Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Court has been asked to give a preliminary ruling on a question referred to it by the Hessisches Finanzgericht in the context of proceedings pending before that court between H. Spitta & Co. and the Principal Customs office, Frankfurt am Main-East, brought for the purpose of determining the levy applicable to the importation from Madagascar of a quantity of beef and veal falling under subheading 16.02 B III b 1 (aa) of the Common Customs Tariff. The national court has asked the Court of Justice to rule on the validity of Commission Regulation No 932/77 of 29 April 1977 fixing the amounts by which import charges on beef and veal originating in the African, Caribbean and Pacific States (hereinafter referred to as the ACP States) are to be reduced (Official Journal 1977, L 109, p. 16).

2. In order to properly understand the scope of the question, it is necessary to mention the intricate rules which constitute the background to it. As the Court will be aware, Regulation No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187) provided that import duties and levies should be charged on importation from nonmember countries of fresh, chilled, frozen, salted, dried and smoked beef and veal. However, it exempted from the levy the products covered by subheading 16.02 B III b 1 of the Common Customs Tariff, that is to say, other prepared or preserved meat or meat offals, not specified, containing bovine meat or offals other than those containing meat or offals of domestic swine. The goods subject to the levy were mentioned at letter (a) in Article 1, while those which benefited from the exemption appeared at letter (b). It is worth adding that the system of monetary compensatory amounts applied to both categories.

3. Let us now turn our attention to the application of those provisions. Article 2 (4) of Regulation No 1599/75 provides that the necessary arrangements are to be adopted in accordance with the management committee procedure laid down in Article 27 of Regulation No 805/68. Article 3 of Regulation No 3328/75 also provides that such arrangements (particularly, the basis for calculation, the reference period, the rules for determining the tax to be charged by the exporting country, the issue of import licences, the admissible proof, etc.) are to be defined by the management committee.

4. During the procedure before this Court written observations were submitted by Spitta and by the Commission. Spitta contends that in calculating the amount by which the import charges were to be reduced the Commission failed to take account of the principles laid down in Article 1 of Regulation No 3328/75 of the Council, thus exceeding its powers. That provision requires it to have regard to the average levy applicable to imports, and the word average excludes, by implication, reference to one Member State. That interpretation is all the more reasonable because the coefficients and the compensatory amounts which enter into the calculation of the average of the charges are expressed in national currencies. In other words, they are different for each State. When they are multiplied by a reduction of a fixed amount, as the contested regulation does, they have different values depending on the monetary situation of each State.

5. To reply to the Finanzgericht's question, it is therefore necessary to decide whether the standard method of calculation adopted by the Commission in Regulation No 932/77 in application of the criteria which it itself laid down in Regulation No 3376/75 respects the guiding principles laid down in Regulation No 3328/75 of the Council and the prohibition of discrimination between importers within the Community. I will say at once that the reply must be negative: that method exceeds the limits within which the Council intended to contain the power of the Commission and is therefore unlawful.

6. To declare the contested provision invalid, as I would propose, raises two questions: What will be the effects of such a declaration? And which institution will have the task of determining the the new reductions? However, it is not difficult to resolve those questions in the light of the principles which the Court has frequently and consistently upheld over the years. With regard to the second question therefore, I will merely refer to the judgments given in the gritz and quellmehl cases (Joined Cases 117/76 and 16/77 Rtickdeschel v Haiiptzollamt Hamburg-St Annen [1977] ECR 1753; Joined Cases 124/76 and 20/77 Moulins de Pont-à-Motisson v Office interprofessionnel des céréales [1977] ECR 1795), in which the provisions of certain regulations were declared void. In both judgments (but see in particular paragraph 29 of the second) the Court declared that it was for the institutions responsible for the common agricultural policy to assess the economic and political considerations on the basis of which the amount was fixed. With regard to the first question, obvious requirements of legal certainty suggest that the best course is to place a time-limit on the effects which flow from the declaration of invalidity. That was the view taken by the Court in its judgment of 27 February 1985 in Case 112/83 {Société des produits de maïs SA v Administration des douanes et droits indirects [1985] ECR 732).

7. For all of the foregoing reasons, I propose that the Court should reply as follows to the question referred to it by the Seventh Senate of the Hessisches Finanzgericht by order of 25 April 1984 in proceedings between H. Spitta & Co. and Hauptzollamt Frankfurt am Main-Ost:

1 Translated from the Italian.