Judgment_paragraph 5. · 156/82

5.The Finanzgericht Hamburg, after summarizing the grounds of the aforesaid judgment of the Court of 28 June 1979, makes the following observations:“If that reasoning is used as the basis for the general proposition that in cases where the reduced monetary compensatory amounts provided for by Article 20 of Regulation (EEC) No 1259/72 later ceased to be applicable because the goods have either not been put to the required use or have not been used within the prescribed period, the general rules governing monetary compensatory amounts contained in Regulation (EEC) No 974/71 apply and the goods are to be regarded as having been marketed at the normal market price, this would mean, in so far as the export of the butter from storage is concerned, that the difference between the reduced monetary compensatory amount and the full amount corresponding to the supplementary levy on importation must subsequently be paid. Mr Advocate General Warner also drew that conclusion with regard to importation into a depreciated currency country (Opinion delivered on 3 May 1979 in Case 216/78 Beljatzky v Hauţtzollamt Aachen-Süd [1979] ECR 2285). In cases where on exportation of butter from storage a reduced monetary compensatory amount was granted and after the re-importation of concentrated butter a supplementary monetary compensatory amount was levied because the goods were not put to the prescribed use, the customs authorities have subsequently paid the difference between the reduced monetary compensatoiy amount and the full amount. In so far as the exportation of the butter from storage and the re-importation of concentrated butter are carried out by the same undertaking (as in this case) it is questionable whether different treatment depending on whether levies for the Community or reductions for the trader are at issue is permissible. If the application of the general rules governing monetary compensatory amounts on the basis of the normal market price depends on the requirements of Article 20 of Regulation (EEC) No 1259/72 not being met, that also applies to the reduced monetary compensatoiy amounts granted on exportation. Furthermore, in the light of the processing deposit which must be lodged (Articles 12 and 13 of Regulation (EEC) No 1259/72), which is intended to cover the difference between the acquisition price of the butter from storage and the normal market price of butter (cf. statement by the Commission in Case 216/78 Beljatzky v Hauptzollamt Aachen-Süd [1979] ECR 2273, at p. 2278), the supplementary payment does not seem unjustified.On the other hand, the following reservations must be made with regard to the subsequent grant of the difference between the reduced compensatory amount and the full amount: Article 20 of Regulation (EEC) No 1259/79 merely provides for the payment of a reduced monetary compensatory amount on the exportation of butter from storage intended for specified purposes. Community law makes no express provision for the grant of the full monetary compensatory amount in a case such as the present; such a grant may be contrary to the meaning and purpose of Regulation (EEC) No 1259/72. Since it was intended that Regulation (EEC) No 1259/72 should exclude any use other than that prescribed therein, the subsequent grant, of the..difference between the., reduced monetary compensatory amount and the full amount could amount to an approbation of conduct inconsistent with the prescribed use, which would be contrary to the aims of Regulation (EEC) No 1259/72.It should not be overlooked, moreover, that if a supplementary payment is made even where goods are not put to the prescribed use, this may encourage such, misuse.”