C-31/91

OPINION OF MR DARMON — JOINED CASES C-31/91 TO C-44/91

OPINION OF ADVOCATE GENERAL DARMON delivered on 15 September 1992 *

2 — Regulation of 28 April 1970 laying down special provisions relating to quality wines produced in specified regions (OJ, * Original language: French. English Special Edition 1970 (I), p. 252); the third paragraph 1 — Regulation of 16 May 1973 relating to a provisional list of was introduced by Regulation (EEC) N o 1621/71 of tne quality wines produced in specified regions as well as the Council of 26 July 1971 amending Regulations (EEC) identification of these wines in the accompanying documents N o s 816/70 and 817/70 as regards certain transitional mea- (OJ 1973 L 132, p. 20). sures on wine (OJ, English Special Edition 1971 (II), p. 604).

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LAGEDER A N D OTHERS

or whether it retains the wines appearing wine and wine products and provided for the on an earlier provisional list; early machinery — the establishment of a viticultural land register, the introduction of — to declare whether the financial authori- a system for the declaration of harvests and ties of a Member State have a right and stocks, the drawing up of a forward estimate, an interest in collecting, several years the establishment of a Management Commit- after completion of the export transac- tee for Wine — designed to achieve the suc- tion, the monetary compensatory cessful completion of a quality policy and to amounts not collected owing to a mistake attempt to reduce surpluses, the principal attributable to the authorities; cause of the difficulties experienced by cer- tain producing countries.

— to assess the compatibility of the belated recovery of the compensatory amounts with the Community-law principle of the 8. The 1970s were marked by significant leg- protection of legitimate expectations. islative activity in the form of the deploy- ment of coherent operational policy instru- ments concerning both the market in wine 4. Thirteen other cases between wine and wine products in general and specific exporters and the same defendant in which types of production. Thus Regulations similar problems are raised were joined for (EEC) Nos 816/70 and 817/70 of the Coun- the purposes of the written and oral cil of 28 April 1970 4established an initial procedures by order of the Court dated scheme which underwent a number of 27 February 1991. amendments.

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OPINION OF MR DARMON — JOINED CASES C-31/91 TO C-44/91

Nos 816/70 and 817/70 and all other related p.s.r.") means wine which satisfies the pro- measures. This new machinery was in turn to visions of this Regulation and those adopted be amended by Council Regulations (EEC) in application thereof, and are defined by Nos 822/87 and 823/87. ? national rules.'

10. Since the exports from which the main proceedings stemmed were carried out 14. Next, Regulation (EEC) N o 1627/71 of between June and August 1973, the arrange- the Council of 26 July 1971 8 added a third ments applicable to them must be precisely paragraph to Article 1 of Regulation determined. N o 817/70, worded as follows:

11. In order to provide clarification of the relevant legislative provisions, I shall separate the presentation of the provisions relating 'Until Member States have adopted, in to accompanying certificates from those respect of the quality wines p.s.r. produced relating to the lists of quality wines p.s.r., on their territory, the national provisions on although certain of the regulations concern conditions of production referred to in Arti- both the accompanying documents and the cles 2, 3, 4, 6(1), 7 and 10, and until lists. 31 August 1973 at the Utest, wines appearing on a list adopted according to the procedure provided for in Article 7 of Regulation N o 24 shall be considered as quality wines 12. In relation, first of all, to the lists of p.s.r. if they are in conformity with the quality wines p.s.r., three measures must be other provisions of this Regulation.' 9 considered by the Court.

This final regulation was published in the 3 that each Member State is to communicate Official Journal on 19 May 1973 and entered the names of the quality wines p.s.r. pro- into force on the third day thereafter, namely duced on its territory to the other Member 22 May 1973. States and to the Commission, which is to have them published in the Official Journal of the European Communities. That regu- 16. Article 12(2) of Regulation N o 817/70, lation, one of the purposes of which is to to which it refers, provides: prepare the list of wines able to claim the designation of quality wine p.s.r., provides in Article 4 for the repeal of the only provi- 'Without prejudice to any additional expres- sion still in force relating to the drawing up sions which may be allowed by national of the list — which, it must be remembered, laws, and subject to national provisions on is a provisional list — namely Regulation the wines in question being observed, the N o 1311/73. Article 4 states that: specific expressions traditionally used which are referred to in paragraph 1 10 shall be the following: 'Commission Regulation (EEC) N o 1311/73 of 16 May 1973 on a provisional list of quality wines produced in specified (c) Italy: regions and on the identification of such wines in the accompanying documents is repealed with effect from 31 August 1973.' "Denominazione di origine controllata" and "Denominazione di origine controttata e garantita"; ...'. 19. As regards the accompanying certifi- cates, the second point of this presentation of the measures, Regulation (EEC) 17. It follows from these three regulations N o 1704/70 of the Commission of 25 August that the provisional arrangements under 1970, 12 concerning both these documents Regulation N o 1627/71, which were applica- and the list of quality wines p.s.r., had as its ble 'until 31 August 1973 at the latest', were purpose, inter alia, to amend Article 1 of supplemented, before the deadline prescribed Regulation (EEC) N o 1022/70 13 and stated by Article 1 of Regulation N o 1311/73, that which provides that wine can only be recog- nized as quality wine p.s.r. if it has been awarded the designation D O C or D O C G by 'for the application of this Regulation the the Italian State. following wines shall be regarded as quality wines p.s.r.: 18. That interpretation is borne out by an analysis of Regulation (EEC) N o 2247/73 of 16 August 1973, 11 which provides in Article

20. There is thus no doubt that Istituto S. Michele, which is mentioned in 22. Concerning, more specifically, the Annex III C, was able to issue a certificate certificates, Article. 4 of Regulation evidencing the origin of wine from the date N o 1769/72 provides that each Member State of entry into force of Regulation is to choose one or more competent agencies N o 1704/70, that is to say, from 29 August to issue the documents, that is to say, for 1970, until the date of expiry of Regulation quality wines p.s.r., forms VA(2) or VA(5). N o 1022/70, namely 31 March 1973. 15 In the period in question (June-August 1973), where Italy was concerned, the 'Min- istero Agricoltura e Foreste, Servizio Repres- sione Frodi' had exclusive competence to 21. As was emphasized during the oral pro- issue those documents. 17 cedure, between 31 March 1973, the date of expiry of Regulation N o 1022/70, and 22 May 1973, the date of the entry into force 23. It should also be emphasized that the of Regulation N o 1311/73, no specific list fact that the form VA(2) or VA(5) has been was applicable in relation to either quality obtained does not constitute irrebuttable evi- wines p.s.r. or to the bodies hitherto dence of the grant of status of quality wine empowered to issue certificates of approval. p.s.r. and that economic operators acting in It would be inaccurate to speak of a legisla- good faith cannot be taken by surprise by tive vacuum, however, since Regulation the invalidation of that document. Article N o 1627/71 continued to apply 'until 2 of Regulation N o 1311/73 provides that: 31 August 1973 at the latest' in relation to the description of quality wines p.s.r. (the procedure provided for being that laid down 'The confirmation that the wine in question in Article 7 of Regulation N o 24) and Regu- may be confirmed as a quality wine p.s.r., lation (EEC) N o 1769/72 of the Commission provided that there is [no] evidence to the of 26 July 1972 16 governed, from 1 April contrary, by the inscription of the name of 1973, the establishment of the accompanying the specified region in box 11 of the form documents. Moreover, Regulation No VA(2) or VA(5) ...'. 18

provided for in Regulation N o 1627/73 were 24 July 1979 on the post-clearance recovery applied; with effect from 22 May 1973 the of import duties or export duties which have provisional list as defined in Regulation not been required of the person liable for N o 1311/73 includes only the wines con- payment on goods entered for a customs firmed as D O C or D O C G by the Italian procedure involving the obligation to pay State. Article 1 of that regulation, in con- such duties. 21 junction with Article 1(3) of Regulation N o 817/70, as amended, must therefore be interpreted as meaning that between 22 May 1973 and 31 August 1973 only the wines 28. The objectives of this regulation are two- with the right to the appellation D O C or fold. They are, first, to allow the competent D O C G could come within the arrangements authorities to make post-clearance recovery for quality wines p.s.r. and therefore be of the duties remaining due and, secondly, to exported under that designation and subject ensure certainty for persons liable for pay- to the formalities prescribed for that purpose ment by limiting the time within which the outside the Member State. administrative authorities may take action. Accordingly, a period of three years (from the date of entry in the accounts of the 25. Consequently, if during the abovemen- amount originally required of the person lia- tioned period the wines forming the subject- ble for payment or from the date on which matter of the proceedings were not entitled the customs debt was incurred) was laid to the appellation D O C or D O C G , the down in Article 2 of the regulation as a time- compensatory amounts should have been limit for action to be taken by the competent collected, in accordance with Regulations authorities to recover the uncollected duties. (EEC) Nos 648/73 19 and 649/73 20 of the Commission. 29. By reason of its substantive scope, the post-clearance recovery of the monetary 26. It is now necessary to determine, and compensatory amounts which is in point in this is the subject-matter of the second ques- the present case could fall within the area of tion of the Corte Suprema di Cassazione, application of Regulation N o 1697/79. Arti- whether compensatory amounts payable cle 1(2) provides: may be recovered some years, in the present case four years, after the date on which they became payable. More specifically, may duties not collected by the national authori- 'For the purposes of this Regulation: ties owing to their misinterpretation of the Community rules be time-barred, and after what time?

31. The Court has already answered that question quite clearly in its judgment in the The Court unambiguously concluded that Salumi II case. 22 The Court's reasoning may be summarized as follows. Regulation N o 1697/79 contains no transitional provi- sion: consequently, it is necessary to take as a 'the regulation covers only import or export basis the principles of interpretation gener- transactions for which the payment of duties ally applied, which differ according to was made on or after 1 July 1980'. 25 whether the rules to be interpreted are pro- cedural rules or substantive rules. While pro- cedural rules are to apply immediately to 33. The Court subsequently confirmed that actions pending at the time of their entry interpretation in two judgments 26 in which into force, substantive rules, on the other it expressly referred to the Salumi II judg- hand, are not supposed to apply without ment. express provision to situations established before their entry into force. 34. Consequently, the Community rules on the post-clearance recovery of export duties 32. The Court stated that Regulation which were wrongly not demanded of the N o 1697/79 cannot be regarded as a simple person liable for payment, as defined in procedural provision: Regulation N o 1697/79, cannot be applied in the present case. In order to give an effective '... that regulation contains both procedural and substantive rules which form an indivis- ible whole and the individual provisions of 23 — Paragraph 11. 24 — Paragraph 12. 25 — Paragraph 15. 26 — Case 8/82 Italgrani v Amministrazione delle Finanze dello Stato [1982] ECR4323 and Case 210/87 Padovani and 22 — Joined Cases 212/80 to 217/80 Amministrazione delle Others v Amministrazione delle Finanze dello Stato [1988] Finanze dello Stato v Salumi [1981] ECR2735. ECR6177.

35. The Court has already, in its judgment in Salumi I, 27 which also refused the retroac- tive application of Regulation N o 1697/79, 28 37. Accordingly, since the Community pro- referred a national court to the provisions in visions laid down in Regulation force in its national law, in the following N o 1697/79 cannot apply retroactively, the words: answer to the second question submitted by the Corte Suprema di Cassazione must be that it is for the national court to apply the provisions of national law on the time- 'Accordingly, in so far as no provisions of barring of export duties which were wrongly Community law are relevant, it is for the not collected, provided that they do not dis- national legal system of each Member State criminate against the recovery of Commu- to lay down the detailed rules and conditions nity debts as compared with the recovery of for the collection of Community revenues in national debts and do not adversely affect the general and agricultural levies in particular scope and effectiveness of Community law. and to determine the authorities responsible for collection and the courts having jurisdic- tion to decide disputes to which that collec- tion may give rise but such procedures and 38. Finally, the last question submitted by conditions may not make the system for col- the national court concerns the compatibility lecting Community charges and dues less of post-clearance recovery of monetary com- effective than that for collecting national pensatory amounts wrongly not collected, charges and dues of the same kind.' 29 which, as has been shown, falls to be effected according to the rules laid down in national law, with the Community principle of the protection of legitimate expectations. 36. The only two limits that the Court places on the application of domestic law, which it is in the habit of imposing general- ly, 30 are, first, the requirement that the scope 39. The principle of the protection of 'legit- imate expectations', which forms part of the more general principle of 'legal certainty', 27 — Joined Cases 66/79, 127/79 and 128/79 Amministrazione has given rise to abundant case-law which it delle Finanze dello Stato v Salumi and Others [1980] is unnecessary to examine in detail. 31 ECR 1237. 28 — Paragraph 16. 29 — Paragraph 18. 30 — See, inter alia, judgments in Case 265/88 Ferwerda v Produktschap voor Vee en Vlees [1980] ECR 617, para- 31 — See Hubeau, F.: 'Le principe de la protection de la confiance graphs 10 and 12, and Joined Cases 205/82 to 215/82 Deut- légitime dans ta jurisprudence de la C o u r de justice des sche Milchkontor v Germany [1983] ECR 2633, paragraphs Communautés européennes', Cahiers de droit européen, 19, 22 and 23. 1983, p. 143.

42. The Court ruled for the first time on a 'In those circumstances it cannot be consid- similar case in the Padovani judgment. 33 As ered that the restrictions which Regulation in the present case, the Court was asked N o 1697/79 places on the post-clearance whether Community law requires the recovery by national authorities of debts authorities of the Member States responsible arising under Community law may reflect a for collecting agricultural levies in accord- Community principle of protection of legit- ance with the rules laid down in national law imate expectations which already existed in which no account was taken of the protec- when that regulation came into force. tion of legitimate expectations to refrain from effecting post-clearance recoveries from operators who acted in good faith. Since Community law does not govern the condition of recovery concerning the protec- tion of legitimate expectations of traders, 43. The national law was that of the same that question is governed by national law.' 35 Member State, namely Italy, which, unlike German law but like the law of a number of other Member States, did not recognize the principle of the protection of legitimate 46. Consequently, and without ignoring, expectations. first, the possible inequalities in the arrange- ments for recovery adopted by the various

32 — Judgment in Case 289/91 Mavridis v Parliament [1983] ECR 1731, paragraph 21. 34 — Paragraph 19. 33 — See references above, note 27. 35 — Paragraphs 20 and 21.

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LAGEDER AND OTHERS

Member States and, secondly, the fact that it legitimate expectations does not require the is impossible for traders to pass those levies national authorities who apply their national on to the foreign importers so long after the law to waive post-clearance recovery of exports in question, the answer to the Corte monetary compensatory amounts which in Suprema di Cassazione must be that the error were not collected at the outset from Community principle of the protection of traders who acted in good faith.