Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. This reference for a preliminary ruling raises one problem of the validity and another of the interpretation of the Community rules requiring importers of frozen beef intended for processing to lodge a security in order to qualify for the total or partial suspension of the import levy.

2. At this point it is necessary to set out the content of the Community provisions to which the question of the German court relates, directly or indirectly. The legal position with regard to levies on imports of frozen boned or boneless beef intended for processing is governed chiefly by Regulation (EEC) No 805/68 of the Council on the common organization of the market in beef and veal, and in particular of Article 14 thereof, as amended by the subsequent Council Regulation No 425/77 of 14 February 1977. The article in question lays down, inter alia, in paragraph (1), that frozen meat intended for processing and listed in Section (b) of the Annex hereto under subheadings 02.01 A II (b) 2 and 02.01 A II (b) 4 (bb) shall qualify, under the conditions laid down in this article: ... (b) for the total or partial suspension of the levy on meat intended for the processing industry for the manufacture of products other than ... preserved food which does not contain characteristic components other than beef and jelly.

3. The legal basis for the legislative power exercised by the Commission in adopting the said Regulation No 572/78 is to be found in the said Article 14 (4) (c) of Regulation No 805/68 of the Council (as amended by Regulation No 425/77). That provision provides that detailed rules for the application of this article and particularly those concerning control of the end use of imported meat must be determined in accordance with the procedure laid down in Article 27, that is to say by the Commission after consulting the Management Committee for Beef and Veal. The second reference in the preamble to Regulation No 572/78 expressly mentions the said Article 14 (4) (c) of Regulation No 805/68. Furthermore a general power of the Commission to enact provisions in implementation of regulations of the Council must be ruled out; I shall merely recall in this connection that when Article 155 of the EEC Treaty defines the powers of the Commission it provides in the fourth indent that it shall exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter.

4. According to the submission of the plaintiff undertaking in the main action the specific objectives of that article are not compatible with the rules laid down by the Commission concerning the time for processing the imported beef and the relative security. The plaintiff cites the statement of the Court of Justice in its judgment of 6 March 1979 in Case 92/78, Simmentha v Commission, namely that the system of suspending the levy created by the original Article 14 of Regulation No 805/68 and kept in being, with new rules, by the amended version of the same provision, is to protect the competitiveness of the processing industry vis à vis competitors who are established outside the Community and as such enjoy the benefit of world market prices ([1979] ECR 777, in particular paragraph 68 of the decision). Merkur emphasizes that, in order to attain an objective of that nature, it was not necessary to fix a time-limit for processing and above all to prescribe the forfeiture of the security solely on the ground of failure to observe the time-limit when in fact the processing is ultimately effected, albeit tardily.

5. Merkur, continuing its endeavour to show that the Commission did not have the power to fix a time-limit for the use of the imported meat or to require a security to be lodged, points out that Article 14 of Regulation No 805/68 does not make reference either to the time-limit or to the security although it would have been reasonable to expect from it some indications on these points since the same regulation provides in Article 15 with regard to import licences both a time-limit as to their validity and the obligation to provide a deposit as a guarantee that the operations authorized will be carried out in due time.

6. I now come to consider whether or not the legal rules applicable to the security, and in particular the rule on the basis of which the entire amount of the security is forfeit if the imported beef is not processed in due time, is contrary to the principle of proportionality and the principle of equality.

7. The second part of the question from the German court concerns the interpretation of the provision on the forfeiture of the security which is contained in the third subparagraph of the said Article 1 (3) of Regulation No 572/78. The Court asks whether this provision may be interpreted as meaning that the forfeiture will not be effected if the imported beef is processed only slightly later than the time-limit fixed.

8. In view of all the foregoing considerations I suggest that the Court of justice should reply as follows to the question referred to it by the Finanzgericht Hamburg by order of that court of 17 May 1981 in the case between Merkur Fleisch-Import and Hauptzollamt Hamburg-Ericus:

1 Translated from tne ltalian.