Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. This action has been brought against the Council and the Commission by a German undertaking, Kind, which imports and markets fresh meat from the Federal Republic of Germany and the United Kingdom. That undertaking seeks compensation for the loss it claims to have incurred as a result of the introduction bv Council Regulation No 1837/80 of 27 June 198C of a special expon levy, and the failure on the part of the Commission to suspend that measure.

2. In support of its action Kind submits, first, that the provision contained in Article 9 of Regulation No 1837/80 concerning the export levy are unlawful owing to the absence of a statement of the reasons on which they are based. It contends that that is contrary to Article 190 of the EEC Treaty which stipulates that regulations, like directives and decisions, are to state the reasons on which they are based. That criticism is wholly unfounded, however. The second recital in the preamble to the regulation in question gives an indication of the reasons for adopting the intervention measures, and in particular for paying slaughter premiums in regions where the system of purchases by the intervention agencies is not in force, and points out that the measures are necessary in order to attain the objectives of Article 39 of the Treaty, and in particular to help stabilize the markets and ensure a fair standard of living for the agricultural community concerned. In addition, the reasons for introducing an export levy are set out at the end of that recital, where it is stated that in the case of exports of meat from the territory of the Member State which pays the slaugther premium an amount equivalent to the premium should be recovered in order to avoid all disturbance in competition.

3. Secondiv, the plaintiff submits that Ankle 9 of'Regulation No 1837/80 has introduced what amounts to a charge having an effect equivalent to customs duties, contrary to Anieles 9, 12, 13 and 16 of the EEC Treaty. Counsel for Kind found suppon for this submission in the judgment of this Coun of 20 April 1978 (Joined Cases 80 and 81/77 Les Commissionnaires Réunis v Receveur des Douanes, [1978] ECR 927). The question at issue in those cases was whether a Community provision authorizing wineproducing Member States to introduce and levy on intra-Community trade in wine charges having an effect equivalent to customs duties was compatible with Article 13 of the EEC Treaty, which provides for the abolition by the end of the transitional period of charges having an effect equivalent to customs duties on imports. The Court rightly held that the elimination between Member States of customs duties and charges having equivalent effect was the subject of a fundamental principle of the common market to which no exceptions had been permitted. However, reference to that precedent provides no suppon tor the applicant's argument: in the cases decided by the judgment cited above the issue concerned payment of a French impon charge on table wine (or wines suitable for making table wine); the charge had been introduced, as I said, on the basis of a Community provision authorizing it. In our case, however, we are concerned with nothing more than a mechanism for recovering, at the moment of exportation, Community aid which had been paid to producers and which was intended to be a subsidy designed to operate exclusively on the internal market in the State in question. The export levy is strictly dependent, in fact, on the character of the slaughter premium. Since the latter is intended to maintain price stability in a given market it is necessary to prevent its effects from spreading outside that market, and therefore the amount already collected is recovered when the mutton and lamb leaves the territory of the State concerned. The mechanism merely operates, therefore, to restore prices to their usual level as far as external trade is concerned and to restrict the effects of the intervention measures to the internal market.

4. The third objection raised by Kind with regard to Regulation No 1837/80 is that the slaughter premium and its recovery in the case of expon is incompatible with the second indent of Article 40 (3) of the EEC Treatyaccording to which the common organization of the market shall be limited to pursuit of the objectives set out in Article 39 and shall exclude any discrimination between producers or consumers within the Community. The introduction of a slaughter premium to be applied at regional level is said to amount to discriminatory treatment inasmuch as it ensures the application of rules which favour consumers and producers in cenain countries in this case, the United Kingdom, as against those in other countries in the Community in which market conditions do not permit the application of that kind of intervention measure.

5. The applicant's fourth objection to Regulation No 1837/80 is that it infringes Article 43 (3) (b) of the Treaty, according to which the common organization of the market may replace national market organizations if ... such an organization ensures conditions for trade within the Community similar to those existing in a national market. Kind maintains that the introduction of the scheme for recovery of the slaughter premium when meat is exported has seriously affected the functioning of trade between the United Kingdom and the Federal Republic of Germany so as to make it no longer profitable (or at least far less profitable) to import mutton and lamb from the United Kingdom into the Federal Republic of Germany.

6. Counsel for the applicant also suggested — especially at the hearing — that the scheme introduced by Article 9 of Regulation No 1837/8C was unlawful inasmuch as it permitted the amount of the slaughter premium and the corresponding expon levy to be fixed at an unduly high level.

7. Lastly, the applicant charges that the Commission failed to suspend the application of Article 9 (3) of Regulation No 1837/80 in exercise of its power under the first paragraph of Article 33 of that regulation to adopt appropriate measures to facilitate the transition from the system in force to the common organization of the market. The applicant points out that, on the basis of that very aniele, the Commission provided in Regulation No 3191/80 of o December I98C that the slaughter premium would not be charged on expons of mutton, lamb and goat's meat from the Community. That precedent ought to have entailed a similar suspension of the collection of the levies in question in intra-Community trade.

8. In conclusion I suggest, for the reasons which I have set out, that the Court dismiss the application for compensation for damage submitted by Julius Kind KG against the Council and the Commission of the European Communities by application lodged on 4 May 1981. In accordance with the rule that the unsuccessful party must pay the costs, the applicant will have to pay the costs of the defendant institutions.

1 Translated from the Italian.