JUDGMENT OF 15. 1. 1974 — CASE 154/73 BECHER v HAUPTZOLLAMT EMDEN

In Case 154/73 Reference to the Court under Article 177 of the EEC Treaty by the Hamburg Finanzgericht for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

I — Facts and procedure

II — Observations presented before the Court

Grounds of judgment

As to the first question

As to the second question

Costs

A —. The facts of the case, the subject matter of the request and the views of the parties may be summarized as follows:

I —. Facts and procedure

1. On 22 October 1971 Firma Kurt A. Becher of Bremen imported 502500 kg of common wheat originating in the USA into the Federal Republic of Germany. The Customs Office charged a monetary compensatory amount of 19·20 DM per 1000 kg in accordance with Regulation No 974/71 of the Council of 12 May 1971, in conjunction with Regulation No 2122/71 of the Commission of 1 October 1971.

2. The order for reference of the Finanzgericht was lodged at the Registry of the Court on 25 July 1973.

3. The validity of Regulation No 974/71 was examined in the Judgments delivered by the Court on 24 October 1973 in the aforementioned Cases 5/73, 9/73 and 10/73. The Court held in those Judgments that examination of the questions referred has not revealed any elements capable of affecting the validity of Regulation No 974/71 of the Council …

II —. Observations presented before the Court

B —. The oral observations of Becher and the Commission were made at the hearing on 27 November 1973.

C —. The Advocate-General delivered his opinion at the hearing on 12 December 1973.

1. By an order of 10 July 1973 lodged at the Court on 25 July 1973 the Hamburg Finanzgericht, in pursuance of Article 177 of the EEC Treaty, referred questions relating to the validity and interpretation of Regulation No 974/71 of the Council of 12 May 1971, on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of margins of fluctuation for the currencies of certain Member States, and of Regulation No 2122/71 of the Commission of 1 October 1971, fixing the compensatory amounts in force in agriculture as from 4 October 1971 consequent upon the same circumstances.

2. By the first question it is asked whether Regulation No 974/71 of the Council of 12 May 1971 is valid insofar as it authorizes the charging of compensatory amounts on imports from third countries.

3. The validity of Regulation No 974/71 has already been examined by the Court in Cases 5/73, 9/73 and 10/73 on the occasion of preliminary references by the Finanzgerichte of Berlin and Bade-Wurtemberg in disputes between, on the one hand, the undertakings Balkan-Import-Export, Carl Schlüter and Rewe-Zentrale and, on the other hand, the customs authorities of the Federal Republic of Germany.

4. By the second question it is asked whether the amount of 19·20 DM per 1000 kg fixed in Annex I to Regulation No 2122/71 for imports of common wheat from third countries was in conformity with the conditions laid down in Article 2 of Regulation No 974/71.

5. Article 2 (1) of Regulation No 974/71 provides that the compensatory amounts for the products in questions shall be equal to the amounts obtained by applying to the prices the percentage difference between the parity of the currency of the Member State concerned and the arithmetic mean of the markets rates during a period to be determined.

6. The method adopted by the Commission at the time in question consisted in taking an average c.i.f. price calculated for a reference period of one week and modifying that average price only if an appreciable change (in general, 10 % up or down) had occurred in relation to the price fixed previously.

7. From an examination of the provisions of Regulation No 974/71 it is clear that the Council did not wish to limit in a strict and detailed manner the Commission's appraisal of the detailed rules for the implementation of the Regulation.

8. It is within the Commission's legal powers when enacting detailed rules for the implementation of a system such as that of compensatory amounts laid down by Regulation No 974/71, to have regard to certain imperative requirements of an administrative nature and, in particular, to take care that the measures taken are not subject to minimal modifications occurring with excessive frequency.

9. It must therefore be concluded that the Commission, in fixing the compensatory amount in dispute, did not overstep the limits laid down for its activity in this field by the provisions of Regulation No 974/71.

10. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, so far as the parties in the main action are concerned, a step in the action pending before the 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 oral observations of the plaintiff in the main action and the Commission; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 38 to 47, 103, 110 and 177; Having regard to Regulations Nos 120/67 of the Council of 13 June 1967, 974/71 of the Council of 12 May 1971 and 2122/71 of the Commission of 1 October 1971; 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 hereby:

1 Declares that examination of the questions referred has not revealed any elements capable of affecting the validity of Regulation No 974/71 of the Council.

2 Declares that the compensatory amount of 19·20 DM per 1000 kg fixed in Annex I to Regulation No 2122/71 of 1 October 1971 in respect of imports of common wheat from third countries complied, at the time of importation, with the conditions of Article 2 of Regulation No 974/71.