61981J0292

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - EXPORT REFUNDS FIXED IN ADVANCE - DETERMINATION BY TENDERING PROCEDURE - ADVANCE FIXING OF MONETARY COMPENSATORY AMOUNTS - CONVERSION INTO NATIONAL CURRENCY - RATES OF EXCHANGE APPLICABLE

( COMMISSION REGULATIONS NOS 243/78 , ART . 6 ( 2 ), AND 3016/78 , PARAGRAPH X ( A ) OF ANNEX )

2.AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - INTERVENTION PRICE - PRICE NOT GUARANTEED TO PRODUCERS IN THEIR COMMERCIAL TRANSACTIONS

3.MEASURES ADOPTED BY THE INSTITUTIONS - STATEMENT OF REASONS - DUTY - SCOPE

( EEC TREATY , ART . 190 )

4.MEASURES ADOPTED BY THE INSTITUTIONS - REGULATIONS - STATEMENT OF REASONS - DUTY - SCOPE

( EEC TREATY , ART . 190 )

5.AGRICULTURE - COMMON ORGANIZATIONS OF THE MARKETS - DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS - CRITERIA FOR ASSESSMENT - DIFFERENT TECHNICAL RULES AND PROCEDURES APPLIED IN THE VARIOUS ORGANIZATIONS OF THE MARKETS - NOT A VALID CRITERION FOR ASSESSMENT

( EEC TREATY , SECOND SUBPARAGRAPH OF ART . 40 ( 3 ))

6.AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS - CONCEPT - DIFFERENCE OF TREATMENT RESULTING FROM TRADERS ' FREEDOM TO CHOOSE BETWEEN TWO SYSTEMS - NO DISCRIMINATION

( EEG TREATY , SECOND SUBPARAGRAPH OF ART . 40 ( 3 ))

1 . THE EFFECT OF PARAGRAPH X ( A ) OF THE ANNEX TO COMMISSION REGULATION NO 3016/78 BEING , IN THE CASE OF ADVANCE FIXING OF REFUNDS ON EXPORTS OF SUGAR WITH ADVANCE FIXING OF MONETARY COMPENSATORY AMOUNTS , TO PRESCRIBE THE REPRESENTATIVE RATE RULING ON THE LAST DAY FOR THE SUBMISSION OF TENDERS AS THE RATE OF EXCHANGE APPLICABLE TO THE CONVERSION OF THE UNIT OF ACCOUNT INTO NATIONAL CURRENCY IN THE PROCEDURE FOR DETERMINING EXPORT REFUNDS UNDER A TENDERING PROCEDURE , A CHOICE IS MADE BY THAT PROVISION WHICH IS WHOLLY IN CONFORMITY WITH THE AIM OF THE ADVANCE FIXING PROCEDURE . THE PROVISION IN QUESTION DEFINES THE EXPORTER ' S POSITION AT THE TIME OF TENDERING SO AS TO ELIMINATE THE ELEMENT OF UNCERTAINTY TO WHICH THE EXPORTER WOULD BE SUBJECT AS A RESULT OF THE APPLICATION OF THE REFUND IN FORCE ON THE DAY OF EXPORTATION . SINCE THAT POSITION IS DETERMINED IN NATIONAL CURRENCY THE EXPORTER IS NOT THEREBY EXPOSED TO ANY EXCHANGE RISK REGARDING THE AMOUNT OF THE REFUND .

SINCE THE APPLICABLE MONETARY COMPENSATORY AMOUNT IS , BY VIRTUE OF ARTICLE 6 ( 2 ) OF REGULATION NO 243/78 , ALSO THE AMOUNT IN FORCE ON THE LAST DAY OF THE PERIOD FOR THE SUBMISSION OF TENDERS , THERE IS NO DISCREPANCY IN THAT REGARD BETWEEN THE SYSTEM FOR DETERMINING EXPORT REFUNDS AND THAT FOR FIXING THE MONETARY COMPENSATORY AMOUNTS .

2.THE OBJECT OF THE INTERVENTION MACHINERY IN THE SUGAR SECTOR IS TO MAINTAIN MARKET PRICES AT THE DESIRED LEVEL BY THE IMPOSITION ON THE INTERVENTION AGENCIES OF THE OBLIGATION TO ACCEPT SUGAR , SUBJECT TO THE DIFFERENCES IN SYSTEM , DEPENDING ON WHETHER IT IS CLASSIFIED AS ' ' A ' ' , ' ' B ' ' OR ' ' C ' ' SUGAR , IN REGARD TO THE INTERVENTION PRICE , BUT NOT TO GIVE PRODUCERS A GUARANTEE THAT THEY WILL OBTAIN THAT PRICE IN EVERY ONE OF THEIR TRANSACTIONS , STILL LESS TO FORCE PURCHASERS TO AMEND THEIR CONTRACTS IN THE EVENT OF A CHANGE IN THE INTERVENTION PRICE OR IN THE RATE OF EXCHANGE . DETERMINATION BOTH OF THE SELLING PRICE ON EXPORT AND OF THE PURCHASE PRICE FOR THE SUGAR IS A MATTER OF FREE CHOICE AND THEREFORE A RISK TO BE BORNE BY THE UNDERTAKINGS CONCERNED . THE EXISTENCE OF SUCH A RISK CANNOT JUSTIFY ANY ADJUSTMENT OF THE AMOUNTS FIXED ON THE BASIS OF COMMUNITY REGULATIONS IN THE FORM , IN PARTICULAR , OF EXPORT REFUNDS IN ORDER TO TAKE ACCOUNT OF AN INCREASE IN THE INTERVENTION PRICE .

3.THE STATEMENT OF REASONS REQUIRED BY ARTICLE 190 OF THE TREATY MUST BE APPROPRIATE TO THE NATURE OF THE MEASURE IN QUESTION . IT MUST SHOW CLEARLY AND UNEQUIVOCALLY THE REASONING OF THE COMMUNITY AUTHORITY WHICH ISSUED THE CONTESTED MEASURE SO AS TO INFORM THE PERSONS CONCERNED OF THE JUSTIFICATION FOR THE MEASURE ADOPTED AND TO ENABLE THE COURT TO EXERCISE ITS POWER OF REVIEW .

4.THE STATEMENT OF REASONS ON WHICH A REGULATION IS BASED IS NOT REQUIRED TO SPECIFY THE OFTEN VERY NUMEROUS AND COMPLEX MATTERS OF FACT OR OF LAW CONSTITUTING THE SUBJECT-MATTER OF THE REGULATION , PROVIDED THAT THOSE MATTERS FALL WITHIN THE GENERAL SCHEME OF THE WHOLE OF WHICH IT FORMS PART . IF THE CONTESTED MEASURE CLEARLY DISCLOSES THE ESSENTIAL OBJECTIVE PURSUED BY THE INSTITUTION , IT WOULD BE GOING TOO FAR TO INSIST UPON A SPECIFIC STATEMENT OF REASONS FOR EACH OF THE TECHNICAL CHOICES FOR WHICH IT PROVIDES .

5.AS EACH OF THE COMMON ORGANIZATIONS OF THE MARKET EMBODIES FEATURES SPECIFIC TO IT , A COMPARISON OF THE TECHNICAL RULES AND PROCEDURES ADOPTED IN ORDER TO REGULATE THE VARIOUS SECTORS OF THE MARKET CANNOT CONSTITUTE A VALID BASIS FOR THE PURPOSE OF PROVING THE COMPLAINT OF DISCRIMINATION BETWEEN DISSIMILAR PRODUCTS , WHICH ARE SUBJECT TO DIFFERENT RULES AND WHICH , MOREOVER , IN NO WAY COMPETE WITH EACH OTHER .

6.A DIFFERENCE OF TREATMENT WHICH IS MERELY THE CONSEQUENCE OF A CHOICE BETWEEN TWO SYSTEMS OFFERED TO TRADERS UNDER A COMMON ORGANIZATION OF THE MARKET AND FREELY CHOSEN BY THEM ACCORDING TO THEIR OWN REQUIREMENTS CANNOT CONSTITUTE DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS .

IN JOINED CASES 292 AND 293/81

REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL ADMINISTRATIF ( ADMINISTRATIVE COURT ), PARIS , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SOCIETE JEAN LION ET CIE , HAVING ITS REGISTERED OFFICE IN PARIS ( CASE 292/81 ),

SOCIETE LOIRET & HAENTJENS SA ,

SOCIETE JEAN LION ET CIE ,

SOCIETE DEBMAN ,

SOCIETE ' ' ANCIENNE MAISON MARCEL BAUCHE ' ' SA ,

SOCIETE SCOA SA ,

SOCIETE SUCRIMEX SA ,

SOCIETE PHILIPP BROTHERS SA ,

COMPAGNIE COMMERCIALE ' ' SUCRES ET DENREES ' ' ,

SOCIETE PIERRE PEETERS , SARL ,

EACH HAVING ITS REGISTERED OFFICE IN PARIS ( CASE 293/81 )

V

FONDS D ' INTERVENTION ET DE REGULARISATION DU MARCHE DU SUCRE ( FIRS ) ( SUGAR MARKET INTERVENTION AND STABILIZATION FUND ), HAVING ITS HEAD OFFICE IN PARIS ,

ON THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 3016/78 OF 20 DECEMBER 1978 LAYING DOWN CERTAIN RULES FOR APPLYING CONVERSION RATES IN THE SUGAR AND ISOGLUCOSE SECTORS ,

1 BY TWO JUDGMENTS OF 10 NOVEMBER 1981 WHICH WERE RECEIVED AT THE COURT ON 16 NOVEMBER 1981 , THE TRIBUNAL ADMINISTRATIF ( ADMINISTRATIVE COURT ), PARIS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE VALIDITY OF COMMISSION REGULATION NO 3016/78 OF 20 DECEMBER 1978 LAYING DOWN CERTAIN RULES FOR APPLYING CONVERSION RATES IN THE SUGAR AND ISOGLUCOSE SECTORS ( OFFICIAL JOURNAL 1978 , L 359 , P . 11 ) AND MORE PARTICULARLY OF THE PROVISIONS OF PARAGRAPH X ( A ) OF THE ANNEX TO THAT REGULATION .

2 IT APPEARS FROM THE FILE ON THE CASE THAT JEAN LION ET CIE , THE PLAINTIFF IN THE MAIN ACTION WHICH IS THE SUBJECT OF CASE 292/81 , EXPORTED SUGAR DURING THE SUGAR MARKETING YEAR 1979 TO 1980 AND FOR THAT PURPOSE OBTAINED , BETWEEN 7 FEBRUARY AND 13 JUNE 1979 , FROM THE COMPETENT NATIONAL BODY , THE FONDS D ' INTERVENTION ET DE REGULARISATION DU MARCHE DU SUCRE ( SUGAR MARKET INTERVENTION AND STABILIZATION FUND - HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' ) EXPORT CERTIFICATES FOR SUGAR INTENDED FOR NON-MEMBER COUNTRIES , WITH ADVANCE FIXING , BY A TENDERING PROCEDURE , OF EXPORT REFUNDS AND ADVANCE FIXING OF THE MONETARY COMPENSATORY AMOUNTS . AFTER THE ISSUE OF THOSE CERTIFICATES , THE COMMUNITY LOWERED THE REPRESENTATIVE RATE FOR THE FRENCH FRANC ( THE SO-CALLED ' ' GREEN RATE ' ' ) AND INCREASED THE INTERVENTION PRICE FOR SUGAR , BOTH OF WHICH MEASURES TOOK EFFECT ON 1 APRIL 1979 ( REGULATION NO 1266/79 OF 25 JUNE 1979 , OFFICIAL JOURNAL 1979 , L 161 , P . 4 , AND REGULATION NO 1288/79 OF 25 JUNE 1979 , OFFICIAL JOURNAL 1979 , L 162 , P . 1 ).

3 THE PLAINTIFF JEAN LION ET CIE , CONSIDERING THAT BY MEANS OF THOSE UNFORESEEABLE MEASURES THE COMMUNITY INSTITUTIONS HAD CHANGED THE FINANCIAL CONDITIONS FOR EXPORTS COVERED BY THE CERTIFICATES AT ISSUE , SUBMITTED AN APPLICATION TO THE FUND FOR SUPPLEMENTARY REFUNDS FOR THE EXPORTS OF SUGAR WHICH IT HAD EFFECTED , SO AS TO TAKE ACCOUNT OF THE DEVALUATION OF THE ' ' GREEN FRANC ' ' AND OF THE INCREASED INTERVENTION PRICE . SINCE THE FUND DID NOT RESPOND TO THAT APPLICATION , THE PLAINTIFF BROUGHT AN ACTION AGAINST THAT IMPLIED DECISION OF REJECTION BEFORE THE TRIBUNAL ADMINISTRATIF . IN ITS DEFENCE , THE FUND STATED THAT IT HAD MERELY APPLIED THE EXISTING COMMUNITY RULES AND THE PLAINTIFF CHALLENGED THE VALIDITY OF THOSE RULES , IN SO FAR AS THEY CONTAINED NO PROVISIONS ALLOWING REFUNDS TO BE ADJUSTED FOR THE BENEFIT OF UNDERTAKINGS WHICH HAD AVAILED THEMSELVES OF THE OPPORTUNITY TO OBTAIN ADVANCE FIXING .

4 LOIRET ET HAENTJENS SA AND EIGHT OTHER SUGAR-EXPORTING COMPANIES , THE PLAINTIFFS IN THE MAIN ACTIONS WHICH ARE THE SUBJECT OF CASE 293/81 , OBTAINED EXPORT CERTIFICATES , WITH ADVANCE FIXING OF THE REFUNDS AND OF THE MONETARY COMPENSATORY AMOUNTS , AFTER THE MONETARY DEVELOPMENTS INVOLVED IN CASE 292/81 BUT BEFORE 28 SEPTEMBER 1979 , THE DATE OF THE ADOPTION OF REGULATION NO 2139/79 ( OFFICIAL JOURNAL 1979 , L 246 , P . 76 ) FURTHER DEVALUING THE ' ' GREEN FRANC ' ' WITH EFFECT FROM 1 OCTOBER 1979 . HAVING BEEN UNABLE TO OBTAIN SUPPLEMENTARY REFUNDS FROM THE FUND IN ORDER TO OFFSET THE EFFECT OF THAT ALTERATION OF THE REPRESENTATIVE RATE , THEY BROUGHT ACTIONS BEFORE THE TRIBUNAL ADMINISTRATIF ANALOGOUS TO THE ACTION IN CASE 292/81 .

5 WITH A VIEW TO ADJUDICATING UPON ALL THOSE ACTIONS , THE TRIBUNAL ADMINISTRATIF HAS SUBMITTED QUESTIONS ON THE VALIDITY OF REGULATION NO 3016/78 , THE EFFECT OF PARAGRAPH X ( A ) OF THE ANNEX THERETO BEING , IN THE CASE OF ADVANCE FIXING OF REFUNDS WITH ADVANCE FIXING OF MONETARY COMPENSATORY AMOUNTS , TO PRESCRIBE AS THE RATE OF EXCHANGE APPLICABLE TO THE CONVERSION OF THE UNIT OF ACCOUNT INTO NATIONAL CURRENCY THE RATE RULING ON THE LAST DAY FOR THE SUBMISSION OF TENDERS WITH A VIEW TO THE AWARD OF REFUNDS . SINCE THE EFFECT OF THAT PROVISION , AS REGARDS THE HOLDERS OF EXPORT CERTIFICATES WITH ADVANCE FIXING OF REFUNDS AND OF MONETARY COMPENSATORY AMOUNTS , IS TO RENDER INOPERATIVE ANY ALTERATION OF THE RATE OF EXCHANGE OCCURRING SUBSEQUENTLY , THE TRIBUNAL ADMINISTRATIF SUBMITTED THE FOLLOWING THREE QUESTIONS ON THE VALIDITY OF THAT PROVISION :

IS REGULATION ( EEC ) NO 3016/78 OF 20 DECEMBER 1978 VALID WITH REGARD TO THE PROVISIONS CONTAINED IN ARTICLE 190 OF THE TREATY OF ROME?

DOES IT INCORPORATE INTO THE COMMUNITY RULES DISCRIMINATORY MEASURES SUCH AS TO MAKE THEM INVALID?

DOES IT CONFLICT WITH THE PROVISIONS OF REGULATION ( EEC ) NO 243/78 OF 1 FEBRUARY 1978 PROVIDING FOR THE ADVANCE FIXING OF MONETARY COMPENSATORY AMOUNTS , IN RELATION TO WHICH IT CONSTITUTES A MEASURE OF ADAPTATION?

6 IT IS APPROPRIATE IN THE FIRST PLACE TO EXAMINE THE THIRD QUESTION , WHICH CONCERNS THE SUBSTANTIVE VALIDITY OF THE PROVISION IN QUESTION , IN SO FAR AS THE ANSWER TO THAT QUESTION AFFECTS THE ANSWER TO THE FIRST QUESTION , WHICH CONCERNS THE STATEMENT OF THE REASONS ON WHICH THAT PROVISION IS BASED .

THE THIRD QUESTION

7 THE THIRD QUESTION CALLS FOR A PRELIMINARY OBSERVATION SINCE , BY CONTRAST WITH THE ASSUMPTION WHICH APPEARS TO BE INHERENT IN THE WORDING OF THAT QUESTION , THERE IS NO ORDER OF PRECEDENCE AS BETWEEN COMMISSION REGULATION NO 3016/78 , THE VALIDITY OF WHICH IS CONTESTED , AND COMMISSION REGULATION NO 243/78 OF 1 FEBRUARY 1978 PROVIDING FOR THE ADVANCE FIXING OF MONETARY COMPENSATORY AMOUNTS ( AS AMENDED BY COMMISSION REGULATION NO 1544/78 OF 4 JULY 1978 , OFFICIAL JOURNAL 1978 , L 182 , P . 7 ). THOSE TWO REGULATIONS , DESPITE HAVING SEPARATE LEGAL BASES - THE FORMER IS DERIVED SIMULTANEOUSLY FROM REGULATION NO 3330/74 OF THE COUNCIL OF 19 DECEMBER 1974 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OFFICIAL JOURNAL 1974 , L 359 , P . 1 ) AND FROM COUNCIL REGULATION NO 878/77 OF 26 APRIL 1977 ON THE EXCHANGE RATES TO BE APPLIED IN AGRICULTURE , AND THE SECOND IS DERIVED FROM 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 THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ), AS SUBSEQUENTLY AMENDED - WERE BOTH ISSUED BY THE COMMISSION AND RANK EQUALLY AS REGARDS IMPLEMENTATION IN RELATION TO THE COUNCIL REGULATIONS .

8 THE OBJECT OF THE QUESTION SUBMITTED BY THE TRIBUNAL ADMINSITRATIF MUST THEREFORE BE UNDERSTOOD AS BEING TO DETERMINE WHETHER THE VALIDITY OF THE CONTESTED PROVISIONS OF REGULATION NO 3016/78 MAY BE CALLED IN QUESTION BY REASON OF THE FACT THAT , AS ALLEGED BY THE PLAINTIFFS IN THE MAIN ACTIONS , IT GIVES RISE TO A LACK OF CONTINUITY OR TO A CONTRADICTION WITHIN THE SYSTEM FOR THE DETERMINATION OF EXPORT REFUNDS AND MONETARY COMPENSATORY AMOUNTS .

9 IT IS NOT DISPUTED THAT BY ADOPTING THE CONTESTED PROVISION CONTAINED IN REGULATION NO 3016/78 THE COMMISSION ACTED WITHIN THE LIMITS OF THE POWERS CONFERRED ON IT WITHIN THE FRAMEWORK , ON THE ONE HAND , OF THE COMMON ORGANIZATION OF THE MARKETS IN THE SECTOR IN QUESTION AND , ON THE OTHER , OF THE PROVISIONS OF THE REGULATIONS APPLICABLE IN THE CASE OF AN ALTERATION OF THE VALUE OF THE UNIT OF ACCOUNT AND IN THE CASE OF AN ADJUSTMENT OF THE AGRICULTURAL PRICES REFERRED TO IN REGULATION NO 1134/68 OF THE COUNCIL OF 30 JULY 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 396 ) AS SUBSEQUENTLY AMENDED BY COUNCIL REGULATION NO 878/77 OF 26 APRIL 1977 ( OFFICIAL JOURNAL 1977 , L 106 , P . 27 ) AND NO 976/78 OF 12 MAY 1978 ( OFFICIAL JOURNAL 1978 , L 125 , P . 32 ), TO WHICH REFERENCE IS MADE , DIRECTLY OR INDIRECTLY , IN THE PREAMBLE TO THE REGULATION IN QUESTION .

10 THE OBJECT OF REGULATION NO 3016/78 IS , ACCORDING TO THE SECOND RECITAL IN THE PREAMBLE THERETO , TO DETERMINE , FOR THE PURPOSE OF APPLYING THE CONVERSION RATES , THE TIME WHEN EACH TRANSACTION OR PART TRANSACTION GIVING RISE TO THE PAYMENT OR RECEIPT OF THE VARIOUS AMOUNTS PROVIDED FOR IN THE COMMUNITY RULES IS CARRIED OUT . THE ANNEX ENUMERATES 32 DIFFERENT AMOUNTS INCLUDING , IN PARAGRAPH X ( A ) ' ' ALL IMPORT AND EXPORT LEVIES AND EXPORT REFUNDS PROVIDED FOR UNDER REGULATION ( EEC ) NO 3330/74 : ( A ) WITH ADVANCE FIXING OF MONETARY COMPENSATORY AMOUNTS ' ' . IT IS INDICATED WITH REGARD THERETO THAT THE CONVERSION RATE TO BE APPLIED IS THE ' ' REPRESENTATIVE RATE APPLICABLE ON THE DAY REFERRED TO IN ARTICLE 6 OF REGULATION ( EEC ) NO 243/78 , AS AMENDED BY REGULATION ( EEC ) NO 1544/78 ' ' . IT FOLLOWS FROM THESE REFERENCES THAT THE DAY IN QUESTION IS THE LAST DAY OF THE PERIOD FOR THE SUBMISSION OF TENDERS IN THE PROCEDURE FOR DETERMINING EXPORT REFUNDS UNDER A TENDERING PROCEDURE .

11 THE CHOICE OF THAT DAY BY THE COMMISSION IS NOT OPEN TO DISPUTE . THAT DECISION IS WHOLLY IN CONFORMITY WITH THE AIM OF THE ADVANCE FIXING PROCEDURE , IN SO FAR AS THE PURPOSE OF THE CONTESTED PROVISION IS PRECISELY TO DEFINE THE EXPORTER ' S POSITION AT THE TIME OF TENDERING , SO AS TO ELIMINATE THE ELEMENT OF UNCERTAINTY TO WHICH THE EXPORTER WOULD BE SUBJECT AS A RESULT OF THE APPLICATION OF THE REFUND IN FORCE ON THE DAY OF EXPORTATION . THE COMMISSION HAS RIGHTLY EMPHASIZED THAT SINCE THAT POSITION IS DETERMINED IN NATIONAL CURRENCY THE EXPORTER IS NOT THEREBY EXPOSED TO ANY EXCHANGE RISK REGARDING THE AMOUNT OF THE REFUND , WHICH IS ADJUSTED UPWARDS OR DOWNWARDS ACCORDING TO THE CIRCUMSTANCES ON THE BASIS OF THE MONETARY COMPENSATORY AMOUNT . IT IS TO BE NOTED THAT SPECIFICALLY BY VIRTUE OF THE REFERENCE CONTAINED IN PARAGRAPH X ( A ) OF THE ANNEX TO REGULATION NO 3016/78 , THERE CAN BE NO DISCREPANCY , IN THAT REGARD , BETWEEN THAT REGULATION AND REGULATION NO 243/78 , SINCE THE APPLICABLE MONETARY COMPENSATORY AMOUNT IS , BY VIRTUE OF ARTICLE 6 ( 2 ) OF THE LATTER REGULATION , ALSO THE AMOUNT IN FORCE ON THE LAST DAY OF THE PERIOD FOR THE SUBMISSION OF TENDERS .

12 IT MUST THEREFORE BE STATED THAT IN ANY CASE THERE IS NO CONFLICT BETWEEN THE TWO REGULATIONS REFERRED TO IN THE THIRD QUESTION SUBMITTED BY THE TRIBUNAL ADMINISTRATIF .

13 HOWEVER , THE PLAINTIFFS CLAIM THAT THE ADVANCE FIXING OF THE REFUNDS AND COMPENSATORY AMOUNTS DOES NOT PROVIDE COMPLETE SECURITY FOR TRADERS SINCE ANY TRANSACTION RELATING TO THE EXPORTATION OF SUGAR INVOLVES A THIRD FACTOR , THE PRICE OF THE SUGAR AND MORE SPECIFICALLY THE PURCHASE PRICE , ON THE ONE HAND , AND THE SELLING PRICE TO PURCHASERS IN NON-MEMBER COUNTRIES , ON THE OTHER HAND . THE PLAINTIFFS EXPLAIN IN THAT REGARD THAT THE SELLING PRICE IS FIXED BY CONTRACT WITH THE PURCHASERS A CONSIDERABLE TIME IN ADVANCE . AS REGARDS THE PURCHASE PRICE , IN ACCORDANCE WITH THE CUSTOMS OF THE TRADE , IT IS SUBJECT TO INCREASES DURING THE PERFORMANCE OF THE CONTRACTS , IN THE LIGHT OF CHANGES IN THE INTERVENTION PRICE . THEY STATE THAT SUGAR DEALERS ARE BOUND BY CONTRACTUAL PROVISIONS LAID DOWN WITHIN THE FRAMEWORK OF THE ASSOCIATION DES ORGANISATIONS PROFESSIONNELLES DU COMMERCE DE SUCRE POUR LES PAYS DE LA COMMUNAUTE EUROPEENNE ( ASSUC ) ( ASSOCIATION OF PROFESSIONAL ORGANIZATIONS OF THE SUGAR TRADE FOR EEC COUNTRIES ). PURSUANT TO THOSE PROVISIONS , THE PRICE UNDER THE CONTRACTS FOR PURCHASE SHOULD BE ADJUSTED SO AS TO REFLECT ANY CHANGE IN THE COMMUNITY INTERVENTION PRICE OCCURRING BEFORE THE DELIVERY OF THE SUGAR , EXPRESSED IN THE CURRENCY OF THE CONTRACT AND CONVERTED AT THE REPRESENTATIVE RATE FOR THAT CURRENCY , ON THE UNDERSTANDING THAT THE BURDEN OF ANY SUCH CHANGE IS TO BE BORNE BY THE PURCHASER . IT IS , ACCORDING TO THE PLAINTIFFS , A ' ' BINDING CUSTOM ' ' OF THE TRADE , WHICH SUGAR DEALERS CANNOT AVOID . THUS , ANY INCREASE OF THE INTERVENTION PRICE , WHETHER DIRECT OR RESULTING FROM A CHANGE IN THE CONVERSION RATE FOR THE UNIT OF ACCOUNT , ADVERSELY AFFECTS THE BALANCE OF THE CONTRACTS COVERED BY THE EXPORT CERTIFICATES .

14 THESE ARGUMENTS PUT FORWARD BY THE PLAINTIFFS ARE BASED ON A MISUNDERSTANDING OF THE MACHINERY OF THE COMMUNITY REGULATIONS AND , MORE PARTICULARLY , OF THE INTERVENTION MACHINERY . THE OBJECT OF THE LATTER IS TO MAINTAIN MARKET PRICES AT THE DESIRED LEVEL BY THE IMPOSITION ON THE INTERVENTION AGENCIES OF THE OBLIGATION TO ACCEPT SUGAR SUBJECT TO THE DIFFERENCES IN SYSTEM , DEPENDING ON WHETHER IT IS CLASSIFIED AS ' ' A ' ' , ' ' B ' ' OR ' ' C ' ' SUGAR , IN REGARD TO THE INTERVENTION PRICE , BUT NOT TO GIVE PRODUCERS A GUARANTEE THAT THEY WILL OBTAIN THAT PRICE IN EVERY ONE OF THEIR TRANSACTIONS , STILL LESS TO FORCE PURCHASERS TO AMEND THEIR CONTRACTS IN THE EVENT OF A CHANGE IN THE INTERVENTION PRICE OR IN THE RATE OF EXCHANGE . DETERMINATION BOTH OF THE SELLING PRICE ON EXPORT AND OF THE PURCHASE PRICE FOR THE SUGAR IS A MATTER OF FREE CHOICE AND THEREFORE A RISK TO BE BORNE BY THE UNDERTAKINGS CONCERNED . THE EXISTENCE OF SUCH A RISK OR OF OBLIGATIONS RESULTING FROM TRADE AGREEMENTS CANNOT THEREFORE JUSTIFY ANY ADJUSTMENT OF THE AMOUNTS FIXED ON THE BASIS OF COMMUNITY REGULATIONS IN THE FORM , IN PARTICULAR , OF EXPORT REFUNDS . THAT ARGUMENT , PUT FORWARD BY THE PLAINTIFFS IN THE MAIN ACTIONS , MUST THEREFORE BE REJECTED .

15 IT IS CLEAR FROM THE FOREGOING THAT CONSIDERATION OF THE THIRD QUESTION SUBMITTED BY THE TRIBUNAL ADMINISTRATIF HAS DISCLOSED NO FACTOR OF SUCH A NATURE AS TO AFFECT THE VALIDITY OF REGULATION NO 3016/78 .

THE FIRST QUESTION

16 THE FIRST QUESTION SUBMITTED BY THE TRIBUNAL ADMINISTRATIF SEEKS TO DETERMINE WHETHER REGULATION NO 3016/78 IS VALID , REGARD BEING HAD TO THE REQUIREMENT IMPOSED BY ARTICLE 190 OF THE EEC TREATY THAT THE REASONS ON WHICH MEASURES ARE BASED MUST BE STATED .

17 THE PLAINTIFFS IN THE MAIN ACTIONS CLAIM IN THAT REGARD THAT THE ONLY STATEMENT OF REASONS IN THAT REGULATION IS THAT CONTAINED IN THE THIRD RECITAL IN THE PREAMBLE THERETO IN THE FORM OF A STATEMENT THAT ' ' WITH A VIEW TO THE SOUND MANAGEMENT OF THE SUGAR AND ISOGLUCOSE MARKETS IT IS APPROPRIATE TO SPECIFY FOR EACH KIND OF TRANSACTION IN THESE SECTORS THE METHOD FOR FIXING THE CONVERSION RATE APPLICABLE ' ' . IT IS CLAIMED THAT THAT GENERAL STATEMENT GIVES NO INDICATION OF THE REASONS WHICH LED THE COMMISSION TO GIVE PREFERENCE IN PARAGRAPH X ( A ) OF THE ANNEX , FOR THE ADVANCE FIXING OF EXPORT REFUNDS , TO THE LAST DAY OF THE PERIOD FOR THE SUBMISSION OF TENDERS .

18 ACCORDING TO THE CASE-LAW OF THE COURT , THE STATEMENT OF REASONS REQUIRED BY ARTICLE 190 OF THE TREATY MUST BE APPROPRIATE TO THE NATURE OF THE MEASURE IN QUESTION . IT MUST SHOW CLEARLY AND UNEQUIVOCALLY THE REASONING OF THE COMMUNITY AUTHORITY WHICH ISSUED THE CONTESTED MEASURE SO AS TO INFORM THE PERSONS CONCERNED OF THE JUSTIFICATION FOR THE MEASURE ADOPTED AND TO ENABLE THE COURT TO EXERCISE ITS POWER OF REVIEW . ( SEE THE MOST RECENT DECISION IN THIS REGARD - JUDGMENT OF 30 SEPTEMBER 1982 IN CASE 114/81 TUNNEL REFINERIES LTD ( 1982 ) ECR 3189 .)

19 IT IS MOREOVER APPARENT FROM A CONSISTENT LINE OF DECISIONS ( SEE IN PARTICULAR THE JUDGMENT OF 20 JUNE 1973 IN CASE 80/72 KONINKLIJKE LASSIEFABRIEKEN ( 1973 ) ECR 635 ) THAT THE STATEMENT OF REASONS ON WHICH REGULATIONS ARE BASED IS NOT REQUIRED TO SPECIFY THE OFTEN VERY NUMEROUS AND COMPLEX MATTERS OF FACT OR OF LAW CONSTITUTING THE SUBJECT-MATER OF THE REGULATIONS , PROVIDED THAT THOSE MATTERS FALL WITHIN THE GENERAL SCHEME OF THE WHOLE OF WHICH THEY FORM PART . THAT CERTAINLY APPLIES IN THE CASE OF THE CONTESTED REGULATION , THE ANNEX TO WHICH DETERMINES THE TIME TO BE USED AS A REFERENCE FOR THE APPLICATION OF THE CONVERSION RATES WITH RESPECT TO THE 32 DIFFERENT CATEGORIES OF ECONOMIC OR ADMINISTRATIVE TRANSACTIONS WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF THE MARKET IN SUGAR . IF THE CONTESTED MEASURE CLEARLY DISCLOSES THE ESSENTIAL OBJECTIVE PURSUED BY THE INSTITUTION , IT WOULD BE GOING TOO FAR TO INSIST UPON A SPECIFIC STATEMENT OF REASONS FOR EACH OF THE TECHNICAL CHOICES FOR WHICH IT PROVIDES . MOREOVER , IT IS CLEAR FROM THE FOREGOING THAT THE COMMISSION ' S CHOICE , FOR THE DETERMINATION OF EXPORT REFUNDS , OF THE LAST DAY OF THE PERIOD FOR THE SUBMISSION OF TENDERS IS PERFECTLY CONSISTENT WITH THE SCHEME OF THE SYSTEM AS A WHOLE .

20 IT IS APPARENT FROM THE FOREGOING THAT THE PLAINTIFFS MUST HAVE BEEN IN A POSITION TO REALIZE THE UNDERLYING REASONS FOR THE PROVISIONS WHICH THEY ALLEGE TO BE UNJUSTIFIED AND THAT THEY HAD THE OPPORTUNITY TO DECIDE , WITH FULL KNOWLEDGE OF THE FACTS , UPON HOW TO DEFEND THEIR RIGHTS .

21 THE VALIDITY OF REGULATION NO 3016/78 CANNOT THEREFORE BE CONTESTED ON THE GROUND OF INFRINGEMENT OF THE REQUIREMENT IMPOSED BY ARTICLE 190 OF THE TREATY THAT THE REASONS UPON WHICH A MEASURE IS BASED MUST BE STATED .

THE SECOND QUESTION

22 THE SECOND QUESTION SUBMITTED BY THE TRIBUNAL ADMINISTRATIF SEEKS TO DETERMINE WHETHER REGULATION NO 3016/78 IS VITIATED BY DISCRIMINATORY MEASURES WHICH RENDER IT INVALID . IT IS APPARENT FROM THE EXPLANATIONS GIVEN BY THE PLAINTIFFS THAT THE SECOND QUESTION STEMS FROM A TWOFOLD OBJECTION RAISED BEFORE THE TRIBUNAL ADMINISTRATIF : ON THE ONE HAND , THE PLAINTIFFS COMPLAIN THAT THE COMMISSION HAS CREATED SPECIAL RULES APPLICABLE TO THE SUGAR MARKET WITHOUT ADOPTING PARALLEL PROVISIONS FOR OTHER MARKET SECTORS ; ON THE OTHER HAND , THEY CLAIM THAT THE COMMISSION HAS MADE NO PROVISION FOR ANY ADJUSTMENT OF THE REFUNDS IN FAVOUR OF TRADERS WHO OPTED FOR ADVANCE FIXING , AND THEREFORE FOR CERTAINTY IN THEIR DEALINGS , WHILST FOR OTHER TRADERS THE CONVERSION RATE WHICH IS VALID ON THE DAY OF THE EXPORTATION IS AUTOMATICALLY APPLIED .

23 BOTH THOSE OBJECTIONS ARE BASED ON THE SECOND PARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY , BY VIRTUE OF WHICH COMMON ORGANIZATIONS OF THE MARKETS MUST ' ' EXCLUDE ANY DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY ' ' .

24 IT IS APPROPRIATE TO POINT OUT IN THAT REGARD THAT , IN THE FIRST PLACE , THE FACT THAT REGULATION NO 3016/78 IS SPECIFIC TO THE SUGAR MARKET AND THAT APPARENTLY THERE ARE NO SIMILAR PROVISIONS FOR OTHER MARKET SECTORS CANNOT BE DESCRIBED AS DISCRIMINATION . IT IS SUFFICIENT TO NOTE THAT EACH OF THE COMMON ORGANIZATIONS OF THE MARKET EMBODIES FEATURES SPECIFIC TO IT AND THE ORGANIZATION OF THE MARKET IN SUGAR IS MOREOVER CHARACTERIZED BY THE PARTICULARLY COMPLEX NATURE OF ITS PROVISIONS . AS A RESULT , A COMPARISON OF THE TECHNICAL RULES AND PROCEDURES ADOPTED IN ORDER TO REGULATE THE VARIOUS SECTORS OF THE MARKET CANNOT CONSTITUTE A VALID BASIS FOR THE PURPOSE OF PROVING THE COMPLAINT OF DISCRIMINATION BETWEEN DISSIMILAR PRODUCTS , WHICH ARE SUBJECT TO DIFFERENT RULES AND WHICH , MOREOVER , IN NO WAY COMPETE WITH EACH OTHER .

25 AS REGARDS THE DIFFERENCE BETWEEN THE TREATMENT OF TRADERS WHO HAVE AVAILED THEMSELVES OF ADVANCE FIXING AND THE TREATMENT OF OTHER TRADERS , THE COMPLAINT OF DISCRIMINATION IS ONCE AGAIN MISCONCEIVED SINCE THE PURPOSE OF ADVANCE FIXING IS PRECISELY TO CRYSTALLIZE , AT THE REQUEST OF TRADERS , THE AMOUNT OF THE REFUND AND OF THE MONETARY COMPENSATORY AMOUNTS AT A DATE PRIOR TO THE DAY OF THE EXPORTATION . THE RESULTANT DIFFERENCE OF TREATMENT IS MERELY THE CONSEQUENCE OF A CHOICE BETWEEN TWO SYSTEMS OFFERED TO TRADERS UNDER THE REGULATION AND THEY MAY CHOOSE ONE OR THE OTHER FREELY ACCORDING TO THEIR OWN REQUIREMENTS .

26 IT IS APPARENT THEREFORE THAT THE COMPLAINT OF DISCRIMINATION RAISED BY THE PLAINTIFFS IS WITHOUT FOUNDATION AND THAT THE VALIDITY OF REGULATION NO 3016/78 CANNOT BE CALLED IN QUESTION IN THAT REGARD .

27 IT FOLLOWS FROM THE FOREGOING THAT CONSIDERATION OF THE QUESTIONS SUBMITTED BY THE TRIBUNAL ADMINISTRATIF HAS NOT DISCLOSED ANY FACTORS OF SUCH A NATURE AS TO AFFECT THE VALIDITY OF THE CONTESTED REGULATION .

COSTS

28 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTIONS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTIONS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL ADMINISTRATIF , PARIS , BY JUDGMENTS OF 10 NOVEMBER 1981 , HEREBY RULES :

CONSIDERATION OF THE QUESTIONS SUBMITTED BY THE TRIBUNAL ADMINISTRATIF , PARIS , HAS NOT DISCLOSED ANY FACTOR OF SUCH A NATURE AS TO AFFECT THE VALIDITY OF COMMISSION REGULATION NO 3016/78 OF 20 DECEMBER 1978 LAYING DOWN CERTAIN RULES FOR APPLYING CONVERSION RATES IN THE SUGAR AND ISOGLUCOSE SECTORS .