Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. These preliminary proceedings concern the interpretation of a provision of Regulation (EEC) No 269/73 of the Commission of 31 January 1973 laying down detailed conditions for application of the system of accession compensatory amounts (Official Journal 1973, L 30, p. 73) amended by Regulation No 1466/73 of 30 May 1973 (Official Journal 1973, L 146, p. 13). As is known, the compensatory amounts of the type in question were introduced by the Act concerning the Conditions of Accession to the European Communities of the Kingdom of Denmark, Ireland and the United Kingdom. Articles 51 and 52 of that Act made provision for the prices of agricultural products in the new Member States during the transitional period to be fixed by the Community authorities at levels different from those of the common prices. By virtue of Article 55 (1) of the Act, those differences were to be offset by means of a system of compensatory amounts which, in trade between the new Member States and between them and the Community as originally constituted, would be levied by the importing State or granted by the exporting State.

2. I shall now briefly summarize the facts. On the basis of a certificate issued on 29 July 1975 by the Danish authorities, valid until 26 September 1975, the undertaking Töpfer of Hamburg — which is engaged in the international cereals trade — had secured advance fixing of an accession compensatory amount for the export of 5000 tonnes of grain from Denmark to the United Kingdom, at the rate of 24.05 units of account per tonne (in favour of the exporting undertaking), and lodged the prescribed security for that purpose. On 27 August of the same year Töpfer had also obtained from the Belgian authorities advance fixing of an accession compensatory amount for the import of grain originating in Denmark and the United Kingdom into a Member State of the Community as originally constituted. The amount was two units of account per tonne (payable by the importing undertaking). A security was also lodged on that occasion.

3. At the centre of the problem raised by the court in the main action therefore lies Article 5 (2) of Regulation No 269/73 of the Commission, as amended by Article 1 (not Article 2 as incorrectly stated in the order making the reference to the Court) of Regulation No 1466/73 of the Commission. I have already stated that the article in question relates to the proof which the claimant must furnish in order to secure payment of the accession compensatory amount. If he is unable to furnish such proof, no payment may be made. It seems to me therefore that, by determining the means of proof to which payment is made, that provision lays down real and specific conditions for entitlement to receipt of the compensatory amount (further conditions are laid down in other articles of the same regulation, for example, in Article 7).

4. The defendants in the main proceedings contended in their defence that the disputed provision must be interpreted in a uniform manner and on the basis of objective criteria. This requirement cannot be disputed but the result to which it leads is the opposite of what the defendants hope.

5. In addition to the textual arguments which I have set out above there is a systematic argument, one which is of decisive importance. All the Community provisions on accession compensatory amounts were based on that fact that, for a time, there were discrepancies between the price levels for agricultural products between the original Member States as a whole and each new Member State and also between the new Member States themselves. The object of these rules was, as has been seen, to allow free movement of agricultural products within the Community by means of offsetting discrepancies in price levels. The system therefore involved a comparison from time to time between two markets (exporting State and State of destination) and on the basis of that comparison the compensatory amount was determined. In such circumstances it must be excluded that a product enjoying the benefit of a specific compensatory amount by reason of the lower price level in another Member State may be sent to that State merely for the purpose of carrying out customs clearance operations there and immediately afterwards be re-despatched by the same exporter to a third Member State without ever having been released on to the market of the first State of destination. Such a procedure (which was followed in this case) is in open conflict with the rationale of the measures adapted, in the form of compensatory amounts, to assist exporters, such measures being dependent upon release of the product on to the market of the State of destination and upon the difficulty of competing successfully with local traders — who have the benefit of low prices — without Community support.

6. Finally, the actual aim of the provision which is to be interpreted should not be overlooked. I have already referred to the wording of the fourth recital of Regulation No 269/73 in which the aims mentioned are to avoid fraudulent practices and to grant an adequate compensatory amount. The requirement of proof of release for use in the destination State is based on those aims. But in a case like the one in point there is a clear abuse. For a consignment of Danish grain intended for Germany (as indicated both by the contract of 4 September 1975 between Töpfer and Bremer Rolandmühle and the instructions given to the masters of the vessels used for carriage of the goods) the exporter arranged forra short stay in England for the sole purpose of receiving the compensatory amount. In general terms there is no doubt that a transaction effected by an exporter which is purely speculative and by virtue of which release of the goods into free circulation in the Member State where they were held for a short time is reduced to customs-clearance formalities constitutes an abuse. It may be added that a compensatory amount calculated on the basis of release of goods on to the market of a Member State (in this case the United Kingdom) is absolutely inappropriate, in the sense that it is excessive, where it is paid to a party which is in fact exporting the product to another Member State (in this case the Federal Republic of Germany).

7. On the basis of the foregoing considerations, I suggest that the Court reply to the request for a preliminary ruling made by the Byret, Copenhagen, by its order of 17 October 1980, by ruling that Article 5 (2) of Regulation (EEC) No 269/73 of the Commission, as amended by Article 1 of Regulation No 1466/73, must be interpreted as meaning that an exporter who sends to a new Member State agricultural products originating in another Member State where prices are higher may not claim payment of accession compensatory amounts when clearance of the goods through customs is not followed by effective release of those goods on to the market of the importing State but on the contrary the goods are re-exported immediately after customs clearance to a third Member State by the same trader.

1 Translated from the Italian.