# C_2012089EN.01000502.xml

| 24.3.2012 | EN | Official Journal of the European Union | C 89/5 |
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24.3.2012

EN

Official Journal of the European Union

C 89/5

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Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 December 2011 — Société ED et F Man Alcohols v Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR)

(Case C-669/11)

2012/C 89/08

Language of the case: French

Referring court

Referring court

Conseil d’État

Parties to the main proceedings

Parties to the main proceedings

Applicant: Société ED et F Man Alcohols

Applicant:

Defendant: Office national interprofessionnel des fruits, des légumes, des vins et de l’horticulture (VINIFLHOR)

Defendant:

Questions referred

Questions referred

| 1. | Is the forfeiture, at a rate of ECU 12,08 per hectolitre of alcohol not exported within the time limit laid down, of the performance guarantee lodged by the successful tenderer with the intervention agencies holding the alcohol awarded, as provided for in Article 5(5) of Commission Regulation (EC) No 360/95 of 22 February 1995 (1) where the time limit for export is exceeded by the successful tenderer, and the forfeiture at the rate of 15 % in all cases and 0,33 % of the amount remaining per day of delay, of the export security provided for in Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000 (2) where there is delay of export of the alcohol awarded, administrative penalties or measures of a different kind? |
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1.

Is the forfeiture, at a rate of ECU 12,08 per hectolitre of alcohol not exported within the time limit laid down, of the performance guarantee lodged by the successful tenderer with the intervention agencies holding the alcohol awarded, as provided for in Article 5(5) of Commission Regulation (EC) No 360/95 of 22 February 1995 (1) where the time limit for export is exceeded by the successful tenderer, and the forfeiture at the rate of 15 % in all cases and 0,33 % of the amount remaining per day of delay, of the export security provided for in Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000 (2) where there is delay of export of the alcohol awarded, administrative penalties or measures of a different kind?

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| 2. | Is the mere failure, by an operator to comply with the time limit for export of vinous alcohol held by the intervention agencies which was awarded to it by the Commission in the context of an invitation to tender procedure a failure which has or is likely to have the effect of prejudicing the general budget of the European Communities or budgets managed by them, within the meaning of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995? (3) |
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2.

Is the mere failure, by an operator to comply with the time limit for export of vinous alcohol held by the intervention agencies which was awarded to it by the Commission in the context of an invitation to tender procedure a failure which has or is likely to have the effect of prejudicing the general budget of the European Communities or budgets managed by them, within the meaning of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995? (3)

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| 3. | As regards the possible combination of the provisions of the cross-sectoral Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 with those of the sectoral Commission Regulation (EC) No 360/95 of 22 February 1995:






  — | In the event of a positive reply to the question referred to in paragraph 2, does the system of forfeiting the guarantee where export is delayed in the sectoral Commission Regulation of 22 February 1995 apply, to the exclusion of any other system of measures or of penalties laid down by European Union law? Or, on the contrary, is the system of measures and of administrative penalties laid down by Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995, alone applicable? Or indeed, must the provisions of the two regulations of 22 February 1995 and 18 December 1995 be combined to determine the measures and penalties to be applied and, if so, in what manner? |
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3.

As regards the possible combination of the provisions of the cross-sectoral Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 with those of the sectoral Commission Regulation (EC) No 360/95 of 22 February 1995:

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In the event of a positive reply to the question referred to in paragraph 2, does the system of forfeiting the guarantee where export is delayed in the sectoral Commission Regulation of 22 February 1995 apply, to the exclusion of any other system of measures or of penalties laid down by European Union law? Or, on the contrary, is the system of measures and of administrative penalties laid down by Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995, alone applicable? Or indeed, must the provisions of the two regulations of 22 February 1995 and 18 December 1995 be combined to determine the measures and penalties to be applied and, if so, in what manner?

| — | In the event of a negative reply to the question referred to in paragraph 2, do the provisions of cross-sectoral Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 prohibit forfeiture of the guarantee laid down by Article 5(5) of the sectoral Commission Regulation (EC) No 360/95 of 22 February 1995, on the ground that the cross-sectoral regulation of 18 December 1995, by laying down a condition relating to the existence of a financial prejudice for the Communities, prevents a measure or a penalty imposed by an earlier or subsequent regulation in the agricultural sector from being applied in the absence of such prejudice? |
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In the event of a negative reply to the question referred to in paragraph 2, do the provisions of cross-sectoral Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 prohibit forfeiture of the guarantee laid down by Article 5(5) of the sectoral Commission Regulation (EC) No 360/95 of 22 February 1995, on the ground that the cross-sectoral regulation of 18 December 1995, by laying down a condition relating to the existence of a financial prejudice for the Communities, prevents a measure or a penalty imposed by an earlier or subsequent regulation in the agricultural sector from being applied in the absence of such prejudice?

| 4. | If, in view of the reply to the earlier questions, forfeiture of the guarantee constitutes a penalty applicable where the time limit for export is exceeded by the successful tenderer, is it necessary to apply retroactively and, if so, in accordance with what rules — for the purposes of calculating the amount of the guarantee to be forfeited for failure to comply with the time limit for export set for invitations to tender Nos 170/94 EC and 171/94 EC by Commission Regulation (EC) No 360/95 of 22 February 1995 as amended — the provisions of Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000, even though, first, the latter regulation neither explicitly amended nor repealed the provisions of Article 5 of Regulation (EC) No 360/95 which specifically govern invitations to tender Nos 170/94 EC and 171/94 EC, but only those of Commission Regulation (EC) No 377/93 of 12 February 1993 (4) which laid down the ordinary rules for invitations to tender relating to alcohol from distillation operations held by the intervention agencies and referred, as regards the rules for release of the performance guarantees lodged by the successful tenderers, to Commission Regulation (EEC) No 2220/85 of 22 July 1985 (5) from which the provisions of Article 5 of Commission Regulation (EC) No 360/95 of 22 February 1995 explicitly derogate, and even though, second, Regulation (EC) No 1623/2000 was drawn up after reform of the common organisation of the markets in wine in 1999, it substantially amended the invitations to tender system and the system of guarantees given in that context, both with regard to their purpose and their amount and the rules for their forfeiture and their release and, finally, it removed Brazil from the list of third countries to which the export, for exclusive use as motor fuel, of the alcohol awarded is authorised? |
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4.

If, in view of the reply to the earlier questions, forfeiture of the guarantee constitutes a penalty applicable where the time limit for export is exceeded by the successful tenderer, is it necessary to apply retroactively and, if so, in accordance with what rules — for the purposes of calculating the amount of the guarantee to be forfeited for failure to comply with the time limit for export set for invitations to tender Nos 170/94 EC and 171/94 EC by Commission Regulation (EC) No 360/95 of 22 February 1995 as amended — the provisions of Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000, even though, first, the latter regulation neither explicitly amended nor repealed the provisions of Article 5 of Regulation (EC) No 360/95 which specifically govern invitations to tender Nos 170/94 EC and 171/94 EC, but only those of Commission Regulation (EC) No 377/93 of 12 February 1993 (4) which laid down the ordinary rules for invitations to tender relating to alcohol from distillation operations held by the intervention agencies and referred, as regards the rules for release of the performance guarantees lodged by the successful tenderers, to Commission Regulation (EEC) No 2220/85 of 22 July 1985 (5) from which the provisions of Article 5 of Commission Regulation (EC) No 360/95 of 22 February 1995 explicitly derogate, and even though, second, Regulation (EC) No 1623/2000 was drawn up after reform of the common organisation of the markets in wine in 1999, it substantially amended the invitations to tender system and the system of guarantees given in that context, both with regard to their purpose and their amount and the rules for their forfeiture and their release and, finally, it removed Brazil from the list of third countries to which the export, for exclusive use as motor fuel, of the alcohol awarded is authorised?

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(1)  Commission Regulation (EC) No 360/95 of 22 February 1995 opening individual sales by invitation to tender for the export of vinous alcohol held by intervention agencies (OJ 1995 L 41, p. 14).

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(2)  Commission Regulation (EC) No 1623/2000 of 25 July 2000 laying down detailed rules for implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine with regard to market mechanisms (OJ 2000 L 194, p. 45).

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(3)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

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(4)  Commission Regulation (EEC) No 377/93 of 12 February 1993 laying down detailed rules for the disposal of alcohol obtained from the distillation operations referred to in Articles 35, 36 and 39 of Regulation (EEC) No 822/87 and held by intervention agencies (OJ 1993 L 43, p. 6).

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(5)  Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products (OJ 1985 L 205, p. 5).

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