Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

To facilitate the export to third countries on the basis of world market prices it was provided in the first sentence of Article 20(2) of Regulation No 19/62 (JO 1962, p. 933 et seq.) on the gradual establishment of a common organization of the market in cereals that the difference between these prices and the prices in the exporting Member State could under certain conditions be the subject of a refund. Accordingly Article 1 of Regulation No 90/62 of the Commission (JO 1962, p. 1902) on export refunds for cereals (as amended by Regulation No 163/62 of the Commission of 20 December 1962, JO 1962, p. 2944) provided: Subject to the conditions in Articles 2, 3, 4, 5 and 5(a) of this regulation Member States may grant a refund on the export to third countries of the products (which included maize) mentioned in Article 1(a) and (b) of Regulation No 19 of the Council. Regulation No 90 further provided that the refund on export to third countries shall not exceed the amount of the levy applicable to the product on the day of export in respect of third countries. Article 4 of Regulation No 90 provided In derogation of Article 2 the refund may be granted in the form of levy free import of the same quantity of the same products as are exported ….

These rules also applied in the Federal Republic of Germany. The relevant authority with regard to the present proceedings was the Law implementing Regulation No 19 of 26 July 1962 (as amended by the Law of 30 June 1965) in conjunction with the Cereals and Rice Refunds Regulation of 24 November 1964 (as amended by the Regulation of 3 February 1966). According to Article 5(4) of the Refunds Regulation, however, only 90 % of the maximum rates prescribed in Community regulations for refunds applied to exports of maize to Switzerland, Austria, Czechoslovakia, Hungary and Yugoslavia, whereas the maximum rates of refund applied to exports to other third countries.

A refund authorization issued to the Kampffmeyer undertaking by the appropriate German authority, the Einfuhr- und Vorratsstelle für Getreide und Futtermittel, on 1 March 1966 was made out on this basis. The authorization stated that for exports of 1000 kg of maize in each case to Switzerland, Austria and Yugoslavia, a free- of-levy import of only 900 kg was permitted. Kampffmeyer, however, considers this to be illegal. It takes the view that Community law did not permit refunds to be at rates below those laid down in Community regulations; in particular, it was not permissible to differentiate. Therefore it lodged an objection against the refund authorization and subsequently brought the matter before the Hessisches Finanzgericht. In view of the argument based on Community law that the national provisions conflict with Community law the Finanzgericht by order dated 21 September 1971 stayed the proceedings and submitted the following question for a preliminary ruling:

We must now deal with the problem raised now that the parties to the main action and the Commission of the European Communities have submitted their written and oral observations. In so doing, in view of the arguments put forward by the parties concerned we shall of course have to go into the problem more deeply than is strictly required by the question raised.

1. You will remember that the plaintiff in the main action forcefully argued that, as from the first organization of the market in cereals under Regulation No 19, the Member States were in principle no longer free in the field of refunds and that, on the contrary, they were obliged to make refunds. In this respect it referred to the, in its opinion, necessary interaction between levies and refunds with regard to the stabilization of prices in the Common Market and claimed that the refunds were an indispensable export outlet when surpluses existed. The plaintiff further maintained that if it could be accepted that any freedom at all was left to the Member States in this field it was perhaps because the Member States had to provide the necessary funds that is, they retained financial sovereignty. Since, however, there was no question of this with regard to the so-called refunds in kind (exports against levy-free imports) which were all that were granted in the Federal Republic and since refunds in kind served another purpose from that of refunds in cash (namely that of making it possible to exchange cereals and save transport costs), a departure from the rates fixed in the Community regulations could in no way be tolerated for refunds in kind.

2. Going on from this, that is, because the idea of a power conferred on the Member States in the field of refunds was obviously paramount, it is logical to assume in addition that the rates laid down by the Community represented simply an upper limit and that they could not be understood to exclude smaller refunds. Various arguments lead to this conclusion.

3. Accordingly it only remains to deal with the question which forms the crux of the matter referred to the Court, namely whether the Member States were allowed, in fixing the amounts of refunds, to make distinctions according to the third countries involved. As we know the plaintiff in the main action considers this unlawful. The defendant and the Commission on the other hand have no hesitation in answering the question raised in the affirmative.

4. After all these considerations it may be said in conclusion that the question from the Hessisches Finanzgericht should be answered as follows :

1 Translated from the German.