Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The first case on which I am to speak today is concerned with the validity of a Community regulation fixing inter alia the monetary compensatory amount for powdered glucose (dextrose) which is obtained from maize and falls under heading No 17.02 B II (a) of the Common Customs Tariff.

In the order for reference the national court refers to Regulation (EEC) No 1541/80 of 19 June 1980 (Official Journal 1980, L 156, pp. 1, 2, 5 and 6). However, the Commission has shown — and the plaintiff in the main proceedings has endorsed this view — that it is more appropriate to refer to Regulation (EEC) No 2140/79 (Official Journal 1979, L 247, p. 1) in which the Italia column set out in Annex I thereto was replaced, as is clear from Article 1 of Regulation No 1541/80, by the corresponding column appearing in Annex I to the latter regulation.

The said regulation was applied at a time when the plaintiff, an undertaking engaged in the processing of agricultural products, exported to the Federal Republic of Germany between 7 and 11 July 1980 in intra-Community trade the product referred to earlier. In that connection, since Italy is a country with a weak currency, monetary compensatory amounts were to be paid by the exporter.

The plaintiff takes the view that the monetary compensatory amount was approximately 14% higher than it should have been since the regulation in question fixed the monetary compensatory amounts for products processed from maize on the basis of the intervention price for maize, without taking into account the production refund which is granted on maize starch and which leads to a reduction in the price of the raw material. That practice was held to be incorrect by the Court in connection with an earlier regulation (No 652/76) in its judgment of 15 October 1980 in Case 145/79, with which the plaintiff is evidently familiar.

The plaintiff therefore brought an action before the Tribunale di Venezia (District Court, Venice) for the recovery of the monetary compensatory amounts levied in excess in breach of Regulation (EEC) No 974/71. The national court considered that the plaintiff's contentions were not without foundation. Accordingly, by order of 24 November 1983, it stayed the proceedings and referred to the Court of Justice pursuant to Article 177 of the EEC Treaty the following question for a preliminary ruling:

B. Opinion

1. The single question submitted by the national court clearly does not give rise to any difficulties.

2. During the proceedings, however, detailed consideration was given (and for the plaintiff, it may be said, in particular) to the question of the effects of the declaration of invalidity. Even though it was not expressly raised by the national court (evidently because, like other courts, that court wishes, in spite of the findings of the Court of Justice in Case 145/79 which I intend to consider in due course, to give an independent decision on the claim for recovery and hence to draw the consequences which in its view necessarily follow from the declaration of invalidity), the problem should not now simply be passed over in silence. That problem is also relevant in the light of certain questions expressly raised in Cases 39/84 and 46/84, which are now before the Court, and if express findings are made in those cases, they must of course also apply to this case.

To summarize, therefore, I propose that the answer to the question submitted by the Tribunale di Venezia should be that Regulation No 2140/79, as amended by Regulation No 1541/80, is invalid in so far as monetary compensatory amounts for powdered glucose or dextrose falling under heading No 17.02 B II (a) of the Common Customs Tariff were fixed on the basis of the intervention price for maize without deducting the production refund on maize starch.

1 Translated from the German.

2 Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French Stute [1980] ECR 2917.

3 of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980] ECR 2917.

4 Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980] ECR 2917.

5 Case 39/84 Maizena GmbH and Others v Hauptzollamt Hamburg-Jonas (not yet reported).

6 Case 46/84 Nordgetreide GmbH and Co. KG v Hauptzollamt Hamburg-Jonas (not yet reported).

7 Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980] ECR 2917.

8 Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980] ECR 2917.

9 Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980] ECR 2917.

10 Case 112/83 Société des produits de maïs SA v Directeur général des douanes et droits indirects [1985] ECR 732.

11 Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980) ECR 2917.

12 Case 112/83 Société dei produits de mats SA v Directeur général des douanes et droits indirects [1985] ECR 732.

13 Judgment of 17 February 1976 in Case 43/85 Defrenne v Satom [1976] ECR 455.

14 Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French Slate [1980] ECR 2917.