JUDGMENT OF 3. 5. 1978 — CASE 131/77 MILAC v HAUPTZOIXAMT SAARBRÜCKEN

In Case 131/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht des Saarlandes (Finance Court of the Saarland) 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: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice

III — Oral procedure

Decision

Costs

I —. Facts and procedure

(a). to products covered by intervention arrangements under the common organization of agricultural markets;

(b). to products whose price depends on the price of the products referred to under (a) and which are governed by the common organization of the market or are the subject of a specific arrangement under Article 235 of the Treaty.

1. Does Article 1 of Regulation (EEC) No 539/75 of the Commission of 28 February 1975 infringe Article 1 (2) (b) of Regulation (EEC) No 974/71 of the Council of 12 May 1971 in so far as it fixes compensatory amounts for the import of powdered whey, because the price of powdered whey does not depend upon the price of skimmed-milk powder?

2. Does Article 1 of Regulation (EEC) No 539/75 of the Commission of 28 February 1975 infringe Article 1 (3) of Regulation (EEC) No 974/71 of the Council of 12 May 1971, according to which the provisions of Article 1 (1) (the charging and grant of compensatory amounts) are only to be applied where application of the monetary measures referred to in that provision would lead to disturbances in trade in agricultural products, or are compensatory amounts absolutely necessary:

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

III —. Oral procedure

1. The Finanzgericht des Saarlandes by an order of 15 September 1977 which was received at the Court Registry on 28 October 1977, submitted, under Article 177 of the EEC Treaty, two preliminary questions on the validity of Article 1 of Regulation (EEC) No 539/75 of the Commission of 28 February 1975 fixing the monetary compensatory amounts and certain rates for their application (Official Journal L 57 of 3 March 1975, p. 2) and on the interpretation of the provisions of 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), read together with Article 1 of Regulation No 539/75.

2. Those questions were raised in the context of a dispute concerning a request for the cancellation of notices of assessment which are reproduced in the decision on the objection delivered on 20 August 1975 and which fixed monetary compensatory amounts at a total sum of DM 6927.30 as charges imposed under the common organization of the agricultural markets pursuant to Regulations Nos 974/71 and 539/75 on the occasion of the importation from France into Germany of 129000 kg of powdered whey having a water content not exceeding 33 % and coming under heading 04.02 of the Common Customs Tariff.

3. The national court, which is charged with appraising the facts, has for its part found that whey is a derived product of the processing of milk which until recently was discharged as waste into running water.

4. The problem in the present case turns on whether the price of powdered whey depends on the price of skimmed-milk powder.

5. The price of a product depends within the meaning of Article 1 (2) (b) of Regulation No 974/71 on the price of a product covered by intervention arrangements under the common organization of agricultural markets and which is governed by the common organization of the markets if the former price fluctuates appreciably owing to the incidence of variations in the latter price.

6. According to a table drawn up by the Commission the curves representing the variations in the intervention prices for skimmed-milk powder and the market prices in Germany for powdered whey clearly diverge.

7. According to the sixth recital in the preamble to Regulation No 974/71 monetary compensatory amounts 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 and it is appropriate to apply them only in cases where this incidence would lead to difficulties.

8. It is therefore necessary to declare that Article 1 of Regulation (EEC) No 539/75 of the Commission of 28 February 1975 is invalid in so far as it fixes compensatory amounts in respect of trade in powdered whey.

9. It is accordingly unnecessary to answer the second question submitted by the national court.

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 question submitted to it by the Finanzgericht des Saarlandes by an order of 15 September 1977, hereby rules: