Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

The two joined cases referred for preliminary ruling by the Finanzgericht Baden-Württemberg (Cases 9/73 and 10/73) on 19 February 1973 were argued on 27 June in what might be called a single oral proceeding. For this reason and also because the content of the cases is in part indentical, in part closely related in their subject matter, I can permit myself to deal with the submissions in one combined opinion. Moreover as the problems of the cases now before us correspond in part with those of Case 5/73, it appears to me superfluous to specify the legal matters at issue in my indroduction. On these I refer to the opinion I gave on 26 June in Case 5/73.

I need only say now that the firms of Schlüter and Rewe-Zentral, the plaintiffs in the main actions were affected by the system of compensatory amounts introduced, after the floating of the exchange rates of the German mark and Dutch guilder, by Regulation No 974/71 (OJ 1971, L 106). Accordingly the firm of Schlüter, on importing Emmentaler and Gruyère cheese from Switzerland into the Federal Republic of Germany on 15 March 1972, had to pay a compensatory amount of DM 45.50 per 100 kg of cheese under Regulation No 501/72 (OJ 1972, L 60) of the Commission in force at the time. The same applied to the firm of Rewe-Zentral when it imported peach preserves from France. For these it had to pay the compensatory amount of DM 0.32 per 100 kg in force on the day of importation (16 May 1972).

The said firms consider that these charges are not permissible, on various grounds of Community law which we will go into later. They therefore applied to the Finanzgericht Baden-Württemberg with a view to obtaining a refund of the compensatory amounts they had paid. On the arguments put forward in course of the proceedings on the validity of the compensatory system, the Finanzgericht Baden-Württemberg suspended the proceedings by Orders of 8 November 1972 and put down a series of questions, which are recorded in the minutes of the Session, for a preliminary ruling.

We must now consider how these questions are to be answered.

1. I will begin by dealing with the first question in Case 9/73. This concerns the validity of Regulation No 974/71, so far as it authorizes the levying of compensatory amounts on import from third countries.

2. Let us now turn to question 1 in Case 10/73. This asks for clarification on the issue whether Regulation No 974/71 is valid in so far as it authorizes the levying of compensatory amounts within the Community.

3. The second question in Case 9/73, to which we now turn, raises the problem whether the validity of Regulation No 974/71 is affected because the determination of the compensatory amounts as regards third countries is based exclusively on changes in the rate of exchange of those Member States authorized to levy them in relation to the dollar.

4. The next question which arises likewise concerns only Case 9/73. According to this, the question must be examined whether Regulation No 974/71 and the consequential implementing Regulations on it issued by the Commission are valid in so far as they authorize the levying of compensatory amounts, in trade with third countries in Emmental and Gruyère cheese, which when added to the levy are above the consolidated maximum rates for customs duties in GATT.

5. The next question for investigation has been raised in the same terms in both cases. According to this the Baden-Württemberg Finanzgericht re-quires to know whether the power contained in Regulation No 974/71 for the levying of compensatory amounts at the time of importation (that is to say on 15 March 1972 or 16 May 1972) was no longer in force, either because Member States were again applying the international rules on the margins of fluctuation around official parity or because it was established, at the latest following the Washington conference of 18 December 1971, that the Member States would not revert to the old parities.

6. Again in both cases the further question was raised in identical terms, whether at the time of importation (that is on 15 March or 16 May 1972) the Member States were prohibited from floating their exchange rates, either under Article 107 of the EEC Treaty or by reason of the decision of the Council of 22 March 1971 on the gradual realization of the Economic and Monetary Union or under Article 5 of the EEC Treaty.

7. In case 9/73 a further remark was made in the proceedings with reference to Article 1 of Regulation No 974/71 according to which the inclusion of Swiss cheese in the compensatory system must be prohibited because there was no risk of disturbance in trade.

8. All this leads me in the end to propose in conclusion the following answer to the questions raised by the Finanzgericht Baden-Württemberg.

1 Translated from the German.