C-157/78

JUDGMENT OF 5. 4. 1979 — CASE 157/78 TRAWIGO v HAUPTZOLLAMT AACHEN-NORD

CELEX: 61978CJ0157
Datum: 1979-04-05
Källa: eur-lex.europa.eu

In Case 157/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht [Finance Court] Düsseldorf for a preliminary ruling in the proceedings pending before that court between

THE COURT, composed of: J. Mertens de Wilmars, President of the First Chamber, acting as President, Lord Mackenzie Stuart (President of the Second Chamber), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and written procedure

A — The framework of the regulations

Article 1 (1) 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) authorizes the Member States to charge and grant monetary compensatory amounts on imports and exports of the products described in Article 1 (2):

‘. .. products covered by intervention arrangements under the common organization of agricultural markets; .. . products whose price depends on the price of the products referred to [above] and which are governed by the common organization of market or are the subject of a specific arrangement under Article 235 of the Treaty.’

Article 1 (3) of the regulation as amended by Regulation No 2746/72 of the Council of 19 December 1972 (Official Journal, English Special Edition 1972 (28 -30 December), p. 64) provides that paragraph 1

‘… shall apply only where application of the monetary measures referred to … would lead to disturbances in trade in agricultural products.’

Article 4 of Regulation No 974/71 provides that:

‘No compensatory amount shall be fixed where, in any Member State, the percentage referred to in Article 2 (1) does not exceed 2.5 %’ (this percentage represents the difference between the official conversion rate of the currency concerned and the so-called green rate).

By Regulation No 800/77, a number of goods were brought within the system of monetary compensatory amounts. They were different kinds of sugar confectionery, ice-cream and other ices, chocolate and cocoa-based products, pastry, biscuits, cakes and other fine bakers' wares and various food preparations.

The second and third recitals in the preamble to that regulation read as follows:

‘… the monetary compensatory amounts do not apply to all products not covered by Annex II to the Treaty obtained from agricultural products and governed by special rules adopted under Article 235; … on the other hand, all the relevant basic agricultural products are subject to the said amounts; . . . such a situation may lead to distortion of competition, having regard to the high level of the monetary compensatory amounts currently applicable; … in the case of the processed products not subject to monetary compensatory amounts, the difference in prices of the basic products has become so marked as to have a considerable effect on the conditions of competition of the processed products, having regard to the characteristics of the market in certain sensitive products.’

The sixth recital provides that the list of non-Annex II products should be reviewed by the end of the year in the light of their economic situation. Thus the second subparagraph of Article 2 (2) of the regulation provides that monetary compensatory amounts shall not apply beyond 31 December 1977 in respect of products falling within tariff subheadings 17.04 D (sugar confectionery not containing cocoa, other than liquorice extract, chewing gum and white chocolate), 18.06 B (ice-cream (not including ice cream powder) and other ices containing cocoa), 18.06 C (Chocolate and sugar confectionery containing cocoa), 19.08 B (pastry, biscuits, cakes and other fine bakers' wares other than gingerbread and the like) and 21.07 C (ice-cream (not including ice-cream powder) and other ices not containing cocoa).

By Commission Regulation No 2657/77 of 30 November 1977 on the application of monetary compensatory amounts to certain products not covered by Annex II to the Treaty (Official Journal 1977, L 308, p. 48) the time-limit on the applicability of Regulation No 800/77 was abolished and the monetary compensatory amounts on the products under consideration were maintained for an indefinite period.

The adoption of Regulation No 800/77 had been preceded by the Commission Decision of 23 March 1977 authorizing Ireland to take protective measures in respect of certain processed agricultural products under Article 135 of the Act of Accession (Official Journal 1977, L 97, p. 29). That decision authorized Ireland until 31 December 1977 to levy a charge on imports from the United Kingdom and grant a payment on exports to the United Kingdom of processed agricultural products covered by tariff headings 17.04 D, 18.06 B, 18.06 C, 19.08 B and 21.07 C. The recitals in the preamble to that decision state that:

‘… the compensatory amounts charged or granted … [on] basic products would amount to 34.7 % in the case of the United Kingdom and to 10.4 % in the case of Ireland; … this situation, entailing a relative disadvantage to the manufacturers … in Ireland on the cost of the cost of the basic products of 24.3 % may lead to distortion in the terms of competition in trade in the processed agricultural products referred to in the Irish application between the Member States concerned; … this situation, in its present acute form since November 1976, has given rise to serious difficulties for the sectors concerned in Ireland …’

The monetary compensatory amounts thus introduced by this bilateral system between the United Kingdom and Ireland were replaced by fresh amounts annexed to the Commission Decision of 4 May 1977 amending that of 23 March 1977 (Official Journal 1977, L 123, p. 18). Under Article 3 thereof, this second decision as well as the decision of 23 March 1977 ceased to apply on the day on which Regulation No 800/77 took effect (that is 23 May 1977).

B — The facts

By a cumulative customs declaration of 1 August 1977, Trawigo GmbH & Co. KG applied for clearance into free circulation of compressed tablets and jelly confectionery from Belgium and gums from Italy coming under heading 17.04 D of the Common Customs Tariff. The goods had been purchased at a price of DM 11351 in all.

By an assessment of 10 August 1977, the Hauptzollamt [Principal Customs Office] Aachen-Nord charged a monetary compensatory amount of DM 66.50. Trawigo lodged an objection against this assessment, but the Hauptzollamt dismissed it as unfounded.

C — The question referred for a preliminary ruling

An action was brought before the Finanzgericht Düsseldorf, which by an order of 7 July 1978 decided to stay the proceedings and refer the following question to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

‘Is Commission Regulation (EEC) No 800/77 of 20 April 1977 invalid in so far as it provides that monetary compensatory amounts are to be charged on imports and granted on exports of goods coming within tariff heading 17.04 D (Code No 1704806 and 1704602)?’

The order of the Finanzgericht was received at the Court on 26 July 1978.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Summary of the written observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations submitted by Trawigo GmbH & Co. KG

Trawigo submits that the introduction, by Regulation No 800/77, of a monetary compensatory amount in respect of the processed products in question is contrary to the authorization given in Regulation No 974/71, as well as to Article 235 of the Treaty, the principle of proportionality and the prohibition on discrimination.

1. Breach of the authorizing rule

In Case 151/57 Peiser (sub judice), it has already been pointed out that the only possible legal basis for the introduction of a monetary compensatory amount in respect of non-Annex II products was Article 235 of the Treaty, and that Article 14 (3) and (4) of Regulation No 1059/69 of the Council of 28 May 1969 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (Official Journal, English Special Edition 1969 (I), p. 240) did not constitute an effective ‘specific arrangement’ capable of being based on Article 235.

In its application in Case 11/78, the Italian Government stated in order to support a submission of absence of authorization that there was no reason to fear disturbances in trade in agricultural products. It took the view that confectionery is not an agricultural product but a (non-agricultural) processed product. In its submission, the disturbance had to have taken place in trade in agricultural products and not in trade in confectionery. The Commission found no such disturbance in trade in agricultural products, but only distortions of competition for the products in respect of which monetary compensation was introduced.

Regulation No 800/77 is not based on a sufficient statement of reasons, and infringes Article 190 of the Treaty. It is not conclusively shown that there was a threat of disturbances in trade in agricultural products within the meaning of Article 1 (2) of Regulation No 974/71, which is a condition of the application of the rules.

2. Breach of the principle of proportionality

In Case 151/77, the Commission placed the accent on the incidence of the monetary compensation measures on the processed products, stating that in the case of the products coming under tariff headings 18.06 C and 19.08 B, the average incidence amounted to 6.28 % and 6.45 % at the beginning of 1977. It should be noted that referring to a purely mathematical incidence does not fulfil the condition laid down in the basic regulation, according to which the monetary compensation measures are not to be applied to processed products unless, in addition to the incidence, disturbances in trade have become apparent. Moreover, the Commission does not explain how it reached these figures. Since they do not greatly exceed the 5 % limit fixed by the Commission itself, the monetary compensation should be abolished as soon as the incidence falls below that limit.

Trawigo submits in an annex to its observations an economic report on the monetary compensation measures applicable to confectionery and sweets, which refutes the Commission's statistics. The correct data in no way allow it to be inferred that there was a threat of disturbances in trade. Moreover, there is no kind of correlation between monetary stability and the decrease in exports.

The Commission must prove that the price of confectionery is a function of the price of the intervention products concerned, that is to say cereals, sugar and milk powder. Thus far it has not done so. In any case there is no such dependence of the price of confectionery upon the price of the basic products aforementioned. The trends of the prices of the intervention products subject to monetary compensatory amounts have had no influence upon the trends of the prices of the processed products. Other factors have however been decisive, above all in the case of chocolate-based products the price of raw cocoa, which has greatly increased in recent years, and the considerable processing costs.

On the other hand, the insignificance of the effect on the processed product — confectionery — of the monetary compensation applicable to an intervention product is illustrated by the fact that the monetary compensatory amount on gums, jelly confectionery and compressed tablets represents approximately 0.6 % of the final price of the product. Such minimal charges are not apt to create disturbances in trade. Neither do such compensatory amounts lend themselves to correcting disturbances.

Finally, application of the monetary compensation system to confectionery in trade between all the Member States of the Community was also unnecessary because there were disturbances only between the United Kingdom and Ireland. Consequently extension of the system to all the Member States infringes the prohibition on excessive measures. Free movement between Member States — which is the primary objective of the Common Market — would have been disturbed less by ‘prolonged’ bilateral monetary compensation than by the introduction of multilateral monetary compensatory amounts applicable also to States in which trade in the processed products at issue was not threatened with disturbances.

It may also be wondered whether the Commission's practice of charging monetary compensatory amounts on processed products when the maximum average incidence in a Member State exceeds 5 % is compatible with the principle of proportionality. In effect that rule means that monetary compensatory amounts may be levied in all the Member States, even when the incidence of the monetary compensatory amounts on the basic products only exceeds the 5 % limit in a single Member State. The principle of proportionality required monetary compensatory amounts not to be introduced at least in dealings between States belonging to the monetary snake, and required them to be confined to countries in respect of which the incidence exceeded the 5 % limit.

3. Breach of the prohibition on discrimination laid down in Article 40 (3) of the Treaty

The breach is double:

On the one hand, compensatory amounts were applied to certain processed products but not to others, but no criterion or reason appears to have governed the choice. Thus the difference between the treatment of jam and marmalade and that of confectionery is all the more surprising as Ireland had also asked to be authorized to include those products in the protective measures. The Commission refused this request ‘in view of the small economic incidence which this difference represents in relation to the average value of the finished products.’

On the other hand, specific forms of discrimination are observed in the sector under consideration. Thus, as regards white chocolate, the Commission states that no request for the introduction of monetary compensatory amounts and no complaint were ever submitted. However, it has not stated that requests for the introduction of compensatory amounts or complaints had been submitted in respect of other products belonging to the group of products in question. If requests or complaints were the justification for applying monetary compensatory amounts to a specific product, no monetary compensatory amount could therefore be introduced in respect of confectionery.

B — Observations submitted by the Irish Government

The Irish Government refers to the observations which it submitted in Case 151/77 cited above.

C — Observations submitted by the Italian Government

The Italian Government refers to the observations which it submitted in Case 151/77 and to the arguments put forward in the action which it brought against the Commission in Case 11/78, in so far as Regulation No 800/77 makes provision, through Regulation No 2657/77, for the continued application, even after 31 December 1977, of the compensatory amounts to products coming under tariff headings 17.04 D, 18.06 B, 18.06 C, 19.08 B, and 21.07 C.

D — Observations submitted by the Commission

The Commission refers to the observations which it submitted in Case 151/77.

Trawigo, represented by J. Gündisch, Advocate of the Hamburg Bar, the Irish Government, represented by J. Murray, Barrister-at-Law, the Italian Government, represented by I. M. Braguglia, Avvocato dello Stato, and the Commission of the European Communities, represented by its Legal Adviser, P. Gilsdorf, acting as Agent, submitted oral argument at the hearing on 12 December 1978.

The Advocate General delivered his opinion at the hearing on 1 February 1979.

In a letter of 27 March 1979 to the President of the Court, Counsel for the plaintiff submitted observations concerning the Advocate General's opinion and asked the Court to consider re-opening the oral procedure.

Having found in the Judges' Council Chamber on 3 April 1979 that it was already in possession of all the factors necessary for the purpose of dealing with the problems arising in this case, the Court decided not to re-open the oral procedure.

Decision

1. By an order of 7 July 1978 which was received at the Court on 26 July 1978, the Finanzgericht Düsseldorf referred a question to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty on the validity of Commission Regulation No 800/77 of 20 April 1977 amending, as regards products which are subject to monetary compensatory amounts, Regulation No 572/76 fixing the monetary compensatory amounts (Official Journal 1977, L 97, p. 18).

2. This question was raised in the context of a dispute over the charging of monetary compensatory amounts of DM 66.50 in respect of the importation into the Federal Republic of Germany on 1 August 1977 of compressed tablets, jelly confectionery and gums coming under tariff heading 17.04 D of the Common Customs Tariff, which had been bought in Belgium and Italy by Trawigo GmbH & Co. KG, the plaintiff in the main action, at a price of DM 11351 in all. The plaintiff asked the Finanzgericht Düsseldorf to annul the assessment to the said monetary compensatory amounts issued by the competent Hauptzollamt, the defendant in the main action.

3. The dispute concerns the application of the monetary compensatory amounts system to certain products which are not covered by Annex II to the Treaty and are the subject of a specific arrangement under Article 235 of the Treaty according to the terms of Article 1 (2) (b) 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). The said products, to which Regulation No 800/77 relates, come under tariff headings 17.04 D (sugar confectionery not containing cocoa, other than liquorice extract, chewing-gum and white chocolate), 18.06 B (ice-cream (not including ice-cream powder) and other ices containing cocoa), 18.06 C (chocolate and sugar confectionery containing cocoa), 19.08 B (pastry, biscuits, cakes and other fine bakers' wares other than gingerbread and the like) and 21.07 C (ice-cream (not including ice-cream powder) and other ices not containing cocoa). It emerges from the second and third recitals in the preamble to Regulation No 800/77 that, since all the basic agricultural products from which those goods are derived were subject to monetary compensatory amounts of a high level, ‘the difference in prices of the basic products had become so marked as to have a considerable effect on the conditions of competition of the processed products, having regard to the characteristics of the market in certain sensitive products’.

4. The adoption of that regulation, which applied with effect from 23 May 1977, had been preceded by the Commission Decision of 23 March 1977 authorizing Ireland to take protective measures in respect of certain processed agricultural products under Article 135 of the Act of Accession and allowing that Member State until 31 December 1977 to levy a charge on imports from the United Kingdom and grant a payment on exports to the United Kingdom of the processed agricultural products coming under the above-mentioned tariff headings (Official Journal 1977, L 97, p. 29). The recitals in the preamble to this decision stated that: The monetary compensatory amounts thus introduced by these bilateral arrangements between the United Kingdom and Ireland were altered by the Commission Decision of 4 May 1977 (Official Journal 1977, L 123, p. 18), according to which this second decision as well as the preceding one ceased to apply on the day on which Regulation No 800/77 took effect.

‘… the compensatory amounts charged or granted . . . [on the] basic products, would amount to 34.7 % in the case of the United Kingdom and to 10.4 % in the case of Ireland; … this situation, entailing a relative disadvantage to the manufacturers … in Ireland on the cost of the basic products of 24.3 %, may lead to distortion in the terms of competition in trade in the processed agricultural products referred to in the Irish application between the Member States concerned; . . . this situation, in its present acute form since November 1976, has given rise to serious difficulties for the sectors concerned in Ireland …’

5. The question asked by the Finanzgericht Düsseldorf is the following:

6. The plaintiff challenges the validity of the application, pursuant to the provisions of Regulation No 974/71, of monetary compensatory amounts to processed products which are not agricultural products within the meaning of Annex II to the Treaty but are derived from agricultural products.

7. Regulation No 974/71 of the Council of 12 May 1971, as amended by Regulation No 2746/72 of the Council, is based upon ‘the Treaty establishing the European Economic Community, and in particular Articles 28, 43 and 235 thereof’. According to Article 1 (2) of that regulation: Article 235 of the Treaty provides: By virtue of this provision on 28 May 1969 the Council, acting on a proposal from the Commission and after consulting the Assembly, adopted Regulation No 1059/69 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products. Among the goods subject to the provisions of this regulation are those coming under tariff subheading 17.04 D (sugar confectionery not containing cocoa, other than liquorice extract, chewing-gum and white chocolate). Consequently, the products to which the question refers are the subject of a specific arrangement under Article 235 of the Treaty, and compensatory amounts can validly be fixed for those products.

‘Paragraph 1 shall apply:

a) to products covered by intervention arrangements under the common organization of agricultural markets;

b) to products whose price depends on the price of the products referred to under (a) and which are governed by the common organization of market or are the subject of a specific arrangement under Article 235 of the Treaty.’

‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures.’

8. The plaintiff and the Italian Government submit that by adopting Regulation No 800/77, the Commission infringed the provisions of Article 1 (3) of Regulation No 974/71, according to which ‘paragraph 1 shall apply only where application of the monetary measures referred to in that paragraph would lead to disturbances in trade in agricultural products.’ They submit that by virtue of that provision compensatory amounts on products not covered by Annex II to the Treaty and forming the subject of a specific arrangement under Article 235 of the Treaty could not have been introduced except in order to avoid the risk of disturbances in trade in the basic agricultural products (sugar, cereals and so on) on which the processed products, namely ice-cream, chocolate, biscuits and so on, depend. They submit that, according to the recitals in the preamble to Regulation No 800/77, the Commission assessed not the risk of disturbances in trade in agricultural products but the risk of distortions in competition in the products at issue. They also submit that the statement of the reasons on which Regulation No 800/77 was based is defective inasmuch as it fails to take account of the risk of disturbances in trade in agricultural products and in that it confines itself to establishing the risk of disturbances in the conditions of competition in trade in the processed products.

9. It is true that in order to justify Regulation No 800/77 the Commission stated that ‘in the case of the processed products not subject to monetary compensatory amounts, the difference in prices of the basic products has become so marked as to have a considerable effect on the conditions of competition of the processed products …’.

10. The wording of Article 1 (3) of Regulation No 974/71 as amended by Regulation No 2746/72 of the Council of 19 December 1972 (Official Journal, English Special Edition 1972 (28 -30 December), p. 64) requires that for the application of compensatory amounts to basic agricultural products, the monetary measures referred to in paragraph 1 (namely the fluctuation of the exchange rate of a Member State's currency) should lead to disturbances in trade in agricultural products. As regards the processed product, it emerges from the provisions of Article 2 (2) of Regulation No 974/71 that the compensatory amounts applicable shall be equal to the incidence, on the price of the product concerned, of the application of the compensatory amount to the price of the basic product on which it depends. It follows that in order to justify the application of compensatory amounts to processed products, it is sufficient for the compensatory amounts applicable to the basic products to have a considerable incidence on the price of the processed products. As regards the basic agricultural products from which the processed products referred to in Regulation No 800/77 are derived, the risk of disturbances had been established at the time when the monetary compensatory amounts were applied to those basic products. Hence the Commission was right in confining itself to establishing that the incidence on the prices of the processed products of the monetary compensatory amounts applicable to the basic products had become so marked as for the difference in prices of the basic products to have a considerable effect on the conditions of competition of the processed products. Therefore the statement of the reasons on which Regulation No 800/77 was based is sufficient.

11. The plaintiff and the Italian Government submit that the Commission applied monetary compensatory amounts to the products at issue not in order to deal with the difficulties to which monetary instability might give rise for the proper functioning of the common organizations of the market, but in order to deal with the difficulties complained of by Irish processing industries in trade with the United Kingdom. They submit that application of monetary compensatory amounts to the products at issue in respect of trade between Member States and with non- member countries is not justified by the small incidence which the monetary differences might have on the prices of the processed products. They submit that under Article 14 of Regulation No 1059/69, the Council could have taken appropriate measures either to deal with the possible effect on trade between Member States and with non-member countries of special measures adopted under the common organizations as regards the prices of certain basic products, or to deal with a special situation which may arise in respect of certain goods. They submit that, in the part concerning the products to which this action refers, Regulation No 800/77 breaches the principle of proportionality because a measure taken under the said Article 14 would have been adequate and sufficient to deal with the difficulties encountered by the Irish processing industries in the limited sector of trade with the United Kingdom, whereas the application of compensatory amounts was neither necessary nor in proportion to the aim pursued.

12. The Commission states that in 1975 it adopted a practice whereby monetary compensation was to be fixed only in respect of processed products on which the maximum average incidence of the compensation exceeded 5 %. The Commission states that more thorough analysis of the legal and economic situation revealed that the problems posed could not be adequately dealt with by the decision adopted in respect of Ireland. It states that at the time when Regulation No 800/77 was adopted, the rates of difference of the various currencies taken into account for the fixing of the compensatory amounts were as follows: pound sterling, — 34,7 %; Irish pound, — 10,4 %; French franc, — 16,2 %; Italian lira, — 21,1 %; German mark, +9,3 %; Belgian and Luxembourg francs, +1,4 %; Netherlands guilder, +1,4 %; Danish kroner, 0. It emerged from this that the difference between the pound sterling and the Irish pound was much smaller than the difference between the pound sterling and all the strong currencies and between the German mark and the Italian lira. Furthermore the actual incidence of the monetary compensation on the products at issue exceeded the 5 % limit which was regarded in 1975 as a decisive factor for the abolition of the said compensation. Article 14 of Regulation No 1059/69 refers to the Council's adopting ‘appropriate measures’ only ‘to deal with the possible effect on trade between Member States and with third countries of special measures which may be adopted under the common organization of agricultural markets as regards the prices of certain basic products’. The Commission submits that consequently this provision is not appropriate to deal with the risk of disturbances in trade in processed products caused by the monetary situation of the Member States.

13. The plaintiff and the Italian Government have not called in question the statistical data supplied by the Commission.

14. The plaintiff submits that the extension of the monetary compensation system to confectionery products is not justified by the fact that the compensatory amounts applied to the basic products also led to price differences and distortions at the stage of the processed products, because the Commission failed to state why it extended the compensatory amounts system to certain processed agricultural products but not to other important groups of products — such as, in particular, pasta, marmalade, jam and preserved fruit containing sugar. It submits that the absence of compensatory amounts on the latter products entailed discrimination between exporters of those products and exporters of products caught by the contested regulation.

15. However, the Commission is not bound to fix compensatory amounts for all the products in a group, but may assess the need to apply compensatory amounts either by products or by groups of products. Moreover, the plaintiff has not shown that it is a question of similar products which are in competition with the products covered by the regulation. Therefore it must be found that it was open to the Commission to adopt Regulation No 800/77 and to fix monetary compensatory amounts for the products in question.

Costs

16. The costs incurred by the Irish Government, the Italian Government and the Commission of the European Communities, which submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Finanzgerieht Dusseldorf, the decision on costs is a matter for that court.

On those grounds, THE COURT, in answer to the question referred to it by the Finanzgericht Dusseldorf by an order of 7 July 1978, hereby rules:

1 Translator's note: This is a corrected version of the text appearing in the Official Journal, which is defective; cf. Mr Advocate General Warner's comments in Case 29/77 Roquette 1977 ECR 1835. at p. 1847.