61977J0027

IN CASE 27/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL ADMINISTRATIF DE PARIS FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

COMPAGNIE CARGILL , PARIS ,

AND

OFFICE NATIONAL INTERPROFESSIONNEL DES CEREALES ( ONIC )

ON THE VALIDITY OF REGULATION ( EEC ) NO 2042/73 OF THE COMMISSION OF 27 JULY 1973 MAKING TRANSITIONAL PROVISIONS CONSEQUENTIAL UPON THE APPLICATION ON 4 JUNE 1973 OF THE NEW SYSTEM OF MONETARY COMPENSATORY AMOUNTS ,

1 BY ORDER OF 9 FEBRUARY 1977 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 23 FEBRUARY THE TRIBUNAL ADMINISTRATIF DE PARIS REFERRED TO THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , SEVERAL QUESTIONS RELATING TO THE VALIDITY OF REGULATION ( EEC ) NO 2042/73 OF THE COMMISSION OF 27 JULY 1973 MAKING TRANSITIONAL PROVISIONS CONSEQUENTIAL UPON THE APPLICATION ON 4 JUNE 1973 OF THE NEW SYSTEM OF MONETARY COMPENSATORY AMOUNTS ( OJ L 207 , P . 34 ).

2 THESE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS RELATING TO THE CALCULATION OF MONETARY COMPENSATORY AMOUNTS FOR EXPORTS OF CEREALS CARRIED OUT BY THE CARGILL COMPANY , THE PLAINTIFF IN THE MAIN ACTION , BETWEEN 4 JUNE AND 31 JULY 1973 AND IN RESPECT OF WHICH THE LATTER COMPANY HAD OBTAINED ON 5 APRIL 1973 CERTIFICATES IN WHICH THE REFUNDS HAD BEEN FIXED IN ADVANCE .

3 CARGILL MADE AN APPLICATION TO THE OFFICE NATIONAL INTERPROFESSIONNEL DES CEREALES FOR THE PAYMENT OF COMPENSATORY AMOUNTS OF FF 1 244 407.13 BUT THE LATTER OFFICE , IN APPLICATION OF REGULATION ( EEC ) NO 2042/73 , REDUCED TO FF 467 583.21 THE SUM PAYABLE TO THE PLAINTIFF IN THE MAIN ACTION .

4 THE FIRST QUESTION ASKS : ' IS COMMUNITY REGULATION NO 2042/73 DATED 27 JULY 1973 VITIATED BY ILLEGALITY FOR HAVING PRACTISED DISCRIMINATION BETWEEN EXPORTERS IN CONTRAVENTION OF THE RULES AGAINST DISCRIMINATION LAID DOWN BY ARTICLES 7 AND 40 OF THE TREATY OF ROME , SUCH ILLEGALITY ALLEGEDLY HAVING HAD THE EFFECT OF PLACING TRADERS WHO HAD FIXED REFUNDS IN ADVANCE BEFORE 4 JUNE 1973 IN A DIFFERENT SITUATION DEPENDING ON WHETHER THE EXPORTS WERE MADE BEFORE 4 JUNE 1973 OR AFTER THAT DATE , THE FORMER ATTRACTING THE WHOLE OF THE COMPENSATORY PAYMENTS AND THE OTHERS BEING AFFECTED BY THE OBLIGATION ON THE PART OF THE TRADERS TO COVER THEMSELVES AGAINST EXCHANGE RISKS AND SUFFERING THE EFFECTS OF THE DEVALUATION OF THE DOLLAR?

' .

5 THE SECOND QUESTION ASKS : ' IS THE SAME COMMUNITY REGULATION NO 2042/73 AFFECTED BY ILLEGALITY IN THAT IT CONFERS A RETROACTIVE EFFECT ON REGULATION NO 1112/73 ADOPTED BY THE COUNCIL OF THE EUROPEAN COMMUNITIES ON 30 APRIL 1973 AND THUS INTERFERES WITH VESTED RIGHTS?

' .

6 THE LAST QUESTION ASKS : ' WOULD THE LEGISLATION APPLICABLE IN THE PRESENT CASE BE MORE FAVOURABLE TO THE COMPANY IF THE COURT WERE TO HOLD THAT REGULATION NO 2042/73 WAS ILLEGAL?

' .

7 IT IS APPROPRIATE TO CONSIDER THE VARIOUS QUESTIONS TOGETHER .

8 SINCE THE ESTABLISHMENT OF THE SYSTEM OF COMPENSATORY AMOUNTS THOSE AMOUNTS HAVE BEEN CALCULATED BY REFERENCE TO THE DIFFERENCE BETWEEN THE PARITY OF THE NATIONAL CURRENCY OF THE MEMBER STATE IN QUESTION DECLARED TO THE INTERNATIONAL MONETARY FUND ON THE ONE HAND AND THE SPOT MARKET RATE OF THAT CURRENCY AS AGAINST THE UNITED STATES DOLLAR ON THE OTHER .

9 BY REASON OF THE CONTINUED PRESSURE ON THE UNITED STATES DOLLAR AT THE BEGINNING OF 1973 , IN SPITE OF THE DEVALUATION OF THAT CURRENCY IN FEBRUARY , THE COUNCIL DECIDED TO SET UP A SYSTEM WHEREBY THE CURRENCIES OF SIX OF THE MEMBER STATES WOULD FLOAT IN RESPECT OF OTHER CURRENCIES WHILE MAINTAINING INTER SE CERTAIN FLEXIBILITY MARGINS ( THE ' SNAKE ' ) AND ASKED THE COMMISSION TO SUBMIT TO IT PROPOSALS FOR A REFORM OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS TO TAKE ACCOUNT OF THE NEW SITUATION .

10 THE PROPOSALS OF THE COMMISSION RESULTED IN THE ADOPTION BY THE COUNCIL ON 30 APRIL 1973 OF REGULATION NO 1112/73 WHEREBY ARTICLE 2 ( 1 ) OF REGULATION NO 974/71 WAS AMENDED SO THAT COMPENSATORY AMOUNTS WERE NO LONGER CALCULATED BY REFERENCE TO THE UNITED STATES DOLLAR BUT BY REFERENCE TO THE CENTRAL RATES OF CURRENCIES IN THE ' SNAKE ' .

11 IN THE WORDS OF ARTICLE 3 OF REGULATION NO 1112/73 THAT REGULATION WAS TO APPLY ' FROM THE DATE ON WHICH THE DETAILED RULES REQUIRED FOR ITS APPLICATION . . . ENTER INTO FORCE ' .

12 THE DETAILED RULES FOR ITS APPLICATION WERE LAID DOWN BY THE COMMISSION IN REGULATION NO 1463/73 OF 30 MAY 1973 .

13 BY VIRTUE OF ARTICLE 19 OF THAT REGULATION THE RULES TOOK EFFECT ONLY ON 4 JUNE 1973 .

14 DURING THE PERIOD WHEN THE COMPENSATORY AMOUNTS WERE CALCULATED BY REFERENCE TO THE DOLLAR , EXPORT REFUNDS WERE CALCULATED BY REFERENCE TO THE WORLD PRICES EXPRESSED IN DOLLARS CONVERTED AT PAR WHICH MIGHT HAVE HAD THE CONSEQUENCE OF REDUCING THE REFUNDS BUT THAT RISK WAS COUNTERBALANCED BY THE FACT THAT THE COMPENSATORY AMOUNTS THEMSELVES WERE CALCULATED BY REFERENCE TO THE OFFICIAL RATE OF THE DOLLAR .

15 IN THE VIEW OF THE PLAINTIFF IN THE MAIN ACTION REGULATION NO 2042/73 IS INVALID BY VIRTUE OF THE DIFFERENCE OF TREATMENT IT ACCORDS TO EXPORTERS WHO PERFORMED THEIR CONTRACTS BEFORE 4 JUNE 1973 IN COMPARISON WITH THOSE WHO COULD ONLY OBTAIN THE PERFORMANCE OF THEIR CONTRACTS AFTER THAT DATE .

16 THE COMBINED EFFECT OF REGULATIONS NO 1112/73 AND NO 1463/73 WAS TO ABOLISH THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS ON EXPORTS COMING FROM FRANCE AFTER 4 JUNE 1973 .

17 REGULATION NO 2042/73 DOES NOT AFFECT EXPORTS PRIOR TO 4 JUNE WHICH CLEARLY CONTINUE TO BE GOVERNED BY THE RULES APPLICABLE UNTIL THAT DATE BUT IT CONSTITUTES A TRANSITIONAL MEASURE BENEFITING TRADERS WHO CARRY OUT EXPORTS FROM 4 JUNE AND WHO OBTAINED ADVANCE FIXING PRIOR TO THAT DATE BY GRANTING TO THEM , ON REQUEST , THE MONETARY COMPENSATORY AMOUNTS APPLICABLE ON 3 JUNE .

18 CONSEQUENTLY SUCH A TRANSITIONAL MEASURE CANNOT BE REGARDED AS GIVING FAVOURABLE TREATMENT TO EXPORTERS WHO PERFORMED THEIR CONTRACTS BEFORE 4 JUNE 1973 AND AS BEING DISCRIMINATORY AS IS ALLEGED BY THE PLAINTIFF IN THE MAIN ACTION .

19 MOREOVER THE LATTER CHOSE TO RELY ON THOSE RULES AND NOT ON THE PROVISIONS OF REGULATION NO 837/72 WHICH MAKES AVAILABLE TWO POSSIBILITIES WHERE THE RULES FOR THE CALCULATION OF MONETARY COMPENSATORY AMOUNTS ARE ALTERED : EITHER THE APPLICATION OF THE AMOUNT APPLICABLE ON THE DATE OF THE ADVANCE FIXING OF THE REFUND OR , AT THE REQUEST OF THE INTERESTED PARTY , THE CANCELLATION OF THE ADVANCE FIXING WITH THE CONSEQUENCE THAT THE MONETARY COMPENSATORY AMOUNT AND THE REFUND ARE DETERMINED BY REFERENCE TO THE DAY OF EXPORT .

20 CONSEQUENTLY CONSIDERATION OF THE QUESTIONS RAISED BY THE TRIBUNAL ADMINISTRATIF DE PARIS HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 2042/73 .

COSTS

21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

22 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF 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 TRIBUNAL ADMINISTRATIF DE PARIS BY ORDER OF 9 FEBRUARY 1977 , HEREBY RULES :

CONSIDERATION OF THE QUESTIONS RAISED BY THE TRIBUNAL ADMINISTRATIF DE PARIS HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 2042/73 .