C-217/88

COMMISSION v GERMANY

O P I N I O N OF MR A D V O C A T E GENERAL JACOBS delivered on 15 M a y 1990 *

My Lords, quantity between the different regions of production and between the producers established in each region and the categories of producers relieved of the obligation to distil. By Regulation (EEC) No 148/85 1. This case raises a point of principle (Official Journal 1985 L 16, p. 32) it concerning the obligations of Member ordered the distillation of 12 000 000 hi of States to give effect to Community regu- table wine, of which 68 322 hi were to be lations. distilled by German wine-growers.

* Original language: English.

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OPINION OF MR JACOBS — CASE C-217/88

wine that should have been distilled in Germany, however, submits that the Germany, only 9 140 were in fact distilled. application is admissible only in so far as it relates to its conduct in the specific circum- stances of the 1984/85 wine-growing year.

7. The Commission took the view that Germany's failure to take any further action to force the German wine-growers to participate in the scheme for compulsory 9. The Commission's approach in my view distillation constituted a breach of Article confuses two different things. For the 64(1) of Regulation No 337/79 and of purpose of the present proceedings, it is Article 5 of the EEC Treaty. It therefore set sufficient to examine, on the substance of in motion the procedure laid down in the case, the conduct of the German auth- Article 169 of the Treaty. In response to the orities in 1985. The fact that they might Commission's letter and reasoned opinion behave in a similar way in the future, and Germany denied that its conduct amounted have expressed their intention of doing so to a failure to fulfil obligations under unless the Court rules to the contrary, is Community law. The Commission therefore certainly relevant to establish the interest of lodged an application at the Court on the Commission in pursuing these 2 August 1988. proceedings; but it is unnecessary to include in the subject-matter of these proceedings either the general attitude of the German Government or the issue how it may act in the future. In so far as a similar situation should arise in the future, the ruling of the Court in this case will determine the issues. Admissibility I therefore consider that the application should be declared admissible only in so far as it relates to the German authorities' specific conduct in the 1984/85 wine- growing year.

Substance lation No 337/79 (Article 47(1) of Regu- lation No 822/87) excludes them from the benefit of certain intervention measures for the following campaign. The German Government maintains that this sanction is exhaustive and thus precludes recourse to 11. As regards the substance, the coercive measures under national law. On Commission's case is very simple. It this point it cites two judgments: Case maintains that, by virtue of the general duty 40/69 Hauptzollamt Hamburg v Bollmann of cooperation imposed on the Member [1970] ECR 69 and Case 50/76 Amsterdam States by Anicie 5 of the Treaty and the Bulb v Produktschap voor Siergewassen specific duty imposed by Article 64(1) of [1977] ECR 137. Regulation No 337/79, Germany was not entitled to abandon the attempt to enforce compulsory distillation when 506 of the 614 German wine-growers appealed against the notices requiring them to distil. It should, according to the Commission, have done 14. I do not find that argument at all everything possible under national law to convincing. In my view, the German compel the recalcitrant wine-growers to Government has failed to show why the comply with their obligations under sanction provided for in Article 6(1) of Community law. In particular, it should Regulation No 337/79 should have the have ordered the immediate enforcement of exhaustive effect attributed to it. Article 6(1) the 506 distillation notices, pursuant to is located in Title I of the regulation, which Article 80(2) of the German Code of bears the heading 'Prices and intervention'. Administrative Procedure (Verwaltungs- As amended by Article 1 of Regulation gerichtsordnung). No 2144/82, it provides as follows:

15. If the German Government's argument concerning the exhaustive nature of Article 6(1) were accepted, it would mean that none of the obligations or prohibitions laid down in Articles 39 to 41 could be enforced by any means other than exclusion from the benefit of intervention measures under 17. In its judgment in that case the Court Article 6(1). It would mean for example that stated (at paragraph 33) that 'in the absence the national authorities would be unable to of any provision in the Community rules apply for a court order restraining wine- providing for specific sanctions to be growers from infringing those prohibitions. imposed on individuals for a failure to Wine-growers would thus be allowed to observe those rules, the Member States are engage in oenological processes that are competent to adopt such sanctions as appear prohibited by Community law and the to them to be appropriate'. national authorities would have no means of preventing them from so doing, unless of course the sanction provided for in Article 6(1) proved effective. I cannot see anything in the wording of Article 6(1) or in the scheme of the regulation to justify such a conclusion. On the contrary, the German Government's argument runs directly counter to the express terms of Article 18. Presumably the German Government 64(1), which requires Member States to take cites that judgment with a view to estab- 'all necessary measures to ensure compliance lishing a contrario that, where the with Community provisions in the wine Community rules do provide for specific sector'. sanctions, the Member States no longer have the power to adopt sanctions under national law. That might be so where a regulation provided for a complete set of sanctions intended to exclude any provision for sanctions under national law, as in the example given by Advocate General 16. Nor is the German Government's Capotorti (loc. cit.) of the sanctions contention supported by the case-law that it provided for by Regulation N o 17 for cites. In the Bollmann judgment the Court breach of the EEC competition rules.

19. Such an inference cannot, however, be 22. The Court thus set out a principle of drawn from Article 6(1) of Regulation administrative law which may be described No 337/79, which merely denies the benefit as the principle of legality. A related of certain intervention measures to principle, in the field of criminal law, producers who fail to comply with some of requires that no one can be punished unless the obligations arising from the regulation. the offence in question was expressly As the Commission has pointed out, there prohibited by law at the time of its was no guarantee that that particular commission and the penalty imposed was sanction would in all circumstances be likewise expressly provided for by law: effective and indeed it seems to be common nullum crimen sine lege and nulla poena sine ground that, owing to the situation on the lege. I do not see how that principle of law German wine market in the years after could have been invoked by the German 1985, the sanction proved singularly inef- wine-growers in the circumstances of the fective in the circumstances of the present present case if the German authorities had case. Regulations must be interpreted to attempted to enforce the distillation notices render them effective, not the reverse; but against them. the German Government's argument would be liable, as the present case shows, to render the regulation ineffective. And, once again, the argument cannot be reconciled with Article 64(1) of the regulation, which requires Member States to take all necessary measures to ensure compliance with the Community provisions. 23. In the first place, it is questionable whether an order requiring someone to perform an obligation imposed by law can be equated with a penalty, even though (b) The argument based on the principle of defiance of such an order may lead ulti- legality mately to the imposition of a penalty. Secondly, in the present case the obligations incumbent on the German wine-growers were clearly spelt out in the Community legislation, in particular by Article 41 of 20. The German Government's second Regulation No 337/79, as amended, and by argument is that it is not permissible to have the provisions of Regulation No 147/85, recourse to coercive measures under and the Member States were clearly under a national law unless such a possibility is duty to enforce those obligations by all expressly provided for by a specific means available to them under their national provision of Community law. On this point, legal systems. That is simply a consequence it cites the Court's judgment in Case 117/83 of the direct applicability of regulations Köneckev BALM [1984] ECR 3291. under Article 189 of the Treaty. By virtue of that direct applicability, the obligations imposed by regulations are directly enforceable. Strictly speaking, therefore, the duty of Member States to take all necessary 21. In that judgment the Court held that a measures to enforce such obligations is penalty, even of a non-criminal nature, inherent in the very nature of a regulation, cannot be imposed unless it rests on a clear and Article 64(1) of the regulation in issue and unambiguous legal basis. in this case can be regarded as spelling out,

for the avoidance of any possible doubt, (c) The arguments based on proportionality what would in any event be required of and on certain features of German adminis- Member States. As regards the procedures, trative law and if necessary the sanctions, to be used by the Member States, those are, in the absence of specific Community provisions, a matter for national law: Community law requires only that the procedures followed, and if necessary the sanctions imposed, should be 26. The government's remaining arguments effective. Those principles apply both where are not clearly distinguished in the pleadings the Community provisions confer rights on and I will take them together. The the individual and where they impose obli- government maintains that the German gations on him: see for example authorities would have incurred a dispro- Case 265/78 Ferwerda v Produktschap voor portionate administrative burden if they had Vee en Vlees [1980] ECR 617, at p. 629, been required to order the immediate paragraph 10, and Joined Cases 66/79, enforcement of the 506 distillation notices 127/79 and 128/79 Amministrazione delle and defend that decision against the finanze v Salumi [1980] ECR 1237, at numerous appeals that would inevitably p. 1263, and compare Case 68/88 have ensued. It points out that the quantity Commission v Greece [1989] ECR 2965 and of wine to be distilled by German wine- the Opinion of Advocate General Van growers was insignificant in relation to the Gerven in Case C-326/88 Anklagemyn- total amount to be distilled throughout the digheden (Ministère public) v Hansen & Søn Community. Moreover, the second I/S, point 8, [1990] ECR 1-2911. subparagraph of Article 41 of Regulation No 337/79 as amended provides that 'compulsory distillation shall be decided on only if such distillation does not entail a disproportionate administrative burden'. In addition, the ninth recital in the preamble to Regulation No 2144/82 states that implementation of the compulsory distil- 24. It is plainly unnecessary for a lation programme must not involve an Community regulation to provide expressly, administrative burden out of proportion to as the German Government's argument the results aimed at in terms of quantity. appears to suggest, that the obligations it The effect of Article 64(1) of Regulation imposes are enforceable. Moreover it would No 337/79 and of Article 5 of the Treaty be impracticable and indeed undesirable for is only, according to the German Community regulations to contain specific Government, to require Member States to provisions laying down the procedures and take such measures as are, in the circum- the sanctions by which such obligations are stances, necessary and appropriate. to be enforced in each of the Member States.

decision has automatic suspensory effect. that the regulation was implemented; on the Although the authorities can order the contrary, those provisions require the immediate enforcement of an administrative complete fulfilment by Member States of decision, under Article 80(2) of the Code of their Community obligations. Article 5 of Administrative Procedure, that can be done the Treaty gives Member States a choice of only if special considerations pertaining to methods (see the Amsterdam Bulb case, the public interest so require. Such an order already cited, at p. 150, paragraph 32), but could itself be appealed against, in which it does not allow Member States to refrain event the courts would restore the from fulfilling their obligations on the suspensory effect of the original appeal, ground that to do so would impose on them unless they were satisfied that the a disproportionate burden. requirement of special considerations pertaining to the public interest was fulfilled. The German Government considers that the courts would have construed that requirement strictly in the present case because the enforcement of the distillation orders would have had irrep- arable consequences for the German wine- 29. Secondly, it is not open to Member growers. The German Government States to rely on the special features of their concludes that, in view of the grave doubts legal systems by way of defence where they about the validity of the Community legis- have failed to carry out their Community lation on compulsory distillation, which is obligations. It is well established that a allegedly discriminatory, it is far from Member State may not rely upon provisions, certain that the German courts would have practices or circumstances existing in its dismissed appeals against orders for internal legal system in order to justify immediate enforcement. a failure to fulfil obligations arising under Community law: see, for example, Case 254/83 Commission v Italy [1984] ECR 3395. In particular, a Member State may not plead administrative difficulties existing in that State in order to justify such a failure: see Case 58/83 Commission v Greece [1984] ECR 2027. Moreover, to allow such a defence as that invoked by the 28. In my view, these arguments must be German Government here would obviously rejected as a matter of principle. In the first prejudice the uniform application of place, it is not in my view open to the Community law: the application of Com- German Government to rely in support of munity law would be at the mercy of the its argument on the terms of Article 5 of the procedural peculiarities of each national Treaty, which requires Member States to legal system. take 'all appropriate measures . . . to ensure fulfilment of the obligations arising out of this Treaty', or on the terms of Article 64(1) of Regulation No 337/79, which requires them to take 'all necessary measures to ensure compliance with the Community provisions in the wine sector'. The words 'appropriate' and 'necessary' cannot be construed as exonerating the German 30. Thirdly, to the extent that the German Government from its obligation to ensure Government in effect relies on the alleged

invalidity of the Community legislation, that courts might have taken the view that the argument also must in my view be rejected. Community measures were invalid, that The government does not directly challenge cannot dispense the government from even the validity of the legislation, but that is attempting to initiate the enforcement what its argument in substance amounts to. measures in question. That omission was If the government considered that Regu- itself sufficient, in my view, to constitute an lation No 148/85 was invalid, whether as infringement of the Treaty, inasmuch as the infringing the principle of non-discrimi- German authorities failed to take a step that nation or the principle of proportionality, was necessary and appropriate in order to then it was open to it to take proceedings ensure implementation of the compulsory for its annulment under Article 173 of the distillation programme. Treaty and to apply for an interim order suspending its application under Article 185. The question might arise whether, having failed to do that, the government can now indirectly seek to dispute the validity of the regulation in proceedings brought against it under Article 169 of the Treaty for failing to implement the regulation. But it is unnecessary to address that question since in my view the government cannot, in any event, rely on the conjecture that the 31. It is therefore also unnecessary to German courts would have considered the consider whether, as the German regulation invalid (apparently on grounds of Government maintains, the German courts discrimination, although the government might have suspended the implementing does not develop that issue). measures, or whether those courts could properly take that step. It is indeed ques- tionable whether, and if so under what conditions, the national courts can suspend the operation of measures designed to implement Community regulations. I will limit myself to observing that on the facts of this case it is in any event doubtful whether suspension of the measures would have been an appropriate course for the German courts to take, even on the assumption that they had the power to do so and that they would have had doubts about the validity of the Community measures. First, such a Community regulations must be presumed suspension would have prejudged the to be valid until they have been held invalid decision on the substance of the case by a competent court: see Case 101/78 inasmuch as it would have rendered the Granaria v Hoofdproduktschap voor Akker- purpose of the compulsory distil- bouwprodukten [1979] ECR 623, at p. 636, lation — namely, to maintain price levels in paragraph 4. The 'competent court' is the the 1984/85 wine-growing year—unat- Court of Justice, since the national courts tainable. Secondly, contrary to the have no jurisdiction to decide that a contention of the German Government, Community regulation is invalid: see Case suspension could not have been justified on 314/85 Foto-Frost v Hauptzollamt the ground that the enforcement of the Lübeck-Ost [1987] ECR 4199. Moreover, distillation notices would have caused irrep- even if the government considered that the arable harm to the wine-growers. Any

32. There remains the German Government's argument to the effect that 35. Further provision to avoid a dispropor- the quantity of wine involved was so small, tionate administrative burden was made by in comparison with the total amount to be the second subparagraph of Article 41(7) distilled in the whole Community, that its of Regulation No 337/79, which allows distillation would have had no appreciable exemption from compulsory distillation for effect on the price level and that there was producers of small quantities. It was in therefore no point in taking further action accordance with that provision that Article 4 to ensure that the distillation took place. of Regulation No 147/85 exempted (a) producers in Member States whose table wine production did not exceed 60 000 hi in the 1984/85 wine year and (b) producers 33. That argument must in my view be who would be obliged to deliver for rejected. It is clear from the relevant regu- compulsory distillation less than five lations that this aspect of proportionality has hectolitres of wine. It should be noted that been dealt with exhaustively by the legis- the figure of 60 000 hi mentioned under (a) lature and that the national authorities are refers to total 'table wine production', not given no discretion to decide that certain to the quantity required to be distilled. In quantities are too insignificant to justify the light of these provisions it is difficult to recourse to enforcement measures under accept the German Government's argument national law. that the total quantity of table wine that remained undistilled (59 000 hi) was too small to justify further effort or that the amount to be distilled by each producer (an 34. Thus, when the Council provided in the average of 116 hi) was disproportionately second subparagraph of Article 41(1) of small in relation to the administrative Regulation No 337/79 that 'compulsory burden that it entailed. The Community distillation shall be decided on only if such legislature clearly had a different view as to distillation does not entail a dispropor- what was an acceptable administrative tionate administrative burden', its sole burden, proportionate to the aim pursued. intention was to confer on the Community legislature (i.e. the Commission acting under the management committee procedure) a discretionary power to refrain from ordering compulsory distillation where the 36. In so far as the German Government stock level referred to in the first seeks to argue that enforcement would have subparagraph was only slightly exceeded; placed a disproportionate burden on the such a provision was necessary because of German authorities, I think it is the mandatory terms in which the first clear — even assuming that such an subparagraph was drafted ('compulsory argument is in principle admissible — that it distillation of table wine shall be decided cannot succeed in the present case, where upon'). That provision obviously does not the government has not taken the prior step confer any discretion on the national auth- of declaring the distillation notices orities charged with implementing the immediately enforceable. As the Court has compulsory distillation operation, as in fact repeatedly stated (see for example Case

(2) order the Federal Republic to pay the costs.

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