Opinion of Mr Advocate General Lenz delivered on 6 December 1991

1 Originai language: German.

2 Council Regulation (EEC) No 565/80 of 4 March 1980 on die advance payment of export refunds in respect of agricultural products (OJ 1980 L 62, p. 5).

3 Commission Regulation (EEC) No 798/80 of 31 March 1980 laying down general rules on the advance payment of export refunds and positive monetary compensatory amounts in respect of agricultural products (OJ 1980 L 87, p. 42).

4 See the third recital in the preamble to Regulation No 565/80.

5 As amended, in this case, by Commission Regulation (EEC) No 3445/85 of 6 December 1985 amending Regulation (EEC) No 798/80 laying down detailed rules on the advance payment of export refunds and positive monetary compensatory amounts in respect of agricultural products (OJ 1985 L 328, p. 13).

6 See Article 3(1) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1).

7 Commission Regulation (EEC) No 1633/80 of 26 June 1980 fixing the export refunds on cereals and on wheat or rye flour, groats and meal (OJ 1980 L 162, p. 45).

8 The list produced by the defendant shows that in this case it was not possible to supply proof of export in respect of a small quantity. However, the request for a preliminary ruling is evidently not concerned with the problems which arise in this regard, as will be clear from the wording of the question in the reference.

9 With the exception of a quantity of 50 tonnes in Case C-5/90, the ash content of which was below 521 mg/100 g.

10 See the preceding footnote. In Case C-5/90 there was a minimal alteration to the monetary compensatory amounts, which is, however, irrelevant for present purposes as it was not based on a change in the rates.

11 See footnote 6 above.

12 OJ 1980 L 288, p. 27.

13 OJ 1980 L 329, p. 30.

14 OJ 1980 L 334, p. 43.

15 OJ 1981 L 9, p. 17.

16 OJ 1981 L 34, p. 32.

17 OJ 1979 L. 188, p. 5.

18 OJ 1980 L 184, p. 10.

19 OJ 1980 L 162, p. 48.

20 So far as the increase is concerned, the Finanzgericht took the view that this also had to be paid by the plaintiffs pursuant to Article 10(4) of Regulation No 798/80 on the difference between the amount paid in advance and the amount to which they were entided in respect of export refunds and monetary compensatory amounts. However, this point subsequently came to serve no further purpose in view of the fact that the Hauptzollamt waived the increase during the procedure (see point 12 above). Certain explanatory comments will, however, be made on this matter (see point 62 below).

21 See point 3 above.

22 OJ 1975 L 25, p. 10.

23 OJ 1980 L 338, p. 1.

24 OJ 1988 L 331, p. 1.

25 The export licence and the advance fixing form a single unit from the legal standpoint (judgment in Case 316/86 Hauptzollamt Hamburg-Jonas v Krücken [1988] ECR 2213, at paragraph 17).

26 See the third phrase in the third recital in the preamble to Regulation No 798/80 and the judgment in Joined Cases 44 to 51/77 Union Malt and Others v Commission [1978] ECR 57.

27 See the Opinion of Advocate General Mayras in Union Malt, cited above, at p. 89.

28 Regulation No 162/67/EEC of the Commission of 23 June 1967 on the method of fixing the export refund on flour, groats and meal of wheat and of rye (OJ, English Special Edition 1967, p. 122).

29 The amending regulation (Commission Regulation (EEC) No 2849/91 of 27 September 1991) abolished the distinction between wheat flour with an ash content of 0 to 520 mg/100 g and wheat flour with an ash content of 521 to 600 mg/100 g (OJ 1991 L 272, p. 62).

30 Regulation (EEC) No 2746/75 of the Council of 29 October 1975 laying down general rules for granting export refunds on cereals and criteria for fixing the amount of such refunds (OJ 1975 L 281, p. 78).

31 OJ, English Special Edition 1967, p. 88.

32 Case 288/85 Hauptzollamt Hamburg-Jonas v Plange Kraftfutterwerke GmbH & Co. [1987] ECR 611.

33 See Commission Regulation No 1136/77 (OJ 1977 L 135, p. 14).

34 OJ, English Special Edition 1969 (II), p. 417.

35 See points 24 and 25 above.

36 My emphasis.

37 The Commission refers in this connection to the judgments in Case 66/82 Fromançais SA v FORMA [1983] ECR 395 and in Case 15/83 Denkirit Nederland BV v Hooídprodüktschíp voor Akkerbouwprodukten [1984] ECR 2171.

38 Judgment in Case 276/84 Gebr. Metelminn GmbH & Co. KG v Hauptzollamt Hunburg-Jonas [1985] ECR 4057, at paragraph 11.

39 Special report on the management and control of export refunds accompanied by the replies of the Commission (OJ 1990 C 133, p. 1), at point 3.28.

40 OJ 1990 L 42, p. 6.

41 See Special Report No 2/90 (footnote 38), point 3.29 et seq.; also the Special Repon of 26 June 1985 (OJ 1985 C 215, p. 1), point 3.9 et seq., and the Annual Report concerning the financial year 1987 (OJ 1988 C 316, p. 1), point 4.54 et seq..

42 See the judgment in Piange Kraftfutterwerke, cited above, at paragraph 10.

43 See also the eighth recital in the preamble to Regulation No 798/80.

44 Judgment in Case 265/78 Ferwerda BV v Produktschap voor Vee en Vlees [1980] ECR 617.

45 The Court is bound by the interdependence between the two questions even though, in my opinion, it is precisely in the case of a negative reply to the first question that the second question becomes relevant for the purpose of resolving the dispute in the main proceedings since, in the event of an affirmative reply, it is Regulation No 316/81 which will apply to exports to the USSR, and not Regulation No 1633/80.

46 OJ 1982 L 72, p. 15.

47 OJ 1982 L 102, p. 1.

48 OJ 1990 L 213, p. 1.

49 Judgment in Case 245/81 Edeka Zentrale AG v Germany [1982] ECR 2745.

50 Judgment of the Court in Case 52/81 Firma Werner Faust v Commission [1982] ECR 3745.

51 My emphasis.

52 Article 2(a) makes it clear that the reference is to the Community market and the world market. [Translator's note: the English version of Article 2(b) refers simply to this market, whereas the other language versions refer to markets in the plural].

53 See, for example, Commission Regulation No 229/80 of 31 January 1980 (OJ 1980 L 26, p. 49), which fixed a negative corrective amount (ECU -30 per tonne) for exports of common wheat flour to the USSR.

54 See Bulletin of the European Communities I-1980, paragraph 2.1.36.

55 See judgment in Case 1/54 France v High Authority [1954-1956] ECR 1.

56 Judgment in Case 250/84 Eridania and Others v Cassa Conguaglio Zucchero [1986] ECR 117, at paragraph 38.

57 See the judgments in Case C-27/90 SITPA v ONIFLHOR [1991] ECR I-133, at paragraph 14, and in Case 16/65 Schwarze v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1965] ECR 877.

58 Second recital.

59 Fourth recital.

60 See, for ample, Regulation No 1715/77 (OJ 1977 L 189, p. 23).

61 Judgment in Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, at paragraph 16.

62 See the judgment in Delacre (previous footnote), at paragraph 15.

63 See footnotes 52 and 53 above.

64 OJ 1980 L 31, p. 18.

65 OJ 1980 L 107, p. 35.

66 Regulation (EEC) No 1221/80 (OJ 1980 L 122, p. 39).

67 OJ 1980 L 147, p. 24.