Opinion of Mr advocate-general Mayras

Mr President,

Members of the Court,

The German undertaking Hoffmann's Stärkefabriken, which as its business name indicates manufactures starch, claimed on 1 April 1975 from the Hauptzollamt Bielefeld the sum of DM 375228.68 as a production refund on maize for the 1974/1975 marketing year. It relied upon Article 1 (1) of Regulation No 1132/74 of the Council of 29 April 1974 which provides:

The Hauptzollamt Bielefeld met this claim on 8 April 1975 but only to the extent of DM 186986.05. It relied upon Article 1 of Regulation No 3113/74 of the Council of 9 December 1974 which provides that from 1 April 1975 the reference figure shall be fixed at 10.31 u.a. The customs administration considered that pursuant to this provision it was bound to effect this calculation which resulted in a substantial reduction in the amount of the production refund on maize starch.

The Finanzgericht Münster, before which the plaintiff in the main action disputed the decision rejecting its administrative complaint, brought before the Court on 20 December 1976 the question of the validity of Article 1 of Regulation No 3113/74.

In order to clarify my views on this point I shall consider the various submissions upon which the applicant undertaking relied before the national court against this provision which was alleged to be illegal because it was contrary to:

Further, the national court itself raises a final question:

The production refund on potato starch, which is equal to the average amount of the refund granted during the same marketing year per 161 kg of maize for starch manufacture (Article 2 of Regulation No 1132/74) was not altered.

Since the Commission, when it adopted Regulation No 231/75 of 30 January 1975, considered that it must observe the principle of not prejudicing already existing rights, it decided that it was inappropriate to apply with retroactive effect the alteration in the amount of the production refund on starch to the amount already paid to potato-starch manufacturers although they were in competition with maize-starch manufacturers.

This violates the principle that the amount of the refund to which maize-starch manufacturers and potato-starch manufacturers are entitled shall be the same and constitutes a discrimination prohibited by the second subparagraph of Article 40 (3) of the Treaty.

As the first three submissions made against the contested provision concerned the granting of the production refund on starch and the conditions under which the amount thereof was altered I should like to survey some of the general features of the granting of refunds on starch products of agricultural origin and to sketch the background of the regulation complained of.

I —. Under the system provided for by basic Regulation No 120/67 of the Council of 13 June 1967, which system came into operation from 1 July 1967, the Council shall fix before 1 August of each year, for the marketing year beginning during the following calendar year, which runs from 1 August to 31 July, a number of basic prices for cereals, including maize.

II —. When the common organization of the market in cereals entered into force the average prices of basic products on the world market were between 10 % and 15 % below the supply price fixed by Regulation No 371/67 for the maize required by the Community starch industry; for a long period the supply price remained fixed at 6.80 u.a. per 100 kg.

III —. These proposals were put into effect in the following provisions:

IV —. However, this was not the end of the alterations to the system of refunds on starch products. The Council considered that it was necessary, by way of exception … and in derogation from the principle of fixing prices annually to amend agricultural prices so as to bring them up to date with the increase in the price of products required by farmers and on 2 October 1974 adopted in accordance with the opinion of the European Parliament Regulation No 2496/74 which applied from 7 October 1974 a general increase of 5 % to agricultural prices for the 1974/1975 marketing year or for the remaining part of that marketing year.

V —. This Regulation No 2518/74 of the Commission was never formally repealed and it is really against its replacement, as regards the fixing of the amount of the refund by a third and last alteration concerning the present case, the alteration effected by Regulation No 3113/74 of the Council, that the plaintiff in the main action complains.

VI —. This survey of the background to the provisions which I have just conducted shows, if indeed it was necessary, the difficulty of securing and retaining a balance in agriculture and the variations to which ideas and techniques are subject: the application of a particular solution is dependent upon the analysis of a body of complex economic facts, the appraisal of which falls outside the ambit of review by the Court of Justice in delivering a preliminary ruling, except in a case of manifest error or manifest failure to observe the provisions of the Treaty and of the Community regulations.

VII —. It remains to consider the complaint of discrimination in comparison with potato-starch manufacturers.

I am therefore of the opinion that the consideration of the questions raised has disclosed no factor of such a kind as to affect the validity of Article 1 (1) of Regulation No 3113/74 of the Council of 9 December 1974.

1 Translated from the French.