JUDGMENT OF 9. 3. 1978 — CASE 79/77 KÜHLHAUS ZENTRUM v HAUPTZOLLAMT HAMBURG-HARBURG

In Case 79/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, A. M. Donner and A. O'Keeffe, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Summary of the written observations submitted to the Court pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Decision

Costs

I —. Facts and procedure

1. Is Regulation (EEC) No 1380/75 to be interpreted in the sense that where, on the import into Member States of goods from third countries, the levy has been fixed but its imposition has been suspended and where monetary compensation is charged for such goods the monetary compensation should be reduced by multiplication by a monetary coefficient?

2. If Question 1 is answered in the affirmative:

3. If Question 1 is answered in the negative:

II —. Summary of the written observations submitted to the Court pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. The regulations in force and in particular Regulation No 1380/75 do not provide any legal basis for multiplication by a monetary coefficient — or, more exactly, for a reduction of the monetary compensatory amount by application of the monetary coefficient to the notional levy. Therefore the national authorities do not have the power to carry out such an adjustment to the monetary compensatory amount (which, moreover, would take the form of an increase in certain other cases). Neither would such a reduction of the monetary compensatory amount be justified in economic terms, because it would be excessively favourable to imports (into countries with revalued currency).

2. If, contrary to the Commission's point of view, the first question is answered in the affirmative, the answer to the second question should also be in the affirmative.

3. The monetary compensatory amount charged where the product in question is exempted from import levy is only slightly higher than the amount which would be charged if a theoretically ideal method of calculation were applied. Such negligible differences can be tolerated in view of the lack of precision inevitably associated with the flat-rate nature of the system and having regard to the administrative complications that would be caused by a change in the method of calculation.

1. By an order of 1 June 1977, received at the Court on 4 July 1977, the Finanzgericht Hamburg referred to the Court, pursuant to Article 177 of the EEC Treaty, several questions on the interpretation and the validity of Regulation (EEC) No 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts (Official Journal L 139, p. 37).

2. It is asked whether Regulation No 1380/75 is to be interpreted in the sense that where, on the import into Member States of goods from third countries, the levy has been fixed but its imposition has been suspended and where monetary compensation is charged for such goods the monetary compensation should be reduced by multiplication by a monetary coefficient.

3. The provisions of Article 4 (3) and (4) of Regulation No 1380/75 read as follows:

4. In the seventh recital in the preamble to the same regulation, the Commission gives the following explanation of the need to apply the coefficient:

5. Relying on the terms of that recital and in particular on the sentence whereas, therefore, in calculating the monetary compensatory amount only the difference between the price level and the amount in question expressed in units of account need be taken into consideration, the plaintiff in the main action claims that the provisions of the said Article 4 are to be interpreted in the sense that it is sufficient for a levy to be fixed in units of account, even if the levy is not imposed, and that in such a case the monetary compensatory amount must be reduced by the amount by which the levy which has not been imposed would have been reduced by application of the coefficient.

6. Out of concern for administrative simplification, the Commission decided on 1 March 1973 to fix uniform basic monetary compensatory amounts calculated by reference to the Community guarantee prices both for intra-Community trade and for trade with third countries.

7. The plaintiff in the main action further submits that, if its interpretation of the regulation at issue is not upheld, the regulation itself is void for infringement of the principle of the prohibition on discrimination and of the principle of equal treatment, and in particular of the principle stated in Article 40 (3) of the Treaty.

8. Although it may be doubted whether it is appropriate to apply the system of monetary compensatory amounts in the case of a quota from a third country admitted into the Community free from imposition of the levy, the Community rules provide for that system to be applied to such imports unless the Commission grants a special derogation.

9. It follows from what has been said that consideration of the third question raised has disclosed no factor of such a kind as to effect the validity of the regulation at issue.

10. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.

On those grounds, THE COURT in answer to the questions submitted to it by the Finanzgericht Hamburg, by an order of 1 June 1977, hereby rules:

(1) Regulation No 1380/75 is not to be interpreted in the sense that where, on the import into Member States of goods from third countries, the levy has been fixed but its imposition has been suspended and where monetary compensation is charged for such goods the monetary compensation should be reduced by multiplication by a monetary coefficient.

(2) Consideration of the third question raised has disclosed no factor of such a kind as to affect the validity of the regulation at issue.