OPINION OF MR REISCHL — CASE 88/78 HAUPTZOLLAMT HAMBURG-JONAS v KENDERMANN

Mr President

Members of the Court,

The facts giving rise to the reference for a preliminary ruling with which we are today concerned are as follows:

Article 1 of Regulation (EEC) 2448/75 of the Commission of 25 September 1975 suspending the monetary compensatory amounts for certain wines (Official Journal L 250 of 26 September 1975, p. 29) provides that with effect from 29 September 1975 the application of monetary compensatory amounts to those wines (which amounts had most recently been fixed by Regulation (EEC) 2021/75 of the Commission of 31 July 1975 fixing the monetary compensatory amounts and certain rates for their application — Official Journal L 205 of 4 August 1975, p. 1) should be suspended, save that in Germany such amounts should continue to apply in respect of the following wines:

Article 2 of Regulation (EEC) 945/70 of the Council of 26 May 1970 determining the types of table wines (Official Journal, English Special Edition 1970 (I), p. 267) provides:

Between 3 and 15 October 1975 the plaintiff and respondent to the appeal in the main action, Firma Kendermann, exported to Canada wine produced by the coupage of the German vine varieties Müller-Thurgau and Sylvaner with Italian or French wines. Particulars of the composition of the wines exported are as follows:

The plaintiff applied for monetary compensation for those exports on the basis of Regulation 2021/75. The Hauptzollamt Hamburg-Jonas, defendant and appellant in the main action, in reliance on Regulation 2448/75 rejected that application, alleging that table wine of Type A II was not involved.

After lodging unsuccessful objections the plaintiff brought proceedings in the Finanzgericht Hamburg, which ordered the defendant to pay the monetary compensatory amounts demanded. The defendant appealed to the Bundesfinanzhof.

By order dated 28 February 1978 the Bundesfinanzhof stayed the proceedings and referred the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

I —. The central issue in the present case is the question whether blends of table wines of Types A II and A I also come under wines of Type A II within the meaning of Article 2 (b) of Regulation 945/70 of the Council and, if so, how high the proportion of wine of Type A I may be for the blend still to come under the said classification. The reason is that only table wines of Type A II from the Federal Republic of Germany could at the time of the export of the wines in question by the plaintiff still enjoy the monetary compensatory amounts under Article 1 of Regulation 2448/75 of the Commission.

II —. According to the wording of Regulation 2448/75 the exported wine must belong as such to Type A II to justify a claim for a monetary compensatory amount. I agree with the Commission that Article 6 of Regulation 1380/75 of the Commission of 29 May 1975 laying down detailed ruls for the application of monetary compensatory amounts (Official Journal L 139 of 30 May 1975, p. 37) in conjunction with Article 8 of Regulation 192/75 of the Commission of 17 January 1975 laying down detailed rules for the application of export refunds in respect of agricultural products (Official Journal L 25 of 31 January 1975, p. 1) does not justify pro rata payment. Although, according to Article 6 of Regulation 1380/75, the provisions concerning the granting of export refunds also apply to the payment of monetary compensatory amounts, according to Article 8 of Regulation 192/75 the refund is payable in respect of a particular component of a product only where a refund has been fixed on the basis of one or more components. This however cannot apply here since no monetary compensatory amount is provided for table wine of Type A II which is exported as an ingredient of a blend with its own character.

III —. Finally, I have no doubts regarding the validity of Regulation 2448/75 in the interpretation which I have proposed. That regulation retains the monetary compensatory amount only for wines of Type A II and A III and this was brought about (in this respect I refer to the judgment in Case 136/77 Firma A. Racke v Hauptzollamt Mainz of 25 May 1978) in exercise of the Commission's wide discretion but taking account of all the relevant economic factors. At that time the Commission considered that it was still necessary to protect German wines of Types A II and A III and only wines or blends coming under those types. What wines came thereunder was to be decided, as explained, only on the basis of considerations concerning wine and price. In view of the objectively justified grounds of the regulation it could not be regarded as constituting discrimination.

IV —. I therefore propose that the questions of the Bundesfinanzhof should be answered as follows:

1 Translated from the German.