C-99/78

JUDGMENT OF 25. 1. 1979 — CASE 99/78

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,

DECKER v HAUPTZOLLAMT LANDAU

JUDGMENT

Facts and Issues

The facts of the case, the procedure and No 741/73 adjusted the said amounts to the observations submitted pursuant to changes in the exchange rates of Article 20 of the Protocol on the Statute currencies.

of the Court of Justice of the EEC may According to Article 3 of Regulation No be summarized as follows: 649/73 of 1 March 1973, that regulation entered into force "on the day of its pub- lication in the Official Journal of the I — Facts and procedure European Communities". It was published in Official Journal L 64 which, 1. On 9 and 12 March 1973 the under- although it bore the date of 9 March taking Gustav Decker, the appellant in 1973, was not available at the sales office the main action, imported wine coming of the Office for Official Publications of under subheading 22.05 of the Common the European Communities until 12 Customs Tariff into Germany from Italy. March 1973 owing to administrative The Hauptzollamt (Principal Customs difficulties. In Germany, it was Office) Landau, the respondent in the distributed the following day. According main action, charged monetary to the said Article 3, the regulation compensatory amounts on the import- applied as from 26 February 1973. ation of those products under Regulation No 741/73 of the Commission of 5 Regulation No 741/73 of 5 March 1973 entered into force on 19 March 1973, March 1973 altering the monetary compensatory amounts (Official Journal the day of its publication, but applied as from 5 March 1973. L 71 of 19 March 1973, p. 1)

had not been adopted. open the oral procedure without any preparatory inquiry. 5. By an order of 21 March 1978 the Bundesfinanzhof stayed the proceedings and referred the following questions to II — Written observations sub-

opinion corresponds in essence to the 6. The order making the reference was situation in most of the Member States, lodged at the Court Registry on 26 April in which actual delivery of the national 1978. official publication to a central organ- In accordance with Article 20 of the ization suffices to allow legislative Protocol on the Statute of the Court of

Justice of the EEC, written observations were submitted by the Commission of the European Communities.

DECKER HAUPTZOLLAMT LANDAU

provisions to enter into force in the period. In its submission, if that regu- whole of the country. The situation in lation was not applicable at that time, the France is however an exception, because same is true a fortiori of Regulation No laws and decrees enter into force in Paris 741/73.

in principle one day after their publi- cation in the French Journal Office, and 2. On the issue of the retroactive effect

as regards the rest of the national of Regulation No 649/73, the territory in principle one day after the Commission states that the case-law of

answer to Question 1 is the one which it suggests, Question 2 concerns the period from 5 to 11 March 1973. It adds that

for the purpose of the decision in the main action, the relevant period is from 9 to 11 March 1973.

The Commission then studies the validity of Regulation No 649/73 for the latter

JUDGMENT OF 25. 1. 1979 — CASE 99/78

existing legal situaton will be maintained. measures could only be very limited. However, the Commission submits that Even before the regulations in question before the publication of the measure were published, the Commission had adopted in the Official Journal, it can itself sent the text of them to the

prevent such an expectation from arising administrative authorities in the Member

letting it be understood that a decision is February 1973. At that time the said imminent. expectation had already ceased to exist for another reason: the Commission had Applied to the present case, these general considerations lead the Commission to made it known that retroactive charging of the compensatory amounts was to be the following conclusions: foreseen for short periods, as appears Owing to alterations which it was from the information issued by the essential to make to the monetary "Vereinigte Wirtschaftsdienste". compensation system following the fall in the lira as from 13 February 1973, new 3. In the Commission's opinion, the amounts could not be fixed until after fact that the Official Journal did not the entry into force of the alterations appear until 12 March 1973 is irrelevant made to the system by Regulation No to the retroactive effect of the regu- 509/73 of the Council of 22 February lation: unlike Commission Regulation 1973 (Official Journal L 50 of 23 No 1579/76 (Official Journal L 172 of 1 February 1973, p. 1); after the Manage- July 1976, p. 59) which was at issue in ment Committee had on the same day Case 88/76, Société pour l'Exportation given its opinion on the readjustment of des Sucres, Regulation No 649/73 the compensatory amounts, and the expressly provides that it applies even to Member States had declared that they periods which have already elapsed at would be able to apply those new the time of its publication; the slight amounts as from 26 February 1973, it delay in the appearance of the Official appeared possible to the Commission to Journal did not alter the situation give effect to the measures adopted as provided for. from that date. 4. In the Commission's submission, the Since, owing to the accession of the new validity of Regulation No 741/73 for the Member States and to the monetary period beginning on 12 March 1973 may crisis, it was not possible at that time be inferred from the judgment of the exactly to foresee when a regulation Court in Case 7/76, IRCA (cited above). would appear in the Official Journal, and since, having regard to the dramatic In the Commission's opinion, the situation, it was also not possible to application of that regulation to the accept delays in the entry into force of period from 9 to 11 March 1973 cannot the monetary measures decided upon, be objected to either: the material the Commission considered that it had to conditions for an alteration of the

monetary compensatory amounts fixed 5. According to the judgment of the by Regulation No 649/73 had been Court in Case 7/76, IRCA (cited above), fulfilled since 5 March 1973; on 5 March the extension of the validity of Regu- 1973 the Commission had informed the lation No 811/73 to a short period prior administrative authorities in the Member to its publication in the Official Journal States by telex of the new amounts cannot give rise to any objections. applicable, and it appears from the infor- mation distributed by the "Vereinigte Wirtschaftsdienste" that interested per- III — Oral procedure sons already knew about them before the rates in force as from 26 February 1973 1. The appellant in the main action, had been published in the Official represented by C. Schulz-Knappe, and Journal; the Commission had not the Commission, represented by its Legal communicated the exact figures, but they Adviser, P. Gilsdorf, acting as Agent, could be estimated on the basis of the assisted by J. Sack, a member of its Legal changes in the exchange rates; finally, Department, presented oral argument at Official Journal C 8 of 5 March 1973 the hearing on 14 November 1978. contains a concise announcement con- W. Verheyden, Director of the Office cerning the alterations made by Regu- for Official Publications of the European lation No 741/73. Communities, answered questions put to him by the Court. If, before the publication of a regulation, the attention of interested parties is 2. The appellant in the main action drawn to the fact that it will be retro- submitted inter alia that the importation actively amended by another regulation of 9 March was not caught by the coming shortly after it, the publication measures at issue, because on that date of the former regulation cannot, in Regulations Nos 649 and 741/73 had the Commission's submission, provide not yet been published and importers grounds for the protection of expec- were not to expect these regulations to tations concerning the maintenance of be retroactive. the situation which the former regulation brought into being, even if it concerns The appellant further took the view that periods which have elapsed. the importation of 12 March was also not caught because on that date Regu- The Commission further observes that lation No 649/73 was not yet available, such a procedure is unusual and requires at least in the territory of the Federal special justification, since normally every Republic of Germany. citizen can trust that a provision will not already be out of date when it enters into 3. In essence the Commission repeated force and that it cannot be amended with the arguments set out in its written obser- retroactive effect. The Commission vations. submits that in the present case consideration of the critical monetary developments in Spring 1973 and the emergency situation prevailing at the time of the publication of the Official Journal required an exception. In the circumstances of this case it would have

to a statement by the Office for Official attention in particular to the fourth Publications in the following terms: indent of the said declaration, which is in "Precisely with the aim of determining the following terms: the date of publication of issues of the "The date of publication of an act shall Official Journal within the meaning of be deemed to be the date on which the the Declaration of the Councils of 23 Official Journal in which it is published January 1967, the Office for Official is actually available in the four languages Publications keeps a register of the dates at the sales office in Luxembourg. The and times of arrival of each language date of publication borne by each issue version. The staff of the Office for of the Official Journal shall correspond Official Publications have instructions to to that date." post each part up as soon as it has arrived: sample checks to supervise The Advocate General delivered his

observance of this provision have never opinion at the hearing on 6 December found it wanting." 1978.

Decision

1 By 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.

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

3 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 imported before the last-mentioned regu- lation 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?"

7 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.

DECKER HAUPTZOLLAMT LANDAU

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.

JUDGMENT OF 25. 1. 1979 — CASE 99/78

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.

9 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

DECKER HAUPTZOLLAMT LANDAU

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.

Kutscher Mertens de Wilmars Mackenzie Stuart Donner Pescatore

Sørensen O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 25 January 1979.

A. Van Houtte H. Kutscher