Opinion of the Advocate General — ECLI:EU:C:2001:619
Date: 2001-11-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Accession;Agriculture and Fisheries;Oils and fats
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Accession of new Member States to the Communities — Austria — Agriculture — 
Common organisation of the markets — Transitional measures in respect of trade in 
agricultural products — Taxation of surplus stocks — Competence of the Commis­
sion 
(Act of Accession of 1994, Art. 149(1); Commission Regulation No 3108/94, Art. 4) 
I -501 
SUMMARY — CASE C-179/00 
2. Accession of new Member States to the Communities — Austria — Agriculture — 
Common organisation of the markets — Transitional measures in respect of trade in 
agricultural products •— Taxation of surplus stocks — Principles of proportionality 
and protection of legitimate expectations — Breach — No such breach 
(Act of Accession of 1994, Arts 145(2) and 149(1); Commission Regulation 
No 3108/94, Art. 4) 
3. Accession of new Member States to the Communities —• Austria —• Agriculture — 
Common organisation of the markets — Transitional measures in respect of trade in 
agricultural products — Taxation of surplus stocks — 'Holder' of surplus stock — 
Definition 
(Commission Regulation No 3108/94, Art. 4) 
4. Accession of new Member States to the Communities — Austria — Agriculture •— 
Common organisation of the markets — Transitional measures in respect of trade in 
agricultural products — Taxation of surplus stocks — Calculation of the tax •— 
Tunisian olive oil — 'Import charge' applicable 
(Commission Regulation No 3108/94, Art. 4(3)) 
5. Accession of new Member States to the Communities — Austria — Agriculture — 
Common organisation of the markets •— Transitional measures in respect of trade in 
agricultural products — Taxation of surplus stocks — Calculation of the tax — 
Breach of the principle of equal treatment — No such breach 
(Commission Regulation No 3108/94, Art. 4(3)) 
1. The Commission of the European 
Communities was competent, under 
Article 149(1) of the Act of Accession 
of 1994, to adopt the measures in 
respect of the taxation of surplus stocks 
in the new Member States provided for 
in Article 4 of Regulation No 3108/94 
on transitional measures to be adopted 
on account of the accession of Austria, 
Finland and Sweden in respect of trade 
in agricultural products. 
(see para. 24 and operative part 1) 
2. Article 4 of Regulation No 3108/94 on 
transitional measures to be adopted on 
account of the accession of Austria, 
Finland and Sweden in respect of trade 
in agricultural products does not 
breach either the principle of propor­
tionality or the principle of the pro­
tection of legitimate expectations. 
On the one hand, by introducing the 
tax on surplus stocks in the new 
Member States and laying down 
I -502 
WEIDACHER 
arrangements for it to be levied, the 
Commission chose the formula, 
amongst several, which it considered 
most appropriate to avert any risk of 
undermining the proper functioning of 
the common organisation of the mar­
kets, such risk being associated with 
the accumulation of stocks exceeding 
the quantity which might be regarded 
as constituting normal carryover stock 
within the meaning of Article 145(2) of 
the Act of Accession of 1994. The aim 
of that taxation is to preclude the 
build-up of such stocks or, at the very 
least, to neutralise the economic advan­
tages anticipated by those holding 
them, by placing the latter on the same 
footing as operators in the Community 
of Twelve, with whom they compete in 
the same market. The principle of that 
tax must be regarded as conducive to 
attainment of the aim of facilitating 
implementation of the common organi­
sation of the markets in the new 
Member States, referred to in 
Article 149(1) of the Act of Accession, 
without going further than was necess­
ary for that purpose. It follows that the 
Commission did not exceed the bounds 
of its discretion in agricultural matters 
and did not breach the principle of 
proportionality. 
On the other hand, since the principle 
of the protection of legitimate expec­
tations may be invoked as against 
Community rules only to the extent 
that the Community itself has pre­
viously created a situation which could 
give rise to a legitimate expectation, the 
Community did not, by act or 
omission, give the impression to the 
relevant circles that transitional meas­
ures intended to prevent distortion of 
competition and speculative profits 
from the accumulation of surplus 
stocks would not be adopted in relation 
to the enlargement which took place on 
1 January 1995. Moreover, any 
normally diligent economic operator 
must have known, since the publication 
in the Official journal of the European 
Communities of the Act of Accession of 
1994, that, under Article 149(1) 
thereof, the Commission was specifi­
cally empowered to adopt transitional 
measures in order to bring the rules 
existing in the new Member States into 
line with the common organisation of 
the markets, and that such measures 
might, in some circumstances, have 
repercussions on surplus stocks already 
built up when Regulation No 3108/94 
was published. 
(see paras 27-29, 31-33 
and operative part 2) 
3. The term 'holder' of surplus stock, 
within the meaning of Article 4 of 
Regulation No 3108/94 on transitional 
measures to be adopted on account of 
the accession of Austria, Finland and 
Sweden in respect of trade in agricul­
tural products and providing for meas­
ures in respect of the taxation of 
surplus stocks in the new Member 
I -503 
SUMMARY — CASE C-179/00 
States, refers to a person who has 
authority to place the stored products 
on the market and thereby realise a 
profit. 
(see para. 45 and operative part 3) 
4. Article 4(3) of Regulation No 3108/94 
on transitional measures to be adopted 
on account of the accession of Austria, 
Finland and Sweden in respect of trade 
in agricultural products must be inter­
preted as meaning that, in the case of 
imports of Tunisian olive oil, the 
'import charge' applicable in the Com­
munity of Twelve on 31 December 
1994 is the one provided for in Annex I 
to Regulation No 3307/94 fixing the 
minimum levies on the importation of 
olive oil and levies on the importation 
of other olive oil sector products. 
(see para. 48 and operative part 4) 
5. By providing for taxation, under the 
general rules contained in Regulation 
No 3307/94 fixing the minimum levies 
on the importation of olive oil and 
levies on the importation of other olive 
oil sector products, of surplus stocks 
held on 1 January 1995 in the new 
Member States, with a view to pre­
venting or neutralising deflections of 
trade liable to disrupt the common 
organisation of the markets, Article 4(3) 
of Regulation No 3108/94 on transi­
tional measures to be adopted on 
account of the accession of Austria, 
Finland and Sweden in respect of trade 
in agricultural products does not 
infringe the principle of equal treat­
ment for economic operators in the 
Member States. 
Operators in the new Member States 
who, on that date, held surplus stocks 
of Tunisian olive oil imported under 
the rules in force in those States were 
not in a situation comparable to that of 
operators in the Community of Twelve 
who, from 1 March to 31 October 
1994, were able, where appropriate, to 
import olive oil originating in Tunisia 
under the preferential regime provided 
for by the former cooperation agree­
ment between the European Economic 
Community and the Tunisian Repub­
lic. 
(see paras 50-51 and operative part 5) 
I -504