JUDGMENT OF 9. 3. 1976 — CASE 95/75 EFFEM v HAUPTZOLLAMT LÜNEBURG
In Case 95/75 REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg for a preliminary ruling in the action pending in that court between
THE COURT composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, M. Sørensen and Lord Mackenzie Stuart, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
I — Facts and procedure
II — Written observations lodged with the Court
Law
Costs
I —. Facts and procedure
II —. Written observations lodged with the Court
1. By an order dated 5 August 1975, received at the Court on the following 3 September, the Finanzgericht Hamburg referred, pursuant to Article 177 of the EEC Treaty, a question for a preliminary ruling on the validity of Regulations (EEC) Nos 311/74 of 6 February 1974 (OJ L 34, 1974, p. 19), 317/74 of 7 February 1974 (OJ L 35, 1974, p. 8), 381/74 of 14 February 1974 (OJ L 43, 1974, p. 9), 410/74 of 18 February 1974 (OJ L 46, 1974, p. 5) and 427/74 of 20 February 1974 (OJ L 49, 1974, p. 15) of the Commission fixing the export levies on cereals. That question was raised within the framework of an action against an assessment amounting to DM 57028,60 addressed to the plaintiff in the main action by the customs administration by way of levies on the export to third countries of preparations used in the feeding of domestic animals, under headings 23.07 B I a 1 and 23.07 B I b 1 of the Common Customs Tariff.
2. The question is raised whether Regulations (EEC) Nos 311/74 of 6 February 1974, 317/74 of 7 February 1974, 381/74 of 14 February 1974, 410/74 of 18 February 1974 and 427/74 of 20 February 1974 of the Commisson are valid in so far as they fix, in their annexes, a uniform rate of levy of 26,25 u.a. per metric ton for the products listed under tariff heading 23.07 without taking account in each case of the starch content or whether the rate of levy applied to the products under this tariff heading should have been differentiated as was done in the provisions contained in the annex to Regulation (EEC) No 433/74 of 21 February 1974 (OJ L 50, 1974, p. 10) which was made applicable to the same products as from 25 February 1974.
3/4. Under Article 19 of Regulation No 120/67/EEC of 13 June 1967 (OJ English Special Edition 1967, p. 33), the necessary measures may be taken if the cif price of one or more products is appreciably higher than the threshold price, if that situation is likely to continue and if, because of this, the Community market is distributed or threatened with disturbance. Regulation (EEC) No 1968/73 of the Council of 19 July 1973 (OJ L 201, 1973, p. 10) laying down general rules to be applied in the event of the cereals market being disturbed, as amended by Regulation (EEC) No 2632/73 of 28 September 1973 (OJ L 272, 1973, p. 18), provides in Article 1 (3) that The Community market shall be regarded as being disturbed or threatened with disturbance … where international trade prices are so high as to impede importation of products mentioned in Article 2 of Regulation No 120/67/EEC into the Community, or provoke exportation of such products from the Community, either of which situations would jeopardize supplies within the Community.
5. Consequently the fixing of a standard levy which is applicable irrespective of the quantity, whether negligible or considerable, of cereals included in the products concerned cannot comply with these provisions. An instance of this would be a levy of 26·25 u.a. per metric ton applicable to products containing only a small quantity of cereals, whilst, moreover, the standard amount of levy was several times in excess of the value of these products.
6. The graduation of the levy appears all the more possible since Regulation (EEC) No 433/74 fixes, inter alia for the same products, amounts differentiated in respect of five groups of preparations according to their content by weight in cereal products (that is to say: from 5 % to 15 %, from 15 % to 30 %, from 30 % to 50 %, from 50 % to 65 %, and exceeding 65 %) and fixes no amount for such preparations having a content by weight in cereal products equal to or less than 5 %. At the time when Regulation (EEC) No 433/74 was adopted the cereals market continued to be disturbed. In fixing a single standard amount for all the products coming under the abovementioned tariff heading, the contested regulations did not take account of the quantities of cereals necessary for their manufacture.
7. The deficit situation on the cereals market which the Commission had to meet at the time when the first disputed regulation was published had been known to it since August 1973 and had given rise as from that time to the application of export levies in respect of certain types of cereals.
8. Consequently Regulations (EEC) Nos 311/74 of 6 February 1974, 317/74 of 7 February 1974, 371/74 of 14 February 1974, 410/74 of 18 February 1974, and 427/74 of 20 February 1974 of the Commission must be declared invalid to the extent to which they fix for the products listed under tariff heading 23.07 a standard levy applicable irrespective of the quantity, whether negligible or substantial, of cereals contained in these products.
9. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds, THE COURT, in answer to the question referred to it by the Finanzgericht Hamburg hereby rules: