C-137/85

On 22 January 1981, 30 June 1981 and 17 As soon as the products were placed under July 1981, the Bundesanstalt für landwirt- customs control, the defendant in the main schaftliche Marktordnung (hereinafter proceedings released the security lodged in referred to as 'BALM' or 'the defendant in respect of the export licences, in accordance the main proceedings') issued three export with the combined provisions of Articles licences for products coming under the 29 (b), 30 (1) (b) and (2) and the fourth common organization of the market in indent of Article 22 (1) (b) of Commission cereals (glucose and maize starch powder) Regulation No 3183/80 of 3 December to the plaintiffs in the main proceedings 1980 laying down common detailed rules after the latter had lodged the security for the application of the system of import intended to ensure fulfilment of the under- and export licences and advance fixing taking to export during the validity of the certificates for agricultural products.2 licences. Subsequendy, the plaintiffs in the main proceedings placed the basic products concerned under customs control within the meaning of Article 4 of Council Regulation It subsequently appeared that in regard to No 565/80 of 4 March 1980 on the advance part of the goods in question the plaintiffs payment of export refunds in respect of in the main proceedings had not complied agricultural products. 1 with the time-limits contained in Article 11 of Commission Regulation No 798/80 of 31 March 1980 laying down general rules on the advance payment of export refunds and That regulation concerns basic products positive monetary compensatory amounts in which are to be processed before export. It respect of agricultural products. 3 makes it possible to pay to traders an amount equal to the export refund 'as soon as the basic products are placed under customs control ensuring that the processed The defendant in the main proceedings took products or the goods will be exported the view that the circumstances were those within a set time-limit' (Article 4). referred to in Article 42 (1) of Commission Regulation No 3183/80, that is to say, the plaintiffs in the main proceedings had not fulfilled their obligation to export in respect Persons seeking to benefit from that scheme of the quantities of products concerned. The must lodge security with the customs auth- defendant therefore considered itself orities guaranteeing reimbursement of an entitled, under Article 42 (3) of that regu- amount equal to the amount paid, plus 20% lation, to apply mutatis mutandis the (Article 6 of the regulation). The plaintiffs provisions of the second indent of Article * Translated from the French. 2 — Official Journal 1980, L 338, p. 1. 1 — Official Journal 1980, L 62, p. 5. 3 — Official Journal 1980, L 87, p. 42.

The Verwaltungsgericht (Administrative B — The legal nature of the security Court) Frankfurt am Main, before which the plaintiffs in the main proceedings The premise (repayment of the security = brought an action against the decision criminal penalty) adopted by the national demanding repayment of the export court is contrary to the Court's case-law. security, asks the Court of Justice to reply to the following question: In its judgment of 17 December 1970,6 the Court stated, at paragraphs 17 and 18: 'Does the second indent of Article 38 (1) (c) of Commission Regulation 'The plaintiff in the main action also points (EEC) No 3183/80 of 3 December 1980 out that forfeiture of the deposit in the infringe superior rules of Community law event of the undertaking to impon or inasmuch as it is to be regarded as a export not being fulfilled really constitutes a measure imposing a sanction?' fine or a penalty which the Treaty has not authorized the Council and the Commission to institute. The statement of the reasons on which the order for reference is based show that the national court adopted the premise that the This argument is based on a false analysis of second indent of Article 38 (1) (c) of the system of deposits which cannot be Regulation No 3183/80 implies the equated with a penal sanction, since it is application of a sanction of a criminal merely the guarantee that an undertaking nature. That is not in accordance with the voluntarily assumed will be carried out'. general principles of law in dubio pro reo and nulla poena sine culpa nor with the 5 — Sec, for example, the judgment of 16 December 1981 in Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph principle of proportionality. Those prin- 15; the judgment of 14 February 1984 in Case 278/82 Rewe v Hauptzollämter Flensburg, Itzehoe and Lübeck-West ciples, which are applicable in the criminal [1984] ECR 721, pararaph 8; the judgment of 28 June law of the Member States, are also binding 1984 in Case 180/83 Moser v Land Baden-Württemberg [1984] ECR 2539, paragraph 6; the judgment of 12 June in Community law by virtue of the 1986 in Joined Cases 98, 162 and 258/85 Bertini and judgment of the Court of 14 May 1974.4 Another v Regione Lazio and Another [1986] ECR 1885, paragraph 8. 6 — Judgment of 17 December 1970 in Case 11/70 Interna- 4 — Judgment of 4 May 1974 in Case 4/73 Noldv Commission tionale Handelsgeseüschajt v Einfuhr- und Voratssteüe fur [1974] ECR 491, paragraph 13. Getreide und Futtermittel [1970] ECR 1125.

Such reasoning cannot be accepted in Once an undertaking has not been fulfilled regard to security either. It is true that a and can no longer be fulfilled, and the Community regulation is not the same thing security lodged in order to guarantee as a civil contract. It is clear that the obli- fulfilment of that undertaking is retained by gation to export undertaken by Maizena is, the competent authority, it ceases to be in regard to its voluntary nature, not exactly security and becomes a penalty. That is so a the same thing as the obligation undertaken fortiori when the security has already been by a building contractor. 8 Maizena could released. In both cases, exportation within not have refused to lodge security if it the time-limit laid down is no longer wished to export, whereas at least in theory possible. However, if in the first case the a building contractor can refuse to accept penalty is not of a criminal nature, it cannot the penalty clause. be of a criminal nature in the second case either. There is in fact no difference in the legal nature of the two situations. I therefore agree with P. Tiedemann and R. Barents 9when they state that the security

The Commission is right to emphasize that 8 — See P. Tiedemann: 'Das Kautionsrecht der EWG — ein verdecktes Strafrecht?", Neue Juristische Wochenschrift, it may be concluded from the judgments in 1983, pp. 2727-31. 9 — R. Barents: The system of deposits in Community agri- cultural law: efficiency v proportionalii', European Law 7 — Case 117/83 [1984] ECR 3291, atp. 3302. Review, August 1985, pp. 239-249.

It seems to me therefore that R. Barents is right when he proposes to treat the system of deposits 'as a separate administrative law phenomenon and to solve the problem of The very similar characteristics of the rules legal protection within this framework. This on the provision of security in agricultural is what the Court has done in its basic matters, far from being the expression of an decision on the law of deposits in Case archaic mentality 11 thus correspond to a 11/70' (p. 242 of the article cited). trend in modern law.

Furthermore, the Commission rightly draws attention to the fact that the national legal Not all Community law instruments can be systems also have rules, particularly in viewed purely and simply in terms of regard to customs and taxation, under existing concepts of the national legal which 'negative economic consequences (in systems, and even within the latter systems, the form of obligations to pay a sum of economic development has led to the estab- money) are associated in many cases, in the lishment of special bodies of rules which public interest, with certain conduct which come within neither the pre-established is not necessarily illegal (or even punishable)' (Part III, Section 3 (a) of the 10 — Official Journal 1985, L 210, p. 29. Commission's observations. 11 — See the aniele by P. Tiedemann, cited above, at p. 2727.

OPINION OF MR MISCHO — CASE 137/85

categories of civil law nor those of criminal C — Validity of Article 38 (1) (c) of Regu- law. lation No 3183/80

MAIZENA v BALM

BALM's demand for repayment of the security thus rests on a clear and unam- The plaintiffs in the main proceedings also biguous legal basis. claim that they are being punished twice on the basis of the same facts because the 14 — Judgment of 17 May 1984 in Case 83/83 Estel v security provided for in Article 6 of Regu- Commission [1984] ECR 2195; the Court mentioned the principle in the judgments of 28 March 1984 in Case 8/83 lation No 565/80, lodged where the goods Bertoli vCommission [1984] ECR 1649, paragraph 27, and are to be processed, is also intended to of 3 March 1982 in Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 29. ensure the export of the goods.

OPINION OF MR MISCHO — CASE 137/85

In Internationale Handelsgesellschaft, the Verwaltungsgericht Frankfurt asked Even in criminal law, it is for the accused to whether the system of deposits was lawful indicate the justification on which he relies, inasmuch as forfeiture of the deposit was to describe in detail what occurred and to excluded only in cases of force majeure. put forward all the evidence available to him. H e thereby initiates an exchange of arguments with the public prosecutor, who, The Court replied as follows to that for his part, will attempt to prove, in so far question: as is necessary, that the facts alleged are not of such a nature as to exonerate the accused. In the end it is the party who has 'It therefore appears that by limiting the the better arguments who will be successful. cancellation of the undertaking to export and the release of the deposit to cases of force majeure the Community legislature T o my mind, it is a fortiori perfectly adopted a provision which, without compatible with the fundamental rights of imposing an undue burden on importers or the individual that there should be an exporters, is appropriate for ensuring the analogous procedure with regard to the normal functioning of the organization of system of security, except that in the latter the market in cereals, in the general interest case the discussion takes place at the first as defined in Article 39 of the Treaty. It stage between the importer or exporter and the intervention agency, and is carried on, if 15 — Judgment of 5 February 1987 in Case 288/85 Hauptzolkmt necessary, not before a criminal court but HambuTĮ-Jonas v Piange Kraftfiitterwerkt [1987] ECR 611, paragraph 14. before an administrative or civil court.

As I have already stated, the Court is In that regard, I can only repeat that in this confronted here with a case in which the case the Court is concerned with a system applicable legislation leaves no place for any of objective liability in the context of which assessment of the reasons underlying the any reference to the concept of subjective failure to fulfil the obligation to export, fault is excluded. except in the event of force majeure. The penalty laid down is not in the nature of a 'poena', that is to say, a criminal sanction. Article 38 cannot therefore be regarded as All that remains, therefore, is to consider invalid on the ground that it infringes the the argument put forward by the Verwal- principle of proportionality. tungsgericht Frankfurt to the effect that penalties cannot be imposed on a legal person. In closing, I should like simply to remind the Court that, largely under the influence However, Community law permits in of its case-law, Community legislation has certain cases the imposition of genuine fines been drafted in such a manner as to make it on legal persons. I have already referred 14 possible in each instance to take account of to cases in which the Court confirmed the the nature of the obligation infringed and fines imposed by the Commission on steel the extent of that infringement. undertakings. Article 15 of Regulation No 17 of the Council, 17 according to which 'the Commission may .. . impose on under- takings or associations of undertakings Reference should be made in that regard to fines . . . ', may also be cited. Commission Regulation No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of The same principle must be all the more securities for agricultural products (Official applicable where the penalty is not a fine Journal, L 205, 3.8.1985, p. 5). That under criminal law. measure, which applies to all agricultural sectors, draws a distinction between 14 — Judgment of 17 May 1984 in Case 83/83 Estei v principal, secondary and subordinate Commission [19841 ECR 2195; the Court mentioned the principle in the judgments of 28 March 1984 in Case 8/83 requirements. Bertoliv Commission [1984] ECR 1649, paragraph 27, and of 3 March 1982 in Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 29. 16 — Case 4/68 Schwarzwaldmilch v Einfuhr- und Vorratsstelle für Fette [1968] ECR 377, at p. 386. The system of security is thus marked by 17 — Official Journal, English Special Edition 1959-62, p. 87. less rigidity than was once the case.