Opinion of Advocate General

Mr President,

Members of the Court,

1. In the present case, the Court is once again called upon to interpret Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries.

2. The facts of the case are relatively straightforward. From 1985 to 1987 Hans Dinter GmbH (Dimer), applicant in the main proceedings, imported into the Federal Republic of Germany various consignments of deep-frozen Morello cherries which originated in Yugoslavia but were exclusively purchased from an intermediary, namely Kraus Sc Kraus in Vienna. It is common ground that both the price paid by Dinter to the intermediary and Dinter's resale price exceeded the minimum import price. However, investigations carried out by the customs authorities revealed that the intermediary had purchased the goods in question at a price lower than the minimum import price.

3. In the action pending before the Finanzgericht München, Dinter challenged the legality of such a charge, because both the import price and the resale price exceeded the minimum import price. Furthermore, the applicant added that it had no knowledge of the purchase price paid by the intermediary, so that it could not have declared it. According to Dinter, ultimately its own resale price and not the purchase price paid by the intermediary should have been taken into consideration when comparing the import price with the minimum import price.

4. Let me remark, by way of introduction, that the detailed rules for the application of the protective measures referred to in Article 14 of Regulation (EEC) No 516/77 have been laid down in Council Regulation (EEC) No 521/77 of 14 March 1977, which specifies the conditions subject to which protective measures may be adopted, as well as the sort of measures which can be taken; it provides, in particular, that the measures in question may be taken only to such extent and for such length of time as is strictly necessary (Article 2(2)). Moreover, in accordance with the principle of proportionality — recognized by the established case-law of the Court as one of the general principles of Community law — the legality of measures imposing financial burdens on traders is conditional upon those measures being appropriate and necessary for the achievement of the objectives legitimately pursued by the legislation in question, on the understanding that, where there is a choice between several appropriate measures, recourse should be had to the least restrictive of those measures and that the burdens imposed should not be disproportionate to the aims pursued.

5. In the present case, it is clear from the order for reference that the applicant paid a price higher than the minimum price for the goods which it imported into the Community. Moreover, investigations carried out by the customs authorities revealed nothing to suggest that the prices invoiced to the applicant were not the prices actually paid by the latter; in particular, those investigations did not lead to a finding that the applicant's resale prices were lower than the minimum import price.

6. In this respect, it should be emphasized that Article 3(1) of Regulation (EEC) No 1626/85, which defines the import price as the fob price in the country of origin, plus the transportation and insurance cost up to the place of entry into the customs territory of the Community, cannot be considered relevant if the sale which is the basis of the importation was concluded between the importer and a seller who is not resident in the country of origin. Such a provision can only apply to the classic situation where importation is directly from the country of origin, particularly since it would be unrealistic to require the importer to know and to declare the purchase price paid by the intermediary as the import price pursuant to Article 2(3) of the same regulation.

7. In the light of the above considerations, I propose that the Court answer the questions submitted by the Finanzgericht München as follows:

1 Original language: Italian.

2 OJ 1985 L 156. p. 13. See also Commission Regulation (EEC) No 1712/85 of 21 June 1985 amending the German, Greek, English, French, Italian and Dutch versions of Regu lation (EEC) No 1626/85 (OJ 1985 L 163, p. 46).

3 Regulation on the common organization of the market in products processed from fruit and vegetables (OJ 1977 L 73, p. 1).

4 OJ 1986 L 113, p. 37.

5 OJ 1977 L 73, p. 28.

6 Sec the judgment in Case C-24/90 Werner Faust [1991] ECR I-4905, paragraph 12, as well as the judgment in Case C 265/87 Scbrader [1989] ECR 2237. paragraph 21.

7 Sec the third recital.

8 Regulation laying down detailed rules for the application of the minimum import price system for certain processed cherries (OJ 1989 L 195, p. 11).