(a)

on the date borne by the Official Journal in question;

(b)

at the time when the Official Journal in question is in fact available at the Office for Official Publications of the European Communities; or

(c)

at the time when the Official Journal in question is actually available on the territory of the particular Member State?

(a)

The appellant's reference to the fact that the contracts concluded for the imports were expressed in a revalued currency and that those imports could not therefore have been effected at lower prices for technical reasons relating to foreign exchange must first of all be considered.

In my view it cannot be denied that this fact cannot be taken into account under the system of monetary compensation. On this point the Commission has rightly asserted that the large number of the movements of goods under consideration rules out the possibility of deciding on the question whether in any particular case a currency profit has been made or not. Furthermore, it is conceivable that in the case of contracts of this kind, currency trends would already have been taken into consideration but this can likewise not be verified. In addition, in connexion with this problem reference can be made to the relevant decided cases of the Court of Justice. Thus the Court in its judgment of 24 October 1973 in Case 5/73, Balkan-Import-Export GmbH v Hauptzollamt Berlin-Packhof ([1973] ECR 1091), stressed that the levying of monetary compensatory amounts cannot be dependent upon any profit made by the importer on the rate of exchange and that it must on the contrary depend upon the use of uniform and generally applicable criteria. Accordingly, the Court in its judgment of 7 July 1976 in Case 7/764 IRCA v Amministrazione delle Finanze dello Stato ([1976] ECR 1213), held that compensatory amounts are not calculated on the basis of the prices in fact paid for the goods; the value of the specific goods cannot be taken into account when making that calculation. We should abide by this rule in this case.

(b)

The appellant in the main action has also submitted that the intervention system for the common organization of the market in wine is adequately protected by the system of reference prices from imports from non-member countries. The reference prices, the maintenance of which has, moreover, been guaranteed by Yugoslavia and which give rise to levies if the offer prices fall below them, are in fact much higher than the activating prices which are relevant for intervention. For that reason disturbances of the intervention system could in no circumstances be caused by imports from non-member countries.

In this connexion the Commission has with good reason emphasized that the fact that the reference prices and the levies connected therewith, on the one hand, and monetary compensation, on the other hand, have different functions and are subject to different conditions, ought not to be overlooked. It is of special importance that reference prices are intended to raise prices for wine from non-member countries to the Community level, whereas the aim of monetary compensatory amounts was to provide compensation for the differences in actual agricultural prices in national currency due to variations in exchange rates. Furthermore, monetary compensation is not merely based on the notion that disturbances of the intervention system are to be avoided. On the contrary, it is concerned rather with the elemination of market disturbances altogether. However, the question whether the Commission's forecast at that time may be called in question on this point remains to be considered later.

During the oral procedure the appellant in this connexion also raised the question why monetary compensation was not made unnecessary by the raising of reference prices, since in any case the prices of most wines from non-member countries are above their level; the Commission observed on this point with good reason that such a criticism of the system of reference prices is inappropriate to an examination of monetary compensation. It is precisely in connexion with monetary compensation that reference should be made to the way in which such a pricing system is administered (see the judgment of the Court of 22 January 1976 in Case 55/75, Balkan-Import-Export GmbH v Hauptzollamt Berlin-Packhof ([1976] ECR 19), which was concerned with milk products). Furthermore, attention is drawn to the need for a uniform application of the system of monetary compensation, which also applies of course to intra-Community trade, which is not affected by reference prices.

(c)

Thirdly, the appellant has pointed out that the intervention system for the common organization of the market in wines only serves to protect the market in table wines and does not apply to quality wines. Accordingly, within the Community, monetary compensation also only applies to table wines. In accordance with that situation, therefore, there appears to be no justification for applying monetary compensation to quality wines from non-member countries — such wines being involved in the main action — for it cannot be assumed that they have repercussions on the market in table wines; in any case, this aspect of the matter has not been examined.

As far as this point is concerned it is in the first place certain that Community products may be classified either as table wines or as quality wines. In fact the relevant provisions of Regulation (EEC) No 817/70 of the Council (Official Journal, English Special Edition 1970 (I), p. 252), to which reference is made in Article 1 (5) of Regulation (EEC) No 816/70 of the Council — they deal with the supervision of production and of regions under cultivation — are clearly tailored to the characteristics of wines from the Member States. On the other hand, there is no indication of a principle of Community law to the effect that goods from non-member countries are to be placed on the same footing in every respect as Community products; on the contrary, we must proceed on the assumption that in relation to non-member countries the Community has extensive freedom in setting the pattern for trade relations.

However, in so far as mention is also made, within the context of the common organization of the market in wines, of quality wines coming from non-member countries, as for example in the third subparagraph of Article 9 (3) of Regulation No 816/70, according to which a decision may be taken not to levy all or part of the countervailing charge on imports of certain quality wines produced in third countries, the fact that the appellant has not claimed that the wines which it has imported were covered by that provision, which clearly, if I have been correctly instructed, has until now been applied only to certain southern wines, is not to be disregarded. Nor, furthermore, can the appellant support its view with reference to the later Regulation (EEC) No 2133/74 of the Council laying down general rules for the description and presentation of wines and grape musts (Official Journal 1974, L 227, p. 1) or to Commission Regulation (EEC) No 1608/76 laying down detailed rules for the description and presentation of wines and grape musts (Official Journal 1976, L 183, p. 1). The important fact is that in this case even with reference to quality wines produced in third countries the only legal questions relate to classification. As far as prices are concerned no special provisions apply to such wines; they too are subject to the rules relating to reference prices. This means however that such quality wines — and this is of importance in the case of monetary compensation — fall within a common organization of the market. It is also important that their price is aligned on the price of products for which intervention measures have been provided. That can be said because the second subparagraph of Article 9 (1) of Regulation (EEC) No 816/70 provides that reference prices shall be fixed on the basis of the guide prices for the types of red and white table wine most representative of Community production, that is, on the basis of prices for products in favour of which intervention measures have been provided.

(d)

Finally, the appellant has criticised the assumption that there was a risk of disturbances which is the precondition for monetary compensation under Regulation (EEC) No 974/71.

On this point the Court has repeatedly held in its decided cases that the Commission and the Management Committee have a wide discretion in this field and judicial review must accordingly be confined to the question whether there has been a manifest error or misuse of powers or whether the margin of discretion has manifestly been exceeded. In this connexion currency factors and market conditions are also material (see the judgment of the Court of 14 May 1975 in Case 74/74 Comptoir Nationale Technique Agricole v Commission of the European Communities [1975] ECR 533 and the judgment of the Court in Case 136/77 Frima A. Racke v Hauptzollamt Mainz [1978] ECR 1245). Since in addition the measures must be speedily implemented, evaluations of a general nature which cannot take account of every product and every exporting country are unavoidable (see the judgment of the Court of 7 July 1976 in Case 7/76 IRCA v Amministrazione dette Finanze detto Stato [1976] ECR 1213 and the judgment of the Court of 20 October 1977 in Case 29/77 S.A. Roquette Frères v French State-Administration des Douanes [1971] ECR 1835). It is especially worthy of note that the Court held in its judgment in Case 29/77 that there might be said to be a risk of disturbances merely on the basis of an appreciable fall in the rate of exchange of a currency.

In the view of the appellant these decided cases come up against objections relating to the rule of law. It is convinced that to limit judicial review to cases where discretionary powers have manifestly been exceeded is unacceptable. On the contrary, care must be taken — and this was not done in this case — to ensure that the facts on which the discretionary evaluation is based are adequately established. In any case a variation in the rate of exchange does not of itself suffice for accepting that there is a risk of disturbance.

As far as this problem is concerned and contrary to the appellant's view, I see no reason for a fundamental modification of the case-law. Even if the provisions which have been quoted may perhaps appear to be somewhat widely drawn their meaning is clear and it can hardly be faulted. Monetary compensation involves the examination of complicated situations in which a great variety of factors are at play; if monetary compensation is to be effective this examination must take place very quickly and this means that evaluations of a non-differentiated nature are unavoidable. It follows that the Court cannot go into every detail of such evaluations and is not competent to substitute its own appreciation for the detailed assessment of the various factors which is absolutely essential when making an evaluation of a non-differentiated nature.

If that is taken to be correct it must be borne in mind in this case that the extent of the currency crisis at the beginning of 1973 with all the particulars mentioned above made it necessary to act very promptly. This meant that a thorough examination of every aspect of the market and for each Member State, in particular with reference to the effects on the market in table wines and the need for it to be protected, was undoubtedly impossible. To this was added the fact that that period saw the first application of the new system introduced by means of Regulation (EEC) No 509/73, experience of which had yet to be gained. In this situation and in view of the heavy fall of the lira, accompanied by the revaluation of the German mark, it was bound to seem likely that a reduction in the price of agricultural exports from Italy and as a result a disturbance of the French and German markets in wine was to be feared. This was a legitimate reason for extending monetary compensation within the Community to all types of table wine. At the same time, however, because of the existing price relationship between table wine and wine produced by non-member countries, the need to include the latter as well also had to be accepted. To leave that wine out of account could only have meant acquiescing in Italian wines being placed at a competitive disadvantage.

I am convinced that this is sufficient to justify the monetary compensatory amounts at issue in this case. There is in fact no reason for calling in question the forecasts made by the Commission relating to a disturbance of the market and for criticising the fact that at an early stage all wines produced in non-member countries were included in the monetary compensation system without making any distinction based on the price-range of the wines and the countries into which they were imported.

(e)

Accordingly, in answer to the first question it can only be stated that none of the views put forward by the appellant provide any grounds for doubting the validity of the regulations mentioned in the question in so far as according to those regulations monetary compensation had to be levied on imports of wine from non-member countries.

(a)

As the court making the reference has correctly assumed the application of the said regulations from the actual date of publication of Regulation No 649/73, that is 12 March 1973, raises no problems. From that moment Regulation No 649/73, by which certain wines were for the first time included in the monetary compensation system, cannot be said to have retroactive effect. It is true that Regulation No 741/73 appears to have retroactive effect — if the date of publication is compared with the date of its applicability. However in this connexion, since only an adjustment of the monetary compensatory amounts was involved, reference may be made to the judgment in Case 7/76. That judgment makes it clear that in such circumstances, that is to say where certain goods have already been included in the monetary compensation system — and this applies to wines as from 12 March 1973 — and where the monetary compensatory amounts are merely adjusted in accordance with the currency trend, there cannot be said to have been any actual retroactive effect.

(b)

On the other hand, in so far as the regulations in question were intended to be applied before 12 March 1973, which is true of Regulation No 649/73 as from 26 February 1973 and of Regulation No 741/73 as from 5 March 1973, there was a genuine retroactive effect. However, since the removals from the private customs warehouse and the imports at issue in the main action were effected only as from 9 March 1973 the question of the extent to which that retroaction was lawful need now only be examined in relation to that date, that is with reference to a relatively short period of time.

As the Court is aware, the Commission has endeavoured to dispel doubts which might compel consideration in this connexion from the standpoint of the rule of law and I also believe — if I may say so at once — that it succeeded convincingly in so doing.

(a)

In Case 98/78 there should be a declaration that those proceedings have not brought to light any factor such as to invalidate Regulations Nos 649/73, 741/73 and 811/73 in so far as those regulations fixed compensatory amounts for imported red and white wines under tariff subheadings 22.05 C I and C II without making any distinction between the two.

(b)

In connexion with the further questions referred to the Court in both cases, the following declaration should be made: