Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The present case concerns the question whether a standard criterion laid down by the Council for the calculation of the amounts of the levy on agricultural products from third countries is applicable for the purposes of the determination of the monetary compensatory amounts in intra-Community trade. Is it permissible for the national customs authorities to apply that criterion by analogy, even though the resultant amounts may be greater than those necessary to compensate the incidence of currency fluctuations on the prices of the basic products which in fact make up the product?

2. For determining the rates of the levies and of the monetary compensatory amounts in relation to individual products the Commission did not draw up an ad hoc nomenclature but relied upon the classification of the goods under the Common Customs Tariff.

3. There is no Community rule which stipulates that the provisions of the aforesaid Article 11 on the standard criterion for the calculation of the amounts of levies should be applied with regard to monetary compensatory amounts in intra-Community trade. However, the German customs authorities and the court which has referred the questions for a preliminary ruling have held that there are good reasons for believing that the application within the context of the system of monetary compensatory amounts of criteria which differ from those used in connexion with levies is not permissible.

4. The court making the order for reference shares the view that levies and monetary compensatory amounts must be subject to uniform rules and it has expressed the fear that the application of different criteria for the classification of goods could endanger the uniform operation of the common intervention arrangements in agriculture.

5. It is necessary therefore that a single criterion should be adopted for classification within the context of the scheme of monetary compensatory amounts. The question, however, is: which one?

6. There can be no doubt that the restrictive requirement expressed in the said last recital in the preamble to Regulation No 974/71 can be adequately satisfied only by making the compensatory amount commensurate with the actual composition of the product. However, it would not be proper to ignore the difficulties of a practical nature which were mentioned by the Commission and which may stand in the way of any check on that composition and thus of the determination of the actual proportions of the milk product components in the goods to be classified. Having said that, we must examine whether the practice followed by the Commission does not provide any useful indications which would enable the problem to be solved in a way which is not only correa from the point of view of the principles involved but which also satisfies considerations of a practical nature.

7. The reflections set out above serve to answer the first three questions referred for a preliminary ruling.

8. In conclusion, therefore, I submit that the Court should rule in answer to the questions referred by the Finanzgericht Münster by order of 29 September 1977 that:

1 Translated from the Italian.