1 BY ORDER DATED 8 MAY 1979 , RECEIVED AT THE COURT ON 25 JUNE 1979 , THE BUNDESFINANZHOF PURSUANT TO ARTICLE 177 OF THE EEC TREATY REFERRED TO THE COURT FOR A PRELIMINARY RULING A QUESTION ON THE INTERPRETATION OF ARTICLE 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 ).
2 THIS QUESTION HAS ARISEN IN PROCEEDINGS CONCERNED WITH THE CALCULATION OF THE MONETARY COMPENSATORY AMOUNTS ON FIVE CONSIGNMENTS OF FROZEN BEEF AND VEAL FROM SOUTH AMERICA BY THE CUSTOMS OFFICE RESPONSIBLE TO THE HAUPTZOLLAMT ESSEN , THE DEFENDANT IN THE MAIN PROCEEDINGS . THE PLAINTIFF IN THE MAIN ACTION , THE GERMAN COMPANY INTERATALANTA , HAD OBTAINED CUSTOMS CLEARANCE FOR THE GOODS BETWEEN 20 AUGUST AND 24 SEPTEMBER 1971 FOR STORAGE IN ITS PRIVATE CUSTOMS WAREHOUSE . A PRIVATE CUSTOMS WAREHOUSE ( ' ' OFFENES ZOLLAGER ' ' ) WITHIN THE MEANING OF THE GERMAN LEGISLATION IS ONE WHICH IS NOT A DOUBLE-LOCKED CUSTOMS WAREHOUSE ( ' ' OHNE ZOLLMITVERSCHLUSS ' ' ) IN CONTRAST TO A DOUBLE-LOCKED CUSTOMS WAREHOUSE ( ' ' ZOLLVERSCHLUSSLAGER ' ' ). THE CUSTOMS OFFICE CALCULATED THE MONETARY COMPENSATORY AMOUNT ON THE BASIS OF THE RATES APPLICABLE ( BETWEEN SEPTEMBER AND NOVEMBER 1971 ) ON EACH REMOVAL FROM THE WAREHOUSE , WHICH WITH ONE EXCEPTION WERE HIGHER THAN THOSE APPLYING WHEN THE GOODS WERE PLACED IN THE WAREHOUSE . INTERATALANTA , WHICH TOOK THE VIEW THAT THE MONETARY COMPENSATORY AMOUNT SHOULD BE CALCULATED ON THE BASIS OF THE RATES APPLICABLE WHEN THE GOODS WERE PLACED IN THE WAREHOUSE , OBJECTED AND ON REJECTION OF THE OBJECTION BROUGHT THE MATTER BEFORE THE RELEVANT FINANZGERICHT , WHICH UPHELD THE CLAIM . THE DEFENDANT IN THE MAIN ACTION APPEALED ON A POINT OF LAW AGAINST THAT JUDGMENT TO THE BUNDESFINANZHOF .
3 THE BUNDESFINANZHOF PUT THE QUESTION WHETHER IT WAS ULTRA VIRES FOR THE NATIONAL LEGISLATURE , UNDER ITS POWER TO CHARGE COMPENSATORY AMOUNTS ON IMPORTS UNDER ARTICLE 1 OF REGULATION NO 974/71 , TO SPECIFY , IN THE CASE OF GOODS WHICH HAVE BEEN GIVEN CUSTOMS CLEARANCE TO STORAGE IN A PRIVATE CUSTOMS WAREHOUSE , THE DAY ON WHICH THE GOODS ARE REMOVED FROM THE PRIVATE CUSTOMS WAREHOUSE AS THE RELEVANT DATE FOR THE APPLICATION OF THE RATE OF THE COMPENSATORY AMOUNTS .
4 THE COMMUNITY REGULATIONS APPLYING AT THE TIME IN QUESTION CONTAINED NO PROVISION AS TO THE DETERMINATION OF THE DATE TO BE TAKEN INTO ACCOUNT IN CALCULATING THE MONETARY COMPENSATORY AMOUNTS . ONLY AS FROM 9 MARCH 1973 DID REGULATION NO 648/73 OF THE COMMISSION OF 1 MARCH 1973 ( OFFICIAL JOURNAL L 64 , P . 1 ) IN CONJUNCTION WITH COUNCIL DIRECTIVE NO 69/74/EEC OF 4 MARCH 1969 ON THE HARMONIZATION OF PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION RELATING TO CUSTOMS WAREHOUSING PROCEDURE ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( I ), P . 82 ) MAKE EXPRESS PROVISION WITH REGARD THERETO .
5 IT FOLLOWS FROM THESE TWO PROVISIONS THAT WHERE GOODS IMPORTED INTO THE COMMUNITY FROM NON-MEMBER STATES ARE PUT INTO A PRIVATE CUSTOMS WAREHOUSE IN A MEMBER STATE , THE REFERENCE DATE TO BE TAKEN AS A BASIS IN APPLYING THE RATE OF THE MONETARY COMPENSATORY AMOUNTS IS THE DAY OF REMOVAL FROM THE WAREHOUSE .
6 ACCORDINGLY IT MUST BE DECLARED THAT BEFORE THE RELEVANT COMMUNITY PROVISIONS ENTERED INTO FORCE THE NATIONAL LEGISLATURE WAS EMPOWERED TO MAKE RULES SPECIFYING THE SAME REFERENCE DATE .
7 THE ANSWER TO BE GIVEN TO THE BUNDESFINANZHOF SHOULD THEREFORE BE TO THE EFFECT THAT IT WAS NOT ULTRA VIRES FOR THE NATIONAL LEGISLATURE TO SPECIFY THE DAY OF REMOVAL FROM THE WAREHOUSE AS THE REFERENCE DATE FOR THE APPLICATION , IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 974/71 , OF THE RATE OF MONETARY COMPENSATORY AMOUNTS IN THE CASE OF THE IMPORTATION INTO THE COMMUNITY OF GOODS FROM NON-MEMBER COUNTRIES , WHICH WERE PLACED IN A PRIVATE CUSTOMS WAREHOUSE IN A MEMBER STATE IN SEPTEMBER 1971 AND SUBSEQUENTLY PUT INTO FREE CIRCULATION .
8 THE COSTS INCURRED BY THE COMMISSION , WHICH HAS 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 BUNDESFINANZHOF , 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 BUNDESFINANZHOF BY ORDER DATED 8 MAY 1979 , HEREBY RULES :
IT WAS NOT ULTRA VIRES FOR THE NATIONAL LEGISLATURE TO SPECIFY THE DAY OF REMOVAL FROM THE WAREHOUSE AS THE REFERENCE DATE FOR THE APPLICATION , IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 974/71 , OF THE RATE OF MONETARY COMPENSATORY AMOUNTS IN THE CASE OF THE IMPORTATION INTO THE COMMUNITY OF GOODS FROM NON-MEMBER COUNTRIES , WHICH WERE PLACED IN A PRIVATE CUSTOMS WAREHOUSE IN A MEMBER STATE IN SEPTEMBER 1971 AND SUBSEQUENTLY PUT INTO FREE CIRCULATION .
