JUDGMENT OF 5. 12. 1973 — CASE 119/73 DEUTSCHE GETREIDE v EINFUHR- UND VORRATSSTELLE GETREIDE

In Case 119/73 Reference to the Court of Justice under Article 177 of the EEC Treaty by the Hessisches Finanzgericht (VIIth Chamber) for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presidents of Chambers, R. Monaco (Rapporteur), J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh and A. J. Mackenzie Stuart, Judges, Advocate-General: J. P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A — Observations submitted by Deutsche Getreide- und Futtermittel-Handelsgesellschaft

B — Observations submitted by the Federal Republic of Germany

C — Observations submitted by the Commission

Grounds of judgment

Costs

I —. Facts and procedure

1. Firma Deutsche Getreide- und Futtermittel-Handelsgesellschaft (hereinafter referred to as Deutsche Getreide) was granted a number of import licences for maize and durum wheat by the Einfuhr- und Vorratsstelle für Getreide und Futtermittel (hereinafter referred to as EVstG). The company lodged a complaint against the rate of levy indicated in these licences, claiming:

2. By decision of 14 August 1973, the Bundesfinanzhof rejected as unfounded an appeal brought by Deutsche Getreide against the order of 21 March 1973 of the Hessisches Finanzgericht referring the case for a preliminary ruling.

II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A —. Observations submitted by Deutsche Getreide- und Futtermittel-Handelsgesellschaft

B —. Observations submitted by the Federal Republic of Germany

C —. Observations submitted by the Commission

1. By order of 21 March 1972 lodged at the Registry of the Court on 12 April 1973 the Hessisches Finanzgericht referred two questions pursuant to Article 177 of the EEC Treaty on the interpretation of certain provisions of Regulation No 19 of the Council of 4 April 1962 on the gradual establishment of a common organization of the market in cereals (OJ 1962, No 30).

2. The first question asks whether Article 11 of Regulation No 19/62 of the Council is to be interpreted in such a way that in the calculation of the levy on durum wheat the turnover equalization tax payable on imports should have been taken into account.

3. Article 11 (1) and (2) of Regulation No 19/62 lays down the criterion for calculation which establishes the amount of the levy to be applied to imports of durum wheat into the Member States.

4. Accordingly the first question should be answered to the effect that Article 11 of Regulation No 19/62 neither requires nor prohibits that a Member State should take account of the turnover equalization tax in calculating the levy applicable to durum wheat, provided that the threshold price for that cereal is maintained at a level at least 5 % above that for common wheat.

5. The second question asks whether Article 8 (1) of Regulation No 19/62 is to be interpreted in such a way that the threshold price for maize in Member States in which there is no significant production of that cereal was to be fixed in such a way that it corresponded to the threshold price for barley, or was there a certain latitude of valuation for the particular types of cereal at issue.

6. According to Article 8 (1) the threshold price for products listed at Article 1 (a) and which are not covered by Article 4, including maize and rye, in Member States in which there is no significant production of those cereals, shall be fixed for each product so that, taking into account the standard amount provided for under Article 2 (1), the level of target prices fixed for home-grown cereals referred to in Article 4 may be attained.

7. It appears therefore, from the wording and the objectives of Article 8 (1), that the Member States are not permitted to take account of the characteristic qualities of the various kinds of fodder cereals if by so doing they allow the amount of the levy to decrease to such an extent that it no longer corresponds to a threshold price for maize which would allow barley to reach its target price.

8. Accordingly the second question should be answered to the effect that Article 8 (1) of Regulation No 19/62 is to be interpreted as meaning that Member States in which there is no significant production of maize could not, when fixing the threshold price for maize, take account of the characteristics of the different varieties of cereals in question if the fact of taking account of these characteristics would have led to a threshold price for maize which would have made it impossible for barley to reach its target price.

9. The costs incurred by the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before a national court, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of Firma Deutsche Getreide- und Futtermittel-Handelsgesellschaft and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 40 and 177; Having regard to Regulation No 19 of the Council of the EEC of 4 April 1962; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the question referred to it by the Hessisches Finanzgericht by order of that court dated 21 March 1973, hereby rules:

1 Article 11 of Regulation No 19 of the Council of the EEC of 4 April 1962 neither requires nor prohibits that a Member State should take account of the turnover equalization tax in calculating the levy applicable to durum wheat, provided that the threshold price for that cereal is maintained at a level at least 5 % above that for common wheat.

2 Article 8 (1) of Regulation No 19 of the Council of the EEC of 4 April 1962 is to be interpreted as meaning that Member States in which there is no significant production of maize could not, when fixing the threshold price for maize, take account of the characteristics of the different varieties of cereals in question if the fact of taking account of these characteristics would have led to a threshold price for maize which would have made it impossible for barley to reach its target price.