61988J0337

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1.Acts of the institutions - Regulations - Publication - Date

( EEC Treaty, Art . 191, first paragraph )

2.Acts of the institutions - Application ratione temporis - Principle of non-retroactivity - Exceptions - Conditions - Particular case

( Commission Regulation No 57/81, Art . 6 )

1 . A regulation must 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 .

That was so in the specific case of the application with retroactive effect from 1 January 1981 of Regulation No 57/81 on transitional measures to be taken, on account of the accession of Greece, in respect of trade in agricultural products, provided for in Article 6 thereof . On the one hand, it was necessary in the general interest to ensure a smooth change from the previously applicable arrangements to the Community system and prevent speculation . On the other hand, traders were not legitimately entitled to expect to be able to benefit from the abolition of the Community import levy for goods for which export refunds had been paid in Greece, in view of the fact that the purpose of that levy is to neutralize the effect of refunds obtained in non-member countries .

In Case C-337/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunale civile ( Civil District Court ), Genoa, ( First Chamber ), for a preliminary ruling in the proceedings pending before that court between

Società agricola fattoria alimentare SpA

and

Amministrazione delle finanze dello Stato,

on the validity of Commission Regulation ( EEC ) No 49/81 of 1 January 1981 on methods of administrative cooperation to safeguard during the transitional period the free movement of goods between Greece and the other Member States ( Official Journal 1981, L 4, p . 1 ), and of Commission Regulation ( EEC ) No 57/81 of 1 January 1981 on transitional measures to be taken, on account of the accession of Greece, in respect of trade in agricultural products ( Official Journal 1981, L 4, p . 43 ),

THE COURT ( First Chamber )

composed of : Sir Gordon Slynn, President of Chamber, R . Joliet and G . C . Rodríguez Iglesias, Judges,

Advocate General : G . Tesauro

Registrar : J . A . Pompe, Deputy Registrar

after considering the observations submitted on behalf of

SAFA, by Giorgio Schiano di Pepe, of the Genoa Bar,

the Commission of the European Communities, by its Legal Adviser, Giuliano Marenco, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 27 September 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 9 November 1989,

gives the following

Judgment

1 By an order of 29 September 1988, which was received at the Court on 22 November 1988, the tribunale civile, Genoa, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions concerning the interpretation and the validity of Commission Regulation No 57/81 of 1 January 1981 on transitional measures to be taken, on account of the accession of Greece, in respect of trade in agricultural products ( Official Journal 1981, L 4, p . 43 ), and of Commission Regulation No 49/81 of 1 January 1981 on methods of administrative cooperation to safeguard during the transitional period the free movement of goods between Greece and the other Member States ( Official Journal 1981, L 4, p . 1 ).

2 Those questions arose in the context of proceedings between Società agricola fattoria alimentare SpA ( hereinafter referred to as "SAFA ") and the Italian customs authorities concerning the imposition of an import levy on a quantity of olive oil which SAFA exported from Greece before the accession on 1 January 1981 of that country to the Community, and which it declared for home use on the following day .

3 The act concerning the conditions of accession of the Hellenic Republic ( Official Journal 1979, L 291, p . 17, hereinafter referred to as "the Act of Accession ") entered into force on 1 January 1981 . Article 41 of the Act of Accession entrusted the Commission with the task of determining methods of cooperation to ensure that goods fulfilling the requisite conditions were to benefit, from 1 January 1981, from the abolition of customs duties and charges having equivalent effect .

4 Pursuant to Title IV of the Act of Accession, the arrangements introduced by the Association Agreement between the Community of the Nine and Greece, whose characteristic feature was the application of levies, were to be replaced by a system of accession compensatory amounts . However, Article 73 of the Act of Accession provided for the possibility of transitional measures as follows :

"If transitional measures are necessary to facilitate the passage from the existing arrangements in Greece to those resulting from the application of the common organization of the markets as provided for in this title, particularly if for certain products the implementation of the new arrangements on the scheduled date meets with appreciable difficulties, such measures shall be adopted in accordance with the procedure provided for in Article 38 of Regulation No 136/66/EEC or, as the case may be, in the corresponding articles of the other regulations on the common organization of agricultural markets . Such measures may be taken during the period up to 31 December 1982, but their application may not extend beyond that date ."

5 On 12 September 1980 the Commission undertook to adopt on 1 January 1981 a series of regulations based on Article 41 of the Act of Accession . In order to bring the draft regulations in question to the knowledge of the customs authorities of the Member States and traders, it published them in Official Journal 1980, C 259, p . 1 .

6 The first of those draft texts subsequently became Regulation No 49/81 . By virtue of Article 1 in conjunction with Article 18 thereof, goods in respect of which an AG 1 or AG 3 movement certificate provided for under the Association Agreement between Greece and the Community of Nine had been issued and which on 1 January 1981 were either in transit or had been placed in the Community in temporary storage, in a customs warehouse or a free zone were to benefit from the abolition of customs duties and charges having equivalent effect . In accordance with Article 20 thereof, Regulation No 49/81 entered into force on 1 January 1981 .

7 Under Article 2 of Regulation No 57/81, which is based on Article 73 of the Act of Accession and was not among the texts published by the Commission in Official Journal 1980, C 259 :

"Agricultural products which are exported from Greece before 1 January 1981 and which are imported into the Community of Nine on and after this date shall be subject in the Community of Nine, notwithstanding the provisions of Regulation ( EEC ) No 49/81 :

( i ) to the arrangements applicable to trade between the Community of Nine and Greece on 31 December 1980 if the products in question are accompanied by a movement certificate AG 1 or AG 3,

( ii ) ..."

In accordance with Article 6 thereof, Regulation No 57/81 also entered into force on 1 January 1981 .

8 Both regulations were published in Official Journal L 4, of 1 January 1981, which, it is undisputed, was not in fact available at the Office for Official Publications of the European Communities until 23 January 1981 .

9 Pursuant to Regulation No 57/81, the Italian customs authorities claimed the levies in force on 31 December 1980, which SAFA paid . SAFA subsequently brought proceedings against the defendant before the tribunale civile, Genoa, for a declaration that the sums in question should be repaid on the ground that Regulation No 57/81 was invalid on account of its retroactive effect and that Regulation No 49/81 should be applied to it .

10 Taking the view that a problem of retroactivity was also raised by Regulation No 49/81, the tribunale civile stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling :

"( a ) Is the retroactive effect from 1 January 1981 of Commission Regulation ( EEC ) No 57/81 of 1 January 1981 on transitional measures to be taken, on account of the Accession of Greece, in respect of trade and agricultural products, provided for by Article 6 thereof, lawful in view of the fact that the issue of the Official Journal of the European Communities for 1 January 1981 in which Regulation No 57/81 was published was in fact available at the Office for Official Publications of the European Communities solely from 23 January 1981?

( b)If the Court holds that Article 6 of the aforementioned regulation is unlawful in so far as it provides for it to have retroactive effect from 1 January 1981, is the retroactive effect from 1 January 1981 of Commission Regulation ( EEC ) No 49/81 of 1 January 1981 on methods of administrative cooperation to safeguard during the transitional period the free movement of goods between Greece and the other Member States, provided for by Article 20 thereof, lawful in view of the fact that the issue of the Official Journal of the European Communities for 1 January 1981 in which Regulation No 49/81 was published was in fact available at the Office for Official Publications of the European Communities solely from 23 January 1981?"

11 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the observations submitted to the Court which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

12 It should be emphasized at the outset that the Commission rightly did not deny that the regulations in question were of a retroactive nature . A regulation must 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 ( see judgments of 25 January 1979 in Case 98/78 Racke v Hauptzollamt Mainz (( 1979 )) ECR 69 and in Case 99/78 Decker v Hauptzollamt Landau (( 1979 )) ECR 101 ). Both regulations must therefore be deemed to have been published on 23 January 1981, that is to say more than three weeks after the date of their entry into force .

13 As the Court has already held, in particular in the aforementioned judgments, 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 . In order to reply to the questions raised, it is therefore necessary to examine whether those criteria were satisfied in the present case .

Regulation No 57/81

14 As the Commission stated in its written observations, the situation at the end of 1980 was exceptional . On the one hand, the Act of Accession provided for the immediate application, in the absence of any derogating measures, of the Community agricultural rules to Greece and, on the other hand, the Commission could not adopt any such measures prior to the entry into force of the Act of Accession, that is to say on 1 January 1981 . In those circumstances, it was well nigh impossible for the regulations in question to be adopted, published and made available on 1 January 1981 . In addition, the publication of the documents made necessary by the accession of Greece had greatly exacerbated the customary seasonal congestion of the Official Journal .

15 It should also be acknowledged that the objective pursued by Regulation No 57/81 justifies its application with effect from 1 January 1981 . The first recital in the preamble to Regulation No 57/81 states that the transitional measures provided for in Regulation No 49/81 for goods sent before the entry into force of the Act of Accession from Greece to the Community of Nine presented problems in the case of agricultural products which had received export refunds . Moreover, the third recital states that, in view of speculative movements of certain products which might have begun to take place, measures had to be taken to prevent such products from enjoying a twofold benefit, namely the export refund paid by the Greek authorities and the abolition of the Community levy . Regulation No 57/81 related therefore to the very specific situation of agricultural products which were located between Greek customs territory and that of the Community of Nine at the time when the arrangements under the Association Agreement were superseded by the Community agricultural rules . In order to prevent importers of such products from obtaining an unjustified benefit from that temporary situation, it was essential for the regulation in question to be applicable with effect from 1 January 1981 .

16 In those circumstances, the Commission was properly entitled to take the view that the objective to be attained in the general interest, namely the smooth change from the previously applicable arrangements to the Community system and the prevention of speculative movements of agricultural products, made it necessary for Regulation No 57/81 to have retroactive effect .

17 Finally, it should be determined whether the retroactive effect of Regulation No 57/81 frustrated the legitimate expectations of traders . In that connection it is sufficient to point out that traders were not legitimately entitled to expect to be able to benefit from the abolition of the Community levy for goods for which export refunds had been paid in Greece, in view of the fact that the purpose of the levy is in particular to neutralize the effect of refunds obtained in a non-member country .

18 The reply to be given to the first question raised by the tribunale civile should therefore be that consideration of the questions submitted for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Article 6 of Regulation No 57/81 on transitional measures to be taken, on account of the accession of Greece, in respect of trade in agricultural products, in so far as it confers on that regulation retroactive effect from 1 January 1981 .

19 In view of the reply given to the first question, there is no need to give a preliminary ruling on the second question .

20 As to SAFA' s claim that the Court should as an ancillary matter give a preliminary ruling on the repayment of levies in pursuance of Article 13 of Council Regulation ( EEC ) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties ( Official Journal 1979, L 175, p . 1 ), it is sufficient to recall that, in view of the division of jurisdiction laid down by Article 177 of the Treaty, it is for the national court alone to determine the subject-matter of the questions which it wishes to refer to the Court . The Court cannot therefore, at the request of a party to the main proceedings, examine questions which have not been referred to it by the national court ( see in particular the judgment of 3 October 1985 in Case 311/84 CBEM v CLT and IPB (( 1985 )) ECR 3261 ).

Costs

21 The costs incurred by the Commission of the European Communities, which has 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 proceedings pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( First Chamber ),

in answer to the questions referred to it by the tribunale civile Genoa, by order of 29 September 1988, hereby rules :

Consideration of the questions submitted for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Article 6 of Regulation ( EEC ) No 57/81 on transitional measures to be taken, on account of the accession of Greece, in respect of trade in agricultural products, in so far as it confers on that regulation retroactive effect from 1 January 1981 .