OPINION OF MR ROEMER — CASE 17/72 GETREIDEHANDEL v EINFUHR- UND VORRATSSTELLE GETREIDE

Mr President,

Members of the Court,

The reference for a preliminary ruling which concerns us today relates to the validity of the fixing of a free-at-frontier price by the Commission.

This price was fixed under Regulation No 19 of the Council of 4 April 1962 on the progressive establishment of a common organization of the market in cereals (JO 1962, p. 933). Initially, as I have frequently had occasion to state, the said organization of the market, far from bringing about uniformity of prices in the Common Market, allowed certain differences in prices between the Member States to subsist. It was consequently necessary to impose levies within the Community in order to achieve equal prices. In this matter an important factor was the level of prices in the importing country, expressed more precisely: the threshold prices based on the target prices which the Member States determined in accordance with the Community provisions. The free-at-frontier prices of the exporting States are also involved: the Commission is responsible for fixing these prices. In this connexion Article 3 of Regulation No 19 provides: The price of the product coming from the exporting Member State delivered free-at-frontier to the importing Member State shall be determined on the basis of the prices ruling on the most representative markets of the exporting Member State for exports to the relevant importing Member State…. Further details were established by the provisions of Regulation No 89 of the Commission of 25 July 1962 (JO 1962, p. 1899). Article 2 thereof provides that the free-at-frontier price shall be determined on the basis of the most favourable price for the importing Member State from the prices ruling on the most representative markets for exports to that State and taking account of transport costs. Article 3 of the said Regulation No 89 explains that with regard to each product there shall be considered as the most representative markets those from which the product may be exported at the most favourable price to the importing Member State. Article 4 defines the most favourable price as that which is lowest, taking account of the prices ruling on the most representative markets, adjusted pursuant to Article 6, and taking account of the costs of transport and of marketing not already included in such prices. Finally Article 5 requires that there be taken into account the lowest transport costs up to the marketing centre of the area with the largest deficit in the importing Member State. If the marketing centre of the area with the largest deficit does not coincide with one of the frontier crossing points laid down in the annex to Regulation No 68 of the Commission fixing the criteria for determining the cif prices for cereals, flour, cereal groats and cereal meal (JO 1962, p. 1861) the lowest transport costs up to the marketing centre of the area with the largest deficit in the importing Member State reduced by the proportion of the costs corresponding to the transport to the frontier crossing point towards the marketing centre of the area with the largest deficit. This applies to imports into the Federal Republic of Germany because in the annex to the said Regulation No 68 Emmerich is named as the frontier crossing point whilst the marketing centre of the area with the largest deficit in the Federal Republic is Duisburg.

With regard to maize exported from France into the Federal Republic of Germany prices were fixed in accordance with these provisions for the week from 24 January 1966 by the decision of the Commission of 21 January 1966. In this decision the free-at-frontier price was fixed at FF 508.86. This is the decision which concerns the plaintiff in the main action.

In fact on 28 January 1966 it obtained from the Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Frankfurt, the competent German agency under this organization of the market, an import licence valid for February 1966 under which certain quantities of maize were imported in that month from France. In the import licence the Einfuhr- und Vorratsstelle, on the basis of the said free-at-frontier price, fixed in advance a levy amounting to DM 11.59 per tonne. Nevertheless the licence-holder does not consider this amount correct. It considers that the Commission has failed to determine the free-at-frontier properly and that it has thereby given rise to an excessive levy. The licence-holder accordingly submitted a complaint against the rate of levy and subsequently initiated proceedings before the Hessisches Finanzgericht with a view to having the amount of the levy reduced by DM 10.57 to the sum of DM 1.02, as it considers the relevant free-at-frontier price ought to be.

Since, as I have indicated, the application is based on the view that the decision of the Commission on the fixing of the free-at-frontier price is incorrect and so invalid, the court before which the matter was brought, having regard to the provisions of Article 177 of the EEC Treaty, stayed proceedings by an order of 9 March 1972 and submitted the following question for a preliminary ruling:

Is the decision or the Commission of the European Economic Community fixing at FF 508.86 per tonne the free-at-frontier price on 28 January 1966 for French maize imported into the Federal Republic of Germany valid?

I now wisn to consider the answer to oe given to this question, that is, I wish to consider the view which must be taken of the objections raised by the plaintiff in the main action and of the submissions made by the Commission in its defence (these are the only parties submitting observations in the context of this reference for a preliminary ruling).

1. It must first of all be emphasized that the parties are correct in agreeing to proceed on the basis that a flat-rate system is to be applied in fixing the free-at-frontier price and that regard is not to be had for the data obtained from any particular import transaction (a view which indeed has already been approved in the decisions of the Court). Likewise they agree on a series of facts taken into account by the Commission in its calculations. Although I do not wish to go into details at this point, mention should be made of the offer price for maize in Bayonne, which is the most representative French market for exports to the Federal Republic.

2. In the view of the plaintiff the decision of the Commission is also mistaken on another ground, namely that the free-at-frontier price was converted from French francs into Deutschmarks at an exchange rate which corresponds to the par value communicated to and recognized by the International Monetary Fund (Article 2(1) of Regulation No 129 of the Council of 23.10.1962) (OJ, Special Edition, 1959-1962, p. 274). At the time this rate differed significantly from the actual exchange rate on the German foreign currency market and, if that market had been adopted as the basis, in the view of the plaintiff, a free-at-frontier price approximately 1 % higher would have been obtained and the levy would have been lower by a corresponding amount. The Commission was in fact empowered pursuant to Article 2(2) of the said regulation of the Council to allow the actual exchange rate to be employed. That this was not done, that is, that the Federal Republic was not granted the appropriate power, represents a mistaken appraisal which should not be left out of account in considering the decision on the free-at-frontier price.

3. I can accordingly summarize my opinion as follows:

1 Translated from the German.