61983J0117

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - BEEF AND VEAL - PRIVATE STORAGE AID - DEPOSIT SYSTEM - DEPOSIT WRONGLY RELEASED - RECOVERY OF DEPOSIT OR IMPOSITION OF PECUNIARY PENALTIES OF AN EQUIVALENT AMOUNT - NOT POSSIBLE

( COMMISSION REGULATION NO 1071/68 , ART . 4 )

2.AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - BEEF AND VEAL - PRIVATE STORAGE AID - DEPOSIT WRONGLY RELEASED - NATIONAL LEGISLATION ALLOWING RECOVERY - INCOMPATIBILITY WITH COMMUNITY LAW - FRAUDULANT PRACTICES ON THE PART OF TRADERS - DUTY OF MEMBER STATES TO TAKE PROCEEDINGS AGAINST THEM

1 . ARTICLE 4 OF REGULATION NO 1071/68 OF THE COMMISSION OF 25 JULY 1968 LAYING DOWN DETAILED RULES FOR GRANTING PRIVATE STORAGE AID FOR BEEF AND VEAL DOES NOT AUTHORIZE NATIONAL INTERVENTION AGENCIES AFTER THE EXPIRY OF THE PERIOD OF STORAGE , TO RECOVER DEPOSITS WHICH HAVE BEEN WRONGLY RELEASED OR TO IMPOSE ON TRADERS PECUNIARY PENALTIES EQUAL TO THE AMOUNT OF THE DEPOSITS RELEASED .

2.NATIONAL LEGISLATION UNDER WHICH IT IS POSSIBLE TO REVOKE A WRONGFUL DECISION RELEASING A DEPOSIT AND TO RECLAIM THE AMOUNT OF THE DEPOSIT AFTER THE PERIOD OF STORAGE HAS EXPIRED IS INCOMPATIBLE WITH COMMUNITY LAW ; HOWEVER , THAT CIRUCUMSTANCE DOES NOT AFFECT THE RIGHT AND THE DUTY OF THE NATIONAL AUTHORITIES TO TAKE PROCEEDINGS , IN ACCORDANCE WITH NATIONAL LAW , AGAINST A TRADER WHO HAS OBTAINED THE RELEASE OF THE DEPOSIT BY FRAUDULENT MEANS .

IN CASE 117/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT AM MAIN FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

KARL KONECKE GMBH & CO . KG , FLEISCHWARENFABRIK , BREMEN ,

AND

BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS )

ON THE INTERPRETATION AND VALIDITY OF REGULATION NO 1071/68 OF THE COMMISSION OF 25 JULY 1968 LAYING DOWN DETAILED RULES FOR GRANTING PRIVATE STORAGE AID FOR BEEF AND VEAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 354 ) AS REGARDS THE POSSIBILITY OF DECLARING FORFEIT AND RECOVERING A DEPOSIT AFTER IT HAS BEEN WRONGLY RELEASED ,

1 BY AN ORDER OF 26 MAY 1983 , WHICH WAS RECEIVED AT THE COURT ON 27 JUNE 1983 , THE VERWALTUNGSGERICHT FRANKFURT AM MAIN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS ON THE INTERPRETATION AND VALIDITY OF ARTICLE 4 OF REGULATION NO 1071/68 OF THE COMMISSION OF 25 JULY 1968 LAYING DOWN DETAILED RULES FOR GRANTING PRIVATE STORAGE AID FOR BEEF AND VEAL .

2 THOSE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN A GERMAN UNDERTAKING ( THE PLAINTIFF ) AND THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( THE DEFENDANT ). THE PLAINTIFF HAD UNDERTAKEN , PURSUANT TO REGULATION NO 1071/68 , TO STORE FOR FOUR MONTHS A SPECIFIC QUANTITY OF FRESH BEEF ORIGINATING IN THE COMMUNITY AND , UPON THE EXPIRY OF THE STORAGE PERIOD , HAD OBTAINED THE RELEASE OF THE DEPOSIT WHICH IT HAD LODGED , IN ACCORDANCE WITH ARTICLE 4 OF THE REGULATION , IN THE FORM OF A BANK GUARANTEE .

3 SUBSEQUENTLY , THE CUSTOMS INSPECTION AUTHORITIES DISCOVERED THAT THE PLAINTIFF HAD STORED FROZEN MEAT ORGINATING IN THE PEOPLE ' S REPUBLIC OF CHINA . AS A RESULT THE DEFENDANT REVOKED ITS DECISIONS GRANTING THE AID AND RELEASING THE DEPOSIT ; IT DEMANDED REPAYMENT OF THE AID AND DECLARED THE DEPOSIT TO BE FORFEIT . IT STATED THAT THE AMOUNT OF THE DEPOSIT WOULD BE SET OFF AGAINST A CLAIM FOR THE SAME AMOUNT WHICH THE PLAINTIFF HELD AGAINST THE DEFENDANT . FOLLOWING CRIMINAL PROCEEDINGS THE PARTNERS AND CERTAIN EMPLOYEES OF THE PLAINTIFF UNDERTAKING WERE SENTENCED TO IMPRISONMENT OR FINES IN RESPECT OF THE MATTERS WHICH LED TO THE LOSS OF THE DEPOSIT .

4 THE DECISION FORFEITING THE DEPOSIT WAS CHALLENGED IN PROCEEDINGS BEFORE THE VERWALTUNGSGERICHT , WHICH TOOK THE VIEW THAT REGULATION NO 1071/68 CONTAINED NO LEGAL BASIS FOR REVOKING THE DECISION RELEASING THE DEPOSIT AND THAT THERE WAS NO SUCH BASIS EITHER IN OTHER COMMUNITY PROVISIONS , INCLUDING ARTICLE 8 OF REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ) P . 218 ).

5 IN THE ORDER REQUESTING A PRELIMINARY RULING THE VERWALTUNGSGERICHT ALSO EXPRESSED SERIOUS DOUBTS AS TO WHETHER REVOCATION OF A DECISION RELEASING A DEPOSIT WAS POSSIBLE UNDER NATIONAL LAW . SINCE THE DEPOSIT REPRESENTED A GUARANTEE IT COULD NO LONGER BE REQUIRED WHEN THE RISK HAD ALREADY MATERIALIZED . IF THE PROVISIONS CONCERNING DEPOSITS IN REGULATION NO 1071/68 ESTABLISHED A RIGHT TO ENFORCE A PECUNIARY OBLIGATION GUARANTEED BY THE DEPOSIT , AND IF THE RELEVANT CONDITIONS WERE SATISFIED , THE VERWALTUNGSGERICHT CONSIDERED THAT ALTHOUGH THE DEFENDANT COULD NOT REVOKE THE DECISION RELEASING THE DEPOSIT IT COULD RECOVER FROM THE PLAINTIFF A SUM EQUAL TO THE DEPOSIT . HOWEVER , IF SUCH A RIGHT EXISTED THE VERWALTUNGSGERICHT CONSIDERED THAT IT WAS A RIGHT TO IMPOSE A FINE AND QUERIED WHETHER THE RULE IN QUESTION WAS CONSISTENT WITH THE SUPERIOR RULES OF COMMUNITY LAW . IN THE PRESENT CASE IT CONSIDERED THAT CERTAIN PRINCIPLES OF CRIMINAL LAW COMMON TO THE MEMBER STATES WERE VIOLATED , IN PARTICULAR BECAUSE OF THE CRIMINAL PENALTIES ALREADY IMPOSED ON THOSE RESPONSIBLE .

6 THE VERWALTUNGSGERICHT THEREFORE SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT :

' ' 1 . DOES ARTICLE 4 OF REGULATION ( EEC ) NO 1071/68 OF THE COMMISSION OF 25 JULY 1968 LAYING DOWN DETAILED RULES FOR GRANTING PRIVATE STORAGE AID FOR BEEF AND VEAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 354 ) ENABLE THE NATIONAL INTERVENTION AGENCIES , AFTER THE PERIOD OF STORAGE HAS BEEN COMPLETED , TO RECOVER A DEPOSIT WHICH HAS BEEN WRONGLY RELEASED?

2.IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE : ARE NATIONAL RULES UNDER WHICH IT IS POSSIBLE TO REVOKE A WRONGFUL DECISION RELEASING A DEPOSIT AND TO RECLAIM THE AMOUNT OF THE DEPOSIT AFTER THE PERIOD OF STORAGE HAS EXPIRED COMPATIBLE WITH COMMUNITY LAW?

3.IF THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE : ARE NATIONAL RULES SUCH AS THOSE DESCRIBED IN THE SECOND QUESTION WHICH MAKE REVOCATION OF A DECISION RELEASING A DEPOSIT AND HENCE RECOVERY OF THAT DEPOSIT SUBJECT TO THE DISCRETION OF THE INTERVENTION AGENCY COMPATIBLE WITH COMMUNITY LAW?

4.IF EITHER THE FIRST OR THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE : WHAT IS THE NATURE OF THE CLAIM SECURED BY THE DEPOSIT REFERRED TO IN ARTICLE 4 OF REGULATION ( EEC ) NO 1071/68?

5.IF THE ANSWER TO THE FOURTH QUESTION IS THAT THE CLAIM SECURED BY THE DEPOSIT IS A CLAIM FOR A PENALTY : DO ARTICLE 4 OF REGULATION ( EEC ) NO 1071/68 AND THE PENALTY PROVIDED FOR THEREIN INFRINGE SUPERIOR RULES OF COMMUNITY LAW?

' '

THE FIRST AND FOURTH QUESTIONS

7 IT IS APPROPRIATE TO BEGIN BY CONSIDERING THE ISSUES RAISED BY THE FIRST AND FOURTH QUESTIONS , IN ORDER TO DETERMINE WHETHER COMMUNITY LAW PROVIDES AN ADEQUATE LEGAL BASIS EITHER FOR REVOKING A DECISION RELEASING A DEPOSIT OR FOR DEMANDING PAYMENT OF A SUM EQUAL TO THE DEPOSIT WRONGLY RELEASED .

8 IN THE OBSERVATIONS WHICH IT SUBMITTED TO THE COURT THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY PROPOSES THAT THE FIRST QUESTION SHOULD BE ANSWERED IN THE NEGATIVE BECAUSE ARTICLE 4 OF REGULATION NO 1071/68 DOES NOT COVER THE CASE OF A DEPOSIT WRONGLY RELEASED . IN ITS OPINION , THERE ARE NO PROVISIONS OF COMMUNITY LAW ON THE MATTER . ON THE OTHER HAND , IT CONSIDERS THAT THE PRINCIPLES TO BE DERIVED FROM ARTICLE 5 OF THE EEC TREATY REQUIRE THE MEMBER STATES TO CLAIM REPAYMENT OF A DEPOSIT WRONGLY RELEASED . THE MAIN PURPOSE OF THE DEPOSIT IS TO ENSURE THAT THE STORAGE CONTRACT IS PERFORMED AND COMMUNITY LAW OBSERVED . DISREGARD OF THOSE OBLIGATIONS BY A TRADER SHOULD BE TAKEN INTO ACCOUNT EVEN AFTER THE RELEASE OF THE DEPOSIT ; OTHERWISE A PERSON WHOSE MISCONDUCT IS ONLY DISCOVERED AFTER THE DEPOSIT HAS BEEN RELEASED WOULD BE PLACED IN A BETTER POSITION THAN SOMEONE WHOSE MISCONDUCT IS DISCOVERED EARLIER .

9 THE COMMISSION CONTENDS THAT IN ENTERING INTO A STORAGE CONTRACT THE STORER IN FACT ASSUMES TWO OBLIGATIONS : NAMELY , TO PAY , IF NECESSARY , A CONTRACTUAL PENALTY AND TO PROVIDE A DEPOSIT GUARANTEEING SUCH PAYMENT . UNFORTUNATELY , ONLY THE LATTER OBLIGATION IS CLEARLY EXPRESSED IN THE REGULATION IN QUESTION . THE OBLIGATION TO PAY , HOWEVER , CONTINUES EVEN AFTER THE RELEASE OF THE DEPOSIT . WHEN IT BECOMES APPARENT THAT THE STORER HAS NOT PERFORMED THE CONTRACT IT IS NOT POSSIBLE TO RECONSTITUTE OR RECOVER THE DEPOSIT BUT IT IS POSSIBLE TO REQUIRE PAYMENT OF THE CORRESPONDING AMOUNT AS A CONTRACTUAL PENALTY .

10 AS THE NATIONAL COURT AND THE COMMISSION HAVE OBSERVED , IT MUST BE ACCEPTED THAT IT IS NOT POSSIBLE TO REQUIRE A GUARANTEE TO BE RECONSTITUTED WHEN THE RISK IN RESPECT OF WHICH IT WAS PROVIDED HAS MATERIALIZED . THUS THE DEPOSIT CANNOT BE RECOVERED IF IT HAS BEEN WRONGLY RELEASED AFTER THE PERIOD OF STORAGE . IT IS THEREFORE NECESSARY TO CONSIDER WHETHER , AS THE COMMISSION HAS MAINTAINED , THE DEPOSIT SYSTEM IN FACT INVOLVES AN OBLIGATION TO PAY A PENALTY OF A CONTRACTUAL OR ADMINISTRATIVE NATURE , SUCH AN OBLIGATION BEING DISTINCT FROM THE REQUIREMENT OF A GUARANTEE AND CONTINUING EVEN AFTER THE RELEASE OF THE DEPOSIT .

11 IN THAT RESPECT IT MUST BE EMPHASIZED THAT A PENALTY , EVEN OF A NON-CRIMINAL NATURE , CANNOT BE IMPOSED UNLESS IT RESTS ON A CLEAR AND UNAMBIGUOUS LEGAL BASIS . TO ANSWER THE FIRST AND FOURTH QUESTIONS IT IS THEREFORE NECESSARY TO CONSIDER WHETHER SUCH A BASIS IS TO BE FOUND IN ARTICLE 4 OF REGULATION NO 1071/68 INTERPRETED IN THE LIGHT OF ITS WORDING , CONTEXT AND PURPOSE .

12 ARTICLE 4 IS WORDED AS FOLLOWS :

' ' 1 . WHEN A CONTRACT IS CONCLUDED A DEPOSIT IN AN AMOUNT NOT EXCEEDING 50% OF THE AMOUNT OF AID SPECIFIED IN THE CONTRACT SHALL BE LODGED BY THE STORER IN CASH OR IN THE FORM OF A GUARANTEE ISSUED BY A CREDIT INSTITUTION MEETING THE REQUIREMENTS OF EACH MEMBER STATE .

2.THE AMOUNT OF THE DEPOSIT SHALL BE FIXED WHEN THE AMOUNT OF AID IS FIXED OR WHEN TENDERS ARE INVITED .

3.THE DEPOSIT SHALL BE FORFEITED IN FULL IF THE OBLIGATIONS IMPOSED BY THE CONTRACT ARE NOT FULFILLED ; HOWEVER , IF LESS THAN 90% OF THE QUANTITY AGREED IN THE CONTRACT HAS BEEN TAKEN IN STORE AND STORED WITHIN THE TIME-LIMITS LAID DOWN THE DEPOSIT SHALL BE FORFEITED PROPORTIONATELY TO THE MISSING PART OF THE QUANTITY REFERRED TO IN ARTICLE 3 ( 1 ) ( A ).

4.THE DEPOSIT SHALL NOT BE FORFEITED IF THROUGH FORCE MAJEURE THE STORER IS UNABLE TO FULFIL THE ABOVE-MENTIONED OBLIGATIONS . ' '

13 ALTHOUGH IN CERTAIN OTHER RESPECTS THAT ARTICLE MAKES RELATIVELY DETAILED PROVISIONS , IT CONTAINS NO EXPRESS PROVISION CONCERNING THE SITUATION WHICH ARISES WHEN A DEPOSIT IS WRONGLY RELEASED . NOR DO THE OTHER PROVISIONS OF THE REGULATION OR THE PREAMBLE PROVIDE ANY ASSISTANCE IN THAT RESPECT . THE SAME IS TRUE OF REGULATION NO 989/68 OF THE COUNCIL OF 15 JULY 1968 LAYING DOWN GENERAL RULES FOR GRANTING PRIVATE STORAGE AID FOR BEEF AND VEAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 264 ). NONE OF THE PROVISIONS IN QUESTION EXPRESSLY PROVIDES FOR THE IMPOSITION OF A PENALTY , CONTRACTUAL OR OTHERWISE , DISTINCT FROM LOSS OF THE DEPOSIT , OR EXPRESSLY ALLOWS A STIPULATION TO THAT EFFECT TO BE INCLUDED IN CONTRACTS WITH TRADERS .

14 WITH REGARD TO THE SYSTEM OF DEPOSITS ESTABLISHED IN RESPECT OF IMPORTS AND EXPORTS OF AGRICULTURAL PRODUCTS , THE COURT STATED IN ITS JUDGMENT OF 17 DECEMBER 1970 ( CASE 11/70 INTERNATIONALE HANDELSGESELLSCHAFT V EINFUHR- UND VORRATSSTELLE FUR GETREIDE UND FUTTERMITTEL ( 1979 ) ECR 1135 ) THAT THE SYSTEM WAS INTENDED TO GUARANTEE THAT THE IMPORTS AND EXPORTS FOR WHICH LICENCES WERE REQUESTED WERE ACTUALLY EFFECTED IN ORDER TO ENABLE THE COMPETENT AUTHORITIES TO MAKE JUDICIOUS USE OF THE INSTRUMENTS OF INTERVENTION , SUCH AS PURCHASING , STORING AND DISTRIBUTING , FIXING EXPORT REFUNDS , APPLYING PROTECTIVE MEASURES AND CHOOSING MEASURES DESIGNED TO AVOID DEFLECTIONS OF TRADE . IT ADDED THAT THE UNDERTAKING GIVEN BY TRADERS WOULD BE INEFFECTUAL IF OBSERVANCE OF IT WERE NOT ENSURED BY APPROPRIATE MEANS AND IN THAT RESPECT THE SYSTEM OF DEPOSITS WAS MORE EFFECTIVE THAN A SYSTEM OF FINES IMPOSED RETROSPECTIVELY . FINALLY , THE COURT HELD THAT THE SYSTEM OF DEPOSITS COULD NOT BE EQUATED WITH A PENAL SANCTION , SINCE IT MERELY CONSTITUTED A GUARANTEE THAT AN UNDERTAKING VOLUNTARILY ASSUMED WOULD BE CARRIED OUT .

15 IN THE SAME WAY THE SYSTEM OF DEPOSITS ESTABLISHED IN CONNECTION WITH PRIVATE STORAGE IS INTENDED TO ENSURE THAT THE TRADER PERFORMS HIS OBLIGATIONS IN ACCORDANCE WITH THE COMMUNITY REGULATIONS AND THE TERMS OF THE RELEVANT CONTRACT . THAT OBJECTIVE DOES NOT SUPPORT AN INTERPRETATION OF ARTICLE 4 ( 3 ) OF REGULATION NO 1071/68 TO THE EFFECT THAT AN AMOUNT EQUIVALENT TO THE DEPOSIT MUST BE PAID IF THE DEPOSIT IS WRONGLY RELEASED AFTER THE PERIOD OF STORAGE HAS EXPIRED . AT THAT STAGE THE UNDERTAKING TO STORE CAN NO LONGER BE PERFORMED AND THE PAYMENT CAN NO LONGER SERVE TO GUARANTEE THAT THE OPERATION TAKES PLACE BUT WOULD SIMPLY CONSTITUTE A PENALTY FOR FAILURE TO PERFORM THE UNDERTAKING .

16 AS THE GERMAN GOVERNMENT HAS POINTED OUT , THE ABSENCE OF SUCH A PENALTY MAY REPRESENT A LACUNA IN THE DEPOSIT SYSTEM , BECAUSE A PERSON WHO OBTAINS THE RELEASE OF THE DEPOSIT BY MEANS OF FALSE STATEMENTS AVOIDS LOSING IT . THAT ARGUMENT WOULD BE CAPABLE OF SUPPORTING THE INTERPRETATION FAVOURED BY THE GERMAN GOVERNMENT AND BY THE COMMISSION IF THE PROVISIONS IN QUESTION LENT THEMSELVES TO SUCH AN INTERPRETATION , HAVING REGARD TO THEIR WORDING AND THE OBJECTIVE PURSUED . HOWEVER , IT IS NOT SUFFICIENT ON ITS OWN TO PROVIDE A CLEAR AND UNAMBIGUOUS BASIS FOR THE IMPOSITION OF A PENALTY .

17 IT FOLLOWS THAT THE ANSWER TO THE FIRST AND FOURTH QUESTIONS MUST BE THAT ARTICLE 4 OF REGULATION NO 1071/68 OF THE COMMISSION OF 25 JULY 1968 LAYING DOWN DETAILED RULES FOR GRANTING PRIVATE STORAGE AID FOR BEEF AND VEAL DOES NOT AUTHORIZE THE NATIONAL INTERVENTION AGENCIES , AFTER THE EXPIRY OF THE PERIOD OF STORAGE , TO RECOVER DEPOSITS WHICH HAVE BEEN WRONGLY RELEASED OR TO IMPOSE ON TRADERS PECUNIARY PENALTIES OF AN AMOUNT EQUAL TO THE DEPOSITS SO RELEASED .

SECOND QUESTION

18 THE SECOND QUESTION ASKS WHETHER NATIONAL LEGISLATION UNDER WHICH IT IS POSSIBLE TO REVOKE A WRONGFUL DECISION RELEASING A DEPOSIT AND TO RECLAIM THE AMOUNT OF THE DEPOSIT AFTER THE PERIOD OF STORAGE HAS EXPIRED IS COMPATIBLE WITH COMMUNITY LAW .

19 AS INDICATED ABOVE , THE GERMAN GOVERNMENT CONSIDERS THAT COMMUNITY LAW REQUIRES MEMBER STATES TO CLAIM REPAYMENT OF A DEPOSIT WRONGLY RELEASED , WHEREAS THE COMMISSION TAKES THE VIEW THAT NO SUCH REPAYMENT MAY BE CLAIMED BUT THAT MEMBER STATES MUST REQUIRE PAYMENT OF THE CORRESPONDING AMOUNT AS A CONTRACTUAL PENALTY . AS REGARDS THE DETAILED RULES , THE GERMAN GOVERNMENT AND THE COMMISSION AGREE THAT THEY FALL TO BE DETERMINED BY NATIONAL LEGISLATION WITHIN THE CONFINES INDICATED BY THE COURT IN ITS DECISIONS RELATING TO THE RECOVERY OF SUMS WRONGLY PAID BY THE NATIONAL AUTHORITIES IN THE COURSE OF THEIR MANAGEMENT OF THE COMMON ORGANIZATION OF THE MARKETS .

20 IN VIEW OF THE ANSWER WHICH THE COURT HAS JUST GIVEN TO THE FIRST AND FOURTH QUESTIONS IT MUST BE STRESSED THAT THE COMMUNITY LEGISLATION ON THE GRANTING OF PRIVATE STORAGE AID FOR BEEF AND VEAL MUST BE REGARDED AS FORMING A COMPLETE SYSTEM IN THE SENSE THAT IT DOES NOT EMPOWER MEMBER STATES TO RECIFY ANY LACUNA IN THE SYSTEM BY LAYING DOWN , UNDER THEIR NATIONAL LAW , AN OBLIGATION ON TRADERS WHICH HAS NO BASIS IN THE COMMUNITY LEGISLATION . IT COULD BE OTHERWISE ONLY IF THE GENERAL COMMUNITY PROVISIONS GOVERNING THE MANAGEMENT OF THE COMMON ORGANIZATIONS OF THE MARKETS BY THE NATIONAL AUTHORITIES CONTAINED SUFFICIENT AUTHORITY FOR THAT PURPOSE .

21 ON THE LATTER ISSUE THE NATIONAL COURT RIGHTLY REFERS TO ARTICLE 8 OF REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY , WHICH PROVIDES THAT ' ' THE MEMBER STATES IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION SHALL TAKE THE MEASURES NECESSARY TO . . . RECOVER SUMS LOST AS A RESULT OF IRREGULARITIES ' ' . HOWEVER , AS THE VERWALTUNGSGERICHT OBSERVED , THAT PROVISION REFERS TO THE RECOVERY OF SUMS PAID BY THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND AND CANNOT BE EXTENDED TO THE RECOVERY OF A PENALTY WHICH HAS NO LEGAL BASIS IN THE COMMUNITY LEGISLATION , EVEN IF IN PRACTICE THE SUM THUS RECOVERED WOULD ULTIMATELY BE DEDUCTED BY THE NATIONAL AUTHORITIES FROM THE EXPENDITURE FINANCED BY THE FUND .

22 IT MUST BE ADDED THAT ARTICLE 8 ALSO REQUIRES MEMBER STATES TO TAKE PROCEEDINGS , PURSUANT TO THEIR NATIONAL LAW , IN CONNECTION WITH IRREGULARITIES COMMITTED IN RELATION TO SUMS GRANTED . THE FINDING MADE ABOVE DOES NOT AFFECT THE RIGHT AND THE DUTY OF THE NATIONAL AUTHORITIES TO TAKE PROCEEDINGS AGAINST A TRADER WHO HAS OBTAINED THE RELEASE OF THE DEPOSIT BY FRAUDULENT MEANS . IN THE ABSENCE OF A PROVISION ALLOWING THE AUTHORITIES TO CLAIM REPAYMENT OF A SUM EQUIVALENT TO THE DEPOSIT RELEASED , SUCH ACTION PROVIDES AT LEAST A PARTIAL REMEDY FOR THE DIFFICULTY ALLUDED TO BY THE GERMAN GOVERNMENT .

23 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT NATIONAL LEGISLATION UNDER WHICH IT IS POSSIBLE TO REVOKE A WRONGFUL DECISION RELEASING A DEPOSIT AND TO RECLAIM THE AMOUNT OF THE DEPOSIT AFTER THE PERIOD OF STORAGE HAS EXPIRED IS INCOMPATIBLE WITH COMMUNITY LAW ; HOWEVER , THAT CIRCUMSTANCE DOES NOT AFFECT THE RIGHT AND THE DUTY OF THE NATIONAL AUTHORITIES TO TAKE PROCEEDINGS , IN ACCORDANCE WITH NATIONAL LAW , AGAINST A TRADER WHO HAS OBTAINED THE RELEASE OF THE DEPOSIT BY FRAUDULENT MEANS .

24 IN VIEW OF THE ANSWER GIVEN TO THE FIRST , SECOND AND FOURTH QUESTIONS THE OTHER QUESTIONS HAVE BECOME OTIOSE .

COSTS

25 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER ),

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE VERWALTUNGSGERICHT FRANKFURT AM MAIN BY ORDER OF 26 MAY 1983 , HEREBY RULES :

1 . ARTICLE 4 OF REGULATION NO 1071/68 OF THE COMMISSION OF 25 JULY 1968 LAYING DOWN DETAILED RULES FOR GRANTING PRIVATE STORAGE AID FOR BEEF AND VEAL DOES NOT AUTHORIZE THE NATIONAL INTERVENTION AGENCIES , AFTER THE EXPIRY OF THE PERIOD OF STORAGE , TO RECOVER DEPOSITS WHICH HAVE BEEN WRONGLY RELEASED OR TO IMPOSE ON TRADERS PECUNIARY PENALTIES OF AN AMOUNT EQUAL TO THE DEPOSITS SO RELEASED .

2.NATIONAL LEGISLATION UNDER WHICH IT IS POSSIBLE TO REVOKE A WRONGFUL DECISION RELEASING A DEPOSIT AND TO RECLAIM THE AMOUNT OF THE DEPOSIT AFTER THE PERIOD OF STORAGE HAS EXPIRED IS INCOMPATIBLE WITH COMMUNITY LAW ; HOWEVER , THAT CIRCUMSTANCE DOES NOT AFFECT THE RIGHT AND THE DUTY OF THE NATIONAL AUTHORITIES TO TAKE PROCEEDINGS , IN ACCORDANCE WITH NATIONAL LAW , AGAINST A TRADER WHO HAS OBTAINED THE RELEASE OF THE DEPOSIT BY FRAUDULENT MEANS .