1. 

The present cases form a sequel to the Faust and Wünsche cases on protective measures applicable to imports of cultivated mushrooms from third countries. ( 1 ) In three judgments of 16 October 1991 ( 2 ) the Court declared three Commission regulations adopting such protective measures invalid as regards the level of the additional amount fixed for imports exceeding the quantities laid down pursuant to those regulations. ( 3 ) The regulations were part of a series of measures taken since 1978 with a view to addressing disturbances of the Community market caused by lower prices of imported mushrooms, which were put on the market in large quantities. The regulations imposed an additional levy of ECU 175 per 100 kg and of ECU 160 per 100 kg for imports exceeding the quantities laid down by them. ( 4 ) Each regulation applied for a period of three months, and together they covered the period from 1 January 1981 to 30 September 1981.

2. 

The regulations were adopted on the basis of Article 14(2) of Council Regulation (EEC) No 516/77 on the common organization of the market in products processed from fruit and vegetables. ( 5 ) That provision concerned the implementation of Article 14(1) of the same regulation, which provided:

‘If, by reason of imports or exports, the Community market in one or more of the products specified in Article 1 is or is likely to be exposed to serious disturbances which might endanger the objectives set out in Article 39 of the Treaty, appropriate measures may be applied in trade with non-member countries until such disturbances or the threat thereof has ceased.

The Council, acting by a qualified majority on a proposal from the Commission, shall adopt rules for the application of this paragraph and shall define the cases and the limits within which Member States may take protective measures.’

3. 

The last sentence of Article 14(1) was implemented by Council Regulation (EEC) No 521/77 laying down detailed rules for applying protective measures in the market in products processed from fruit and vegetables. ( 6 ) Article 2(2) of that regulation, which concerned the measures which could be taken pursuant to Article 14 of Regulation No 516/77, provided:

‘The measures ... may be taken only to such extent and for such length of time as is strictly necessary. They shall take account of the special situation of products which are already on their way to the Community. They may not extend to products other than those imported from or intended for third countries. They may be restricted to products imported from or originating in particular countries, to exports to particular countries or to particular qualities or types of presentation. They may be restricted to imports intended for particular regions of the Community or to exports from such regions.’

4. 

In its judgments in the Faust and Wünsche cases the Court recalled the principle that measures imposing financial charges on economic agents are lawful provided that they are appropriate and necessary for the attainment of the objectives legitimately pursued by the legislation in question, and that, where there is a choice between several appropriate measures, the least onerous measures are used and the charges imposed are not disproportionate to the aims pursued. ( 7 ) The Court then pointed out that the requirements of Article 2(2) of Regulation No 521/77 ( 8 ) applied to the regulations in issue. The Court acknowledged that to levy an additional amount was appropriate and necessary for the attainment of the objective of the contested regulations, which was to protect the Community market in mushrooms, threatened with serious disturbances on account of imports from non-member countries. However, the Court decided that the amounts fixed exceeded the limit inherent in the observance of the principle of proportionality as expressed in Article 2(2) of Regulation No 521/77. ( 9 ) It rejected a number of arguments submitted by the Commission in defence of the validity of the contested regulations.

5. 

The Commission had claimed that its measures were less restrictive of trade than the complete prohibition of imports which it could have applied, but the Court pointed out that the regulations were not intended to prohibit imports in excess of certain quantities; they were intended to leave open the possibility of issuing import licences against payment of an additional amount even where those quantities were exceeded. ( 10 )

6. 

The Commission had also claimed that the additional amount had to be high in order to constitute a deterrent. The Court however again emphasized that the objective was not to exclude imports in excess of the quantities fixed, and it added that the objective of the regulations was not to penalize imports without a licence but to protect the Community market. ( 11 )

7. 

The Commission had argued that the level of the amount was justified because it corresponded to the cost price of grade 1 preserved mushrooms originating in France and sold on the German market (France being the leading producer in the Community and Germany the main purchaser). The Commission was of the opinion that an additional amount which was merely equal to the difference between the price charged in the exporting country and that charged in the Community would not have enabled the objectives of the regulations to be achieved. The Court, however, stated that the effect of the level of the additional amount was that the cost of preserved mushrooms produced, like those in the main proceedings, in China was significantly increased in relation to the cost of preserved mushrooms produced in the common market. ( 12 )

8. 

The Court also pointed to the effect on imports of lower-grade mushrooms, which was more serious than the effect on imports of grade 1 mushrooms, because the levy considerably exceeded the cost of lower-grade preserved mushrooms produced in the Community:

‘An additional amount set at such a level, which constituted a considerable financial charge for importers, is therefore disproportionate in relation to the objective pursued ... ’ ( 13 )

9. 

The Court came to the conclusion that the regulations, being applied to all preserved mushrooms irrespective of their origin or grade, led to a greater penalty being imposed on importers of mushrooms of a grade lower than grade 1, even though under Article 2(2) of Regulation No 521/77 the Commission was authorized to take account of the origin and quality of mushrooms and, in the light of those factors, to fix different additional amounts if necessary. ( 14 )

10. 

On the basis of that reasoning, the Court (stating that its ruling ‘follows from all of the foregoing considerations’) declared the regulations invalid as regards the level of the additional amount fixed.

11. 

The present cases are concerned with the aftermath of the invalid measures taken by the Commission. The system of Commission regulations laying down temporary protective measures was replaced by Council Regulation (EEC) No 1796/81 on measures applicable to imports of preserved cultivated mushrooms, ( 15 ) which established a more permanent system of protection with yearly quotas and an additional levy of ECU 160 per 100 kg for imports in excess of those quantities. The validity of that regulation is in issue in Case C-295/94 Hüpeden. Case C-296/94 Pietsch concerns the validity of Commission Regulation (EEC) No 2163/92 on the levying of the additional amount provided for by Regulations No 3429/80, No 796/81, and No 1755/81 adopting protective measures applicable to imports of preserved cultivated mushrooms. ( 16 ) That regulation was adopted after the Court's judgments, and it fixed the additional amount retroactively at ECU 105 per 100 kg net, instead of the ECU 175 and ECU 160 declared invalid. I now turn to examine the questions raised in these cases.

12.

The Hüpeden case concerns three batches of imports of mushrooms from China which were effected in Hamburg in July and in December 1987. For the July batch it appeared that an employee of Firma Hüpeden & Co., the applicant in the main proceedings, miscalculated the amounts of imports of mushrooms which could still be effected within the quantities laid down by Community legislation. For the two December batches the applicant thought, because of the contracts it had with the Chinese exporters, that the imports could be effected within those quantities: the Chinese authorities operate a system of export quotas, which should normally correspond to the Community import quotas. It appeared however that the quantities were exhausted. The Hauptzollamt (Principal Customs Office) Hamburg-Jonas requested payment of the additional levy provided for in Article 1 of Regulation No 1796/81. ( 17 ) The additional levy charged amounts to DM 165467.13, which, according to the applicant in the main proceedings, is equivalent to 150% of the value of the products and to more than 1300% of the profits on the imports. Before the Finanzgericht Hamburg the applicant contests the validity of the Regulation, on the basis of which the charge is made.

13.

The Finanzgericht takes the view that the applicant's doubts on the validity of the Regulation may be justified. It has therefore referred to the Court the following question:

‘Is Article 2(1) of Council Regulation (EEC) No 1796/81 of 30 June 1981 valid?’

14.

Council Regulation (EEC) No 1796/81 on measures applicable to imports of preserved cultivated mushrooms ( 18 ) (‘the Regulation’) was based on Article 13(2) of Regulation No 516/77. ( 19 ) That provision stated:

‘Save as otherwise provided in this Regulation or where derogation therefrom is decided by the Council, acting by a qualified majority on a proposal from the Commission,

15.

The preamble to the Regulation states that ‘the prices at which preserved cultivated mushrooms are offered in the main supplier countries are substantially lower than the cost price of the Community industry and the quantities available in those countries are such that they are liable to disturb the Community market’. It also states that ‘the Commission has, on several occasions since 1978, had to take protective measures with regard to imports of preserved cultivated mushrooms’. The preamble adds that this state of affairs is not likely to change in the near future, that the protective measures which have been taken do not constitute the most suitable means of remedying the situation and that provision should therefore be made for measures of market management consisting in the levying of an additional amount on all imports exceeding the quantities traditionally traded.

16.

Accordingly, Article 1 of the Regulation provides:

‘Every entry into free circulation in the Community of preserved cultivated mushrooms falling within subheading ex 20.02 A of the Common Customs Tariff, other than that referred to in Article 4, shall be subject to the levying of an additional amount for the quantity in excess of that laid down in Article 3.’

17.

Article 2(1) determines the additional amount:

‘The additional amount is hereby fixed at 160 ECU per 100 kilograms net.’

18.

Article 3 determines the quantity referred to in Article 1:

‘The quantity referred to in Article 1 shall be fixed at 34750 tonnes. It shall be allocated each year among the supplier countries, account being taken of traditional Community trade flows and, in an appropriate manner, of any new suppliers.’

19.

Article 4 deals with imports from Maghreb countries and from ACP states, and is not relevant to the present proceedings. Articles 5 to 7 concern the implementation of the Regulation.

20.

It will be observed that the Regulation is very similar to the Commission regulations which the Court declared invalid. In particular, the additional amount is fixed at the same level of ECU 160 per 100 kg net as that fixed in Commission Regulation No 1755/81. The Council and the Commission none the less argue that there are basic differences which should lead the Court to uphold the validity of the Regulation. However, I am not persuaded by those arguments.

21.

First of all, it is argued that the Regulation is a measure of market management, adopted on the basis of Article 13(2) of Regulation No 516/77, and not a protective measure taken by the Commission on the basis of Article 14(2) of the same regulation. That means, according to the Council and the Commission, that the specific proportionality rule laid down in Article 2(2) of Regulation No 521/77, ( 20 ) namely the requirement that ‘the measures ... may be taken only to such extent and for such length of time as is strictly necessary’ (emphasis added) does not apply. It will be remembered that that provision expressly refers to measures adopted pursuant to Article 14 of Regulation No 516/77. It does not refer to measures taken pursuant to Article 13 of that regulation. The Council and Commission accept that the Regulation in issue must comply with the principle of proportionality as a general principle of Community law, but they suggest that that principle is less strict than the requirements of Article 2(2).

22.

It is correct that Article 2(2) does not apply to measures taken pursuant to Article 13 of Regulation No 516/77, although in substance the Council's measure is of course very similar to the earlier measures taken by the Commission. As we have seen the preamble to the Regulation refers expressly to the previous protective measures taken by the Commission. It explains that the threat of disturbance of the Community's market, which justified the Commission's measures, is not likely to change in the future, and that provision should therefore be made for more permanent ‘measures of market management’. But that description seems a matter of form rather than of substance. The measures of market management in the Regulation in issue boil down to much the same as the protective measures previously taken by the Commission. The objective was the same, and the method used was the same. The Council simply replaced the system of protection enforced by temporary Commission regulations with a general regulation to be applied on a more permanent basis.

23.

On this basis, and even if the general principle of proportionality applies rather than the more strict test of Article 2(2) of Regulation No 521/77, I consider that the Regulation is invalid for the same reasons as those which led the Court to declare the Commission's regulations invalid.

24.

First, it seems to me that in its judgments the Court, although referring to Article 2(2) of Regulation No 521/77, did not rely on it specifically in order to declare the Commission's regulations invalid. The Court held that the burden on importers was disproportionate essentially because the objective of the regulations was not to penalize imports in excess of the quantities fixed. In arriving at that conclusion, the Court relied on the principle that measures imposing financial charges on economic agents are lawful provided that the measures are appropriate and necessary for the attainment of the objectives legitimately pursued by the legislation in question. ( 21 ) As I stated in my Opinion in the earlier cases, ‘In the absence of some very compelling justification, to require an importer to pay a levy amounting to the full cost of the domestic product seems manifestly exorbitant.’ ( 22 ) Where a levy is manifestly exorbitant, it infringes the general principle of proportionality just as much as it infringes the specific requirements of Article 2(2).

25.

I accept that, in order to achieve the aim of discouraging imports in excess of the quota, the additional amount may be fixed at a level which exceeds the difference in costs between the Community product and the imported product. That may be necessary to discourage excessive imports. However the additional amount must not be fixed at a level significantly higher than is necessary for that purpose. If it is, then it will penalize importers who, for whatever reason, inadvertently exceed the quota. As the earlier cases and the present case show, importers may be in error as to the quantities which are still available, or they may erroneously believe that there is still room for imports under the import licences which they have obtained. It is common ground that it is not practicable to make special provision for the case of such inadvertent importations: they will necessarily be subject to the additional amount. Indeed, if the additional amount is set at a very high level, they are likely to be the only importations subject to the additional amount. If the additional amount is set at too high a level, it will constitute in such cases an impermissible penalty. The additional amount will be the same, therefore, in all cases: whether an importer inadvertently exceeds the quota; whether he chooses to exceed the quota and to pay the additional amount; or even if he seeks to evade payment. In the last case, of course, he may face criminal penalties; but in no case can the additional amount be regarded as a penalty or set at a level at which it has that effect.

26.

For those reasons, the Council's and the Commission's arguments to the effect that in agricultural matters the Community legislature has a broad discretion ( 23 ) are beside the point. In particular, they argue that the system of the Regulation should be looked at as a whole, and that, when the Regulation was adopted, the decision was taken to increase the quantities which could be imported free from the additional amount, instead of lowering the additional amount itself. At the hearing, the Commission's agent stated that the quantities were increased from around 27000 tonnes in 1981 to around 34000 tonnes. It is therefore argued that the Regulation as a whole is more liberal than the Commission's regulations, and that that justifies a high additional levy. However, the quantities fixed by the respective regulations were not in issue in the earlier cases, nor are they in issue in the present case. In that respect the Community legislature does indeed have a broad discretion. What is in issue is the burden on importers in cases where imports have taken place in excess of the quantities fixed.

27.

The applicant argued at the hearing that under the Regulation no importer was prepared to import mushrooms voluntarily, in excess of the quantities fixed by the Council, and the agent for the Commission conceded that no such imports had taken place. However, he sought to explain that situation by pointing out that the quantities were fixed at such a high level that, certainly in the first years of operation, they were not even fully utilized. He suggested that that showed that the Regulation in issue was more liberal than the Commission's regulations which had been declared invalid. However, in my view it also shows that the threat of market disruption was not very great. Why then was it necessary to impose such a high additional amount?

28.

I also do not accept the Council's argument that the Regulation, as a permanent measure and in contrast with the previous ad hoc measures taken by the Commission, allows the importers to plan their business activities, provides them with a fixed framework for their imports, and therefore justifies penalizing imports in excess of the quantities fixed. I do not see how that follows. Long-term planning was of course more difficult as long as there were temporary regulations (although the quantities fixed in the 1981 Commission regulations declared invalid were apparently similar to the quantities fixed in 1980), but the fact that long-term planning is easier does not justify the imposition of penalties.

29.

The Council and the Commission also argue that the Council could have taken the more restrictive measure of prohibiting imports in excess of the quantities fixed. That argument was however rejected by the Court in the judgments in Faust and Wünsche, in view of the aims of the contested regulations, which were the same as the aim of the Regulation in issue here. Moreover, I am not convinced that in relation to the burden on importers a prohibition would be more restrictive. If there were an outright prohibition, imports effected in breach of that prohibition could of course give rise to sanctions, but it is open to question whether those sanctions would be as severe as an additional levy amounting to 150% of the value of the products, in a case where the quota was inadvertently exceeded. In such a case excessive penalties would again infringe the principle of proportionality. It may also be noted that the imposition of an additional levy does not exclude penal sanctions where for example there was an intent unlawfully to evade the levy. In the present case it appears that the German authorities considered taking criminal proceedings but decided not to do so on the ground that the importer had not acted unlawfully.

30.

The Commission also argues that the additional amount was accepted without comments by the mushroom-exporting countries in the Uruguay Round negotiations. But of course that in itself does not suggest that the measure is proportionate. Moreover, third countries were probably not concerned with the burden imposed on Community importers for imports in excess of the quantities fixed. Where the additional amount is fixed at a prohibitively high level, third countries will tend to look at the system as a quantitative restriction. It will not then matter to them whether importers are penalized; what matters for third countries is the quantities which can be exported to the Community.

31.

The Commission further suggests that the additional amount was fixed at the level of ECU 160 per 100 kg, which corresponds to the production costs of grade 1 mushrooms in the Community, because the aim was that only high-quality mushrooms should be imported in excess of the quantities fixed. It is true that proportionately the effect of the additional amount will be less severe for imports of grade 1 mushrooms. Nevertheless, it still amounts to 100% of the production costs of those imported mushrooms if those costs are as high as the costs within the Community; and one would assume that those costs are lower, because otherwise there would be no threat of disruption. The additional amount will then be even greater than 100%. In addition, the normal customs tariff has to be paid. It would therefore seem that the additional amount also has a prohibitive effect on imports of high-quality mushrooms in excess of the quantities fixed — and the effect of penalizing importers of such mushrooms.

32.

The Commission lastly argues that it is very difficult to vary the additional amount according to the quality of the imported mushrooms, as the Court suggested in its judgments. Even if that were the case, it would still not justify the manifestly excessive character of the additional amount.

33.

I conclude that Article 2(1) of Council Regulation No 1796/81 is invalid as regards the level of the additional amount fixed.

34.

The Pietsch case concerns imports of preserved cultivated mushrooms which took place in February-March 1981. The underlying transactions, as set out in the order for reference, are rather complex.

35.

It appears that in March 1981 Bernhard Pietsch, the applicant in the main proceedings, applied to the Zollamt (Customs Office) Veddel for the release into free circulation of 8665 cartons of 24 tins each of mushrooms. He declared ‘Republic of Korea’ as the country of origin and produced an import licence which permitted imports of mushrooms from Korea. The Zollamt Veddel fixed the import duties (at a total of DM 50700.65), but no additional levy was charged, since the import licence did not require it (the licence did not bear the expression ‘additional amount to be levied — Regulation (EEC) No 3429/80’). ( 24 )

36.

Investigations carried out by the customs authorities showed that the mushrooms were identical to the goods in an import transaction of the firm C. L. Eduard Blume, Hamburg (‘Blume’). Blume had obtained the mushrooms from shippers in Taiwan and stored them in its customs warehouse as goods originating in Taiwan. In the opinion of the Hauptzollamt (Principal Customs Office) Hamburg-Waltershof, the defendant in the main proceedings, two bogus transactions were then carried out. On 24 February 1981 Blume sold the goods to a Belgian firm in a bogus deal and on 26 February 1981 Blume bought the same goods back from the applicant in another bogus deal. In the case of both the ‘intermediate sale’ and the ‘repurchase’, according to the findings of the customs authorities, the power to dispose of the goods was not transferred by delivery notes or similar documents. Blume sold the goods in Germany in March 1981. Only after that were the individual partial consignments removed from the customs warehouse, transferred to the free port of Hamburg and released into free circulation, on application by Pietsch, as goods originating in Korea.

37.

On the basis of those findings, the defendant by an amendment decision of 27 February 1984 required payment of DM 6640.57 customs duty. In addition, that decision required payment of additional amounts of DM 365530.06, on the basis of Article 1 of Regulation No 3429/80, ( 25 ) since in the defendant's opinion the preserved mushrooms which had been released into free circulation originated in Taiwan and the applicant had not produced an import licence for mushrooms originating in Taiwan during the customs clearance procedure.

38.

The applicant lodged an objection against that amendment decision, but the objection was rejected by the defendant as unfounded. The applicant then brought an action against the decision on the objection before the Finanzgericht (Finance Court) Hamburg, which is the subject of the main proceedings.

39.

By a further amendment decision of 22 November 1993, the defendant reduced the additional amount chargeable from DM 365530.06 to DM 219213.47. The legal basis for that amendment was Regulation No 2163/92, ( 26 ) which was adopted following the judgments of the Court in Faust and Wünsche.

40.

The applicant then applied for that amendment decision to be made the subject of the main proceedings, in place of the amendment decision of 27 February 1984 against which the action was originally brought. He argues essentially that the Regulation, although reducing the additional amount from ECU 175 per 100 kg net to ECU 105 per 100 kg net, is invalid because that reduced amount is still inappropriate and excessive.

41.

The Finanzgericht Hamburg takes the view that, in order to resolve the dispute, it is necessary to seek the Court's answer to the following question:

‘Is Article 1 of Commission Regulation (EEC) No 2163/92 valid?’.

42.

Commission Regulation (EEC) No 2163/92 was adopted on the basis of Regulation No 426/86, ( 27 ) which repealed Regulation No 516/77; ( 28 ) the latter regulation was the basis of Commission Regulation No 3429/80, which applied at the material time but was declared invalid by the Court.

43.

The preamble to Regulation No 2163/92 (‘the Regulation’) states that the three Commission regulations of 1980 and 1981 were declared invalid:

‘to the extent that the ... [additional] amount was fixed, without any distinction, for preserved mushrooms from all origins and of all classes, the effect of which was to increase the cost of imported preserved mushrooms, particularly those of lower quality thus penalising imports of lower quality mushrooms to a greater extent’.

44.

The preamble further states that the aim of the regulations in question was to discourage imports beyond the quantities laid down, and that:

‘to achieve that objective, protective measures must be applied to imports of all classes of preserved mushrooms from all third countries’.

It states that the amount should therefore be set at a sufficiently high level, and that:

‘the amount should be fixed at the same level for all the products in question so as not to encourage the declaration of imports, particularly of preserved mushrooms, as being of lower quality than is actually the case, given that varying the amount according to the quality of the products would, in the absence of a precise Community definition of the different classes, hamper effective control of the goods concerned’.

45.

The last recitals of the preamble state:

‘Whereas the Court did not criticize the levying of an amount based on the Community cost price of preserved mushrooms; whereas, so that the additional amount for lower-quality preserved mushrooms imported from third countries does not significantly exceed the production cost of the same type of preserved mushrooms in the Community, the amount should be fixed at a level equal to the Community cost price of Class III preserved mushrooms.’

46.

Article 1 of the Regulation provides:

‘The additional amount referred to in Article 1 of Regulations (EEC) No 3429/80, (EEC) No 796/81 and (EEC) No 1755/81 shall be ECU 105 per 100 kg net’.

47.

Article 2 provides:

‘This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.

It shall apply to all imports made between 1 January 1981 and 30 September 1981 for which a file is still open.’

48.

In the order for reference the Finanzgericht explains why it has doubts on the validity of the reduced additional amount. It considers that that amount is also in the nature of a penalty and considerably exceeds the level necessary for the effectiveness of the protective measure. It refers to my Opinion in Faust and Wünsche where I stated the production cost in France for grade 3 preserved mushrooms in 1981 (DM 1.00 per 315 g tin) and the corresponding figure for Chinese produce (DM 0.81). The Finanzgericht calculates the amounts to be added to the latter figure when mushrooms are imported into the Community: DM 0.19 customs duty and DM 0.90 additional amount (on the basis of ECU 105 per 100 kg net), making a total amount of DM 1.90. The cost of grade 3 Chinese preserved mushrooms, applying an additional amount of ECU 105 per 100 kg net, therefore exceeded the cost of French preserved mushrooms in 1981 by 90%. The Finanzgericht takes the view that the charging of an additional amount of that magnitude probably amounts to the imposition of a penalty on a trader who imports without an import licence.

49.

The Finanzgericht also refers to the fact that the Commission did not differentiate the additional amount according to the various grades of preserved mushrooms, in spite of the fact that the Court criticized that approach in the earlier judgments.

50.

Finally, the Finanzgerichťs doubts also result from the fact that the additional amount provided for by the Regulation corresponds to the cost price for grade 3 preserved cultivated mushrooms, whereas Regulation No 3429/80, which applied at the material time, was adopted for preserved mushrooms in general.

51.

It may be convenient to examine those three objections in reverse order.

52.

As regards the difference between preserved mushrooms and preserved cultivated mushrooms there appears to be some degree of inconsistency in the various language versions of the regulations. Thus Regulation No 3429/80, which applied at the time of importation, refers in its English version to preserved mushrooms generally. The same is true of the German version, which refers to ‘Champignonkonserven’. The French version, however, speaks of ‘conserves de champignons de couche’, which translated into English would normally be ‘preserved cultivated mushrooms’.

53.

The English version of the Regulation in issue refers, in its title, to preserved cultivated mushrooms. However, the last recital of the preamble states that the additional amount was calculated on the basis of the Community cost price of Class III preserved mushrooms, and does not mention cultivated mushrooms. The French version is similar: in the title it refers to ‘conserves de champignons de couche’, whereas the last recital refers to ‘conserves de champignons’. The German version, by contrast, refers consistently to ‘Zuchtpilzkonserven’, or preserved cultivated mushrooms.

54.

The applicant does not in any way argue that the above confusion has led to any detrimental effect on its imports, or on any other imports. The Commission's careless drafting must be a cause for concern. However in the absence of any alleged adverse effects I do not regard the above inconsistencies as a ground for invalidity.

55.

The Commission argues that the fact that the Regulation does not differentiate between the various classes of mushrooms does not affect its validity. The Commission explains that it is impossible to differentiate, because importers would be incited to classify imports in lower categories and because there is no administrative system, either in the Community or in the exporting countries, which would permit mushrooms to be properly classified. In so far as the Commission took account of the effect of the reduced additional amount on lower quality mushrooms, it complied with the judgments in Faust and Wünsche.

56.

I accept the Commission's argument that it was not required to set different rates for the various classes of mushrooms, if that proved impracticable. In the judgments, the Court referred to The Queen v Customs and Excise, ex parte National Dried Fruit Trade Association, ( 29 ) and stated that ‘a charge is not unlawful merely because it is set at a fixed rate’. Moreover Article 2(2) of Regulation No 521/77 authorized, but did not require, the Commission to fix different additional amounts for mushrooms of different qualities.

57.

The applicant in the main proceedings takes the view that the Commission did not correctly interpret the judgments in Faust and Wünsche. The Court did not, in his view, declare the regulations invalid solely on the ground that no distinction was made between the various classes of mushrooms. It considered the additional amount to be excessive, and mentioned the fact that no distinction was made only as a complementary element. The applicant argues that the reduced additional amount is also excessive, and that the Regulation does more than merely discourage imports: no importer would voluntarily accept paying such an amount in addition to the other costs of importation. The applicant stresses that the Regulation penalizes ‘illegal’ imports in a way which takes no account of the causes of such illegality or of the degree of fault on the part of the importer.

58.

In the applicant's view the Commission, when adopting the Regulation, was bound by the requirements of Article 2(2) of Regulation No 521/77. ( 30 ) He argues that the additional amount should have been set at a level equal to the difference between the production costs in the Community and the price of imported mushrooms, customs duties included. Only then would disruption of the Community market be avoided while leaving scope for imports from third countries.

59.

The Commission argues in its written observations that the Regulation is valid. It first explains how it calculated the reduced additional amount: it did so on the basis of the average price of grade 3 cultivated mushrooms on the German market (apparently representative of the Community market) in the first trimester of 1981. It also indicates the effect which that had on imports of grade 3 preserved cultivated mushrooms from China. The figures at which it arrives are very similar to those mentioned in the order for reference. ( 31 )

60.

The Commission takes the view that the reduced additional amount is not excessive and is in conformity with the principle of proportionality. It argues that in Faust and Wünsche the Court only ruled on the excessive character of the original additional amount in relation to imports of lower quality mushrooms. The Regulation brings down the level of the additional amount from around 150% of the value of the product to around 90% of that value. It was not possible to reduce the amount any further without compromising the objective pursued, namely to discourage imports.

61.

Similar arguments are submitted by the Spanish Government.

62.

On proportionality, the crucial point is of course whether an additional amount of 90% of the value of the product is excessive, and in the nature of a penalty, or whether it is appropriate to discourage imports. The judgments do not provide an immediate answer to that question. On the one hand, there are indications that the Court took the view that the Commission had not shown why an additional amount merely equal to the difference between the price charged in the exporting country and that charged within the Community was not sufficient. In paragraph 24 of the judgment in Case C-24/90 the Court refers to the Commission's argument that that was not sufficient, and rejects that argument on the ground that:

‘the effect of the level of the additional amount laid down by Regulation No 3429/80, corresponding to the production costs of mushrooms within the Community, was that the cost of preserved mushrooms produced, like those in the main proceedings, in China was significantly increased in relation to the cost of preserved mushrooms produced in the common market’.

63.

Taken in isolation, the conclusion in that paragraph also applies to the reduced additional amount in the present case. In the present case also the effect was that the cost of imports was significantly greater than the cost of the Community product.

64.

On the other hand, the Court then went on to examine the impact on lower-grade mushrooms, and pointed out that that impact in particular was disproportionate. And it is true that the Regulation reduced that impact.

65.

However it is clear from a reading of the judgment as a whole that, contrary to the submissions of the Commission and of the Spanish Government, the impact on lower-grade mushrooms was not the only ground of invalidity. On the contrary, it is presented in the judgments as an additional point. Moreover, as I pointed out at paragraph 10 above, the Court's ruling is stated to follow ‘from all of the foregoing considerations’. Consequently I do not think that the effect of the judgment is correctly set out in the preamble to the contested Regulation. ( 32 )

66.

Moreover, even if the impact on lower-grade mushrooms had been the only ground, I do not think that the contested Regulation could be upheld. It was not sufficient, as the Commission suggests, that the additional amount was fixed by reference to the cost of lower-grade mushrooms, if the amount was still in itself excessive. It seems to me that the amount of ECU 105 per 100 kg was excessive inasmuch as it was fixed at a level equal to the entire amount of the Community cost price of grade 3 preserved mushrooms. I refer to the general considerations on the lawfulness of the additional amount in issue in the Hüpeden case, as set out above; ( 33 ) those considerations seem broadly applicable to the present case also. Where the aim is to prevent disruption of the Community market by lower-priced imports, it seems to me that an additional amount imposed on such imports must bear some relation to the difference in price with Community produce. That is manifestly not the case where the additional amount is equal to the entire production cost in the Community. Even if comparison is made with the Community cost price of ECU 160 for grade 1 mushrooms, the additional amount was no less than two-thirds of that figure and still seems manifestly excessive.

67.

It is therefore not possible to accept the Commission's argument to the effect that any lower charge would not have been sufficient to achieve the objective of the Regulation. The argument is in any event a curious one, since the imports had been made some years before the Regulation was enacted, and it has nowhere been explained — either in the preamble to the Regulation or in the Commission's submissions — how in those circumstances the Regulation could achieve its objective. However I would not rely on that consideration in itself as a ground for regarding the Regulation as invalid. The Commission could, I think, properly take the view that since its earlier regulations had been declared invalid only ‘as regards the level of the additional amounts’, it was open to the Commission to fix a new, lower amount, even for imports effected long before. Nor, as explained earlier, would I accept the applicant's contention that the additional amount had to be set at a level which merely equalled the difference between the production costs in the Community and the price of imported mushrooms. However I consider for the reasons given above that the level fixed by the contested Regulation was excessive and infringed the principle of proportionality.

68.

Accordingly, I am of the opinion that the questions referred to the Court in the present cases should be answered as follows: