According to Spitta & Co., Regulation No 3092/76 is unlawful and accordingly null and void on three grounds.

Regulation No 3092/76 is based on Regulation No 974/71, in particular Article 6. It is a condition for the application of Regulation No 974/71 that in a Member State there should occur a modification in the rate of exchange in excess of the margin of fluctuation authorized by the international rules in force on 12 May 1971. The power conferred under Article 6 applies only to the detailed rules for the application of the regulation. Regulation No 3092/76 is thus based exclusively on the enabling provision in Article 6 of Regulation No 974/71 when in a Member State there occurs a fluctuation in the rate of exchange wider than the permitted margin. In the Federal Republic of Germany there was no alteration in the partity of the currency, either in December 1976 or during the previous period, after October 1976.

Secondly, Regulation No 3092/76 makes no provision for contracts in the course of implementation and thus breaches the principles of the protection of good faith and of legitimate expectation. It is true that in certain cases concerning longterm contracts the Court of Justice has ruled that the importer himself must seek the appropriate remedy (cf. Case 68/77 IFG [1978] ECR 354) but this ruling cannot be extended to contracts to be executed within a very short period. It is in fact unreasonable to make the importer liable for the entire commercial risk of intervention by the authorities. If an importer has reason to fear that goods purchased by him are liable at any moment to be rendered subject to charges which he cannot pass on to his customer the only solution remaining to him is to refrain from making any imports.

Thirdly, intra-Community trade in the products listed in Article 1 of Regulation No 3092/76 have suffered discrimination as compared with trade with third countries to which the system of compensatory amounts was applied only by Regulation No 425/77 of 14 February 1977 amending the wording of tariff subheading 16.02 B III (b) 1 concerning meat and veal. This constitutes an infringement of Article 9 (1) of the Treaty prohibiting customs duties on imports and exports and charges having equivalent effect between Member States. The present case entails a general discrimination against intra-Community trade as compared with trade with third countries. This is in fact the very characteristic of a tax having an effect equivalent to a customs duty within the Community.

According to the Commission all the conditions listed by Regulation No 974/71 for the fixing of monetary compensatory amounts in intra-Community trade were fulfilled, with regard to the products referred to in the present case, when Regulation No 3092/76 was adopted.

Spitta & Co. is mistaken in particular in considering that Article 1 (1) of Regulation No 974/71 means that it is a condition for the inclusion of a product within the scope of the system of monetary compensatory amounts that a modification of the rate of exchange should occur. The application of the system is conditional only upon the rate of exchange of a given currency being in excess of the margin of fluctuation; the currency fluctuations themselves, that is to say the variations in the rate of exchange, affect the size of the amounts, as is clear from Article 2 of Regulation No 974/71.

Since seasoned meat is merely the fresh meat referred to in Chapter 2 of the Common Customs Tariff where only a little spice or some other substance has been added, currency fluctuations had the same effect on prices for such meat. There was thus a risk of disturbances in the trade in such products also by reason of monetary measures. The Commission, in including seasoned meat within the scope of the system of monetary compensation, acted in pursuance of the very wide discretionary powers which it enjoys in that sphere.

Monetary measures affecting fresh meat have led in the Community to abnormal patterns of trade in seasoned meat not covered by the system of compensatory amounts, and these patterns constitute a danger for the level of prices in the Member States concerned. Thus in the last months of 1976 importations from Ireland into the Federal Republic of meat products coming under subheading 16.02, which includes seasoned meat, increased considerably. When compensatory amounts were applied to such products also in January 1977, after the adoption of Regulation No 3092/76, the importations returned to their normal level.

The Commission doubts whether consideration of the necessity for enacting transitional measures to protect individuals is appropriate in a procedure for a preliminary ruling under Article 177 of the Treaty concerning the validity of a regulation. A regulation can only be valid or invalid. The invalidity of a regulation can scarcely be restricted to certain persons whose legitimate expectations have been frustrated. Such persons are always entitled to institute proceedings for damages under Article 215 of the Treaty.

Regardless of the reply to the doubt expressed above, the conditions which, according to the case-law of the Court, must be fulfilled before it can be acknowledged that there has been a breach of that principle have not been fulfilled in this case. The principle that legislation generally has immediate effect in the absence of express and exceptional provision to the contrary applies also to the future effects of situations which came into being under the earlier legislation. Derogations from that principle are permissible only in quite exceptional circumstances, the existence of which is appraised in accordance with the most stringent criteria.

Spitta & Co. did not conclude an irrevocable transaction within the meaning of the case-law of the Court of Justice. Irrevocable transactions in the sense that the trader can in fact no longer withdraw from them, are considered to be those which the trader has definitively committed himself to carry out and this applies also as against the competent authorities.

It was not impossible for Spitta & Co. to foresee that the system introduced by Regulation No 3092/76 might be brought into force. It should have known that products falling within subheading 16.02 B III (b) 1 of the Common Customs Tariff constituted a sensitive area. In this connexion it is sufficient to refer to the developments occurring in the rules applicable to imports of seasoned meat from non-member countries (the discussions in Case 68/77 (previously cited) and Case 90/77, Stimming [1978] ECR 995, turned on these rules). The undertakings were fully aware of the special nature of the product which they had termed seasoned meat and similar preparations. They were not unaware that the product in question was one which was made to measure for no other purpose than to enable them to avoid the provisions then applicable to fresh meat.

The foregoing applies in full to Spitta & Co., as is clearly shown by the terms in which they described the goods imported from France into Germany. In the order making the reference these goods are described as forequarters of bovine animals and boned or boneless cuts of beef and veal, seasoned with pepper, falling within tariff subheading 16.02 B III (b) 1. Such wording is nowhere to be found in heading 16.02 of the Common Customs Tariff. There are no terms applicable to beef and veal except Other prepared or preserved meat or meat offal: Other: Containing bovine meat or offal. On the other hand the words employed by Spitta & Co. appear in subheading 02.01 A II (a) which covers fresh, chilled or frozen meat of domestic bovine animals.

Finally, the measure adopted by the Commission was indispensable in the general interest. A more or less lengthy transitional period would have entailed increased risks and would certainly have encouraged traders to import further significant quantities in time, that is to say before the compensatory amounts were actually applied. It was impossible to contemplate excluding from the scope of the new provisions all supplies made in implementation of earlier contracts. In practice the Commission would thus have been deprived of all means of countering effectively certain economic tendencies.

As far as intra-Community trade is concerned traders are free to conclude contracts of unlimited duration for unlimited quantities. The implementation or otherwise of such contracts is not subject to penalties under Community law since there is no system of licences or deposits.

Finally, it was very easy to export meat covered by heading 02.01 from Germany to any other Member State and thereby to benefit from increased monetary compensatory amounts and subsequently, after preparing the meat by adding a few grains of pepper, to re-export it to the Federal Republic under heading 16.02 without being charged any monetary compensatory amount.

The fact that seasoned meat and similar products were subject to the system of monetary compensatory amounts only in respect of trade between Member States is justified on objective grounds. From the legal point of view different situations must be accorded different treatment. When Regulation No 3092/76 was adopted seasoned meat no longer occupied anything but a very minor place in trade with nonmember countries since it was covered by the protective measures then in force and there was accordingly no risk that the monetary measures would entail disturbances in trade with non-member countries.

The Commission accordingly suggests that the reply should be that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Regulation No 3092/76.

Spitta & Co., represented by G. Breit, Rechtsanwalt of Frankfurt am Main, and the Commission of the European Communities, represented by G. zur Hausen, acting as Agent, presented oral argument at the hearing on 9 November 1978.

The Advocate General delivered his opinion at the hearing on 14 December 1978.