JUDGMENT OF 24. 5. 1978 — CASE 108/77 WAGNER v HAUPTZOLLAMT HAMBURG-JONAS

In Case 108/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht (Finance Court) Hamburg for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the present

JUDGMENT

Facts and Issues

I — Facts and written procedure

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

Decision

First question

Second question

Costs

I —. Facts and written procedure

1. Is Article 4 (3) of Regulation (EEC) No 1380/75 of the Commission read in conjunction with Regulation (EEC) No 2101/75 of the Commission to be interpreted as meaning that the export refund, which in the sugar sector is determined separately for each exporter in national currency on the basis of an invitation to tender, is to be multiplied by the monetary coefficient fixed by the Commission, which is derived from the percentage used to calculate the monetary compensation?

2. If the answer to Question 1 is in the negative:

3. If the answer to Question 2 is in the affirmative:

(a). In the sugar sector the refund is fixed by tender (Article 4 (1) of Regulation (EEC) No 766/68 of the Council of 18 June 1968 laying down general rules for granting export refunds on sugar (Official Journal, English Special Edition 1968 (I), p. 155). Export refunds are expressed in national currency in tenders (Article 5 (2) (d) of Regulation No 2101/75). The statement of award of the tender also states in national currency the refund to be granted (Article 11 (2) (c) of Regulation No 2101/75). Only the maximum amount of refund — which serves to limit the group of tenderers to whom the contract is to be awarded — is fixed in units of account (Article 9 (1) of Regulation No 2101/75);

(b). According to the sixth recital in the preamble to the basic Regulation (EEC) 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 the margins of fluctuation for the currencies of certain Member States (Official Journal, English Special Edition 1971 (I), p. 257) the compensation should be limited to the amounts strictly necessary to compensate the incidence of the monetary measures on the prices of basic products covered by intervention arrangements.

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

1. By order of 19 August 1977, lodged at the Court on 8 September 1977, the Finanzgericht Hamburg submitted to the Court in pursuance of Article 177 of the EEC Treaty several questions relating to the interpretation and validity of Article 4 (3) 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 No L 139, p. 37), in conjunction with Regulation (EEC) No 2101/75 of the Commission of 11 August 1975 on a standing invitation to tender in order to determine a levy and/or refund on exports of white sugar (Official Journal No L 214, p. 5).

2. These questions were raised in the context of an action relating to the calculation of export refunds granted to the German company Wagner, the plaintiff in the main action, on the occasion of the export to Bulgaria of 4000000 kilograms of undenatured white sugar.

3. The question is whether Article 4 (3) of Regulation No 1380/75, read in conjunction with Regulation No 2101/75, must be interpreted as meaning that the export refund in the sugar sector, which is fixed in national currency for each exporter individually, on the basis of a tender, is to be multiplied by the monetary coefficient fixed by the Commission, which is derived from the percentage used to calculate the monetary compensation.

4. For the calculation of monetary compensatory amounts in intra-Community trade the Commission takes as a reference value the guarantee prices, in particular the intervention prices.

5. Regulation No 766/68 of the Council of 18 June 1968 (Official Journal, English Special Edition 1968 (I), p. 155) provided for the fixing of export refunds for sugar by tender.

6. The exports in question were effected on the basis of nine licences, in eight of which the amount of the refund was expressed in French francs and in the remaining one of which it was expressed in German marks.

7. In the course of the oral procedure the Commission pointed out that, if the Court were to take the view that the provisions of Article 4 (3) of the regulation were to be interpreted in the sense contended for by the plaintiff in the main action, the provisions must be declared at least partially void for breach of the principle of non-discrimination set out in Article 40 (3) of the Treaty inasmuch as Article 4 would then produce discrimination between exporters of sugar according to the country of export.

8. Regulation No 1380/75 is a regulation of general scope laying down detailed rules for the application of monetary compensatory amounts in the whole of the agricultural sector.

9. Having regard to the reply to the second question the third question has lost its point.

10. The costs incurred by the Commission of the European Communities, which has 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 order of 19 August 1977, hereby rules:

1 Article 4 (3) of Regulation No 1380/75, read in conjunction with Regulation No 2101/75, must be interpreted as meaning that the export refund in the sugar sector, fixed in national currency for each exporter individually on the basis of a tender, is not to be multiplied by a monetary coefficient, fixed by the Commission, derived from the percentage used to calculate the monetary compensation.

2 Consideration of the second question has disclosed no factor of such a kind as to affect the validity of Article 4 (3) of Regulation No 1380/75.