Opinion of the Advocate General — ECLI:EU:C:2004:341
Date: 2004-06-08
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Beef and veal
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary of the declarations. In this case, however, the measure is a contingency one, unlike the structural premiums in respect of which the legislation provides for a scale of penalties where the application is lodged out of time. Furthermore, because it is a contingency measure, the Commission must be able to evaluate its effects continuously and effectively. According to the Netherlands Government and the Commission, that requires strict observance of the time-limit, which makes the consequences of failing to comply with it compatible with the principle of proportionality, because they do not go beyond what is necessary to achieve the objectives of the measure in question. 39. This question enables us to try and clarify an aspect of the case-law on the application of the principle of proportionality in respect of time-limits, case-law which does not always distinguish between time-limits for which non-compliance leads to a penalty (the loss of a deposit or imposition of a fine, for example) and time-limits for which non-compliance results in an unfavourable decision (not granting a premium, for example). I think this distinction is important, because in the case of penalties a dual examination is warranted: it is necessary to consider whether the time-limit is proportionate and also whether the penalty imposed is proportionate to the seriousness of the infringement. From this point of view, it is understandable that the Court of Justice should have declared invalid provisions which imposed an identical penalty irrespective of the seriousness of the infringement, the extent to which the time-limit was exceeded or its effect on the achievement of the objective of the legislation concerned. (13) 40. On the other hand, in the case of a time-limit for which non-compliance leads not to a penalty but to an unfavourable decision, the examination of proportionality must be limited to the time-limit fixed without extending to the consequences of failure to comply with it. The judgment in Pressler, cited above, might seem to oppose this approach, since the Court of Justice declared invalid a provision which did not allow economic traders to obtain an aid if they submitted their application out of time, ‘irrespective of the extent to which the time-limit ... is exceeded ...’. (14) However, the reasoning which led the Court of Justice to declare that provision invalid shows that what was disproportionate with respect to the objectives of the legislation was the time-limit fixed, not the consequences of failing to comply with it. (15) 41. Otherwise, the approach suggested is in line with the judgment in Denkavit France: ‘the barring of claims on the ground that the requisite documents have been submitted out of time is not a penalty but, as a general rule, the normal consequence of the expiry of any prescribed period the observance of which is mandatory. (16) I therefore consider that it is inconsistent to declare that a time-limit for which non-compliance does not incur a penalty is proportionate in the light of the objectives of the legislation and then to examine the proportionality of the consequences of the failure to comply with it. In other words, the adverse consequences of that time-limit for individuals do not constitute a penalty but are a consequence of the fact that the time-limit is prescribed and that its observance is mandatory, that is to say, the natural consequence of expiry for carrying out the action or exercising the right which depends on the time-limit. In this case, the proportionality of the prescription forms part of the assessment of the proportionality of the time-limit itself, to which all individuals are equally subject and which usually serves to meet a general interest connected with sound administration. In short, I consider that only in the event that failure to observe a time-limit leads to the imposition of a penalty must the proportionality of that penalty be examined separately. In the remaining cases the review must be limited to the proportionality of the time-limit fixed. 42. In the present case, since failure to observe the time-limit does not incur a penalty, judgment need be given only on the proportionality of the time-limit, which clearly alters the terms of the question raised by the national court. As the Commission has pointed out, in matters concerning the common agricultural policy the Community legislature has a discretionary power, which means that the review carried out by the Court of Justice must be limited to the manifestly inappropriate nature of a measure having regard to its objective. (17) Therefore, the principle of proportionality must not be applied strictly but with the aim of determining whether the time-limit is manifestly disproportionate. In the case with which we are concerned, I do not consider the three-week time-limit prescribed in Article 50a of Regulation No 3886/92 manifestly disproportionate but, rather, necessary in the context of the granting of premiums which are temporary and require continuous monitoring by the Commission, in case they need to be adjusted. I also think that its length is reasonable and adequate for possible beneficiaries to be able to submit their applications within the period. 43. That type of global assessment of the proportionality of a time-limit –without going into an assessment of the proportionality of its consequences – also enables us to avoid having to make a rather arbitrary distinction between contingency measures, for which the time-limits must be strictly observed, and structural measures, for which, a contrario, the time-limits are only compulsory if the legislation provides for a scale, in proportion to the extent to which the time-limit has been exceeded, of unfavourable consequences arising from failure to observe it. Finally, it is clear that the legislature may provide for that kind of scale, but that does not mean that a general principle of Community law with constitutional status – the principle of proportionality – requires it to do so and entails the annulment of provisions which do not provide for such mechanisms. 44. Accordingly, I consider that the examination of the fourth question referred for a preliminary ruling has not revealed anything capable of affecting the validity of Article 50a of Regulation No 3886/92. III – Conclusion 45. In the light of the foregoing considerations, I suggest that the Court of Justice give the following reply to the questions referred by the College van Beroep voor het bedrijfsleven: (1) Article 3(2)(c) of Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time-limits is to be interpreted as meaning that a period expressed in weeks, months or years which has to be calculated from the time an event occurs or an action takes place is to end with the expiry of whichever day in the last week, month or year of the period is the same day of the week or falls on the same date as the day following the day on which the event or action from which the period had to be calculated occurred or took place. (2) A Member State is not free, when applying Article 50a of Commission Regulation (EEC) No 3886/92 of 23 December 1992 laying down detailed rules for the application of the premium schemes provided for in Council Regulation (EEC) No 805/68 on the common organization of the market in beef and repealing Regulations (EEC) No 1244/82 and (EEC) No 714/89, to establish the time at which a premium application has been lodged pursuant to national rules of procedure which apply within the national legal system of that Member State to comparable national periods for making applications. (3) Article 50a of Regulation No 3886/92 must be interpreted as meaning that a premium application cannot be regarded as lodged in due time if it is shown to have been posted prior to the expiry of the three-week period and to have been received by the competent authority at such a time that it could have communicated the relevant data to the Commission on the same day as would have been the case had the premium application been received by the competent authority within that period. (4) Examination of the fourth question referred for a preliminary ruling has not revealed anything capable of affecting the validity of Article 50a of Regulation No 3886/92. 1 – Original language: Portuguese. 2 – OJ, English Special Edition 1971 (II), p. 354. 3 – Commission Regulation (EEC) No 3886/92 of 23 December 1992 laying down detailed rules for the application of the premium schemes provided for in Council Regulation (EEC) No 805/68 on the common organisation of the market in beef and repealing Regulations (EEC) No 1244/82 and No 714/89 (OJ 1992 L 391, p. 20), as amended by Commission Regulation (EC) No 2311/96 of 2 December 1996 (OJ 1996 L 313, p. 9). 4 – This is the version resulting from the amendments to the Rules of Procedure of the Court of Justice of 15 May 1991 (OJ 1991 L 176, p. 1). The text is a ‘codification’ of the judgment in Case 152/85 Misset v Council [1987] ECR 223, paragraph 8. 5 – See, for example, the judgment in Case C-372/88 Cricket St Thomas [1990] ECR I-1345, paragraph 19. 6 – The second recital in the preamble to Regulation No 1182/71. 7 – Order in Case C-406/01 Germany v Parliament and Council [2002] ECR I-4561, paragraph 14, which refers to paragraph 8 of the judgment in Misset v Council, cited above. 8 – Periods of this kind are often fixed. See, for example, those laid down in Commission Regulation (EC) No 1392/2001 of 9 July 2001 laying down detailed rules for applying Council Regulation (EEC) No 3950/92 establishing an additional levy on milk and milk products (OJ 2001 L 187, p. 19). 9 – Commission Proposal (EEC, Euratom) on the method of calculating time-limits, presented by the Commission on 27 July 1969 (Journal Officiel 1969 C 108, p. 10). 10 – [2004] ECR I-3219. 11 – Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36), as amended by Commission Regulation (EC) No 1648/95 of 6 July 1995 (OJ 1995 L 156, p. 27). 12 – Case C-319/90 Pressler [1992] ECR I-203. 13 – See, for example, the judgments in Case 122/78 Buitoni [1979] ECR 677 and Case C-356/97 Molkereigenossenschaft Wiedergeltingen [2000] ECR I-5461. 14 – Paragraph 17. 15 – Particularly paragraph 16: ‘it does not appear that strict observance of the date of 7 September for the submission of harvest declarations is indispensable in order to ensure that the Commission has adequate information about production and stocks in the wine sector by 10 December.’ 16 – Case 266/84 Denkavit France [1986] ECR 149, paragraph 21. 17 – See, for example, the judgments in Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 14, and Case 265/87 Schräder [1989] ECR 2237, paragraphs 21 and 22.