Federal Republic of Germany v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 61984CC0278
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:1986:488
• Date: 16 December 1986
• Docket Number: 278/84
• Writing for the Court: Due
• Procedure Type: Recurso de anulación - infundado

Important legal notice

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61984C0278

Opinion of Mr Advocate General Sir Gordon Slynn delivered on 16 December 1986. - Federal Republic of Germany v Commission of the European Communities. - Representative rates - Cereals - Sugar - Potato starch - Transitional measures. - Case 278/84.

European Court reports 1987 Page 00001

Opinion of the Advocate-General

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My Lords,

By an application lodged at the Registry of the Court on 23 November 1984 the Federal Republic of Germany asks that the Court should declare void Articles 1, 2 and 3 of Commission Regulation No 2677/84 "on transitional measures in readiness for the revaluation of the representative rate for the German mark on 1 January 1985" ( Official Journal 1984, L*253, p.*31 ).

The matter arises in this way .

Council Regulation ( EEC ) No 855/84 of 31 March 1984 ( Official Journal 1984, L*90, p.*1 ) provided for the dismantlement of monetary compensatory amounts (" MCAs ") in three stages . The first stage ( Article 1 of the regulation ) consisted of changes in the method of calculation of the MCAs and came into effect when the Regulation was published on 1 April 1984 . As far as the Federal Republic was concerned the second stage ( Article 2 and the annexes to the regulation ) consisted of a revaluation of the representative rate ( otherwise known as the "green rate ") of the German mark to take effect on 1 January 1985, which so far as relevant read as follows : "1 ECU = 2.38516 German marks . This rate shall apply from 1*January 1985 . However ... with regard to the cereals sector the following rate shall apply from 1 January 1985 : 1 ECU = 2.39792 German marks ". The third stage ( Article 5*(1 ) of the regulation ) consisted of a requirement that any positive MCAs remaining after 1 January 1985 should be abolished by the beginning of the 1987/88 marketing year at the latest . The first and second stages were to be accompanied by transitional measures . By Article 7 of the regulation,

"Transitional measures necessary for :

( i ) easing the passage from one system for calculating monetary compensatory amounts to the other,

( ii ) avoiding disturbances following the revaluation of the representative rates of the German mark and the Dutch guilder as at 1*January*1985,

may be adopted according to the procedure provided for in Article 6 of Regulation ( EEC ) No 974/71 ."

The first indent of this Article relates to changes in the calculation of the MCAs, and the second indent refers to the revaluation of the green rate of the German mark on 1 January 1985 .

The revaluation of the green rate of the German mark on 1 January 1985 resulted in a decrease in the prices of agricultural products in the Federal Republic in national currency, which meant a drop in revenue for German agricultural producers . To offset that drop, special aid to German farmers was provided for by Articles 3 and 4 of Regulation No 855/84 ( as extended by Council Decision 84/361 of 30 June 1984; Official Journal 1984, L*185, p.*41 ).

Article 6 of Regulation No 974/71 ( Official Journal, English Special Edition 1971 ( I ), p . 257 ) provided that detailed rules for the application of that regulation, which might include other derogations from the regulations on the common agricultural policy, were to be adopted in accordance with the procedure laid down in Article 26 of Council Regulation No 120/67/EEC of 13 June 1967 which was replaced by Council Regulation No 2727/75 ( Official Journal 1975, L 281, p . 1 ).

Article 26 of Regulation No 2727/75 lays down the procedure to be followed by the Management Committee for Cereals . That article ( as amended by the Greek Act of Accession ( Official Journal 1979, L 291, p . 17 ) provides that where the procedure laid down in that article is to be followed and the matter is referred to the committee, the representative of the Commission is to submit a draft of the measures to be adopted . The committee shall deliver its opinion on the draft within a time-limit set by the chairman according to the urgency of the matter . An opinion shall be delivered by a majority of 45 votes .

Article 41 of Council Regulation No 1785/81 on the common organization of the markets in the sugar sector ( Official Journal 1981, L 177, p . 4 ), in the version in force at the material time, was in similar terms .

In addition to these provisions the Management Committee for Cereals has its own internal regulation, which was adopted at a joint meeting of Agricultural Management Committees on 22 July 1965 . That is an unpublished document, Article 3 of which provides :

" The convening of the meeting, the agenda, the draft measures for which the opinion of the committee is requested and any other working papers shall be communicated by the chairman to the representatives of the Member States on the committee ... These documents must reach the permanent representations of the Member States no later than eight days before the date of the meeting .

In emergencies, at the request of a representative of a Member State or on his own initiative, the chairman may reduce the minimum period for communication referred to in the preceding paragraph to two clear days that are not public holidays before the date of the meeting ...

In cases of the greatest urgency, at the request of a representative of a Member State or on his own initiative, the chairman may include the matter on the agenda of a meeting in the course of that meeting ."

In the minutes of the meeting at which these Rules of Procedure were adopted it is stated that this provision shall not allow either the Commission or the Member States to introduce questions the absolute necessity for which is not clear, and that the determination of the urgency of an item to be placed on the agenda is ultimately subject to the decision of the chairman .

Article 4 of the Rules provides, inter alia, that where an opinion is requested, if a draft the subject of which is included on the agenda has been submitted during the meeting, the chairman, at the request of a representative of a Member State, shall postpone the vote to the end of the meeting; in the event of particular difficulties, he shall extend the meeting to the following day .

In relation to this provision, it is stated in the minutes : "It is agreed that the purpose of postponing the vote to the end of the meeting or of extending the meeting to the following day is to allow the delegations to obtain instructions ".

The rules of procedure which apply to the Cereals Management Committee, the Court has been told, have also been applied to the other Management Committees .

By a notice published by the Commission on 14 September 1984 ( Official Journal 1984, L 244, p . 45 ) it was stated : "Interested parties are hereby informed of the Commission' s intention to adopt in the cereals sector measures under Article 7 of Regulation ( EEC ) No 855/84, in order to avoid abnormally high intervention purchases due to the modification of the representative rate for the Deutschmark and the Dutch guilder on 1 January 1985 . These measures may be applied to quantities offered to an intervention agency from the day of publication of this notice ."

Pursuant to Article 7 of Council Regulation No 855/84, the Commission adopted those transitional measures by Regulation No 2677/84, the regulation the validity of which is now challenged . The first recital in the preamble to Regulation No 2677/84 states the purport of that regulation as follows :

"Whereas the modification of the representative rates for the German mark and the Dutch guilder to be undertaken on 1 January 1985 in accordance with the provisions of Regulation ( EEC ) No 855/84 entails a corresponding fall in buying-in prices expressed in national currency in the Member States concerned; whereas, given this prospect and the present state of the markets, the scale of the monetary alteration in the Federal Republic of Germany threatens to disturb the cereals and sugar markets in particular; whereas appropriate transitional measures should therefore be taken to avoid such disturbances ."

It is plain from this recital and the title that the transitional measures concerned only the second stage of dismantling of MCAs, i.e . the revaluation of the green rate for the German mark on 1 January 1985 .

In the preamble to Regulation No 2677/84, the Commission identifies four areas of concern :

( i ) So far as the intervention system for cereals is concerned, abnormally high deliveries into intervention before 1 January 1985 may lead to disturbances on the market and a disruption of the intervention system in the Federal Republic and that, in order to avoid this, the amount of cereals which could be bought into intervention at...