61974J0093

++++

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - CONJUNCTURAL POLICY - CURRENCY FLUCTUATIONS - MONETARY COMPENSATORY AMOUNTS - DERIVED PRODUCTS - CHARGE ON PRODUCTS IMPORTED FROM THIRD COUNTRIES - MEANING

( REGULATION NO 974/71 OF THE COUNCIL, ARTICLE 4A ( 2 ))

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - CONJUNCTURAL POLICY - CURRENCY FLUCTUATIONS - BASIC PRODUCTS - ZERO LEVY - DERIVED PRODUCTS - NO COMPENSATORY AMOUNTS ON EXPORTS ( REGULATION NO 974/71 OF THE COUNCIL, ARTICLE 4A ( 2 ))

1 . THE CHARGE ON PRODUCTS IMPORTED FROM THIRD COUNTRIES REFERRED TO IN ARTICLE 4A ( 2 ) OF REGULATION NO 974/71 AS AMENDED BY REGULATION NO 509/73, MUST BE UNDERSTOOD - IN RESPECT OF THE PRODUCTS REFERRED TO IN ARTICLE 1 ( 2 ) ( B ) OF THE SAME REGULATION, WHOSE PRICE DEPENDS ON THE PRICE OF THE PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS - AS CONSISTING SOLELY OF THE VARIABLE COMPONENT INTENDED TO TAKE ACCOUNT OF THE PRICES OF BASIC PRODUCTS .

2 . WHEN THE LEVY ON THE BASIC AGRICULTURAL PRODUCTS IS ZERO, NO COMPENSATORY AMOUNT MAY BE CHARGED ON EXPORTS OF DERIVED PRODUCTS .

IN CASE 93/74

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETORE OF TRIESTE FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PASTIFICIO TRIESTINO

AND

ADMINISTRAZIONE DELLE FINANZE DELLO STATO

ON THE INTERPRETATION OF THE SECOND PARAGRAPH OF ARTICLE 4A ( 2 ) OF 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 ( OJ L 106 OF 12 . 5 . 1971, P . 1 ), AS AMENDED BY REGULATION ( EEC ) NO 509/73 OF THE COUNCIL OF 22 FEBRUARY 1973 ( OJ L 50 OF 23 . 2 . 1973, P . 1 ).

1 BY JUDGMENT OF 7 DECEMBER 1974, LODGED AT THE REGISTRY ON 13 DECEMBER 1973, THE PRETORE OF TRIESTE REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS OF INTERPRETATION CONCERNING THE FIRST PARAGRAPH OF ARTICLE 4A ( 2 ) OF 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 ( OJ L 106 OF 12 . 5 . 1971, P . 1 ), AS AMENDED BY REGULATION ( EEC ) NO 509/73 OF THE COUNCIL OF 22 FEBRUARY 1973 ( OJ L 50 OF 23 . 2 . 1973, P . 1 ).

2 THE FIRST QUESTION ASKS WHETHER, FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 4A ( 2 ) OF THE SAID REGULATION, THE CHARGE ON IMPORTS OF MACARONI, SPAGHETTI AND SIMILAR PRODUCTS ( PASTA ) MUST BE CONSIDERED AS CONSTITUTED SOLELY BY THE VARIABLE COMPONENT, OR BY THE VARIABLE COMPONENT PLUS THE FIXED COMPONENT, BOTH PRESCRIBED BY REGULATION NO 160/66 .

3 THE SECOND QUESTION ASKS WHETHER, IF THE CHARGE ON IMPORTS IS CONSTITUTED SOLELY BY THE VARIABLE COMPONENT, ITALY COULD LEGITIMATELY APPLY THE MONETARY COMPENSATORY AMOUNT, PRESCRIBED BY REGULATION NOS 974/71, 648/73 AND 143/73 AND CONSISTING IN A CHARGE OF LIT . 3 365 PER 100 KG OF THE PRODUCT CONCERNED ( SEE REGULATION NO 2102/73/EEC, PART 8 CCT HEADING NO 19.03 ) TO THE EXPORT OF PASTA TO THE MEMBER STATES AND TO THIRD COUNTRIES EFFECTED DURING THE TIME WHEN THE LEVIES ON THE BASIC AGRICULTURAL PRODUCT - DURUM WHEAT - ( REPRESENTING THE VARIABLE COMPONENT RELATING TO PASTA ), WERE ZERO AND, IN ANY CASE, IF THE LEVY ON THE IMPORTATION OF THE BASIC AGRICULTURAL PRODUCTS WERE GREATER THAN ZERO, COULD THE MONETARY COMPENSATORY AMOUNT ON EXPORTATION BE HIGHER THAN THAT LEVY?

4 THESE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS FOR AN INJUNCTION BROUGHT BEFORE THE PRETORE OF TRIESTE BY THE APPLICANT IN THE MAIN ACTION AGAINST THE AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN FINANCE AUTHORITIES ) WITH THE OBJECT OF OBTAINING REPAYMENT OF THE COMPENSATORY AMOUNTS WHICH IT HAD BEEN COMPELLED TO PAY ON EXPORTS OF PASTA AT A TIME WHEN, AS THERE WAS NO CHARGE ON IMPORTS, NO COMPENSATORY AMOUNT WAS, BY VIRTUE OF THE PROVISIONS OF REGULATION NO 974/71, APPLICABLE TO THE BASIC PRODUCT, DURUM WHEAT .

FIRST QUESTION

5 BY JUDGMENT OF 2 NOVEMBER 1974, IN CASE 34/74, THE COURT RULED THAT THE CHARGE ON PRODUCTS IMPORTED FROM THIRD COUNTRIES, REFERRED TO IN ARTICLE 4A ( 2 ) OF REGULATION NO 974/71, AS AMENDED BY REGULATION NO 509/73, MUST - IN RESPECT OF THE PRODUCTS REFERRED TO IN ARTICLE 1 ( 2 ) ( B ) OF THE SAME REGULATION, WHOSE PRICE DEPENDS ON THE PRICE OF THE PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS - BE UNDERSTOOD AS CONSISTING SOLELY OF THE VARIABLE COMPONENT INTENDED TO TAKE ACCOUNT OF THE PRICES OF BASIC PRODUCTS .

SECOND QUESTION

6 IN ORDER TO NEUTRALIZE THE EFFECT ON THE WORKING OF THE AGRICULTURAL MARKETS OF THE WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES, REGULATION NO 974/71, AS SUPPLEMENTED SUBSEQUENTLY, INTRODUCED COMPENSATORY AMOUNTS TO BE CHARGED ON IMPORTS OF AGRICULTURAL PRODUCTS AND GRANTED ON EXPORTS .

7 THE FINAL RECITAL OF THE PREAMBLE TO THE SAID REGULATION EMPHASIZES THAT THE COMPENSATORY AMOUNTS SHOULD BE LIMITED TO THE AMOUNTS STRICTLY NECESSARY TO COMPENSATE THE INCIDENCE OF THE MONETARY MEASURES ON THE PRICES OF BASIC PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS AND THAT IT IS APPROPRIATE TO APPLY THEM ONLY IN CASES WHERE THIS INCIDENCE WOULD LEAD TO DIFFICULTY .

8 ACCORDING TO ARTICLE 2 ( 1 ) OF THAT REGULATION, THE COMPENSATORY AMOUNTS SHALL BE FIXED IN RELATION OF THE CURRENCY FLUCTUATIONS RECORDED FOR BASIC PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS .

9 ACCORDING TO ARTICLE 2 ( 2 ) COMPENSATORY AMOUNTS FOR DERIVED PRODUCTS SHALL BE EQUAL TO THE INCIDENCE, ON THE PRICES OF THE PRODUCTS CONCERNED, OF THE APPLICATION OF THE COMPENSATORY AMOUNTS TO THE PRICES OF THE BASIC PRODUCT ON WHICH THEY DEPEND .

10 WITH A VIEW TO AVOIDING, IN THE CASE OF A FALL IN VALUE OF THE CURRENCY OF A MEMBER STATE, THE APPLICATION OF EXCESSIVE COMPENSATORY AMOUNTS LIKELY TO DISTURB MARKETS WITHIN THE COMMUNITY, REGULATION NO 509/73, WHICH SUPPLEMENTED REGULATION NO 974/71, CONTAINS AN ARTICLE, 4A, OF WHICH PARAGRAPH ( 2 ) PROVIDES THAT 'IN TRADE BETWEEN THE MEMBER STATES AND WITH THIRD COUNTRIES, THE COMPENSATORY AMOUNTS APPLICABLE DUE TO THE DECREASE IN VALUE OF THE CURRENCY CONCERNED MAY NOT BE HIGHER THAN THE CHARGE ON PRODUCTS IMPORTED FROM THIRD COUNTRIES '.

11 THE RESULT OF THE APPLICATION OF THIS PROVISION, FOLLOWING THE INCREASE IN PRICE OF CEREALS ON THE WORLD MARKET, WAS THAT COMPENSATORY AMOUNTS CEASED TO BE CHARGED IN RESPECT OF TRADE IN DURUM WHEAT FROM THE MOMENT WHEN THE CIF PRICE REACHED THE THRESHOLD PRICE, ALTHOUGH THOSE AMOUNTS REMAINED IN FORCE .

12 REGULATION NO 2102/73 OF THE COMMISSION OF 31 JULY 1973 ( OJ L 213, P . 1 ) FIXED AT LIT . 20 151 PER METRIC TON THE COMPENSATORY AMOUNTS APPLICABLE FROM 1 AUGUST 1973 TO DURUM WHEAT ( TARIFF HEADING 10.01 B ) AND AT LIT . 3 365 PER QUINTAL THOSE APPLICABLE TO MACARONI, SPAGHETTI AND SIMILAR PRODUCTS ( TARIFF HEADING 19.03 ), NOTWITHSTANDING THAT DURING THE SAME PERIOD THE LEVY ON DURUM WHEAT HAD, PURSUANT TO REGULATION NO 2031/73 OF THE COMMISSION OF 27 JULY 1973 ( OJ NO L 207 OF 28 . 7 . 1973, P . 3 ), SINCE 28 JULY 1973 BEEN ZERO, WHEREAS THE LEVY ON PASTA WAS FOR THE THIRD QUARTER OF 1973 FIXED AT LIT . 3 612 PER QUINTAL BY REGULATION NO 2210/73 OF THE COMMISSION OF 27 JULY 1973 ( OJ L 231 OF 20 . 8 . 1973, P . 1 ).

13 IT APPEARS THAT IN VIEW OF THE FACT THAT 167 KG OF DURUM WHEAT ARE REQUIRED FOR THE MANUFACTURE OF 100 KG OF PASTA, THE COMPENSATORY AMOUNTS THUS PRESCRIBED FOR PASTA WERE NECESSARY TO COMPENSATE THE INCIDENCE ON THESE PRODUCTS OF THE APPLICATION OF COMPENSATORY AMOUNTS AT THE RATE PRESCRIBED IN THE REGULATION FOR THE BASIC PRODUCT ON WHICH THEY DEPEND .

14 AS NO COMPENSATORY AMOUNT HAD, PURSUANT TO ARTICLE 4A ( 2 ) OF REGULATION NO 974/1971, BEEN GRANTED ON IMPORTS OR LEVIED ON EXPORTS OF THE BASIC PRODUCT ( DURUM WHEAT ) AS AT 6 AUGUST 1973, THE IMPOSITION OF COMPENSATORY AMOUNTS ON THE DERIVED PRODUCTS WOULD HAVE BEEN CONTRARY TO THE OBJECTIVE PURSUED IN THE FINAL RECITAL OF THE PREAMBLE AND TO ARTICLE ( 2 ) OF REGULATION NO 974/71, WHICH REQUIRE THAT THE COMPENSATORY AMOUNTS TO BE APPLIED TO THE DERIVED PRODUCT BY REASON OF DEPRECIATION OF THE CURRENCY CONCERNED SHALL BE EQUAL TO THE INCIDENCE ON THE PRODUCT CONCERNED OF THE APPLICATION OF THE COMPENSATORY AMOUNT TO THE PRICES OF THE BASIC PRODUCT ON WHICH IT DEPENDS .

15 IN CONSEQUENCE, ARTICLE 4A ( 2 ), WHICH WAS ADDED BY REGULATION NO 509/73, MUST BE TAKEN AS MEANING THAT, IF NO COMPENSATORY AMOUNT HAS BEEN CHARGED ON THE BASIC PRODUCT, NO COMPENSATORY AMOUNT MAY BE CHARGED ON THE DERIVED PRODUCT .

16 THE ANSWER TO THE SECOND QUESTION MUST, THEREFORE, BE THAT WHEN THE LEVY ON THE BASIC AGRICULTURAL PRODUCTS IS ZERO, NO COMPENSATORY AMOUNT MAY BE CHARGED ON EXPORTS OF DERIVED PRODUCTS .

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

18 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, COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETORE OF TRIESTE, BY ORDER OF THAT COURT DATED 7 DECEMBER 1974, HEREBY RULES :

1 . THE CHARGE ON PRODUCTS IMPORTED FROM THIRD COUNTRIES REFERRED TO IN ARTICLE 4A ( 2 ) OF REGULATION NO 974/71, AS AMENDED BY REGULATION NO 509/73, MUST BE UNDERSTOOD - IN RESPECT OF THE PRODUCTS REFERRED TO IN ARTICLE 1 ( 2 ) ( B ) OF THE SAME REGULATION, WHOSE PRICE DEPENDS ON THE PRICE OF THE PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS - AS CONSISTING SOLELY OF THE VARIABLE COMPONENT INTENDED TO TAKE ACCOUNT OF THE PRICES OF BASIC PRODUCTS .

2 . WHEN THE LEVY ON THE BASIC AGRICULTURAL PRODUCTS IS ZERO, NO COMPENSATORY AMOUNT MAY BE CHARGED ON EXPORTS OF DERIVED PRODUCTS .