C-98/78

JUDGMENT OF 25. 1. 1979 — CASE 98/78

2. Within the framework of the common Official Journal containing the text of organization of the market in wine, that regulation. However, should reference prices, expressed in units of evidence be produced that the date on account, are to enable the prices of which an issue was in fact available wine from non-member countries to does not correspond to the date be brought to the level of prices which appears on that issue, regard within the Community, whereas the must be had to the date of actual pub- monetary compensatory amounts lication.

In Case 98/78

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

Firma A. Racke, Bingen am Rhein,

and

Hauptzollamt (Principal Customs Office) Mainz,

RACKE v HAUPTZOLLAMT MAINZ

JUDGMENT

Facts and Issues

The facts of the case, the procedure and under tariff subheadings 22.05 C I and the observations submitted pursuant to C II, which had been removed from its Article 20 of the Protocol on the Statute private customs warehouse. The Haupt- of the Court of Justice of the EEC may zollamt (Principal Customs Office) be summarized as follows: Mainz, the respondent in the main action, charged monetary compensatory amounts on that importation under Regu- I — Facts and procedure lations No 649/73 of the Commission of

1 March 1973 fixing the monetary 1. Between 9 and 30 March 1973 Firma compensatory amounts (Official Journal A. Racke, the appellant in the main L 64 of 9 March 1973, p. 7), No 741/73 action, put into free circulation Yugo- of the Commission of 5 March 1973 slavian red wine and white wine coming altering the monetary compensatory

JUDGMENT OF 25. 1. 1979 — CASE 98/78

amounts (Official Journal L 71 of 19 811/73 of 23 March 1973 entered into

(Official Journal L 79 of 27 March 1973, It is to be noted that "in order to remove p. 1). all possible doubt", the German Minister of Finance decreed that for the period 2. The appellant in the main action from 26 February to 8 March monetary lodged an objection against the charging compensatory amounts were not to be of those compensatory amounts. The charged on goods which had been objection was unsuccessful. The brought under the system for the first appellant then brought an action before time by Regulation No 649/73. the Finanzgericht (Finance Court) Rheinland-Pfalz, seeking repayment of 4. It appears from the order making the the monetary compensatory amounts reference that in its appeal on a point of charged by the Hauptzollamt. The law to the Bundesfinanzhof the appellant Finanzgericht dismissed the action. argued, first, that according to the The appellant then appealed to the preamble to Regulation No 974/71 of Bundesfinanzhof (Federal Finance the Council of 12 May 1971 on certain Court) against the decision of the Finanz- measures of conjunctural policy to be gericht. taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain 3. Annex I, No 6, to Regulation No 649/73 for the first time extended Member States (Official Journal, English monetary compensatory amounts to red Special Edition 1971 (I), p. 257) no such and white wine of the same kind as that compensatory amounts should be imposed on goods where the goods have imported by the appellant. Regulations not been imported at lower prices owing No 741/73 and No 811/73 adjusted the to fluctuations in the parities of said amounts to changes in the exchange rates of currencies. currencies. This is in particular the case if the import agreements were concluded According to Article 3 of Regulation No and executed in the currency the value of 649/73 of 1 March 1973, that regulation which had increased. entered into force "on the day of its pub- The appellant also argued before the lication in the Official Journal of the Bundesfinanzhof that the Community European Communities". It was pub- intervention system in the wine sector for lished in Official Journal L 64 which, which provision is made in Article 9 (3) although it bore the date of 9 March of Regulation No 816/70 of the Council 1973, was not available at the sales office of 28 April 1970 laying down additional of the Office for Official Publications provisions for the common organization of the European Communities until of the market in wine (Official Journal, 12 March 1973 owing to administrative English Special Edition 1970 (I), p. 234) difficulties. In Germany, it was must be regarded as being protected by distributed the following day. According means of the institution of reference to the said Article 3, the regulation prices against imports of wine at lower applied as from 26 February 1973. prices from non-member countries. As Regulation No 741/73 of 5 March 1973 numerous non-member countries have entered into force on 19 March 1973, guaranteed that they will comply with the day of its publication, but applied as from 5 March 1973. Regulation No

is demonstrably to be classified as quality 3. Was Regulation (EEC) No 741/73 of wine. the Commission of 5 March 1973 also

applicable to wine which was first In the light of the statistics produced by made subject to monetary the appellant it is submitted that it is compensatory amounts by Regulation impossible to speak of disturbances in the (EEC) No 649/73 of the Commission market in wine at the material time, of 1 March 1973 and which was either as regards wine in general or as removed from a private customs regards quality wine in particular; warehouse before the last-mentioned therefore the conditions imposed by regulation was in fact published? Regulation No 974/71 for the charging of monetary compensatory amounts were 4. If Question 3 is answered in the not fulfilled. negative: was Regulation (EEC) No 649/73 of the Commission of 1 Finally the appellant submits that the March 1973 applicable to the said Commission was not empowered to wine? declare that its regulations had retro- active effect.

5. By an order of 21 March 1978 the Bundesfinanzhof stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

JUDGMENT OF 25. 1. 1979 — CASE 98/78

6. The order making the reference was In the present case, it is irrelevant, lodged at the Court Registry on 26 April according to the Commission, whether 1978. the charging of monetary compensatory amounts did or did not result in a cost In accordance with Article 20 of the Protocol on the Statute of the Court of price higher than the reference price.

5/73 Balkan v Hauptzollamt Berlin- submission, that the monetary Packhof [1973] ECR 1091, the Court compensation system can be applied even acknowledged that only rules which are to "quality" wine coming from non- generally applicable to all imports or member countries: it is a question of a exports and which do not take account product coming within a common organi- either of the currency in which the zation of the market, the price of which contracts were concluded or of the time is a function of the price of products at which they were concluded appear covered by Community intervention objectively appropriate. arrangements (Article 1 (2) (b) of Regu- lation No 974/71); this follows from 2. In answer to the appellant's Article 1 (1) and Articles 8 to 14 of Regu- lation No 816/70. arguments, the Commission also observes that the fixing of reference prices and the Consequently, the Commission takes the charging of compensatory taxation are to view that in order to be able to answer

enable the prices of products coming Question 1, it is necessary, in accordance from non-member countries to be with Regulation No 974/71, to brought to the common level of agri- determine only whether in February and cultural prices. On the other hand, the March 1973 changes in exchange rates Commission submits that where fluc- of currencies might give reason to fear tuating exchange rates depart from the parity the monetary compensatory amounts system is to enable the differences recorded in agricultural prices in national currency following changes in exchange rates to be made up.

that disturbances in trade would appear regarded as published at the time of its (Article 1 (3)). publication by the Office for Official Publications in Luxembourg. The The Commission next explains the considerations which led it to introduce principle of legal certainty and the principle of equal treatment for all in Spring 1973 monetary compensatory traders require that regulations should amounts applicable to all red and white enter into force at the same time wine coming from non-member countries. In this connexion it states inter throughout the territory of the Community; anyone who takes the alia that as from 13 February 1973 the necessary steps can procure the Official depreciation of the Italian lira and the Journal upon its publication in Luxem- revaluation of the German mark gave bourg; as from that time, the legislature reason among other things to fear distur- bances in the French and German wine loses its unfettered authority over the text; if reference had to be made to the

Nevertheless in France in urgent cases publication may be carried out by means of posting-up. — Question 2 However, in the Commission's The Commission recalls that in its submission, the French example cannot judgment of 31 March 1977 in Case be followed by the Community 88/76, Société pour l'Exportation des institutions because the possibility of Sucres v Commission [1977] ECR 709, publishing by means of posting-up is not the Court held that the time at which a open to them. regulation is to be regarded as published within the meaning of Article 191 of the Treaty is the day of its actual publication

JUDGMENT OF 25. 1. 1979 — CASE 98/78

C — Questions 3 and 4 In the Commission's submission, there is no reason to protect advantages derived 1. The Commission recalls that the from inevitable administrative delays due Court has already expressly stated, in its to rapid changes in the monetary judgment of 7 July 1976 in Case 7/76, situation: on the contrary, it follows IRCA v Amministrazione delle Finanze from Article 3 of Regulation No 974/71 dello Stato [1976] ECR 1213, that Regu- that in the event of any appreciable lation No 649/73 validly applies with alteration in the international monetary effect from 26 February 1973. It none situation, it is to be expected that new the less states its views on the questions categories of goods will be brought referred for a preliminary ruling, because under the monetary compensation system in Case 7/76, unlike the present case, the with effect from the time when the

In this connexion, the Commission also refers to paragraph 24 of the decision of the Court in Case 7/76, IRCA (cited above).

RACKE HAUPTZOLLAMT MAINZ

the entry into force of the alterations In the Commission's submission, there is made to the system by Regulation No also no expectation deserving protection 509/73 of the Council of 22 February in the particular case concerning, in this 1973 (Official Journal L 50 of 23 instance, the removal of goods from a February 1973, p. 1); after the private customs warehouse during the Management Committee had on the period immediately preceding the pub- same day given its opinion on the re- lication of Regulation No 649/73: adjustment of the compensatory private customs warehouses generally amounts, and the Member States had belong to large undertakings which must declared that they would be able to apply keep themselves constantly informed about the general development of the those new amounts as from 26 February monetary situation. 1973, it appeared possible to the Commission to give effect to the 3. In the Commission's opinion, the measures adopted as from that date. fact that the Official Journal did not Since, owing to the accession of the new appear until 12 March 1973 is irrelevant Member States and to the monetary to the retroactive effect of the regu- crisis, it was not possible at that time lation: unlike Commission Regulation exactly to foresee when a regulation No 1579/76 (Official Journal L 172 of would appear in the Official Journal, 1 July 1976, p. 59) which was at issue in and since, having regard to the dramatic Case 88/76, Société pour l'Exportation situation, it was also not possible to des Sucres, Regulation No 649/73 accept delays in the entry into force of expressly provides that it applies even to the monetary measures decided upon, periods which have already elapsed at the Commission considered that it had to the time of its publication; the slight delay in the appearance of the Official extend the validity of certain of those Journal did not alter the situation measures to periods shortly prior to provided for. publication.

persons already knew about them before III — Oral procedure the rates in force as from 26 February 1973 had been published in the Official 1. The appellant in the main action, Journal; the Commission had not represented by F. Kreitmair, and the communicated the exact figures, but they Commission, represented by its Legal could be estimated on the basis of the Adviser, P. Gilsdorf, acting as Agent, changes in the exchange rates; finally, assisted by J. Sack, a member of its Legal Official Journal C 8 of 5 March 1973 Department, presented oral argument at contains a concise announcement the hearing on 14 November 1978. concerning the alterations made by Regu- W. Verheyden, Director of the Office lation No 741/73. for Official Publications of the European Communities, answered questions put to If, before the publication of a regulation, him by the Court. the attention of interested parties is drawn to the fact that it will be retro- 2. The appellant in the main action actively amended by another regulation submitted inter alia that for reasons coming shortly after it, the publication of pertaining to the rule of law the case-law the former regulation cannot, in the of the Court on monetary compensatory Commission's submission, provide amounts should not be followed. In this grounds for the protection of connexion it referred inter alia to the expectations concerning the maintenance judgments of the Court of 22 January of the situation which the former regu- 1976 in Case 55/75, Balkan v Haupt- lation brought into being, even if it zollamt Berlin-Packhof [1976] ECR 19, concerns periods which have elapsed. and of 25 May 1978 in Case 136/77, The Commission further observes that A. Racke v Hauptzollamt Mainz [1978] ECR 1245. such a procedure is unusual and requires special justification, since normally every In this connexion the appellant in the citizen can trust that a provision will not main action emphasized in particular that already be out of date when it enters into in the area in question the Commission force and that it cannot be amended with should not have any discretionary power retroactive effect. The Commission as regards inquiry into and determi- submits that in the present case nation of facts.

regulation illegal, even where a statement of reasons is given subsequently. 3. In essence the Commission repeated the arguments set out in its written obser- According to the appellant, there is also vations. a presumption of illegality where monetary compensation at the border is 4. The Court had asked the fixed in the long term, and this means Commission the following question: that the requirements are more stringent as regards the burden of proof on the "How can it be ascertained and proved Commission and the statement of the at what time an issue of the Official

monetary compensatory amounts were The Commission drew the Court's not charged on Community quality wine, attention in particular to the fourth because such wine did not come within indent of the said declaration, which is in the organization of the market in wine. the following terms: Therefore such wine was not regarded as having any effect on the Community market in table wines. Hence quality wine coming from non-member countries cannot have any effect on that market either.

Moreover, in adopting the regulations at issue, the Commission misjudged the

JUDGMENT OF 25. 1. 1979 — CASE 98/78

"The date of publication of an act shall of the Official Journal shall correspond be deemed to be the date on which the to that date."

Official Journal in which it is published is actually available in the four languages The Advocate General delivered his

at the sales office in Luxembourg. The opinion at the hearing on 6 December date of publication borne by each issue 1978.

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?"

3 Annex I, No 6, to Regulation No 649/73 of the Commission of 1 March 1973 fixing the monetary compensatory amounts (Official Journal L 64 of

RACKE HAUPTZOLLAMT MAINZ

9 March 1973, p. 7) for the first time extended the system of monetary compensatory amounts to wine of the type in question, and Regulations No 741/73 of the Commission of 5 March 1973 (Official Journal L 71 of 19 March 1973, p. 1) and No 811/73 of the Commission of 23 March 1973 (Official Journal L 79 of 27 March 1973, p. 1) adjusted the amounts to changes in the exchange rates.

The appellant in the main action claimed that, by thus extending the scope of the monetary compensatory amounts, the Commission failed to observe the conditions prescribed in the basic Regulation No 974/71 of the Council, from which it emerges, first, that the power to charge or grant monetary compensatory amounts can be exercised only when changes in the exchange rates of currencies would bring about disturbances in trade in agricultural products.

4 In this connexion, it is for the Commission, acting according to the procedure known as the Management Committee procedure, to decide as to the existence of a risk of disturbance.

JUDGMENT OF 25. 1. 1979 — CASE 98/78

It does not appear that, in this general assessment of the situation and of the kind of measures required, the Commission was guilty of manifest errors or that it otherwise exceeded the general bounds of its discretion under the relevant rules.

7 However, the appellant in the main action accuses the Commission of having failed to observe certain more specific conditions resulting from those rules.

In this connexion, the appellant alleges that the charging of such amounts is not justified in cases, such as the present one, where the import contract was concluded before the currency changes in a currency subsequently revalued, so that the goods could not be imported at a reduced price owing to the change in the exchange rates.

8 This ground of complaint cannot be upheld, because, as the Court has already held in its judgment of 24 October 1973 (Case 5/73 Balkan-Import- Export GmbH [1973] ECR 1091), the practicability of the compensatory amounts system requires general rules which apply to all imports or exports and which do not take account of particular details in contracts such as the currency in which they were concluded or the time at which they were concluded.

9 The appellant in the main action also argues that the charging of monetary compensatory amounts on imports of wine from non-member countries is unjustified in cases, such as the present one, where importation is subject to observance of the reference price or to the charging of a levy under Article 9 of Regulation No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organization of the market in wine (Official Journal, English Special Edition 1970 (I), p. 234).

It is claimed that that condition is not fulfilled in the present case, since under Regulation No 816/70 the common organization of the market in wine provides intervention measures only for table wine, excluding quality wine.

12 However, this line of argument does not take account of the precise meaning of these concepts as it emerges from the Community rules in the wine sector.

In this connexion it is important to note that the two concepts of "table wine" and "quality wines produced in specified regions" referred to in Article 1 (4) (b) and (5) of Regulation No 816/70 apply only to products originating in the Community, whereas the Community rules do not define any special concept of "quality wine" coming from third countries as distinct from the concept of "table wine".

It must be inferred from this that for the purposes of Community rules, in particular those relating to the monetary compensatory amounts system, any wine coming from a non-member country is — in the absence of any exception providing otherwise, an issue not raised in this case — to be treated as table wine.

13 Therefore the answer should be that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Regulations No 649/73 of the Commission of 1 March 1973, No 741/73 of 5 March 1973 and No 811/73 of 23 March 1973 in so far as they fixed monetary

JUDGMENT OF 25. 1. 1979 — CASE 98/78

(c) at the time when the Official Journal in question is actually available in the territory of the particular Member State?”

15 Article 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 pub- lication 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.

"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?

"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?”

19 The 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 pub- lication 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.

JUDGMENT OF 25. 1. 1979 — CASE 98/78

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.

RACKE HAUPTZOLLAMT MAINZ

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.

21 Therefore 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

OPINION OF MR REISCHL — CASE 98/78

validity of Regulations No 649/73 and No 741/73 in so far as they were made applicable from 26 February 1973 and 5 March 1973 respectively.

2. 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.

Kutscher Mertens de Wilmars Mackenzie Stuart Donner Pescatore

Sørensen O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 25 January 1979.

Until the beginning of 1973 the system ation. The Italian authorities also

of monetary compensatory amounts was suspended intervention as the lira

1 — Translated from the German.