61978J0099

1 . MEASURES ADOPTED BY AN INSTITUTION - REGULATION - PUBLICATION - DATE

( EEC TREATY , ART . 191 )

2 . COMMUNITY LAW - PRINCIPLES - NO RETROACTIVITY OF REGULATIONS - EXCEPTIONS - CONDITIONS

3 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - RULES - RETROACTIVITY - LEGALITY

( REGULATIONS NOS 649/73 AND 741/73 OF THE COMMISSION )

1 . A REGULATION IS TO BE REGARDED AS PUBLISHED THROUGHOUT THE COMMUNITY ON THE DATE BORNE BY THE ISSUE OF THE OFFICIAL JOURNAL CONTAINING THE TEXT OF THAT REGULATION . HOWEVER , SHOULD EVIDENCE BE PRODUCED THAT THE DATE ON WHICH AN ISSUE WAS IN FACT AVAILABLE DOES NOT CORRESPOND TO THE DATE WHICH APPEARS ON THAT ISSUE , REGARD MUST BE HAD TO THE DATE OF ACTUAL PUBLICATION .

2 . ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .

3 . THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS INTRODUCED BY REGULATION NO 974/71 IMPLIES IN PRINCIPLE THAT THE MEASURES ADOPTED TAKE EFFECT AS FROM THE OCCURRENCE OF THE EVENTS WHICH GIVE RISE TO THEM , SO THAT IN ORDER TO MAKE THEM FULLY EFFECTIVE IT MAY BE NECESSARY TO PROVIDE FOR THE APPLICABILITY OF NEWLY-FIXED MONETARY COMPENSATORY AMOUNTS TO FACTS AND EVENTS WHICH OCCURRED SHORTLY BEFORE THE PUBLICATION OF THE REGULATION FIXING THEM IN THE OFFICIAL JOURNAL .

IN CASE 99/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

WEINGUT GUSTAV DECKER KG , LANDAU/PFALZ ,

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) LANDAU ,

ON THE INTERPRETATION OF ARTICLE 191 OF THE EEC TREATY AS TO THE TIME AT WHICH A REGULATION IS TO BE REGARDED AS PUBLISHED AND ON THE QUESTION FROM WHAT DATE REGULATIONS NO 649/73 OF THE COMMISSION OF 1 MARCH 1973 FIXING THE MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 64 OF 9 MARCH 1973 , P . 7 ) AND NO 741/73 OF THE COMMISSION OF 5 MARCH 1973 ALTERING THE MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 71 OF 19 MARCH 1973 , P . 1 ) ARE TO BE APPLIED ,

1BY AN ORDER OF 21 MARCH 1978 WHICH WAS RECEIVED AT THE COURT ON 26 APRIL 1978 THE BUNDESFINANZHOF PURSUANT TO ARTICLE 177 OF THE EEC TREATY REFERRED TO THE COURT CERTAIN QUESTIONS RELATING , ON THE ONE HAND , TO THE INTERPRETATION OF ARTICLE 191 OF THE TREATY AND , ON THE OTHER HAND , TO THE SCOPE OF THE PROVISIONS REGARDING THE ENTRY INTO FORCE OF CERTAIN COMMUNITY REGULATIONS CONCERNING MONETARY COMPENSATORY AMOUNTS IN THE WINE SECTOR .

THESE QUESTIONS WERE RAISED IN THE CONTEXT OF PROCEEDINGS PENDING BETWEEN A GERMAN UNDERTAKING AND THE COMPETENT CUSTOMS AUTHORITY CONCERNING MONETARY COMPENSATORY AMOUNTS CHARGED WHEN THREE CONSIGNMENTS OF WINE FROM ITALY WERE CLEARED INTO FREE CIRCULATION ON 9 AND 12 MARCH 1973 .

QUESTION 1

2THE FIRST QUESTION IS IN THE FOLLOWING TERMS :

' ' IS A REGULATION TO BE REGARDED AS PUBLISHED WITHIN THE MEANING OF ARTICLE 191 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY :

( A ) ON THE DAY BORNE BY THE OFFICIAL JOURNAL IN QUESTION ;

( B)AT THE TIME WHEN THE OFFICIAL JOURNAL IN QUESTION IS IN FACT AVAILABLE AT THE OFFICE FOR OFFICIAL PUBLICATIONS OF THE EUROPEAN COMMUNITIES ; OR

( C)AT THE TIME WHEN THE OFFICIAL JOURNAL IN QUESTION IS ACTUALLY AVAILABLE IN THE TERRITORY OF THE PARTICULAR MEMBER STATE?

' '

3ARTICLE 191 OF THE TREATY PROVIDES THAT REGULATIONS SHALL BE PUBLISHED IN THE OFFICIAL JOURNAL OF THE COMMUNITY . THEY SHALL ENTER INTO FORCE ON THE DATE SPECIFIED IN THEM OR , IN THE ABSENCE THEREOF , ON THE TWENTIETH DAY FOLLOWING THEIR PUBLICATION .

THE OFFICIAL JOURNAL IS PUBLISHED BY THE OFFICE FOR OFFICIAL PUBLICATIONS OF THE EUROPEAN COMMUNITIES , SITUATED IN LUXEMBOURG , WHICH HAS RECEIVED FORMAL INSTRUCTIONS FROM THE COUNCIL INTENDED TO ENSURE THAT THE DATE OF PUBLICATION BORNE BY EACH ISSUE OF THE OFFICIAL JOURNAL CORRESPONDS TO THE DATE ON WHICH THAT ISSUE IS IN FACT AVAILABLE TO THE PUBLIC IN ALL THE LANGUAGES AT THE SAID OFFICE .

THESE PROVISIONS GIVE RISE TO A PRESUMPTION THAT THE DATE OF PUBLICATION IS IN FACT THE DATE APPEARING ON EACH ISSUE OF THE OFFICIAL JOURNAL .

HOWEVER , SHOULD EVIDENCE BE PRODUCED THAT THE DATE ON WHICH AN ISSUE WAS IN FACT AVAILABLE DOES NOT CORRESPOND TO THE DATE WHICH APPEARS ON THAT ISSUE , REGARD MUST BE HAD TO THE DATE OF ACTUAL PUBLICATION .

A FUNDAMENTAL PRINCIPLE IN THE COMMUNITY LEGAL ORDER REQUIRES THAT A MEASURE ADOPTED BY THE PUBLIC AUTHORITIES SHALL NOT BE APPLICABLE TO THOSE CONCERNED BEFORE THEY HAVE THE OPPORTUNITY TO MAKE THEMSELVES ACQUAINTED WITH IT .

4AS REGARDS THE LAST ALTERNATIVE IN THE QUESTION SUBMITTED , IT IS IMPORTANT THAT THE DATE ON WHICH A REGULATION IS TO BE REGARDED AS PUBLISHED SHOULD NOT VARY ACCORDING TO THE AVAILABILITY OF THE OFFICIAL JOURNAL OF THE COMMUNITIES IN THE TERRITORY OF EACH MEMBER STATE .

THE UNITY AND UNIFORM APPLICATION OF COMMUNITY LAW REQUIRE THAT , SAVE AS OTHERWISE EXPRESSLY PROVIDED , A REGULATION SHOULD ENTER INTO FORCE ON THE SAME DATE IN ALL THE MEMBER STATES , REGARDLESS OF ANY DELAYS WHICH MAY ARISE IN SPITE OF EFFORTS TO ENSURE RAPID DISTRIBUTION OF THE OFFICIAL JOURNAL THROUGHOUT THE COMMUNITY .

5THEREFORE THE ANSWER TO THE QUESTION RAISED SHOULD BE THAT ARTICLE 191 OF THE EEC TREATY MUST BE INTERPRETED TO MEAN THAT , IN THE ABSENCE OF EVIDENCE TO THE CONTRARY , A REGULATION IS TO BE REGARDED AS PUBLISHED THROUGHOUT THE COMMUNITY ON THE DATE BORNE BY THE ISSUE OF THE OFFICIAL JOURNAL CONTAINING THE TEXT OF THAT REGULATION .

QUESTIONS 2 AND 3

6QUESTIONS 2 AND 3 ARE WORDED AS FOLLOWS :

' ' WAS REGULATION ( EEC ) NO 741/73 OF THE COMMISSION OF 5 MARCH 1973 ALSO APPLICABLE TO WINE WHICH WAS FIRST MADE SUBJECT TO MONETARY COMPENSATORY AMOUNTS BY REGULATION ( EEC ) NO 649/73 OF THE COMMISSION OF 1 MARCH 1973 AND WHICH WAS IMPORTED BEFORE THE LAST-MENTIONED REGULATION WAS IN FACT PUBLISHED?

IF QUESTION 2 IS ANSWERED IN THE NEGATIVE : WAS REGULATION ( EEC ) NO 649/73 OF THE COMMISSION OF 1 MARCH 1973 APPLICABLE TO THE SAID WINE?

' '

7THE FIRST PARAGRAPH OF ARTICLE 3 OF REGULATION NO 649/73 OF 1 MARCH 1973 PROVIDED THAT THAT REGULATION WAS TO ENTER INTO FORCE ON THE DAY OF ITS PUBLICATION IN THE OFFICIAL JOURNAL ; HOWEVER , THAT REGULATION WAS PUBLISHED IN AN ISSUE OF THE OFFICIAL JOURNAL WHICH , ALTHOUGH BEARING THE DATE 9 MARCH 1973 , WAS NOT IN FACT AVAILABLE AT THE SEAT OF THE OFFICE FOR OFFICIAL PUBLICATIONS , ACCORDING TO THE STATEMENT OF THE OFFICE ITSELF , UNTIL 12 MARCH 1973 , UPON WHICH DATE IT MUST BE DEEMED TO HAVE ENTERED INTO FORCE .

ACCORDING TO THE SECOND AND THIRD PARAGRAPHS OF ARTICLE 3 OF THE AFORESAID REGULATION , THE AMOUNTS RESULTING FROM ITS APPLICATION WERE HOWEVER TO APPLY FROM 26 FEBRUARY 1973 , OR EVEN - IN FAVOUR OF PARTIES CONCERNED - FROM 13 FEBRUARY 1973 .

REGULATION NO 741/73 OF 5 MARCH 1973 ALTERING THE MONETARY COMPENSATORY AMOUNTS FIXED BY REGULATION NO 649/73 ENTERED INTO FORCE ON THE DAY OF ITS PUBLICATION IN THE OFFICIAL JOURNAL , THAT IS 19 MARCH 1973 , BUT ACCORDING TO ARTICLE 2 OF THE REGULATION IT APPLIED FROM 5 MARCH 1973 .

THUS THE QUESTIONS SUBMITTED FIRST RAISE THE ISSUE WHETHER REGULATION NO 649/73 COULD VALIDLY ATTRIBUTE RETROACTIVE EFFECTS TO ITSELF AS FROM ITS ENTRY INTO FORCE , IN PARTICULAR BY EXTENDING THE MONETARY COMPENSATORY AMOUNTS SYSTEM FOR THE FIRST TIME TO THE WINE IN QUESTION .

8ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .

AS REGARDS MONETARY COMPENSATORY AMOUNTS IN PARTICULAR THE SYSTEM INTRODUCED BY REGULATION NO 974/71 IMPLIES IN PRINCIPLE THAT THE MEASURES ADOPTED TAKE EFFECT AS FROM THE OCCURRENCE OF THE EVENTS WHICH GIVE RISE TO THEM , SO THAT IN ORDER TO MAKE THEM FULLY EFFECTIVE IT MAY BE NECESSARY TO PROVIDE FOR THE APPLICABILITY OF NEWLY-FIXED MONETARY COMPENSATORY AMOUNTS TO FACTS AND EVENTS WHICH OCCURRED SHORTLY BEFORE THE PUBLICATION OF THE REGULATION FIXING THEM IN THE OFFICIAL JOURNAL .

IT IS INHERENT IN THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS THAT TRADERS MUST EXPECT ANY APPRECIABLE CHANGE IN THE MONETARY SITUATION POSSIBLY TO ENTAIL THE EXTENSION OF THE SYSTEM TO NEW CATEGORIES OF GOODS AND THE FIXING OF NEW AMOUNTS .

IN THIS CASE ON THE DATE LAID DOWN FOR THE APPLICABILITY OF THE NEW AMOUNTS , THE COMMISSION ADOPTED SPECIAL MEASURES FOR THEM TO BE BROUGHT TO THE ATTENTION OF THE VARIOUS SECTORS OF INDUSTRY CONCERNED .

THE APPLICABILITY OF REGULATION NO 649/73 TO EVENTS OCCURRING AS FROM 26 FEBRUARY 1973 , THAT IS TO SAY DURING A PERIOD OF TWO WEEKS BEFORE ITS ACTUAL PUBLICATION , WAS THEREFORE NOT SUCH AS TO JEOPARDIZE EXPECTATIONS DESERVING PROTECTION .

IN THE LIGHT OF THIS FINDING IN RELATION TO REGULATION NO 649/73 , AND HAVING REGARD TO THE EXTRAORDINARY SITUATION PREVAILING AT THE TIME , NO OVERRIDING CONSIDERATION PERTAINING TO LEGAL CERTAINTY PREVENTS REGULATION NO 741/73 , ADOPTED ON 5 MARCH 1973 , FROM ALTERING THE MONETARY COMPENSATORY AMOUNTS RESULTING FROM THE AFOREMENTIONED REGULATION FROM BEING GIVEN EFFECT AS FROM 5 MARCH 1973 , NOTWITHSTANDING THE FACT THAT REGULATION NO 649/73 HAD NOT YET BEEN PUBLISHED IN THE OFFICIAL JOURNAL .

9THEREFORE THE ANSWER SHOULD BE THAT CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATIONS NO 649/73 OF 1 MARCH 1973 AND NO 741/73 OF 5 MARCH 1973 IN SO FAR AS THEY WERE MADE APPLICABLE FROM 26 FEBRUARY 1973 AND 5 MARCH 1973 RESPECTIVELY .

COSTS

10THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , 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 NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY AN ORDER OF 21 MARCH 1978 , HEREBY RULES :

1 . ARTICLE 191 OF THE EEC TREATY MUST BE INTERPRETED TO MEAN THAT , IN THE ABSENCE OF EVIDENCE TO THE CONTRARY , A REGULATION IS TO BE REGARDED AS PUBLISHED THROUGHOUT THE COMMUNITY ON THE DATE BORNE BY THE ISSUE OF THE OFFICIAL JOURNAL CONTAINING THE TEXT OF THAT REGULATION .

2 . CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATIONS NO 649/73 OF 1 MARCH 1973 AND NO 741/73 OF 5 MARCH 1973 IN SO FAR AS THEY WERE MADE APPLICABLE FROM 26 FEBRUARY 1973 AND 5 MARCH 1973 RESPECTIVELY .