Opinion of mr advocate general Reischl

Mr President,

Members of the Court,

The two references for a preliminary ruling on both of which I am today giving a single opinion, because the problems they raise are very much the same, are concerned with the levying of monetary compensatory amounts on wine, in particular with the retroactive inclusion of certain types of wine in the monetary compensation system.

Until the beginning of 1973 the system of monetary compensatory amounts was keyed to the movements of Member States' currencies against the US dollar. It was confined to monetary compensatory amounts being levied on imports and granted on exports in those countries where a revaluation had been effected.

At the beginning of 1973 there was another international currency crisis. The dollar came under so much pressure that on 12 February 1973 the American Government announced a 10 % devaluation. The Italian authorities also suspended intervention as the lira reached marginal values. On 12 and 13 February and also from 1 March to 19 March, the Foreign Exchange Markets were closed. At that time an international monetary conference of the Western industrial countries decided upon a 3 % revaluation of the German mark and also upon the so-called block floating for the European currencies. In accordance with that decision Member States were obliged to maintain at all times in spot dealings a margin upwards or downwards of not more than 2.25 % between their currencies. However, the pound sterling and the Italian lira remained outside the currency snake.

In view of this development the system of monetary compensatory amounts was changed in such a way that in those countries whose exchange rates exceed the lower limit of fluctuation permitted by international rules, monetary compensatory amounts are levied on exports and granted on imports. The basic Regulation (EEC) No 974/71 of the Council of 12 May 1971 (Official Journal, English Special Edition 1971 (I), p. 257) was appropriately amended by Regulation No 509/73 of the Council of 22 February 1973 (Official Journal L 50 of 23 February 1973, p. 1) with effect from 1 February 1973. The Commission adopted in Regulation (EEC) No 648/73 of 1 March 1973 (Official Journal L 64 of 9 March 1973, p. 1) implementing provisions for this purpose which entered into force on the third day following their publication in the Official Journal of the European Communities; however, the amounts resulting from their application had already been effective since 26 February 1973.

The monetary compensatory amounts were fixed by Regulation (EEC) No 649/73 of the Commission of 1 March 1973 (Official Journal L 64 of 9 March 1973, p. 7) which was to enter into force on the day of its publication in the Official Journal. The Official Journal in which it was published bore the date 9 March 1973 but was not available at the sales office in Luxembourg until 12 March and at the German post office for official publications until 13 March. Nevertheless, it was provided that the monetary compensatory amounts which had been fixed should be levied as from 26 February 1973. Certain wines were included for the first time in the monetary compensation system as a result of that regulation and this is of special significance in this case. In so far as the monetary compensatory amounts are relevant in these cases, they were varied by Regulation (EEC) No 741/73 of 5 March 1973 (Official Journal L 71 of 19 March 1973, p. 1). That regulation was to enter into force on the day of its publication in the Official Journal, which occurred on 19 March 1973; however, the new amounts had already been applicable since 5 March 1973. A further alteration was made by Regulation (EEC) No 811/73 of 23 March 1973 (Official Journal L 79 of 27 March 1973, p. 1). That alteration was to enter into force on the day of its publication in the Official Journal, that is 27 March 1973, and was applicable from 26 March 1973.

The proceedings which gave rise to the reference to the Court for a preliminary ruling in Case 98/78 concern Yugoslav wines which according to the plaintiff are quality wines and which on the basis of orders dated November 1972 and January 1973 and of contracts which provided for payment of the purchase price in German marks had been imported into the Federal Republic of Germany in December 1972 and January 1973 and placed in a private customs warehouse (offenes Zollager). When those wines were taken out of that warehouse and put into free circulation between 9 and 30 March 1973, monetary compensation was levied on the ground that the wines in question came under tariff headings 22.05 C I and 22.05 C II and in application of the beforementioned regulations.

The proceedings which gave rise to the reference to the Court for a preliminary ruling in Case 9/78 concern wine from Italy falling within tariff heading 22.05, which was cleared by customs and put into free circulation between 9 and 12 March 1973. Monetary compensation was also levied on this wine as provided for in the said regulations.

The attempts by the parties concerned to defeat this levy were of no avail whatsoever.

In the first case the Finanzgericht (Finance Court) Rheinland/Pfalz found that the fact that the contracts for the imports were expressed in German marks was immaterial. When the Commission fixed the monetary compensatory amounts for wine it did not exceed the discretion it has according to Regulation No 974/71. Nor is the retroactive fixing of the compensatory amounts invalid. As far as concerns Regulation No 649/73 which entered into force on 9 March 1973, the decisive fact is that the plaintiff had not removed any wine from its private customs warehouse before that date. With reference to the retroactive introduction of higher rates by Regulations Nos 741/73 and 811/73, it must be borne in mind that their application as from a later date might, because precipitate and voluminous imports were to be feared, have been detrimental to the Community and that on the basis of the exchange rates the parties concerned could have anticipated the date from which an alteration in compensatory amounts was to be expected.

In the second case the same Finanzgericht made an analogous decision in which it also pointed out that, as fas as concerns the retroactive alteration of the rates of compensation by Regulation No 741/73, the business circles involved ought to have borne in mind that Regulation No 974/71 provides for the alteration of compensatory amounts if the difference between the recognized parity of the national currency and the current rate of exchange as against the dollar changes by not less than one point.

At a later date the cases came before the Bundesfinanzhof (Federal Finance Court) on appeal on a point of law.

The appellant in the first case submitted that the prerequisite for monetary compensation is that, by reason of the change in the currency parity, a product might be imported at lower prices. That has not occurred in this case; since the contracts were expressed in German marks purchase at reduced prices is out of the question. Furthermore, under Regulation No 816/70 (Official Journal, English Special Edition 1970 (I), p. 234), when the offer price for imported wine is lower than the reference price, a special countervailing charge is imposed. However the reference price, the maintenance of which Yugoslavia has moreover guaranteed, is considerably higher than the activating price and it therefore provides increased protection for the intervention system. Accordingly it must be assumed that the intervention system of the common organization of the market in wine is protected by the system of reference prices and consequently cannot be thrown into confusion by imports from non-member countries. What is more, since the system of reference prices provides a system of intervention only for the protection of table wines, it is intended to cover only wine for immediate consumption. It is therefore not at all necessary to levy monetary compensation on quality wines from non-member countries. Finally, according to the existing statistics to which the plaintiff has access, the wine market cannot be said to have been disturbed by imports from non-member countries. In each case the retroactive application of the regulations of the Commission on monetary compensation must be regarded as out of the question.

The appellant in the second case complained in particular of the retroactive application of Regulation No 741/73. It is of the opinion that it was entitled to rely on the fact that the wines which it imported were not subject to monetary compensation. There has also been no proof that the short term economic development in the wine sector was adversely affected. In particular, the fact in this connexion that by decisions of the Federal Ministry of Finance of 15 January 1975 and 24 February 1975 a partial refund of the monetary compensatory amounts levied on wine was ordered is relevant.

As the orders making the references state, this reasoning raises various problems for the Bundesfinanzhof. On the one hand they relate, in the first case, to the question whether the fact that imported goods are subject to a levy is material and to the question whether the classification of the wines — either as wines for immediate consumption or quality wines — is relevant. On the other hand — and this applies to both cases — they relate to the question of the time when a Community regulation is to be regarded as published and whether the retroactive application of a regulation by which specific goods have been included for the first time in the monetary compensation system can be regarded as lawful. Therefore by order of 21 March 1978 the Bundesfinanzhof stayed proceedings and referred the following questions to the Court of Justice pursuant to Article 177 of the EEC Treaty for a preliminary ruling:

In Case 98/78

In both cases

My views on these questions are as follows:

1. The question to be examined first only relates to Case 98/78. The validity of Regulations (EEC) Nos 649/73, 741/73 and 811/73 has to be considered with reference to the fact that they fixed compensatory amounts on wines without making any distinction between them. The specific problems which arise in this connexion are expressed in the grounds of the appeal judgment and the appellant's submissions during the oral procedure before this Court.

2. The next question which has to be considered is common to both references. It asks for a ruling as to when Community regulations are to be considered as published.

3. The next two questions to which I now turn are also in substance the same in both cases. They relate to the retroactive application of Regulations Nos 649/73 and 741/73 to the wines included for the first time in the monetary compensation system by Regulation No 649/73. In this connexion all that has to be taken into consideration is the fact that in the first case the wines in question were removed from a private customs warehouse before Regulation No 649/73 was actually published and that in the second case they had been directly imported before that date.

4. Accordingly I am of the opinion that the questions raised by the Federal Finance Court should be answered as follows :

1 Translated from the German.