C-319/90

PRESSLER v GERMANY

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 13 December 1991 *

Mr President, therefore be entitled to aid in the sum of Members of the Court, DM 22 871.24 under Article 9 of Regu- ladon No 603/87.

1. The finn Otto Pressler, the applicant in the main proceedings, had 23 028 litres of table wine distilled for it in the wine- growing year 1986/87 on the basis of a This right is lost, however, by virtue of distillation déclaration approved on 9 June Article 10a of Commission Regulation 1987 by the Bundesamt für Ernährung und (EEC) No 2102/84 of 13 Jury 1984 on Forstwirtschaft (Federal Office for Food harvest, production and stock declarations and Forestry, hereinafter referred to as 'the relating to wine-sector products,3 as Bundesamt'). On 27 July 1987 the applicant amended by Commission Regulation (EEC) submitted a written request for aid together No 2459/84 of 20 August 1984, * since that with a customs certificate stating the distil- article provides that persons required to lation had been carried out in conformity submit the stock declarations provided for with the approved distillation declaration. in Article 4 of the reguládon are not to qualify for the benefit from the measures provided for by, inter alia, Article 15 of Regulation (EEC) No 337/79 5 if they do not submit such declarations by the dates specified in Article 5(3), that is to say, by 7 During a subsequent inspection the September. Bundesamt noted that the declaration of stock of grape must had not been submitted before 7 September but only on U September 1986 and therefore refused to grant the aid requested.

2. The Commission dismissed the doubts raised by the national court, pointing out that Article 10a of Regulation 2102/84 may not be regarded as a provision that pre- scribes a penalty. It recalls that the Court, in its judgment in Case C-217/88,* held that a I do not consider, however, that a solution similar provision, namely Article 6(1) of to this problem is essential for the purposes Regulation N o 337/79, which excludes of the present case, since it does not seem producers from various voluntary measures to me that in the case-law of the Court if they fail to comply with the obligation to the two situations mentioned above are deliver the table wine for compulsory distil- approached differendy. The Court has in lation, did not constitute a sanction but fact carried out its own rigorous review, in merely set out a condition for eligibility for the light of the principle of proportionality, certain intervention measures provided for not only with respect to provisions which by the regulation. provide for the loss of a right or for prejudice to a legitimate expectation of the person concerned, but also in relation to those duties failure to comply with which precludes the obtaining of a benefit.

Although the Commission agrees that the provision in question resembles a penalty inasmuch as it attaches an unfavourable legal consequence to the breach of an obli- gation, it points out that according to the case-law of the Court there can truly and properly be said to be a penalty, to which a In RU-MI » and Société Laitière de Gocé,9 strict criterion of proportionality can be the Court examined the question, which applied, only if the measure adversely moreover it answered in the affirmative, affects an already existing right or at least a whether the Community provisions pre- legitimate expectation. scribing the withholding of aid for failure to comply with the conditions for processing certain products were in conformity with the principle of proportionality.

In that context the fact, to which the n Commission too refers, that the contested In the later case of Denkavit France, in provision does no more than exclude the which the setting of a peremptory time-limit person concerned from the benefit of a for the submission of applications for the measure to which effect had not yet been payment of monetary compensatory given at the time of the failure to comply amounts was disputed, the Court, while with the obligation does not appear to be of accepting that the barring of claims on the decisive significance. It does not seem to me ground that the requisite documents have that the injurious nature of a provision been submitted out of time is not a penalty disappears or is in some way attenuated by but, as a general rule, the normal conse- denying to a person the possibility of quence of the expiry of any prescribed making use of future advantages which are period the observance of which is as yet only loosely defined but whose mandatory, nevertheless considered whether possible adoption is expressly provided for. such a provision was necessary and corre- sponded to the importance of the aim pursued.

We must now consider whether the More recently, in Hopermann I u and provision forming the subject of the Hopermann II, ' 3 the Court reviewed the preliminary question conforms to the validity of provisions under which failure principle of proportionality, according to to observe a time-limit for lodging the which a provision must not exceed what is application for aid or for completing certain appropriate and necessary to attain the operations before so doing resulted in loss objective sought and, more particularly, the of entitlement, and held that such provisions means which it uses to achieve the objective were in conformity with the principle of be in keeping with the importance of the proportionality, but only inasmuch as objective itself and necessary for its observance of the prescribed time-limits was attainment. '* found to be essential for the proper func- tioning of the scheme of aids.

The essential point of reference for the The choice of the date of 7 September, to intervention measures is the forward the non-observance of which the contested estimate, which must be established before provision in the present case attaches the 10 December each year and which includes consequence of disqualification from the an indication of the stocks of wine and benefit of a number of measures provided grape must (Article 31 of Regulation No for by Community legislation, was 822/87). These data are then used to decide determined, as the Commission explained, the aid to be granted for storage (Article 32 by the twofold need to obtain reliable infor- of Regulation 822/87), which forms the mation at a date as close as possible to 31 basis for the granting of aid for the August, the end of the marketing year, and re-storage of wines (Article 34 of Regu- to allow the national authorities sufficient lation No 822/87) and aid for distillation as time to gather, process and transmit the provided for in Article 42 of Regulation declarations. 822/87.

As indicated above, observance of the 10 December time-limit, the date by which the Commission must draw up die forward estimate, constitutes an important point of reference for ensuring the proper func- Nevertheless, if it is borne in mind that the tioning of the system. To this end Regu- time-limit of 7 September has already been lation (EEC) 2102/84, on the one hand, set very near to the close of the marketing requires the traders concerned to declare to year and that this also allows the national the competent national authorities by authorities over 80 days to collect, process 7 September the stocks of concentrated and forward the dau to the Commission, it grape must and wine held by them on 31 does not seem to me that the aim of August (Article 5(3)) and, on the other ensuring that the Commission receives hand, provides that the Member States are timely and reliable information could in any to communicate those particulars to the way be impaired by slightly exceeding the Commission before 30 November (Article time-limit for the submission of the stock 8(3)). declarations.

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PRESSLER v GERMANY

7. In the light of the foregoing considerations, I therefore suggest that the Court should reply to the question referred to it by the Verwaltungsgericht Frankfurt am Main as follows:

Article 10a of Commission Regulation (EEC) N o 2102/84 of 13 July 1984 on harvest, production and stock declarations relating to wine-sector products, as amended by Article 1 of Commission Regulation (EEC) No 2459/84 of 20 August 1984, is invalid inasmuch as it provides for the exclusion from the benefit of the measures provided for in Article 15 of Council Regulation No 337/89 (replaced by Article 41 of Regulation 822/87) for any failure to observe the time-limit prescribed for the submission of stock declarations.

15 — Judgment in Liareafdxr, supra, judgment in C w 47/86 ««auree (19871 ECR 2889; judgment in Cale 21/85 Mus [1986] ECR 3537.

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