Judgment_paragraph 2. · Société à responsabilité limitée Unifrex v Commission and Council of the European Communities (281/82)

2.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), as amended by Regulation No 1112/73 of the Council of 30 April 1973 (Official Journal, L 114, p. 4), provides in Article 2(1):“The compensatory amounts for the products covered by intervention arrangements shall be equal to the amounts obtained by applying to the prices:(a) in respect of those Member States the currencies of which are maintained among themselves within a spread at any given moment of 2.25%, the percentage difference between :The conversion rate used under the common agricultural policy, andThe conversion rates resulting from the central rate;(b) in respect of Member States other than those referred to in (a), the average of the percentage differences between:The relationship between the conversion rate used under the common agricultural policy for the currency of the Member State concerned and the official parity, or, where this parity is not observed, the central rate of each of the currencies of the Member States referred to in (a), andThe spot market rate for the currency of the Member State in question in relation to each of the currencies of the Member States referred to in (a), as recorded over a period to be determined.”Article 3 of the same regulation provides as follows:“If the difference referred to in Article 2 (1) changes by at least 1 point from the percentage taken as a basis for the preceding determination, the compensatory amount shall be altered by the Commission in line with the change in the difference.”However, Article 6 provides that the detailed rules for the application of the regulation are to be adopted in accordance with the so-called “management committee” procedure and that, subject to the provisions of Article 3, the detailed rules for application are to cover in particular the fixing of the compensatory amounts.The creation of the European Monetary System has not fundamentally changed the system of monetary compensatory amounts. However, Council Regulation No 652/79 of 29 March 1979 on the impact of the European Monetary System on the common agricultural policy (Official Journal, L 84, p. 1) replaced the unit of account by the European currency unit (ECU) for the calculation, among other things, of the monetary compensatory amounts. That regulation also carried over a system of franchises which, in various forms, had been applied since 1974 and which consisted of a certain reduction in the percentage difference used to calculate such amounts.Under the terms of the abovementioned system, in respect of those Member States the currencies of which are maintained among themselves within a spread of any given moment of 2.25%, the monetary compensatory amounts are as a rule invariable, that is to say they are modified only if there is a change in the central rate (devaluation or revaluation) or in the representative rate (green rate). On the other hand, in respect of Member States whose currencies are not maintained within the spread of 2.25%, such as the Italian lira, the amounts are modified in accordance with the changes in the daily rates on the foreign currency markets.Article 2 of Commission Regulation No 1380/75 of the Commission of 29 May 1975, laying down detailed rules for the application of monetary compensatory amounts (Official Journal, L 139, p. 37) determines, for the latter currencies, the reference period over which the fluctuations of those currencies against currencies maintained within the 2.25% spread are to be recorded. It provides:“The period referred to in... the second indent of Article 2 (1) (b)... of Regulation (EEC) No 974/71 shall run from a Wednesday to the following Tuesday.”On 22 March 1981, the Ministers and the Governors of the Central Banks of the Member States decided to carry out an adjustment of the central rates within the European Monetary System. That adjustment resulted, with effect from 23 March 1981, in a 6% devaluation of the Italian lira as against all the other currencies within the system, the bilateral central rates between the other currencies remaining unchanged.By means of Regulation No 801/81 of 27 March 1981, concerning monetary compensatory amounts and differential amounts (Official Journal, L 82, p. 17), which came into force on 30 March 1981 the Commission “froze” the monetary compensatory amounts applicable for the week of 30 March to 5 April 1981. Article 1 of that regulation provides as follows:“Unless contrary decisions arc taken in consequence of possible decisions by the Council, the monetary compensatory amounts and differential amounts applicable for the week 30 March to 5 April 1981 shall be identical to those applicable on 23 March 1981.”In the preamble to the said regulation, the Commission stated that the adjustments to the central rates should bring about an alteration in the monetary compensatory amounts, but that the “freeze” was justified, as a precautionary measure, by the imminence of a Council decision to alter the representative rates:“... in view of these provisions and of the adjustments to the central rates made within the European Monetary System, the monetary compensatory amounts and the differential amounts should be altered ;... however, pending an imminent Council decision to alter the representative rates in order to avoid increasing or introducing monetary compensatory amounts, the monetary compensatory amounts and differential amounts should, as a precautionary measure, be maintained at their 23 March 1981 level.”Council Regulation No 850/81 of 1 April 1981, amending Regulation (EEC) No 878/77 on the exchange rates to be applied in agriculture (Official Journal, L 90, p. 1), which came into force on 6 April 1981, in fact altered the representative rates by bringing into line the green rates and the central rates for the currencies of the Benelux countries, France, Denmark and Ireland and by partly bringing the green rate into line with the central rate for the Italian lira. On the basis of those new representative rates, the Commission, by Regulation No 902/81 of 3 April 1981 (Official Journal, L 94, p. 3), which also came into force on 6 April 1981, fixed the monetary compensatory amounts on the basis of the exchange rates during the reference period from 25 to 31 March 1981. For the Italian lira, the amounts were fixed at -1, after deduction of the franchise.