Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . The College van Beroep voor het Bedrijfsleven ( administrative court of last instance in matters of trade and industry ) has asked the Court whether Article 24 ( 3 ) of Regulation ( EEC ) No 685/69 of the Commission, ( 1 ) as amended by Regulation ( EEC ) No 1746/84, ( 2 ) is invalid in so far as it provides that the annual interest rate for the calculation of private-storage aid is to be 7% in the case of butter stored in the Federal Republic of Germany and 9.5% in the case of butter stored in the United Kingdom, whereas the rate is to be 10.5% for butter stored in the other Member States .
2 . The Netherlands court would like to know in particular whether any or any combination of the following provisions or principles have been infringed :
( a ) Article 10 ( 1 ) of Regulation ( EEC ) No 985/68 of the Council ( 3 of 15 July 1968 laying down general rules for intervention on the market in butter and cream;
( b ) Article 40 ( 3 ) of the EEC Treaty;
( c ) Article 30 of the EEC Treaty;
( d ) the principles of the single market and uniform prices which underlie the common organization of the market in milk products;
( e ) Article 190 of the EEC Treaty, for failure to state sufficient or correct reasons;
( f ) the principle of legal certainty;
( g ) one or more other provisions of the EEC Treaty or one or more of the principles underlying the EEC Treaty .
3 . I propose to examine the arguments based on the principles of the single market and uniform prices ( Question ( d )*) with the other arguments to which they relate ( questions ( a ) and ( c )*) and after that to deal with the question of the statement of reasons ( question ( e )*).
1 . The validity of the provision in question examined in the light of Article 10 ( 1 ) of Regulation ( EEC ) No 985/68 of the Council and the principle of uniform prices
4 . Before examining this submission it is necessary to recall briefly the rationale of the aid for the private storage of butter .
( a )* Rationale of the aid for the private storage of butter
5 . The Court has already held that "the system of aid for the private storage of butter provided for by Article 6 ( 2 ) of Regulation ( EEC ) No*804/68 of the Council of 27 June 1968 ( 4 ) is one of the intervention measures introduced by that regulation in order to attain the objectives of the common agricultural policy which are referred to in Article 39 of the Treaty ".
6 . It went on to point out that, according to the sixth and last recitals in the preamble to Regulation ( EEC ) No 985/68 of the Council, such measures "must take account of the development of the market situation" and, in the case of private storage in particular, "must contribute to the attainment of a balanced market ". ( 5 )
7 . It was undoubtedly in order to attain those aims that it was provided that butter may be taken into store only in the months of high milk production, namely between 1 April and 15 September of the same year . Removal from storage must take place in the autumn and winter . The main aim of private-storage aid is therefore to offset the seasonal fluctuations in production and prices and to enable some of the surplus butter to be withdrawn temporarily from the market .
8 . In the preamble to Regulation ( EEC ) No 985/68 it is also stated that the intervention policy "must ... enable stocks to be held on the most effective basis possible" ( third recital ) and that "Community rules should be provided to ensure the orderly function of this form of storage" ( last recital ).
9 . The second paragraph of Article 10 ( 1 ) of Regulation ( EEC ) No 985/68 provides that : "In cases where, at the time of removal from store, the market has developed unfavourably under conditions which could not be foreseen, the amount of aid may be increased ".
10 . Article 10 ( 2 ) of that regulation provides that : "If the state of the market so requires, the amount of aid may be amended for future contracts ".
11 . Through Article 29 of Regulation ( EEC ) No 685/68 on detailed rules of application for intervention on the market in butter and cream, as amended by Regulation ( EEC ) No 704/83, ( 6 ) the Commission made the complementary or interdependent nature of public and private storage still more definite to the point of establishing between those two systems a mechanism which is reminiscent of "communicating vases ".
12 . That article provides in effect that private-storage aid is to be increased or reduced in the event that the buying-in price of butter by the intervention agencies is changed whilst the butter is in storage .
13 . The Court has held such changes in the period of storage to be valid on the ground that the intended aim of the basic regulation, Regulation ( EEC ) No 804/68, namely that "the amount of aid granted should correspond to the level of actual prices at the end of the period of storage", would not be attained "if a change in the buying-in price were to result in a loss or, conversely, in an unjustified profit for a trader removing goods from storage by comparision in particular with traders who had sold into intervention in the same marketing year".(7 )
14 . The conclusions which can be drawn are therefore quite clear :
( a ) the entire mechanism of the private-storage scheme is designed so as to take account of market developments as closely as possible, and
( b ) it must not lead to unjustified profits for traders .
15 . It follows from those principles that the rate of interest provided for in Article 24 ( 3 ) ( d ) of Regulation ( EEC ) No 685/69 of the Commission must be periodically adjusted to the situation prevailing on the financial markets . That conclusion is not contested by the plaintiffs in the main proceedings who seek the application in their case of the "standard" rate of 10.5% laid down in the regulation in question, No 1746/84, amending Article 24 of Regulation ( EEC ) No 685/69, and not the 11% rate or even the 13% rate which were in force previously .
16 . It remains to ascertain whether the principle that economic circumstances should be taken into account as much as possible can also lead to the introduction of different interest rates for each Member State, which the plaintiffs dispute .
17 . A priori it would seem that if the Commission is under a duty to adjust the amount of the aid to the changing situation of the market in butter and to changes in storage costs and to change it according to fluctuations in the intervention price, it is also under a duty to fix the amount of the aid with reference to the "real" storage costs which a trader must incur depending on the country in which he stores the butter if those costs vary considerably .
18 . However, against that proposition the plaintiffs raise a number of objections which must now be examined .
( b )* The arguments put forward
19 . The plaintiffs in the main proceedings rely first of all on the wording of Article 10 ( 1 ) of Regulation ( EEC ) No 985/68 which provides that : "The amount of private-storage aid shall be fixed for the Community with reference to storage costs and foreseeable price trends for fresh butter and stored butter ".
20 . I will admit that the use of the singular - "the amount of private-storage aid" - and the words "shall be fixed for the Community" may suggest that the Council had in mind a single amount of aid valid for all the Member States . In fact, that has been the practice for many years ( see, for example, Article 24 of the original version of Regulation ( EEC ) No 685/69 ).
21 . But although the third recital in the preamble to Regulation ( EEC ) No 804/68 of the Council envisages "a system comprising a single target price for milk, a single threshold price for each of the pilot products, and a single intervention price for butter", there is no question of a single amount of private-storage aid in Regulation ( EEC ) No 804/68 or in Regulation ( EEC ) No 985/68 .
22 . The ninth recital in the preamble to Regulation ( EEC ) No 985/68 reads as follows :
"Whereas aid for the private storage of butter and cream provided for in Article 6 ( 2 ) of Regulation ( EEC ) ( EEC ) No 804/68 should be granted in accordance with Community provisions laying down in particular the precise conditions for granting such aid; whereas to ensure uniformity in the Community provisions should be made for a Community form of storage contract and a uniform method of calculating the amount of aid according to the cost of storage and market developments ."
23 . The emphasis in that preamble is indisputably on uniformity in the Community and on a uniform method of calculating the amount of aid and there is no obligation to infer that the result of that calculation must be uniform throughout the Community, especially since express reference is made to storage costs and there is no reason why those costs should not be understood as actual costs .
24 . Moreover, it is interesting to note that the taking into account of interest rates was introduced into the system in 1973 ( 8 ) at the time of the first enlargement of the Community . The Commission stated at that time that "because of the differences in the buying-in prices applied by the intervention agencies in the new Member States, finance costs in respect of stored butter vary according to the level of the price applied; ... a distinction should, therefore, be made between storage costs as such, applicable throughout the Community, and finance costs, to be calculated on the basis of the buying-in price for butter applying in each Member State ".
25 . Historically, finance costs therefore varied at first according to the different levels of intervention prices in the new Member States . Only later did they vary according to the different levels of interest rates .
26 . Confirmation of the principle that finance costs must be reimbursed by taking into account their actual level is to be found in the recital quoted above .
27 . Furthermore, if the wording of Article 10 ( 1 ) had been an absolute obstacle to having different amounts of aid for each Member State, it would have prevented account from being taken in 1973, as has been done, of the gradual alignment of intervention prices in the acceding States to those in force in the original Member States .
28 . However, the plaintiffs claim that, once a single target price and a single intervention price exists in the Community, a single amount for private-storage aid must also be fixed because "both public intervention and private storage contribute equally towards attaining the target price ".
29 . In this regard the following observations must be made :
( a ) I have already pointed out that nowhere in the relevant regulations is there any mention of a single amount of private-storage aid but only of a uniform system and a uniform method of calculating the amount of the aid with reference to storage costs and the changing market situation .
( b ) The single intervention price is in any event taken as the basis for calculating butter storage costs in the form of the "buying-in price for butter, expressed in national currency, applied by the intervention agency of the Member State concerned ". ( 9 )
The intervention price may therefore fully play its role of floor price in the case of private storage as well .
( c ) It is never possible to be sure whether the target price will be reached because this depends on many factors which vary in time and space ( for example, production in a region, supply on the market/storage, demand, imports ). It is the reduction in the supply of butter, achieved either through intervention purchasing or through private storage, which is meant to enable the market price to climb back towards the target price . The amount of private-storage aid has no direct effect on the target price .
30 . It may therefore be concluded that neither the principle of uniform prices nor Article 10 ( 1 ) of Regulation ( EEC ) No 985/68, to which it has been necessary to give a teleological interpretation, precludes the introduction of different rates . This accords entirely with the rationale of the system .
31 . However, the question remains whether such a difference was justified in this case, that is to say whether the statement of reasons for Commission Regulation ( EEC ) No 1746/84 was sufficient and correct .
2 . Was the statement of reasons for Regulation ( EEC ) No 1746/84 sufficient and correct?
32 . In the preamble to Regulation ( EEC ) No 1746/84 the Commission gives the following reasons :
( a )* " ... in the light of the increase in butter production and stocks, it is not advisable to provide a further incentive to send products into storage; ... interest rates are, in real terms, falling in the Member States where there are large quantities in storage ".
That reasoning applies to the linear decrease as well as to the differentiated decrease in the interest rates taken into account .
( b )* " ... in certain Member States, interest rates are, in real terms, lower than elsewhere in the Community; ... the rates laid down as regards the Community contribution towards the storage costs in those countries should be appreciably lower, to :
avoid unjustified profits for the operators concerned; and to
discourage artificial and speculative movements of products from regions where disposal on the market would otherwise have been possible, to Member States where interest rates are among the lowest ".
33 . It is to be noted first of all that none of those reasons is contrary to the principles according to which stocks should be held on the most effective basis possible ( third recital in the preamble to Regulation ( EEC ) No 985/68 ) in order to contribute to the attainment of a balanced market ( tenth recital in the preamble to Regulation ( EEC ) No*985/68 ). The requirement that private storage should function in an orderly way ( ninth recital in the preamble to Regulation ( EEC ) No 985/68 ) excludes any idea of speculative transactions producing unjustified enrichment . The fixing of the amount of the aid with reference to the costs of storing butter and foreseeable price trends ( Article 10 of the same regulation ) implies that factors as significant as the variation in the volume of butter produced and stored and the variation in "real" interest rates on the financial market are taken into account .
34 . The parties are in fact agreed that there has been a general increase in the quantity of butter produced and stored ( see paragraph 13 of the plaintiffs' observations and paragraphs 26 and 27 of the Commission' s observations ).
35 . Nor do the plaintiffs in the main proceedings dispute that interest rates have generally fallen in real terms in the Community because they do not question the linear reduction adopted by the Commission .
36 . They also admit that "real" rates are lower in the Netherlands than in the other Member States ( see paragraph 43 of their written observations ).
37 . On the other hand, the plaintiffs do not agree that :
( i ) the measures adopted by the Commission are likely to reduce the incentive to store butter;
( ii ) there can be any question of unjustified enrichment;
( iii ) speculative movements of butter have occurred .
38 ( a )* They contend first of all that the Commission wrongly assumed that a uniform interest rate stimulates storage in certain Member States ( paragraph 62 of their written observations ).
39 . In my view, however, it cannot be disputed that, if private storage enables a trader to obtain the payment of interest at rates higher than the market rates, he may be encouraged to store butter solely in order to obtain the financial advantage which that difference in rates may bring him and which he could not obtain by selling butter on the market or to the intervention agency .
40 . The artificial incentive to store butter will be particularly great in those Member States in which the difference is greatest .
41 . The statistical tables submitted by the Commission in reply to questions asked by the Court confirm the correctness of that reasoning . From those tables it may in fact be seen that in 1983 34.8% of the butter stored privately in the Community was in the Netherlands and only 15.7% in France, which is nevertheless very surprising . In 1984 the figures were 30.9% for the Netherlands as against 13.6% for France . In 1986 ( 10 months ) the figure for the Netherlands had fallen to 13.2% and the figure for France had risen to 16.9 %.
42 . It is to be acknowledged that there was no corresponding reduction of private butter stocks in Germany or in the United Kingdom, which tends to indicate either that factors other than the interest rate played an important part or that the interest rates fixed by the Commission for those countries were still too high .
43 . ( b )* It is not, however, at all unreasonable to conclude that the excess reimbursement of financial costs is likely to lead to unjustified unrichment or, to use the words in the Court' s judgment of 23 February 1978, "unjustified profits" for traders who have stored butter privately, since they would receive an amount greater than the costs they had actually incurred . They could either pocket that profit or use it to reduce the sale price of their butter, in which case they would obtain a competitive advantage at the expense of the Community, which would not be acceptable either .
44 . ( c )* As regards the question of speculative movements, it appears from the answer given by the plaintiffs in the main proceedings that they accept that such movements take place but that they do not agree that they are "speculative ". In their view, the increase in the quantities of butter in private storage in the Member States with relatively low interest rates ( the Netherlands, Federal Republic of Germany, United Kingdom ) is the result of a deliberate decision taken by traders after weighing up the following factors :
the number of cold stores,
the distance to cold stores and transport costs,
the price of butter at the time of entry into store,
storage and removal costs,
sale transactions linked to the storage,
insurance premiums,
finance costs during storage,
the risk of deterioration in the quality of the butter,
the currency in which the storage operation will be financed,
the aid to be received from the EEC, which reduces costs .
45 . In the plaintiffs' view, finance costs are therefore only one of the factors taken into account by traders and that factor is not decisive .
46 . There is no doubt that all of those factors play an important part .
47 . However, it seems certain to me that in a situation in which the advantages and disadvantages of storing butter privately in a particular country balance one another and a fortiori when most of the factors are favourable to storing butter in that country, a clear difference between the interest rate taken into account by the Community and the rate prevailing on the market in the country in question must tilt the balance in favour of storing butter in that country .
48 . Moreover, the plaintiffs indirectly admit this in their answer to a question asked by the Court when they state that "it is obvious that where the Community measure reduces the interest rate for private storage in a particular Member State as compared to the rate applicable in other Member States, storage in the first Member State becomes less attractive ".
49 . Whether or not a decision taken largely on the basis of the difference between the interest rates is described as "speculative" does not affect the validity of the argument .
50 . Finally, it is to be noted that the plaintiffs' argument based on the wording of the first sentence of the second recital in the preamble to Regulation ( EEC ) No 1746/84 is attributable solely to the bad drafting of the Dutch text . Although that text suggests that it is the Member States which bear the finance costs of private storage, those costs are in fact borne by the undertaking concerned, as is correctly indicated in the other language versions . ( The Dutch text should read "... een bijdrage in de in elke Lid-Staat gemaakte financieringskosten" instead of "door elke Lid-Staat ").
51 . To sum up, it may therefore be said that the statement of reasons in Commission Regulation ( EEC ) No 1746/84 shows "clearly and unequivocally the reasoning of the Community authority which adopted the contested measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review" ( 10 ) and that the reasoning does not appear to be wrong .
3 . Is the introduction of different interest rates compatible with Article 40 ( 3 ) of the EEC Treaty?
52 . According to Article 40 ( 3 ) of the EEC Treaty, which is merely a specific expression of the general principle of equal treatment which is one of the fundamental principles of Community law, the common organization of the market must "exclude any discrimination between producers or consumers within the Community ".
53 . The plaintiffs in the main proceedings rightly refer in this regard to the established case-law of the Court according to which discrimination exists where comparable situations are treated differently or where different situations are treated identically .
54 . The Court has reaffirmed that principle in particular in its judgment of 13 December 1984 in Case 106/83 ( 11 ) in which it stated :
"It is appropriate in the first place to point out that under the principle of non-discrimination between Community producers or consumers, which is enshrined in the second subparagraph of Article 40 ( 3 ) of the EEC Treaty and which includes the prohibition of discrimination on grounds of nationality laid down in the first paragraph of Article 7 of the EEC Treaty, comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified . It follows that the various elements in the common organization of the markets, such as protective measures, subsidies, aid and so on, may not be differentiated according to region or according to other factors affecting production or consumption except by reference to objective criteria which ensure a proportionate division of the advantages and disadvantages for those concerned without distinction between the territories of the Member States ."
55 . It is to be noted first of all that the present case does involve differentiation based on objective criteria since the Commission has taken into account the actual interest rates prevailing on the financial markets of the various Member States .
56 . Moreover, there can be no discrimination on grounds of nationality because in each case the interest rate constitutes a circumstance which, in the words used by the Court in its judgment of 2 July 1974 in Case 50/73, ( 12 ) is "special to the whole of the national market in question ". In reality, it is a case of differentiation according to currencies and not of differentiation according to the Member States .
57 . ( a )* The plaintiffs in the main proceedings maintain, however, that discrimination exists because in actual fact there is no difference of situation between traders storing butter in countries with low interest rates and other traders . Companies which store butter privately in countries with high interest rates are free to choose the currency . They have no difficulty in borrowing money in a currency with a relatively low interest rate and have their financial costs reimbursed on the basis of the high rate in force in the country in which the butter is stored .
58 . My view on this matter is that if the great majority of companies storing butter privately in countries with high interest rates actually borrowed money in a currency attracting a low interest rate without incurring the costs which would cancel out the difference between the interest rates, it would certainly be a case of similar situations being treated differently and therefore of discrimination .
59 . However, those facts must be established with certainty with no room for the slightest doubt .
60 . The fact that it is theoretically possible to borrow in a currency attracting a low interest rate is not sufficient, in my view, to prove that discrimination exists . After all, Netherlands butter producers also have the possibility of storing butter in Belgium, for example, and of receiving aid calculated on the basis of the 10.5% rate even if they have borrowed in the Netherlands at the rate of 7 %. It is therefore simply up to them to escape the alleged discrimination .
61 . It is also to be noted that the logical conclusion which follows from the reasoning of the plaintiffs in the main proceedings is that the Commission ought to have extended the lower interest rate of 7% to the entire Community . However, before the Netherlands court the plaintiffs sought the reimbursement of costs at the rate of 10.5 %. There is therefore a contradiction in their reasoning on this point .
62 . However, the most telling point in this regard is that we have no proof that companies which store butter in countries whose currencies carry high interest rates actually borrow the money which they need in a currency with a low interest rate . On the contrary, there is a very plausible reason for assuming that that is not what happens . The reason is that the German mark and the Dutch guilder have been revalued several times during the last 10 years or so . If such a revaluation occurs during the lifetime of a loan, it may cancel out at a stroke the advantage arising from a loan concluded in one of those currencies by a company storing butter in a Member State whose currency is marked by high interest rates .
63 . The same reasoning cannot be followed as far as the pound sterling is concerned, but the interest rate adopted by the Commission for that currency ( 9.5 %) is only one percentage point below the "standard" rate ( 10.5 %), which would probably make the operation less advantageous .
64 . Taking everything into account I therefore consider that it cannot be regarded as an established fact that companies which store butter in countries with high interest rates generally borrow in currencies with low interest rates .
65 . The possibility that that is what happens in some individual cases certainly cannot be excluded entirely . However, even if it were to be proved that Article 24 ( 3 ) of Regulation ( EEC ) No 685/69, as amended, does not eliminate all the possibilities by which an excessive reimbursement of financial costs might occur, it certainly eliminates most of them . Indeed, it eliminates the undeniable discrimination which used to exist under the old system which favoured traders who stored butter in a Member State in which short-term credit was relatively cheap . The Commission is therefore right to point out that with the entry into force of the new system the principle that all traders in the Community should be treated equally is observed more than before .
66 . There remains the question whether the Commission ought to have established a mechanism based on a case-by-case approach in which it could take into account the interest rate actually paid by the trader in question for each storage contract . That solution, which is theoretically conceivable, would be contrary to the plaintiffs' demand for a flat rate throughout the Community . Furthermore, as the Commission pointed out, it would undoubtedly involve an unduly heavy administrative burden . I therefore consider that the Commission cannot be reproached for not having adopted that solution .
67 . ( b )* The plaintiffs in the main proceedings also maintain that the new system introduced a distortion of competition which could in fact be avoided under the old system .
68 . They point out that the market price of butter tends to be determined by the gross intervention price less the finance costs arising from the delay in payment by the intervention agency calculated on the basis of the "real" interest rate for short-term credit in the Member State concerned . At the time of the facts in question, the delay in payment was between at least 120 days and at the most 140 days after the butter was taken over by the intervention agency .
69 . The plaintiff companies point out that the market price which results from that calculation is less in the countries with high interest rates than in countries with low interest rates . They consider that price difference to be a competitive advantage which was previously offset in the case of private storage by the practice of applying a uniform interest rate .
70 . That argument proves at all events that it could be in traders' interests to store butter solely with the aim of obtaining a kind of subsidy which would enable them to reduce the price of their butter when exporting it to other Member States . However, that is certainly not the aim of the interest-rate provision introduced by Article 24 ( 3 ) of Regulation ( EEC ) No 685/69 whose sole purpose is to reimburse the financial costs incurred by traders and not to allow them to improve their competitiveness on the markets of the other Member States . That argument therefore also tends to show that the old system created an artificial incentive to store butter .
71 . ( c )* Finally, the plaintiffs maintain that the application of different interest rates is incompatible with the second paragraph of Article 40 ( 3 ) of the Treaty because it introduces discrimination between butter producers on the one hand and producers of other agricultural products on the other . They point out that differential aid for private storage has not in fact been introduced in any other sector .
72 . On that point I should like to point out that the obligation to stabilize markets does not entail an obligation to introduce uniform intervention schemes in every sector or for every product . On the contrary, it presupposes the adaptation of those measures to the specific necessities of each sector and each product .
73 . To give one particularly striking example, there is practically no similarity between butter and cheeses such as Kefalotyri and Kasseri cheeses which are produced in only one Member State, are not the subject of any, or hardly any, transfrontier trade and which must be maintained throughout storage "in premises where the maximum temperature is +16°C ". ( 13 ) Therefore the storage of such products does not involve the same financial costs at all .
74 . According to decisions of the Court which I have cited above, the treatment of different situations differently does not constitute discrimination .
4 . Examination of the validity of the measure in the light of the principle of the single market and Article 30 of the EEC Treaty
75 . The plaintiffs in the main proceedings rightly point out that the Community legislature must also observe Articles 30 to 34 of the EEC Treaty and the principle of the single market .
76 . ( a )* They consider that the application of different interest rates offends the principle of the single market because such a practice does not conform to one of its necessary premises, namely the application of a system of uniform prices .
77 . However, I consider that I have shown in Part 1 that the functioning of the system of single prices is not called in question in any way in this case .
78 . ( b )* Next, the plaintiffs argue that the differentiation in question could influence a trader' s choice of country for storing his goods and that it could thus create artificial patterns of trade which must be regarded as a distortion of the common market .
79 . Since that argument is based on the theory that traders who store their goods in, for example, Belgium or France can have their costs reimbursed at the rate of 10.5% whilst borrowing the money in German marks or in Dutch guilders at the rate of 7%, the plaintiffs thus provide confirmation of the Commission' s argument that, before different rates were introduced, there must have been created such artificial movements of butter into Germany, the Netherlands and, possibly, the United Kingdom, where at that time traders automatically received reimbursement at the rate of 11% for loans contracted at a lower rate .
80 . As I indicated earlier, it may be that this problem has not been entirely resolved by the introduction of different interest rates, but its scale has certainly been greatly diminished . A Netherlands producer might indeed be tempted to store his butter in Belgium or in France because he would probably have no difficulty in obtaining credit in guilders from his usual bank . But in the event of a revaluation of the guilder in relation to the other currency, the value of his stock, expressed in guilders, would diminish . Would he be prepared to take that risk? Here we encounter the same uncertainty as in the case of a French producer storing butter in France and borrowing in guilders .
81 . At all events, it is certain that in order to make operations of that kind impossible it would be necessary to apply throughout the Community the lowest interest rate existing in one of the Member States, which is the opposite of what the plaintiffs demand .
82 . ( c )* Finally, the plaintiffs maintain that the introduction of different interest rates is to be regarded as "a measure of equivalent effect prohibited by Article 30 of the EEC Treaty because it impedes imports ".
83 . I admit that I have the greatest difficulty in seeing which imports could be impeded in this case . We have just seen that, according to the plaintiffs' own arguments, artificial trade flows are created towards countries with high interest rates, such as France . Now, a few lines further on, they state on the contrary that "in the absence of financial compensation, a Netherlands trader cannot market his butter in France and he also suffers a disadvantage outside the French market because French traders may market their butter in other countries at a lower price ".
84 . The plaintiff companies are already confusing cost price with market price . We have seen that the market price is slightly lower in countries with high interest rates . In the first place, this has nothing to do with the different interest rates introduced by the Commission in the provision in question . Secondly, it does not necessarily follow from that fact that a Netherlands producer would have greater difficulty in marketing his butter in France than a French producer . That depends essentially on the cost price of each producer .
85 . We must also remember that private storage and importation are two quite different things . Large quantities of butter are exported from one Member State to another without ever entering subsidized private storage .
86 . Let us now suppose that two producers or sellers of butter are competing on the French market and that in both cases the butter went for a time into subsidized private storage . The Netherlands producer who stored his butter in the Netherlands before exporting it to France will have received slightly less aid than his French competitor but he will also have paid slightly less interest . On the other hand, if the French producer has borrowed in guilders, he will have received excess reimbursement and therefore have a competitive advantage .
87 . There are, however, two objections to that argument . First of all, it is far from sure that the French producer will have taken the risk of borrowing in a currency which has often been revalued in the past . Secondly, it is difficult to see why, if the Netherlands producer wishes from the outset to sell his butter in France, he would not first store his butter in that Member State in order to obtain the amount of aid in force in France whilst financing the storage in guilders . He would not therefore suffer any handicap ( afterwards he could alternatively re-export the butter to the Netherlands in order to benefit from the higher market price in that country ).
88 . It follows from all the foregoing that there is no convincing evidence that exports of butter from Member States with low interest rates to Member States with high interest rates are impeded by the measure adopted by the Commission .
89 . However, for the sake of completeness, I should also like to examine whether the application of different interest rates constitutes a measure impeding exports to countries with low interest rates . In my view, that cannot be the case, for the following reasons .
90 . A French producer of butter will find a higher market price in the Netherlands, which should encourage him to export to that country . If he wishes to store butter privately in the Netherlands, the operation will be neutral for him : he will pay less interest but will also receive less aid in consequence . If he has stored his butter in France and financed the storage in guilders, he could have a competitive advantage in the Netherlands similar to that enjoyed by the Netherlands trader storing his butter in France . At all events, it is difficult to see how imports of butter into the Netherlands would be impeded by the measure adopted by the Commission .
91 . The fact that a French exporter cannot put his butter into public intervention in the Netherlands is the result of the absence of a Community inspection mark ( Article 8 ( 4 ) of Regulation ( EEC ) No 985/68 of the Council ) and consequently has nothing to do with the application of different interest rates .
92 . The question may be asked why private storage in another Member State, which was also prohibited at the outset, ( 14 ) is now permitted . That difference is probably justified by the fact that products which have been in private storage cannot be sold into intervention but must be put on the market . Consequently, a prohibition on private storage in another Member State would, to a certain extent, represent an obstacle to trade .
93 . At all events, I consider that it must be concluded from the foregoing that the submission that the principle of a single market and Article 30 have been contravened cannot be accepted .
5 . The submission that the principles of legal certainty and the protection of legitimate expectation were contravened
( a )* Butter already in storage
94 . The principles of legal certainty and the protection of legitimate expectation could not be in point unless the Commission had made the new rates applicable to butter which was already in storage . However, that is not the case because Regulation ( EEC ) No 1746/84 expressly provides in Article 2 that it applies only in respect of butter sent into storage as from the entry into force of that regulation .
95 . The CNTA judgment of 15 May 1975 quoted by the plaintiffs ( 15 cannot be regarded as a relevant precedent because the traders concerned in that case had committed themselves in so far as they had already received export certificates and provided security . They had entered into firm commitments with the intervention agency and could not get out of them except by losing the securities which they had provided . In the present case, some of the plaintiffs in the main proceedings had admittedly concluded contracts with other traders for the sale of the butter, but they had not yet put the butter into storage nor a fortiori submitted an application for storage aid nor signed a contract with the intervention agency .
( b )* Sale contracts concluded before the change in the regulations
96 . As I have just pointed out, the plaintiffs in Case 425/85 An Bord Bainne and J . Wijffels BV had concluded contracts for the sale of butter, apparently at a fixed price .
97 . Before delivering the butter they intended to store it for a period in the Netherlands ( which is what they actually did ). When the sale price was fixed in May 1984 they presumably took into account the excess reimbursement of their financial costs which they could anticipate owing to the difference then existing between the interest rate on the Netherlands financial market and the uniform flat rate applied under the Community regulations .
98 . Their expectations were probably upset by the publication of Regulation ( EEC ) No 1746/84 . It is possible that they would have agreed a different sale price if they had known that the interest rate used for calculating private-storage aid was to be reduced to 7 %.
99 . Nevertheless, that was a prospect they should have reckoned with because Article 10 ( 2 ) of Regulation ( EEC ) No 985/68 of the Council provides that "if the state of the market so requires, the amount of aid may be amended for future (( private storage )) contracts ".
100 . The circumstance that in the present case the reduction in interest rate was not only linear but also differentiated does not alter the fact that a possible reduction in that rate was one of the possibilities with which prudent traders ought to have reckoned .
101 . Moreover, the Court has made it clear in its decisions that :
"The application of the principle of respecting legitimate expectation cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules, particularly in a sphere such as the common organization of the markets the purpose of which entails precisely a constant adaptation in the light of fluctuations in the economic situation in the various agricultural sectors ." ( 16 )
102 . In the light of that statement of the Court it is inconceivable that an answer given by the Commission to a written question in the European Parliament could induce an individual to hold "reasonable hopes", ( 17 ) especially when that answer was given seven months ( 18 ) before the publication of the contested measure .
103 . It must also be pointed out once more that the Commission could have adopted the same measure by extending it to the entire Community, in which case the economic interests of the plaintiffs would have been affected in the same way . This submission must therefore be rejected as well .
6 . Is Regulation ( EEC ) No 1746/84 incompatible with Article 67 ( 1 ) of the EEC Treaty?
104 . It is indisputable that Regulation ( EEC ) No 1746/84 is implicitly based on the assumption that traders who store butter in a given Member State cover their financial costs by borrowing in the currency of that Member State at the most favourable interest rate applied in that currency for that kind of transaction .
105 . However, the regulation does not in any way prohibit a trader from borrowing in another currency at another interest rate .
106 . The free movement of capital is not therefore called in question and the submission alleging a breach of Article 67 ( 1 ) must therefore also be rejected .
107 . Before coming to my conclusion I would venture to express the opinion that the taking into account of different rates of interest in the calculation of aid the purpose of which is to reimburse the costs incurred by traders and which forms part of a mechanism for regulating markets is not of such a nature as to call in question the method of determining the interest rates imposed by the Community institutions in other spheres ( in particular, interest on fines which remain unpaid ).
Conclusion
108 . For all the reasons explained above I conclude that consideration of the questions raised by the College van Beroep voor het Bedrijfsleven has disclosed no factor of such a kind as to affect the validity of Article 24 ( 3 ) of Regulation ( EEC ) No 685/69 of the Commission, as amended by Regulation ( EEC ) No 1746/84 .
(*) Translated from the French .
( 1 ) Regulation ( EEC ) No.685/69 of the Commission of 14 April 1969 laying down detailed rules of application for intervention on the market in butter and cream ( OJ, English Special Edition 1969 ( I ), p . 194 ).
( 2 ) Commission Regulation ( EEC ) No 1746/84 of 21 June 1984 amending Regulation ( EEC ) No 685/69 ( OJ 1984, L 164 of 22 June 1984, p . 32 ).
( 3 ) OJ, English Special Edition 1968 ( I ), p . 256 .
( 4 ) Regulation ( EEC ) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products ( OJ, English Special Edition, 1968 ( I ), p . 176 .
( 5 ) Judgment of 23 February 1978 in Case 92/77 An Bord Bainne Cooperative Limited v Minister for Agriculture (( 1978 )) ECR 497, paragraphs 16 and 17 at p . 512 .
( 6 ) Commission Regulation ( EEC ) No 704/83 of 28 March 1983, OJ L 82, p.*13 .
( 7 ) Judgment of 23.2 1978 in Case 92/77 (( 1978 )) ECR 497 at p . 513, paragraphs 21 and 22 .
( 8 ) Regulation ( EEC ) No 982/73 of the Commission of 9 April 1973 amending Regulation ( EEC ) No 685/69, OJ L 97, p . 33, second recital .
( 9 ) Article 24 ( 3 ) ( c ) of Regulation ( EEC ) No 685/69 of the Commission of 14 April 1969, as amended by Commission Regulation ( EEC ) No 704/83 of 28 March 1983 .
( 10 ) See in particular the judgment of 22 January 1986 in Case 250/84 Eridania Zuccherifici Nationali SpA and Others v Cassa Conguaglio Zucchero and Others (( 1986 )) ECR 117, paragraphs 37 and 38 at p.134 .
( 11 ) Case 106/83 Sermide SpA v Cassa Conguaglio Zucchero and Others (( 1984 )) ECR 4209, paragraph 28 at p . 4231 .
( 12 ) Case 50/73 Holtz & Willemsen GmbH v Council and Commission (( 1974 )) ECR 675, paragraph 13 at p . 695 .
( 13 ) Article 2 ( d ) of Commission Regulation ( EEC ) No 1328/84 of 14 May 1984 introducing private-storage aid for Kefalotyri and Kasseri cheeses, OJ L 129 of 15.5.1984, p . 19 .
( 14 ) Article 8 ( 4 ) of Regulation ( EEC ) No 985/68 .
( 15 ) Case 74/74 CNTA v Commission (( 1975 )) ECR 533 .
( 16 ) Judgment of 14 January 1987 in Case 278/84 Federal Republic of Germany v Commission (( 1987 )) ECR , paragraph 36 at p . .
Judgment of 16 May 1979 in Case 84/78 Angelo Tomadini Snc v Amministrazione delle Finanze dello Stato (( 1979 )) ECR 1801 .
( 17 ) Judgment of 11 March 1987 in Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products v EEC (( 1987 )) ECR , paragraph 44 at p . .
( 18 ) Answer given on 21 October 1983 to Written Question No 731/83 of Mr Pol Marck, OJ C 335 of 12.12.1983, p . 6 .
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