROCEDURE KNOWN AS THE MANAGEMENT COMMITTEE PROCEDURE , TO DECIDE AS TO THE EXISTENCE OF A RISK OF DISTURBANCE .

4AS THE COURT HAS STATED IN SEVERAL JUDGMENTS , SINCE THE EVALUATION OF A COMPLEX ECONOMIC SITUATION IS INVOLVED , THE COMMISSION AND THE MANAGEMENT COMMITTEE ENJOY , IN THIS RESPECT , A WIDE MEASURE OF DISCRETION . IN REVIEWING THE LEGALITY OF THE EXERCISE OF SUCH DISCRETION , THE COURT MUST CONFINE ITSELF TO EXAMINING WHETHER IT CONTAINS A MANIFEST ERROR OR CONSTITUTES A MISUSE OF POWER OR WHETHER THE AUTHORITY DID NOT CLEARLY EXCEED THE BOUNDS OF ITS DISCRETION .

5DURING BOTH THE WRITTEN AND THE ORAL PROCEDURE , THE COMMISSION EXPLAINED THE CIRCUMSTANCES WHICH , IN ITS VIEW , JUSTIFIED THE RETENTION IN THE MARKET IN WINE , OF MONETARY COMPENSATORY AMOUNTS CHARGED ON IMPORTS IN THE CASE OF THE FEDERAL REPUBLIC OF GERMANY WHILE MONETARY COMPENSATORY AMOUNTS IN THAT SECTOR DID NOT APPLY TO OTHER MEMBER STATES . IN PARTICULAR IT SHOWED THAT THAT DECISION WAS BASED ON AN ANALYSIS OF THE GENERAL DEVELOPMENTS IN THE MARKET IN WINE IN THE COMMUNITY DURING A PERIOD IN WHICH THE SITUATION RECORDED IN CERTAIN MEMBER STATES MIGHT WELL HAVE CAUSED DISTURBANCES IN IMPORTS INTO GERMANY . IT DOES NOT SEEM THEREFORE THAT THE COMMISSION EXCEEDED THE BOUNDS OF ITS DISCRETION BY ADOPTING THE PROVISIONS OF REGULATIONS ( EEC ) NOS 722/75 AND 2021/75 IN QUESTION .

6MOREOVER , THE QUESTION HAS BEEN RAISED AS TO WHETHER THE PRINCIPLE OF NON- DISCRIMINATION LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY HAS BEEN INFRINGED BY THE RETENTION IN THE MARKET IN WINE OF THE MONETARY COMPENSATORY AMOUNTS IN THE CASE OF THE FEDERAL REPUBLIC OF GERMANY ALONE . IT IS NECESSARY HOWEVER TO REPLY TO THAT QUESTION IN THE NEGATIVE . IN FACT , THE FEDERAL REPUBLIC OF GERMANY WAS THE ONLY MEMBER STATE THE CURRENCY OF WHICH HAS BEEN REVALUED AND WHICH PRODUCES WINE NATIONALLY , SO THAT THE DIFFERENCE BETWEEN THE SOLUTION ADOPTED IN THE CASE OF THE FEDERAL REPUBLIC OF GERMANY , ON THE ONE HAND , AND IN THE CASE OF THE MEMBER STATES THE CURRENCY OF WHICH HAS BEEN DEVALUED AND THE MEMBER STATES THE CURRENCY OF WHICH HAS BEEN REVALUED BUT WHICH ARE NOT WINE PRODUCERS , ON THE OTHER , COULD THEREFORE BE CONSIDERED AS OBJECTIVELY JUSTIFIED .

7IN ADDITION , THE QUESTION WAS RAISED AS TO WHETHER THE LEVYING OF COMPENSATORY AMOUNTS ON IMPORTS OF WINE FROM THIRD COUNTRIES WAS CONTRARY TO THE PROHIBITION AGAINST CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES LAID DOWN IN ARTICLE 12 ( 2 ) 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 234 ). IN THIS CONNEXION IT IS SUFFICIENT TO STATE THAT THE MONETARY COMPENSATORY AMOUNTS ARE NOT LEVIES INTRODUCED BY SOME MEMBER STATES UNILATERALLY BUT COMMUNITY MEASURES ADOPTED TO DEAL WITH THE DIFFICULTIES RESULTING FOR THE COMMON AGRICULTURAL POLICY FROM MONETARY INSTABILITY . THE MONETARY COMPENSATORY AMOUNTS ARE NOT THEREFORE COVERED BY THE PROHIBITIONS ON LEVYING CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES .

8FINALLY , THE NATIONAL COURT ASKED WHETHER THE DUTY TO GIVE A STATEMENT OF REASONS FOR A REGULATION LAID DOWN IN ARTICLE 190 OF THE TREATY HAS BEEN INFRINGED BECAUSE THE REASONS UPON WHICH THE RETENTION OF THE MONETARY COMPENSATORY AMOUNTS IN THE CASE OF GERMANY WAS BASED WERE NOT EXPRESSLY STATED . THE SECOND RECITAL OF THE PREAMBLE TO REGULATION ( EEC ) NO 722/75 PROVIDES THAT :

' ' WHEREAS , AS REGARDS WINE PRODUCTS , COMPENSATORY AMOUNTS ARE FIXED ONLY IN RESPECT OF TABLE WINES ; WHEREAS PRODUCTION AND MARKETING CONDITIONS FOR THESE WINES DIFFER FROM MEMBER STATE TO MEMBER STATE ; WHEREAS IT THEREFORE SEEMS POSSIBLE TO DISCONTINUE WITH IMMEDIATE EFFECT THE COMPENSATORY AMOUNTS IN MOST OF THE MEMBER STATES WITHOUT THEREBY DISTURBING TRADE ' ' .

IT FOLLOWS ONLY FROM THE ANNEX TO THE REGULATION THAT THE DISCONTINUANCE OF THE COMPENSATORY AMOUNTS DOES NOT APPLY TO THE FEDERAL REPUBLIC OF GERMANY . THE TWELFTH RECITAL OF THE PREAMBLE TO REGULATION ( EEC ) NO 2021/75 IN THE ENGLISH VERSION , HAVING RECALLED THE TERMS OF ARTICLE 1 ( 3 ) OF REGULATION ( EEC ) NO 974/71 , PROVIDES THAT :

' ' WHEREAS IN THE PRESENT SITUATION THIS RULE MAKES IT POSSIBLE NOT TO FIX COMPENSATORY AMOUNTS FOR FRANCE AND FOR ITALY , AND TO FIX AMOUNTS IN THE WINE SECTOR ONLY FOR GERMANY ' ' .

9ALTHOUGH THOSE RECITALS DO NOT MENTION THE FACTORS JUSTIFYING THE MAKING OF AN EXCEPTION IN THE CASE OF GERMANY , THAT ABSENCE , IN THE PARTICULAR CIRCUMSTANCES OF THE CASE , DOES NOT RESULT IN THE INVALIDITY OF THE PROVISIONS IN QUESTION . IN FACT , IN THE CASE OF GERMANY IT WAS MERELY THE RETENTION IN SUBSTANCE OF THE RULES WHICH HAD ALREADY BEEN IN FORCE FOR SEVERAL YEARS , WHILST THE AMENDMENT INTRODUCED BY REGULATION ( EEC ) NO 722/75 AND RETAINED IN REGULATION ( EEC ) NO 2021/75 ONLY CONCERNED CERTAIN OTHER MEMBER STATES . ALTHOUGH IN SIMILAR CIRCUMSTANCES THE DISCONTINUANCE OF THE MONETARY COMPENSATORY AMOUNTS IN THE CASE OF CERTAIN MEMBER STATES IS THE RESULT OF THE FACT THAT THE CONDITIONS FOR THEIR INTRODUCTION ARE NO LONGER FULFILLED , THEIR RETENTION WITH REGARD TO ANOTHER MEMBER STATE IS THE NORMAL RESULT OF THE CONTINUING EXISTENCE OF THE NECESSARY CONDITIONS AS FAR AS THAT OTHER STATE IS CONCERNED . IN THE ABSENCE OF AN EXPRESS INDICATION IT MAY BE ACCEPTED THAT THE RETENTION OF THE PREVIOUS RULES IS BASED ON THE SAME GROUNDS .

10IT IS THEREFORE NECESSARY TO REPLY THAT CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATIONS ( EEC ) NOS 722/75 AND 2021/75 OF THE COMMISSION IN SO FAR AS THE IMPORTATION INTO GERMANY OF WINE FALLING WITHIN TARIFF SUBHEADING 22.05 C I IS EXCEPTED FROM THE DISCONTINUANCE OF THE MONETARY COMPENSATORY AMOUNTS .

COSTS

11THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO 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 .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT RHEINLAND- PFALZ BY ORDER OF 4 OCTOBER 1977 , HEREBY RULES :

CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH KIND AS TO AFFECT THE VALIDITY OF REGULATIONS ( EEC ) NOS 722/75 AND 2021/75 OF THE COMMISSION IN SO FAR AS THE IMPORTATION INTO GERMANY OF WINE FALLING WITHIN TARIFF SUBHEADING 22.05 C I IS EXCEPTED FROM THE DISCONTINUANCE OF THE MONETARY COMPENSATORY AMOUNTS .