Opinon of Mr Advocate-General Roemer

Mr President,

Members of the Court,

After the Deutschmark was allowed to float in May 1971, that is to say after the widening of the margins of fluctuation of that currency, the current rate of exchange of the Deutschmark in the Federal Republic of Germany rose above the official parity. This created difficulties as regards the functioning of the common market because trade to which the current rate of exchange applied could be done at a price in Deutschmarks lower than the intervention or buying-in prices laid down by Community rules on the basis of the official parity. For this reason the Council, on 12 May 1971, adopted Regulation No 974/71 (OJ L 106, p. 1). English Special Edition, 1971 (I) P. 257) by which it created a system of compensatory amounts for trade with Member States and with third countries with the object of compensating for the incidence of this monetary measure on the price of agricultural products. Under this measure, if, for the purposes of commercial transactions, a Member State allows the exchange rate of its currency to fluctuate by a margin wider than the one permitted by international rules, it shall be authorized to charge compensatory amounts on imports of certain products from Member States and third countries and to grant compensatory amounts on exports of certain products to other Member States and third countries. The system applies to products covered by intervention arrangements under the common organization of agricultural markets and to products whose price depends on the price of the products just referred to and which are governed by the common organization of the market or are the subject of a specific arrangement under Article 235 of the Treaty. Article 2 of Regulation No 974/71 defines in detail the extent of the compensatory amounts. Article 6 of the regulation further specifies that Detailed rules which may include other derogations from the regulations on the common agricultural policy, shall be adopted and shall cover in particular the fixing of the compensatory amounts in accordance with the procedure laid down in Article 26 of Council Regulation No 120/67 (JO No 117, 1967, p. 2279) that is to say, the procedure under which reference is made to the Management Committee. Article 8 provides that This Regulation shall be applicable with effect from 12 May 1971.

The aforementioned provisions for the implementation of the regulation were originally set out in Regulation No 1013/71 of the Commission of 17 May 1971 (JO L 110, 1971, p. 8). The compensatory amounts provided for were fixed for certain products by another regulation of the Commission, No 1014/71 of 17 May 1971 (JO L 110, 1971, p. 10). The details are to be found in Annex I to that regulation. From this it can be inferred that where cereals are concerned only basic products are shown in principle and that inter alia flaked barley and maize groats, the products involved in the present case, are not included among the products processed from cereals. Article 2 of the regulation, which was published in the Journal Officiel of 18 May 1971, specifies that This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities. It shall apply from 12 May 1971. I ought to add that, in subsequent regulations of the Commission, for example Regulations Nos 1033/71 (JO L 112, 1971, p. 26) and 1272/71 (JO L 133, 1971, p. 1), the compensatory amounts were altered on the basis of fluctuations in the rates of exchange.

As I have stated, the system thus created is of concern to the present applicant, which runs a mill at Lübeck and, using basic products which it buys on the world market, manufactures products processed from cereals, in particular maize groats for the brewing industry and flaked barley. It appears that the products are exported in the main to Poland and Denmark (to the latter country for making beer). The applicant has suffered loss as a result of this system: compensatory amounts were charged on the basic products imported but, because there was no reference to them in the list in Regulation No 1014/71, no compensatory amounts were granted on exports of the processed products. It was for this reason that, by telex of 26 May 1971, the Nordgetreide undertaking got into touch with the Cereals Directorate of Directorate-General VI of the Commission of the European Communities. It emphasized that the compensatory system was giving rise to distortions in conditions of competition in the products which it manufactured and that it was impossible for it to conclude export contracts for the third quarter of 1971. The applicant concluded with these words : We earnestly appeal to you to take full account of our position and of the injustice which it represents and accordingly to supplement the list of goods. At this juncture, after sending a telex reminder on 4 June, Nordgetreide received a telex dated 16 June 1971 from the Commission and signed by the Deputy Director-General, Mr Heringa, in the following terms: The Commission is well aware that the fixing and, on occasion, the non-fixing of compensatory amounts is liable to create difficulties in trade in certain products. It must however point out that, in certain cases in which the market situation in the products concerned justified the belief that the application of the monetary measures in question would not lead to disturbances in trade, the necessarily general character of the measures adopted persuaded it not to fix compensatory amounts.

Not being satisfied with this decision, Nordgetreide brought proceedings before the Court of Justice on 21 July 1971 claiming in its application the annulment of the Decision of the Commission of 16 June 1971, with all the necessary consequences in law, namely the inclusion of the products under heading 11.02 of the Common Customs Tariff, in particular, flaked barley and maize groats and meal (for the brewing industry), in the list of goods in the annex to Regulation (EEC) No 1014/71 of the Commission and of Annex I to Regulation (EEC) No 1271/71 of the Commission (this reference should obviously be to Regulation No 1272/71); and claiming, in the alternative, a declaration that the Commission is in breach of the Treaty by not acting on the applicant's request of 26 May 1971, as is shown by the failure of the Commission in its telex of 26 June 1971, to give any decision on the said request, with all the necessary consequences in law, namely, the inclusion of the products under heading 11.02 of the Common Customs Tariff, in particular flaked barley and maize groats and meal (for the brewing industry) in the list of goods in the annex to Regulation (EEC) No 1014/71 and in Annex I to Regulation (EEC) No 1271/71 of the Commission (again the reference should obviously be to Regulation (EEC) No 1272/71).

After proceedings were commenced, the Commission adopted Regulation No 1687/71 of 30 July (JO L 173, 1971, p. 1) amending the annexes to Regulation No 1014/71 concerning the compensatory amounts applicable in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States. In the regulation, it fixed a new rate for the compensatory amounts and, in part, for new products, in particular maize groats and meal (tariff heading 11.02 A V(a) 1) and flaked oats (tariff heading 11.02 E I(b) 1). Under Article 1, the annexes to this regulation replace the annexes to Regulation No 1014/71. Article 2 specifies that the regulation shall enter into force on 2 August 1971.

In the Commission's view this means that there is no longer any need to rule on the application in the main action.

Replying to a communication to this effect addressed to it on 22 September 1971, the applicant agreed that, in view of Regulation No 1687/71, there was certainly no longer any need to rule on the application in the main action in so far as compensatory amounts have been granted for the period since 2 August 1971. Nevertheless it considered that a ruling was required on its application for the grant of compensatory amounts for the period between the beginning of the floating of the currencies on 12 May until 1 August 1971. These statements were made in a letter of 27 September 1971 addressed to the Commission.

In a statement of defence dated 7 October 1971, the Commission reiterated before the Court its contention that there was no longer any need to rule on the main action. It accordingly asks the Court to rule, under Article 69(5) of the Rules of Procedure, that the case in the main action will not proceed to judgment and to order the applicant to pay the costs; in the alternative, it asks the Court to rule, under Article 91 of the Rules of Procedure, on the admissibility of the application without going into the substance, to dismiss the application as inadmissible, and to order the applicant to pay the costs.

Since the applicant maintained its view that there was a case to answer, the Court decided to give preliminary consideration to the objection of inadmissibility. This was done in the oral proceedings on 26 January 1972, and accordingly my task today is to give my opinion on this issue alone.

1. There is no need for me to re-read the main conclusion in the application. It is concerned with the decision of the Commission of 16 June 1971 in which it informed the applicant that there was no occasion to supplement the list of products in Regulation No 1014/71.

2. Having demonstrated that the main conclusion is inadmissible in its entirety, I have the following comments to make on the alternative conclusion based on Article 175 of the EEC Treaty.

3. To sum up and notwithstanding the Commission's view that the application in the main action has been settled, I am of the opinion that the conclusions contained in the application are inadmissible. It follows that the applicant must be ordered to pay the costs.

1 Translated from the German.