Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

On 30 December 1980, 2 January 1981 and 5 January 1981 the plaintiff in the proceedings in the Netherlands from which the present reference for a preliminary ruling has arisen received certificates for the export to nonmember countries of butter in the form of food preparations of tariff headings Nos 21.07 G VII (a) and 21.07 G VIII (a) (containing 45% or more but less than 85% by weight of milkfats); the certificates fixed the export refund in advance at the rate applicable on the day of issue of the certificates and were valid until 31 May 1981 and 30 June 1981 respectively. On 21 April 1981 the plaintiff applied to the defendant in the main action (the competent Netherlands authority) for cancellation of the certificates in so far as they had not then been used (the plaintiff had used the first two certificates only partly and had made no use of the third).

The following details are relevant.

1. The European monetary system was altered with effect from 23 March 1981. There was a devaluation of the central rate of the Italian lire and a revaluation of the notional central rate of the pound sterling which led to the devaluation of the currencies of other Member States (including the Netherlands) in relation to the ECU. The ECU is the unit of account introduced by Regulations Nos 3180/78 and 3181/78 (Official Journal L 379 of 30. 12. 1978, pp. 1 and 2) to replace as from 1979 the unit of account previously used in the agricultural sector (cf. Regulation No 652/79, Official Journal L 84 of 4. 4. 1979, p. 1).

2. The plaintiff considered that in view of that development, which after 21 April 1981 made it impossible for it to carry through the export transactions profitably with the refund which had been fixed in advance, it could claim cancellation of its certificates and thus even without carrying out the export transactions avoid a forfeiture of the deposit.

3. The competent Netherlands authorities did not accept that view, however. In their opinion the situation in the spring of 1981 was not such as that described in Article 1 of Regulation No 1134/68, which can occur only if there is an adjustment of agricultural prices at a time other than the beginning of the marketing year. Direct application of Article 4 of Regulation No 1134/68 was out of the question, moreover, because since 1971 the terms currency parities and value of the unit of account were no longer relevant for the purposes of the agricultural policy of the Community. Nor could that provision apply by virtue of the reference to it Regulation No 878/77, for the plaintiff suffered no disadvantage as a result of the change in the representative rate, in particular by reason of the disappearance of the monetary compensatory amounts, which was not caused by the change in the representative rate; moreover, the plaintiff had not applied for advance fixing of those amounts. The Hoofdproduktschap therefore rejected the plaintiff's application.

4. The Netherlands court before which the matter was then brought took the view that the judgment it was required to give depended in various respects on the interpretation of Community law. By order of 25 February 1983, therefore, it stayed the proceedings pending before it and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

B —

1. First question

The plaintiff in the main proceedings maintains that the monetary events of 23 March 1981 and the fixing of new intervention prices and new export refunds with effect from 6 April 1981 fall within the scope of Article 1 of Regulation No 1134/68, whereas the Commission and the defendant contend that they do not.

I endorse the latter view.

Although Regulation No 1134/68 was not repealed after those alterations in the system (it is still applicable in so far as there is reference to it in Article 4 of Regulation No 878/77), and although after the introduction of the ECU the term unit of account was not systematically replaced in all the relevant provisions, nevertheless in the light of all the available information the first question must be answered in the negative.

2. Second question

Here too, with regard to the question whether the monetary changes of 23 March 1981 represent a case for the application of Article 4 (1) of Regulation No 1134/68, the plaintiff in the main action suggests an answer in the affirmative whereas the Commission and the defendant favour an answer in the negative.

In view of what was said in relation to the first question it is clear already that on this issue, too, it is not possible to agree with the plaintiff. Article 4 speaks of an alteration in the relationship between the parity of the currency of a Member State and the value of the unit of account. In the general context of the rules I have described, the provision was thus designed specifically for the case where the unit of account for the purposes of Article 1 of Regulation No 129 had a fixed value and the currency parities of the Member States were those notified to the International Monetary Fund (Article 2 of Regulation No 129). That was no longer the case in 1981, however, for those two values were replaced in the agricultural sector by the ECU on the one hand, and the representative rates within the meaning of Article 1 of Regulation No 878/77 on the other. In that respect it is significant that Regulation No 878/77 refers expressly to Article 3 of Regulation No 129, where it is provided that in the event of monetary practices of an exceptional nature derogations may be made from Regulation No 129; in other words, it is possible to depart from the use of the unit of account with a particular gold value and from the conversion on the basis of the currency parities notified to the International Monetary Fund.

It cannot be reasonable still to apply directly Article 4 of Regulation No 1134/68 after the fundamental changes that have occurred in the currency and agricultural sectors; it was obviously meant to apply in circumstances in which the events outlined in it have a direct effect upon prices. While the representative rates continue to apply, however, changes in the central rates or the current rates (even for the pound sterling there is now no longer a parity notified to the International Monetary Fund) have no influence whatsoever on prices.

Even an alteration in the value of the guilder in relation to the ECU after 23 March 1981 would not have justified applying Article 4 of Regulation No 1134/68, on a reasonable construction of that article. The plaintiff's references to certain phrases in the preamble to Regulation No 878/77 provide no positive indication to the contrary, any more than does the reference to the Commission's proposal for a regulation on the value of the unit of account (Official Journal 1980, C 57, p. 11). Application of Article 4 could be considered only after an alteration in the representative rates, on the basis of the express reference to be found in Article 4 of Regulation No 878/77 which, as is apparent from the preamble to Regulation No 976/78 (Official Journal 1978, L 125, p. 32), was considered necessary because Article 4 of Regulation No 1134/68 was drafted to cover changes in the parity of a currency, and not changes in the representative rates. Of course, it was necessary to bear in mind the additional condition that there should be a disadvantage as a result of the application of the new representative conversion rates and no measures to compensate such disadvantages, a point which I shall examine shortly.

3. Third question

This question concerns the interpretation of Article 1 (1) of Regulation No 1054/78 (as amended by Regulation No 1509/78) where the disadvantage within the meaning of Article 4 of Regulation No 878/77 to which I have just referred is defined, that is to say, the criterion to be applied when a cancellation of the certificates of advance fixing is requested following an alteration in the representative rates. In asking that question the national court is not, therefore, concerned with the monetary changes on 23 March 1981 (when the representative rate of the guilder — 1 ECU = HFL 2.80821 — remained unchanged and the only result was that the central rate of the guilder came very close to the representative rate, namely from HFL 2.74362 to HFL 2.81318 to the ECU). The question concerns rather the adjustment of the green rates with effect from 6 April 1981, which in relation to the Netherlands guilder had the result that from 6 April 1981 1 ECU equalled HFL 2.81318. The reference in the question to monetary compensatory amounts not fixed in advance stems from the argument put forward by the plaintiff in the main proceedings that the disappearance of the monetary compensatory amounts for dairy products in the Netherlands made export more difficult, creating a disadvantage for it which should be taken into account in considering its application for cancellation of its export certificates.

4. Fourth question

This also relates to the interpretation of Article 1 of Regulation No 1054/78 as amended by Regulation No 1509/78. It seeks to know whether in calculating the disadvantage mentioned there the purchase price should be taken into account. The national court had in mind the argument of the plaintiff in the main proceedings to the effect that the alteration of the representative rates of 6 April 1981 affected the intervention price and thus the market price and that that alteration made it impossible for the plaintiff to carry through the exports profitably on the basis of the refund fixed in advance.

The plaintiff in the main action considers that the fourth question should be answered in the affirmative. It refers to the fact that the second paragraph of Article 1 (1) includes a reference to prices, and maintains that when both the refund and the monetary compensatory amounts are fixed in advance a disadvantage of the kind referred to can arise only if there is an alteration in prices. Once again, both the Commission and the defendant in the main proceedings take the opposite view.

In this connection too, in my opinion, the latter have the better arguments.

It might, in fact, seem sufficient now to refer to the oberservation relating to the answer to the third question to the effect that the general context of the rules indicates that only the effects of a change in the representative rates on the amounts fixed in advance, which obviously does not include the purchase price, are to be taken into account.

In addition to that, however, it may be said that support for this view is also to be found in the wording of Article 1 of Regulation No 1054/78. As regards the definition of what constitutes a disadvantage, the criterion given there is that an alteration of the amounts applicable to a transaction as a result of the application of new representative rates must result either in the levying of a greater amount or the granting of a lesser amount than that applicable before the entry into force of the said rate. On that definition, the purchase price is quite irrelevant.

On the other hand, the conclusions which the plaintiff seeks to draw from the wording of the second subparagraph, which mentions prices, do not appear to be convincing. The Commission has rightly explained that the reference to prices was not intended to introduce a new factor (the purchase price) into the determination of what constitutes a disadvantage; the purpose of the subparagraph is simply to determine the relevant date for the purposes of calculating the disadvantage. That is, in fact, quite clear from Article 1 (2) (b), which states that in the case of simultaneous alteration of the representative rate and of the price level in units of account, the disadvantage resulting from the alteration in the representative rate must outweigh any advantage afforded by the effect of the alteration in the price level. That makes it clear that the alteration in the price level is not to be taken into account in calculating the disadvantage, but is relevant only in comparing the disadvantages resulting from an alteration in the representative rate and the advantages of an alteration in the price.

C — In conclusion, therefore, I must propose that all the questions put by the College van Bereop voor het Bedrijfsleven should be answered in the negative, and it be declared that Articles 1 and 4 of Regulation No 1134/68 did not apply to the monetary changes which occurred on 23 March 1981; in calculating the disadvantage for the purposes of Regulation No 1054/78, moreover, the monetary compensatory amounts not fixed in advance are hot to be taken into account, nor is an alteration in the purchase price resulting from an alteration in the representative rates and its effects on the intervention prices.

1 Translated from the German.