Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In the context of proceedings between Continental Irish Meat Limited and the Minister for Agriculture, the Supreme Court of Ireland has asked this Court to interpret Article 2 a of Regulation No 974/71 of the Council of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States (Official Journal, English Special Edition 1971 (I), p. 257), as amended by Article 2 of Regulation No 1112/73 of the Council of 30 April 1973 (Official Journal 1973, L 114, p. 4). That provision provides that Where a product exported from one Member State has been imported into a Member State which has to grant a compensatory amount upon importation, the exporting... State may, by agreement with the importing... State, pay the compensatory amount which should be granted by [the latter]... The... amount shall be converted on the basis of the market rate of the relevant currencies as recorded over a period to be determined. Exporting... States which exercise this option shall inform the Commission accordingly.

2. During the period October 1976 to July 1977, Continental Irish Meat Limited (hereinafter referred to as Irish Meat) exported beef under the system of monetary compensatory amounts from Ireland to the United Kingdom and Italy. As a result of the transactions concerned, Irish Meat became liable to the Ministry of Agriculture (which in Ireland is the intervention agency) for export monetary amounts totalling IRL 164337.40; in the meantime, it became entitled to receive import monetary compensatory amounts in respect of transactions with the United Kingdom totalling UKL 192662.20 and in respect of transactions with Italy totalling LIT 6293252. Under the agreements concluded pursuant to Article 2 a, the monetary compensatory amounts paid by the United Kingdom and Italy, the importing States, were to be paid by Ireland, the exporting State. At that time the United Kingdom and Irish currencies were on a par, and therefore only the Italian currency was converted. On 24 January 1978 the Ministry of Agriculture paid Irish Meat (which from 5 May 1977 was in receivership and in voluntary liquidation) IRL 32470.25, being the difference between the sums which it had to pay, on the one hand in respect of import monetary compensatory amounts and, on the other, in respect of export monetary compensatory amounts. In other words, the intervention agency raised a setoff against the claims of Irish Meat.

3. For a better understanding of this question, it is appropriate to recall the rules on monetary compensatory amounts referred to therein. I shall do so merely in outline since they have already been considered by the Court, specifically with respect to the provision with which the national court's question is concerned (see judgments of 18 September 1980 in Case 795/79 Pesch v Hoofdprodiiktscbaap voor Akkerbouwproduken [1980] ECR 2705 and of 1 October 1981 in Case 196/80 Anglo-Irish Meat Company Limited v Minister for Agriculture [1981] ECR 2263).

4. As has been pointed out by the Commission of the European Communities and the United Kingdom, the wording of the question submitted by the national court gives the impression that it seeks clarification as to the concept of agency under Irish law. Needless to say, the Court is not permitted to answer such a question under Article 177. However, it is quite legitimate for the Court to recast the question, so as to focus upon the matters involving an interpretation of Community law (see among others the judgment of 12 July 1973 in Case 11/73 Getreide Import GmbH v Einfithr- und Vorratsstelle für Getreide und Futtermittel [1973] ECR 919).

5. In this case, Irish Meat has repeated the argument which it put forward in the main proceedings: when levying export monetary compensatory amounts the intervention agency acts in its own right; when it pays import monetary compensatory amounts, it acts on behalf of the importing State. In other words, the claim is enforceable by, and the debt payable to, the same body, but each is ascribable to a different right: it is not therefore permissible to set one off against the other.

6. Under the laws of numerous Member States, setoff is possible so long as (a) the parties represent two separate centres of economic interest in which, depending upon the viewpoint, each of them may be classified as the debtor or the creditor; (b) in both centres, the credit and the debit attach to a person acting in the same legal capacity. However, different rules apply to setoffs between the State and economic operators. Thus, in some systems (France, Italy, the Netherlands and Belgium) only the public authorities have a right of setoff; on the other hand, under German and English law private individuals may also have a right of setoff, provided that the debit and the credit are enforced against the same fund (Paragraph 395 of the BGB and Article 35 (2) of the Crown Proceedings Act 1947).

7. In view of all the preceding considerations, I propose that the Court should give the following reply to the question submitted by the Supreme Court of Ireland for a preliminary ruling by Order of 21 February 1984 in the case of Continental Irish Meat Limited against Minister for Agriculture :

1 Translated from the Italian.