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Document 61978CC0098
Joined opinion of Mr Advocate General Reischl delivered on 6 December 1978. # A. Racke v Hauptzollamt Mainz. # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Monetary compensatory amounts - Publication of regulations. # Case 98/78. # Weingut Gustav Decker KG v Hauptzollamt Landau. # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Publication of regulations. # Case 99/78
Združeni sklepni predlogi generalnega pravobranilca - Reischl - 6. decembra 1978.
A. Racke proti Hauptzollamt Mainz.
Predlog za sprejetje predhodne odločbe: Bundesfinanzhof - Nemčija.
Zneski denarnega nadomestila.
Zadeva 98/78.
Weingut Gustav Decker KG proti Hauptzollamt Landau.
Predlog za sprejetje predhodne odločbe: Bundesfinanzhof - Nemčija.
Zadeva 99/78.
Združeni sklepni predlogi generalnega pravobranilca - Reischl - 6. decembra 1978.
A. Racke proti Hauptzollamt Mainz.
Predlog za sprejetje predhodne odločbe: Bundesfinanzhof - Nemčija.
Zneski denarnega nadomestila.
Zadeva 98/78.
Weingut Gustav Decker KG proti Hauptzollamt Landau.
Predlog za sprejetje predhodne odločbe: Bundesfinanzhof - Nemčija.
Zadeva 99/78.
ECLI identifier: ECLI:EU:C:1978:223
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 6 DECEMBER 1978 ( 1 )
Mr President,
Members of the Court,
The two references for a preliminary ruling on both of which I am today giving a single opinion, because the problems they raise are very much the same, are concerned with the levying of monetary compensatory amounts on wine, in particular with the retroactive inclusion of certain types of wine in the monetary compensation system.
Until the beginning of 1973 the system of monetary compensatory amounts was keyed to the movements of Member States' currencies against the US dollar. It was confined to monetary compensatory amounts being levied on imports and granted on exports in those countries where a revaluation had been effected.
At the beginning of 1973 there was another international currency crisis. The dollar came under so much pressure that on 12 February 1973 the American Government announced a 10 % devaluation. The Italian authorities also suspended intervention as the lira reached marginal values. On 12 and 13 February and also from 1 March to 19 March, the Foreign Exchange Markets were closed. At that time an international monetary conference of the Western industrial countries decided upon a 3 % revaluation of the German mark and also upon the so-called block floating for the European currencies. In accordance with that decision Member States were obliged to maintain at all times in spot dealings a margin upwards or downwards of not more than 2.25 % between their currencies. However, the pound sterling and the Italian lira remained outside the ‘currency snake’.
In view of this development the system of monetary compensatory amounts was changed in such a way that in those countries whose exchange rates exceed the lower limit of fluctuation permitted by international rules, monetary compensatory amounts are levied on exports and granted on imports. The basic Regulation (EEC) No 974/71 of the Council of 12 May 1971 (Official Journal, English Special Edition 1971 (I), p. 257) was appropriately amended by Regulation No 509/73 of the Council of 22 February 1973 (Official Journal L 50 of 23 February 1973, p. 1) with effect from 1 February 1973. The Commission adopted in Regulation (EEC) No 648/73 of 1 March 1973 (Official Journal L 64 of 9 March 1973, p. 1) implementing provisions for this purpose which entered into force on the third day following their publication in the Official Journal of the European Communities; however, the amounts resulting from their application had already been effective since 26 February 1973.
The monetary compensatory amounts were fixed by Regulation (EEC) No 649/73 of the Commission of 1 March 1973 (Official Journal L 64 of 9 March 1973, p. 7) which was to enter into force on the day of its publication in the Official Journal. The Official Journal in which it was published bore the date 9 March 1973 but was not available at the sales office in Luxembourg until 12 March and at the German post office for official publications until 13 March. Nevertheless, it was provided that the monetary compensatory amounts which had been fixed should be levied as from 26 February 1973. Certain wines were included for the first time in the monetary compensation system as a result of that regulation and this is of special significance in this case. In so far as the monetary compensatory amounts are relevant in these cases, they were varied by Regulation (EEC) No 741/73 of 5 March 1973 (Official Journal L 71 of 19 March 1973, p. 1). That regulation was to enter into force on the day of its publication in the Official Journal, which occurred on 19 March 1973; however, the new amounts had already been applicable since 5 March 1973. A further alteration was made by Regulation (EEC) No 811/73 of 23 March 1973 (Official Journal L 79 of 27 March 1973, p. 1). That alteration was to enter into force on the day of its publication in the Official Journal, that is 27 March 1973, and was applicable from 26 March 1973.
The proceedings which gave rise to the reference to the Court for a preliminary ruling in Case 98/78 concern Yugoslav wines which according to the plaintiff are quality wines and which on the basis of orders dated November 1972 and January 1973 and of contracts which provided for payment of the purchase price in German marks had been imported into the Federal Republic of Germany in December 1972 and January 1973 and placed in a private customs warehouse (offenes Zollager). When those wines were taken out of that warehouse and put into free circulation between 9 and 30 March 1973, monetary compensation was levied on the ground that the wines in question came under tariff headings 22.05 C I and 22.05 C II and in application of the beforementioned regulations.
The proceedings which gave rise to the reference to the Court for a preliminary ruling in Case 9/78 concern wine from Italy falling within tariff heading 22.05, which was cleared by customs and put into free circulation between 9 and 12 March 1973. Monetary compensation was also levied on this wine as provided for in the said regulations.
The attempts by the parties concerned to defeat this levy were of no avail whatsoever.
In the first case the Finanzgericht (Finance Court) Rheinland/Pfalz found that the fact that the contracts for the imports were expressed in German marks was immaterial. When the Commission fixed the monetary compensatory amounts for wine it did not exceed the discretion it has according to Regulation No 974/71. Nor is the retroactive fixing of the compensatory amounts invalid. As far as concerns Regulation No 649/73 which entered into force on 9 March 1973, the decisive fact is that the plaintiff had not removed any wine from its private customs warehouse before that date. With reference to the retroactive introduction of higher rates by Regulations Nos 741/73 and 811/73, it must be borne in mind that their application as from a later date might, because precipitate and voluminous imports were to be feared, have been detrimental to the Community and that on the basis of the exchange rates the parties concerned could have anticipated the date from which an alteration in compensatory amounts was to be expected.
In the second case the same Finanzgericht made an analogous decision in which it also pointed out that, as fas as concerns the retroactive alteration of the rates of compensation by Regulation No 741/73, the business circles involved ought to have borne in mind that Regulation No 974/71 provides for the alteration of compensatory amounts if the difference between the recognized parity of the national currency and the current rate of exchange as against the dollar changes by not less than one point.
At a later date the cases came before the Bundesfinanzhof (Federal Finance Court) on appeal on a point of law.
The appellant in the first case submitted that the prerequisite for monetary compensation is that, by reason of the change in the currency parity, a product might be imported at lower prices. That has not occurred in this case; since the contracts were expressed in German marks purchase at reduced prices is out of the question. Furthermore, under Regulation No 816/70 (Official Journal, English Special Edition 1970 (I), p. 234), when the offer price for imported wine is lower than the reference price, a special countervailing charge is imposed. However the reference price, the maintenance of which Yugoslavia has moreover guaranteed, is considerably higher than the activating price and it therefore provides increased protection for the intervention system. Accordingly it must be assumed that the intervention system of the common organization of the market in wine is protected by the system of reference prices and consequently cannot be thrown into confusion by imports from non-member countries. What is more, since the system of reference prices provides a system of intervention only for the protection of table wines, it is intended to cover only wine for immediate consumption. It is therefore not at all necessary to levy monetary compensation on quality wines from non-member countries. Finally, according to the existing statistics to which the plaintiff has access, the wine market cannot be said to have been disturbed by imports from non-member countries. In each case the retroactive application of the regulations of the Commission on monetary compensation must be regarded as out of the question.
The appellant in the second case complained in particular of the retroactive application of Regulation No 741/73. It is of the opinion that it was entitled to rely on the fact that the wines which it imported were not subject to monetary compensation. There has also been no proof that the short term economic development in the wine sector was adversely affected. In particular, the fact in this connexion that by decisions of the Federal Ministry of Finance of 15 January 1975 and 24 February 1975 a partial refund of the monetary compensatory amounts levied on wine was ordered is relevant.
As the orders making the references state, this reasoning raises various problems for the Bundesfinanzhof. On the one hand they relate, in the first case, to the question whether the fact that imported goods are subject to a levy is material and to the question whether the classification of the wines — either as wines for immediate consumption or quality wines — is relevant. On the other hand — and this applies to both cases — they relate to the question of the time when a Community regulation is to be regarded as published and whether the retroactive application of a regulation by which specific goods have been included for the first time in the monetary compensation system can be regarded as lawful. Therefore by order of 21 March 1978 the Bundesfinanzhof stayed proceedings and referred the following questions to the Court of Justice pursuant to Article 177 of the EEC Treaty for a preliminary ruling:
In Case 98/78
1. |
Are Regulations (EEC) Nos 649/73 of 1 March 1973, 741/73 of 5 March 1973 and 811/73 of 23 March 1973 of the Commission valid even in so far as they each fix in Annex I, No 6, monetary compensatory amounts for imported red and white wines under tariff subheadings 22.05 C I and C II without making any distinction between the two? |
In both cases
2. |
Is a regulation to be regarded as published within the meaning of Article 191 of the Treaty establishing the European Economic Community:
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3. |
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 removed from a private customs warehouse before the last-mentioned regulation was in fact published? |
4. |
If Question 3 is answered in the negative: was Regulation (EEC) No 649/73 of the Commission of 1 March 1973 applicable to the said wine? |
My views on these questions are as follows:
1. |
The question to be examined first only relates to Case 98/78. The validity of Regulations (EEC) Nos 649/73, 741/73 and 811/73 has to be considered with reference to the fact that they fixed compensatory amounts on wines without making any distinction between them. The specific problems which arise in this connexion are expressed in the grounds of the appeal judgment and the appellant's submissions during the oral procedure before this Court.
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2. |
The next question which has to be considered is common to both references. It asks for a ruling as to when Community regulations are to be considered as published. On this question the Commission has expressed the opinion that in cases where the presumption that the date of a particular copy of the Official Journal is the same as the date when it was available at the Office for Official Publications can be rebutted, the later date should prevail; in my opinion that view is correct. In fact, in support of the view that the date of the Official Journal is not determinative if it does not coincide with the actual issue of the Official Journal, reference has only to be made to the judgment of the Court of 31 March 1977 in Case 88/76 Société pour l'Exportation des Sucres SA v Commission of the European Communities ([1977] ECR 709), a case which turned specifically on the date of publication and in which the Court took the date of actual publication and not the date of the Official Journal as being decisive. If, on the basis of this assumption, one goes on to ask whether the availability of the Official Journal at the Office for Official Publications in Luxembourg or its availability in the Member States is to be considered to be determinative there is undoubtedly more to be said for the first mentioned alternative. There is no doubt that the objection drawn from the principle of legal certainty, namely that the relevant date cannot be ascertained for certain, cannot be raised against this solution. According to the statements of the Office for Official Publications, as soon as the versions in all the languages are available there, notice is immediately given and a record of this is entered on a register. At all events this obligation to register and the duty to provide appropriate information appears to have been in existence since 1974. Further, not only is care evidently taken to ensure that the exact date of availability to the public can be ascertained in this way but it also appears that provision has been made for guaranteeing access to the Official Journal as from that date and even at night. On the other hand, reference can be made in support of the Commission's view to the important fact that a uniform date of publication is thereby ensured for the entire Community; this could not be guaranteed even by the very best distributive organization if availability in the Member States were taken. Nor must it be forgotten that there would otherwise be considerable delays in publication which would be intolerable in the case of urgent decisions and that the possibility, which has also been acknowledged in the case-law of the Court (judgment of 13 December 1967 in Case 17/67 Firma Max Neumann v Hauptzollamt Hof/Saale ([1967] ECR 441) and the judgment in Case 74/74), of permitting regulations to enter into force on the day of publication in the Official Journal would be considerably reduced. Furthermore, the view is probably material that when the Official Journal is published in Luxembourg the legislature, since details thereof are available to any person making the appropriate arrangements, loses all power of control over the published text at least in this sense that a position of legitimate expectation is thereby established. Finally, it is of interest too that under the legal system of several Member States publication at a central office is also sufficient; where this is not the case, as for instance in France, there is nevertheless as an alternative the possibility of posting regulations on notice boards, which is ruled out under Community law — Article 191 of the EEC Treaty. This view, if adopted, means that in this case Regulation No 649/73 is to be regarded as having been published on 12 March 1973 and that as far as concerns Regulations Nos 741/73 and 811/73, in the case of which the issue of the Official Journal was not delayed, the dates of the Official Journals (19 March and 27 March) are the dates of publication. |
3. |
The next two questions to which I now turn are also in substance the same in both cases. They relate to the retroactive application of Regulations Nos 649/73 and 741/73 to the wines included for the first time in the monetary compensation system by Regulation No 649/73. In this connexion all that has to be taken into consideration is the fact that in the first case the wines in question were removed from a private customs warehouse before Regulation No 649/73 was actually published and that in the second case they had been directly imported before that date.
If we are to confine ourselves for the time being to Regulation No 649/73, reference must first be made to certain information which was published in the news service ereinigt ‘Vereinigte Wirtschaftsdienste’ of 20 and 21 February 1973. Attention was there drawn to the floating of the exchange rate of the lira and the pound sterling, Regulation No 974/71 as amended was published and the need to introduce monetary compensatory amounts with retroactive effect was mentioned. It is also significant that immediately after the monetary compensatory amounts were fixed (on 26 February 1973) an appropriate notice was displayed by the spokesman's group in Brussels. There is no doubt that many undertakings make arrangements to receive information of such announcements. Specialist business services also arrange for further rapid circulation thereof. On this aspect of the matter reference can again be made to the ‘Vereinigte Wirtschaftsdienste’, this time to statements in the issue of 28 February 1973 to the effect that the monetary compensatory amounts applicable from 26 February 1973 had already been circulated for several days by professional and trade organizations. It also appears to be relevant that a telex message containing the monetary compensatory amounts fixed by Regulation No 649/73 was sent on 26 February 1973 to the administrations of the Member States, and this in connexion with the statements of the representatives of the Member States on the Management Committee that the rates could be applied as from 26 February 1973. This meant that appropriate information could be sought from the competent authorities and that the amounts were immediately applied to import transactions which were effected from that day onwards, and consequently were not levied retroactively. It is true that the same does not apply to removal from a private customs warehouse in which the customs administration is not directly involved. However, as the Commission has justly observed, as far as that is concerned probably no other view is tenable and the reason for this is not only that undertakings which maintain such warehouses also regularly effect direct imports but also that the keeping of customs warehouses constitutes an advantage which for the parties concerned — as far as the protection of a legitimate expectation is concerned — is naturally not permitted to lead to any improvement in their position. Finally, the Commission was also right to point out that the way the question of retroactive effect, as so far stated, is dealt with cannot be affected by the fact that by a measure of 29 March 1973 the Federal Ministry of Finance arranged that during the period from 26 February to 8 March 1973 the increased monetary compensatory amounts were not to be levied on goods which had been included for the first time in the monetary compensation system; it also correctly stated that the fact that the extent of the retroactive effect had been slightly increased by the delayed issue of the Official Journal is of no significance. The said measure, which obviously came into being without the Commission's being consulted, in fact provided in any event for the full application of monetary compensation as from 9 March with the result that as from that date there could no longer be said to be a legitimate expectation in respect of the conduct of the German authorities. Furthermore, to the initiated the delay in issuing the Official Journal came as no surprise, for it was no secret that in the months of February and March 1973 the Office for Official Publications was for various reasons — because of the publication of a large number of documents on the occasion of the accession of three new Member States as well as the currency crisis — in a full state of emergency. If however this argument is held to be able to justify the retroactive effect of Regulation No 649/73, then the same reasoning also applies to Regulation No 741/73 which altered the compensatory amounts with effect from 5 March 1973. In this connexion it is important that the preconditions for a change in the monetary compensatory amounts existed as from 5 March 1973. It is also of interest that the ‘Vereinigte Wirtschaftsdienste’ of 28 February 1973 drew attention to the fact that the Commission, even before the notification of the rates applicable as from 26 February, had announced another alteration and that the new rates were to be applied as from 5 March but that it was doubtful whether any notification would be made in time. In addition, the deviations from parity with the dollar, on the basis of which the monetary compensatory amounts could at least be estimated, were also made public in that announcement. Those figures were also notified by telex on 5 March 1973 to the administrations of the Member States and a reference to the change in the monetary compensatory amounts was published in part C of the Official Journal of 5 March 1973. On the other hand, I must agree with the Commission that the fact that Regulation No 649/73, the rates whereof were to be altered by Regulation No 741/73, was not published until after the date from which the amended rates were to be applied, is to be regarded as unimportant. In my view the Commission has convincingly explained how this unusual situation arose. When the change in the rates due to the currency trend proved to be necessary, Regulation No 649/73 was already being printed; in order to avoid further delays, especially as it was impossible to say when publication in the Official Journal was to be expected, an immediate amendment of the regulation was abandoned. In fact under these circumstances the publication of Regulation No 649/73 cannot be said to have created a legitimate expectation, since well before the publication of the Official Journal of 9 March 1973 attention was drawn in the beforementioned Official Journal of 5 March 1973 to the changes in the compensatory amounts which had become necessary. I would therefore express the view that there is no reason why Regulations Nos 649/73 and 741/73 should not also be applied to wines which were made subject to monetary compensation for the first time by Regulation No 649/73 and which had been removed from a private customs warehouse or imported before the publication of that regulation. |
4. |
Accordingly I am of the opinion that the questions raised by the Federal Finance Court should be answered as follows :
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( 1 ) Translated from the German.