61982C0337
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 23 NOVEMBER 1983 (
1
)
Mr President,
Members of the Court,
In 1976 the supply of cheap French agricultural alcohol led to disturbances, or threats of disturbances, on the German, Belgian, Luxembourg and Netherlands alcohol markets. The availability of cheap supplies was above all the result of the pricing policy applied by France, by means of its national alcohol monopoly.
That policy consisted in selling for export ethyl alcohol at a price which was on average both substantially below the French domestic price and below the price prevailing in the other countries referred to. In view of that situation the Kingdom of Belgium, the Federal Republic of Germany, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands requested the Commission to take measures pursuant to Article 46 of the EEC Treaty, which provides that, where in a Member State a product is subject to a national market organization or to internal rules having equivalent effect which affect the competitive position of similar production in other Member States, the Member States may apply a countervailing charge fixed by the Commission with a view to redressing the balance.
At the time the Commission took the view that neither Article 37 of the EEC Treaty, which concerns State monopolies of a commercial character, nor the Treaty provisions on aids were applicable to those cheap exports; in the end, it adopted Commission Regulation (EEC) No 851/76 of 9 April 1976 fixing a countervailing charge for imports into Belgium, Germany, Luxembourg and the Netherlands of ethyl alcohol of agricultural origin produced in France (Official Journal 1976, L 96, p. 41), whereby the States in question were authorized, as from 15 April 1976, to levy a countervailing charge on French ethyl alcohol entered for home use.
Subsequently, after various amendments, that regulation was replaced by Commission Regulation (EEC) No 1407/78 of 26 June 1978 (Official Journal 1978, L 170, p. 24), which in its turn was repealed by Commission Regulation (EEC) No 841/80 of 2 April 1980 (Official Journal 1980, L 90, p. 30), when the Commission considered that France had discontinued its practice of granting aids.
On 21 April 1976, when Regulation No 851/76 was still in force, St. Nikolaus Brennerei und Likörfabrik, Gustav Kniepf-Melde GmbH, the plaintiff in the main proceedings, imported 24617 litres of fermented ethyl alcohol of agricultural origin from France into the Federal Republic of Germany. By a final notice of assessment of December 1977, in accordance with the above-mentioned regulation, the competent customs office fixed the countervailing charge payable on the imported goods at DM 11166,70.
Following an unsuccessful appeal against that decision, the plaintiff brought an action before the Finanzgericht [Financial Court] Düsseldorf against the Hauptzollamt [Principal Customs Office] Krefeld, claiming exemption from the countervailing charge on the ground that Regulation No 851/76, which was based on Article 46 of the EEC Treaty, was void inasmuch as Article 46 had become devoid of purpose after the expiry of the transitional period on 31 December 1969.
The Fourth Senate of the Finanzgericht Düsseldorf also had doubts as to the continued validity of that regulation and, by order of 8 December 1982, it stayed the proceedings and requested the Court of Justice, pursuant to Article 177 of the EEC Treaty, to give a preliminary ruling on the following question :
“1.
Is Commission Regulation (EEC) No 851/76 of 9 April 1976 void in so far as it is based on Article 46 of the EEC Treaty, which is no longer applicable after the expiry of the transitional period?
2.
If the answer to Question 1 is in the affirmative, what legal consequences arise from the invalidity of the regulation?”
My view on the matter is as follows :
I — The first question
The regulation in question might be void, if at the time of its adoption, more than six years after the end of the transitional period provided for in the Treaty, it was no longer possible on the basis of Article 46 of the EEC Treaty to authorize the Member States concerned to levy such countervailing charges. Although on the face of it the question refers merely to the duration of the validity of Article 46, the grounds of the order requesting a preliminary ruling show that the national court wishes to know whether the Commission could on the basis of that provision authorize such charges for the purpose of countering disturbances of the market caused by unlawful conduct on the part of Member States. The national court proceeds on the assumption that the French export subsidies accorded for agricultural alcohol are legally classifiable as measures covered by Article 37 of the EEC Treaty, which should have been adjusted by the end of the transitional period, and that if that duty had been complied with, it would in fact no longer be necessary to apply Article 46 after 31 December 1969. In the view of the Finanzgericht, the validity of the regulation seems even more questionable because the Commission did not take action, in accordance with Articles 155 and 169 of the EEC Treaty, against the breach of the Treaty itself; it merely removed the effects thereof by indirect means and thus, in the national court's view, prolonged the unlawful French conduct.
Thus the first question to be decided is whether Article 46, which, as the Finanzgericlu rightly stresses, constitutes the sole legal basis for the adoption of such regulations, retains any validity at all after the expiry of the transitional period. Only if that question is answered in the affirmative will it become necessary to consider the scope of that provision.
1.
As regards the duration of the validity of Article 46, I agree with the United Kingdom, the plaintiff in the main proceedings and the Commission, which have submitted observations, that the provision may in principle still retain a measure of validity, even though a schematic and teleological analysis, on the face of it, militates against its continued validity after the expiry of the transitional period.
Set against that view is in particular the fact, to which the Commission also draws attention, that Article 46 appears in Title II of the Treaty, which is concerned with agriculture. According to Articles 40 and 43 of the Treaty, during the transitional period a common agricultural policy was to be developed, entailing inter alia the replacement of national market organizations by one of the forms of common organization which take into account the other aims of the Treaty. Thus, after the expiry of the transitional period, national market organizations, as referred to in Article 46, should no longer have existed. Since the common agricultural market, as set out in Articles 38 to 43, was to be developed gradually, the next two articles which are expressly described as transitional provisions, provide that during that period Member States still have specific rights and duties. Article 46 comes directly after those provisions and directly precedes the last article in the title. Although it is not described as a transitional provision, it too is based on the principle that national market organizations were to continue on a provisional basis until their replacement by common organizations. Furthermore, that restrictive interpretation of Article 46 is supported by the fact that it is difficult to reconcile in principle an unlimited application of countervailing charges with the requirements of a common market, which, as is stipulated in Article 43 (3) (b), is intended inter alia to ensure conditions similar to those existing in a national market. In addition the Court of Justice has always made it clear — in particular in its judgments in Charmasson, (
2
) in Commission ν United Kingdom (the Potatoes case) (
3
) and in Ramel (
4
) — that Article 40 envisages the end of the transitional period as the final date for the development of the common agricultural policy and, in consequence, under Articles 43 and 46 Member States are permitted to retain existing national market organizations on a temporary basis. In Charmasson (
2
) and in the Potatoes case, (
3
) the Court emphasized that, in any event, since the expiry of the transitional period it is no longer permissible to adopt unilaterally national measures which are not compatible with the provisions of the Treaty concerning the free movement of goods and agriculture. Finally, in Ramel (
4
) a Community provision authorizing such measures was declared void on the same grounds. It is clear from those decisions that such measures are not permissible when they infringe the Treaty provisions. On the other hand, it is not stated in those judgments whether such measures are permissible where, in the absence of a Community market organization, they are adopted in accordance with the Treaty after the expiry of the transitional period. When such measures lead to distortions of competition, Article 46 can still be usefully applied in certain areas, as will be seen later, even after the expiry of the transitional period.
If, on the one hand, it is accepted on the basis of the above-mentioned decisions that after the expiry of the transitional period the provisions relating to the free movement of goods apply fully to agricultural products and if, on the other hand, it is borne in mind that, although the Treaty laid down certain guarantees for agricultural producers, in particular in Articles 39 and 43, those guarantees have not been implemented by means of a common organization of the market, it mus be possible for the Member States to ensure that agricultural producers enjoy the guarantees provided for in the Treaty.
As the Commission and the United Kingdom correctly pointed out, the Court of Justice has recognized, inter alia in Case 232/78 (Commission v France [mutton and lamb]), (
5
) that, pending the establishment of a common organization of the market, such measures for the protection of producers may be necessary and desirable, even after the expiry of the transitional period, provided that they are adopted by the Community and not unilaterally by the Member State concerned. In that case the Court stated :
“The expiration of the time-limits for the transition implies therefore that those matters and sectors specifically assigned to the Community are the responsibility of the Community so that, although it is still necessary to take special measures, a decision to adopt them can no longer be made unilaterally by the Member States concerned; they must be adopted within the Community system which is designed to guarantee that the general public interest of the Community is protected.”
However, it is clear that such national support measures for the agricultural producers of a Member State, if permitted, may lead to disturbances of the markets in other Member States.
But, according to the unequivocal wording of Article 42 of the EEC Treaty and Article 4 of Regulation No 26, so long as no common organization of the market exists, Articles 92 et seq. of the Treaty, concerning State aids, are applicable only to a limited extent. Thus, although according to the first sentence of Article 93 (3) of the EEC Treaty the Commission is to be informed of any plans to grant or alter aid, it cannot use the measures provided for in Article 93 (2) and in the second and third sentences of Article 93 (3) in order to prevent effectively and from the outset aids which are incompatible with the common market, except where a common organization of the market exists for the agricultural products in question. Moreover, it is not difficult to imagine aids which are not covered by the prohibition of discrimination in Article 37 (1) of the EEC Treaty or which cannot be classified as resulting from a monopoly. As the Treaty does not provide any means, other than Article 46, of regulating such lawful measures, which may lead to distortions of competition, I agree with the Commission and the United Kingdom that, in the sphere described above, that provision retains a useful function and, in that respect, should be applied even after the expiry of the transitional period.
Furthermore, there is nothing in the wording of Article 46 to suggest that it should not continue to apply after the expiry of the transitional period and until the introduction of a common organization of the market. In contrast to Articles 44 and 45, the duration of the validity of Article 46 is not limited to the transitional period.
Finally, even where a common organization of the market exists, the Court in its judgment in Kind (
6
)recognized in principle the possibility of appropriate neutralizing mechanisms in international trade, where different intervention measures are adopted because of the different structure of agriculture in particular areas of the Community.
2.
In my view, it is however extremely doubtful whether, as the United Kingdom believes, the provision may still be regarded after the expiry of the transitional period as authorizing the adoption of national measures which are intended to neutralize unlawful action taken unilaterally by a Member State. It may indeed be tempting to use Article 46 to that end, since the imposition of countervailing charges is unquestionably an effective method of swiftly eliminating distortions of competition caused by unlawful conduct. However, I am extremely reluctant, to attach such a construction to the provision, principally on grounds related to the general scheme of the Treaty.
In that connexion, I will again point out that in Charmasson (
7
)the Court of Justice already had to consider inter alia whether, after the expiry of the transitional period, “the existence ... of a national market organization within the meaning of Articles 43, 45 and 46 of the Treaty” in a Member State could preclude the application of one of the provisions on the free movement of goods. In answer to that question it was stated that a national market organization could preclude the application of the provisions on the free movement of goods only until the end of the transitional period and that after the expiry of that period those provisions must be fully effective. That means that no rule of a national market organization and no measure having equivalent effect may be maintained in force after the expiry of the transitional period, if it is incompatible with the Treaty provisions on the free movement of goods. If the export subsidies granted for agricultural alcohol in 1976 within the framework of the French alcohol monopoly are to be regarded as equivalent to a body, within the meaning of the second subparagraph of Article 37 (1) ot the EEC Treaty, through which a Member State either directly or indirectly determines or at least appreciably influences trade between the Member States, then, on the basis of the judgments in Manghera, (
8
)REWE (
9
) and Miritz, (
10
) the subsidies should have been adjusted at the latest by the end of the transitional period provided for in Article 37, since from that time the prohibition of discrimination contained in that article has been fully effective and has been applicable in the agricultural sphere, even where there is not yet a common organization of the market. Since therefore, after the expiry of the transitional period, national market organizations or rules having equivalent effect which do not conform to the Treaty are no longer permitted, even where there is no common organization of the market, Article 46, according to its original conception, was from that time on deprived of its significance in that respect.
In particular, in the light of the decisions referred to, that provision may not be interpreted as meaning that Member States are authorized to maintain rules contrary to the Treaty even after the expiry of the transitional period by way of derogation from Article 38 (2), according to which “the rules laid down for the establishment of the common market shall apply to agricultural products”. Thus in Charmasson, (
7
) the Potatoes case (
11
) and Ramel (
12
) the Court of Justice expressed the view that, especially with regard to measures which are not compatible with the common agricultural policy, Article 46 expressly concerns only the temporary maintenance of national market organizations during the transitional period. Conversely, even though the question was admittedly not crucial in those cases, it can be inferred from those decisions that, contrary to the opinion expressed by the United Kingdom, Article 46 may no longer be used to counter aids granted in breach of the Treaty.
A number of important considerations support that view, which is shared by the plaintiff in the main proceedings and by the Commission. In the first place it must be noted that Article 38 (2) of the EEC Treaty declares that the provisions on the free movement of goods are in principle applicable also to agriculture except where Articles 39 to 46 provide otherwise. However, as the Court held inter alia in the judgments in Joined Cases 90 and 91/63 (
13
) and in Ramel (
14
) any exception to that principle must be strictly construed and clearly laid down.
Furthermore, as the Court held inter alia in Cbarmasson, (
15
) derogations which a national market organization may effect from the general rules of the Treaty are only permissible provisionally, to the extent necessary to ensure the functioning of the organization, without impeding the adaptations which are involved in the establishment of the common agricultural policy. In the light of that consideration it is, in my view, unacceptable to extend the meaning of Article 46 beyond its wording and to interpret it as meaning that it can be applied also to acts of the Member States which are contrary to the Treaty.
The general system of the Treaty and the division of powers between the Community and the Member States, as expressed inter alia in the procedure for dealing with breaches of the Treaty, also militates against such an extensive interpretation. Article 155 appoints the Commission custodian of the Treaty. Under Article 169 it must institute proceedings when it considers that a Member State has failed to fulfil its obligations under the Treaty. In contrast to the procedure provided for in Article 46, the formal proceedings under Article 169 include procedural guarantees for Member States which are accused of infringing the Treaty. If the Court finds that the Treaty has been infringed, under Article 171 the Member State concerned is required to take the necessary measures to comply with the judgment of the Court. In principle no provision is made, if I have understood the matter correctly, for self-help measures adopted by the Commission or the other Member States against conduct contrary to the Treaty.
If Article 46 may be applied to Member States' conduct which is contrary to the Treaty, the effect, namely the removal of that conduct, would be one not provided for by the Treaty. Dealing with a further argument advanced by the United Kingdom, I doubt whether Article 115 in particular may be called in aid to support an opposing view. Article 115 of the EEC Treaty does indeed provide that the Commission may authorize Member States to take the necessary protective measures; that however is based on the assumption that the threat of a deflection of trade arises from measures adopted by the Member States “in accordance with this Treaty”.
Moreover, there is in general no reason why certain agricultural products, in respect of which the Council, in breach of its obligations under the Treaty, has so far failed to provide any market organization, should be placed in a particularly favourable position as regards national aids by the application of Article 46, whilst a similar procedure is excluded for agricultural products for which a common organization of the market exists and for all industrial products. It is also difficult to explain why in exactly those circumstances the Commission possesses especially far-reaching powers and why the Member States authorized to levy countervailing charges should obtain a more favourable position than that to which they are entitled under the Treaty. Since, after the expiry of the transitional period, market organizations which do not conform to the Treaty are no longer permissible, it cannot be claimed that action under Article 46 in application of the general rules of the Treaty appears necessary for the functioning of those rules.
Nor is it possible to disregard the risk referred to by the Commission and the plaintiff in the main proceedings that the application of Article 46 to unlawful conduct on the part of Member States could impede the adaptations which are involved in the establishment of a common organization of the market. Certain Member States' interest in the creation of a common organization might diminish, since where such an organization existed proceedings could be instituted against unlawful national aids only under Article 92 or Article 169 of the Treaty; the procedure under Article 46 could no longer be used. If moreover the Commission were given the power to remedy the consequences of a breach of the Treaty by means of the measures provided for in Article 46, that could considerably reduce the force of the obligation on the Member States' to eliminate a breach of the Treaty as soon as possible in the interest of the functioning of the Community, because there would exist an alternative solution.
Finally, the view advanced by the British Government, according to which Article 46 can still be applied in order to counter disturbances of the markets resulting from national measures, finds no support whatsoever in the Kind (
16
) judgment. In that case the Court of Justice merely recognized the legality of a charge levied on exports which was intended to compensate for. a slaughter premium based on Community rules and therefore granted in accordance with the Treaty. Article 46 does not however, as has been shown, authorize Member States to maintain after the expiry of the transitional period measures which are contrary to the provisions on the free movement of goods.
Consequently, for those reasons, I agree with the national court that Article 46 of the EEC Treaty cannot be seen as authorizing measures to counter such distortions of competition as may arise from unlawful conduct on the part of Member States.
3.
Thus the further question arises as to the status of Regulation No 851/76, which authorizes Member States to levy countervailing charges. As the Commission concedes, the view which it now holds is that Article 46 can no longer be regarded as a valid legal basis for the regulation. In 1976, however, the Commission reached the conclusion that, after the expiry of the transitional period, Article 37 of the EEC Treaty remained applicable only in very limited circumstances. As it had regarded French export subsidies as permissible measures under the national market organization, it did not institute proceedings for breach of the Treaty and instead, on the basis of Article 46 of the EEC Treaty, adopted the regulation in question. However, following the Court's ruling in Hansen ν Hauptzollamt Flensburg (
17
) that, even after the expiry of the transitional period, Article 37 constitutes in relation to Articles 92 et seq. a fully applicable lex specialis, the Commission changed its position, and now regards those export subsidies as a form of discrimination regarding the conditions under which goods are procured and marketed, within the meaning of Article 37 (1). Therefore in April 1980 it adopted Regulation No 841/80 (Official Journal 1980, L 90, p. 30) repealing Regulation No 1407/78 (Official Journal 1978, L 170, p. 24), which had by that time replaced Regulation No 851/76 and was likewise based on Article 46. Thereafter the Commission refused to apply Article 46 in similar cases. On the basis of the view which it now holds, the Commission agrees with the plaintiff in the main proceedings that the regulation is to be regarded as invalid on the grounds set out above.
Even though that solution may seem logical now, in my view it fails to take into account the fact that the legality of an authorization based on Article 46 cannot be judged in the light of the legal situation as it is seen today. The only legal situation which is relevant is that on the basis of which the Commission was entitled to proceed at the time of the adoption of the regulation in question. The effect of the view expressed in this opinion is that, as the United Kingdom also points out, at least so long as the unlawfulness of measures adopted by the Member States is not clearly established, it is exclusively for the Commission to decide whether it will take action against a disturbance of the market by means of proceedings for breach of the Treaty or by means of an authorization based on Article 46. In that respect, it must also be borne in mind that it is often difficult to judge the legality of a national measure before the Court of Justice has given a definitive ruling on the matter. However, the Commission continually faces such problems when called upon to decide, in the proper exercise of its discretion, whether or not proceedings for breach of the Treaty should be instituted. If, the Commissions's decision on the institution of such proceedings depends on the assessment of the factual and legal situation, it must, in my view, also be entitled to have recourse to the authorization contained in Article 46 under the same conditions, if it decides not to institute proceedings for breach of the Treaty.
If, as in this case, on the basis of a legal situation which is not yet entirely clear, the Commission decided, in the proper exercise of its discretion, to have recourse to such a measure in preference to the alternative of proceedings for breach of the Treaty and if a subsequent clarification of the legal position had the effect of invalidating the regulation, that would mean that every Commission measure taken against a Member State's unilateral action causing a disturbance to the market — measures which the Commission is under a duty to take — would be set aside retroactively and thus the unlawful action would escape any sanction because the Commission chose the wrong means. However, as the Treaty cannot have been intended to have such a result, I consider that the regulation adopted in the circumstances which I have described must not be declared void. That regulation at least eliminated the consequences arising from the breach of the Treaty.
II — The second question
In the light of that conclusion the second question, which concerns the legal consequences of invalidity, requires only very brief additional comments.
Since the national court doubtless appreciates that a charge levied without any valid legal basis in principle gives rise to a right to reimbursement for the parties concerned, I share the Commission's view that the question is presumably intended to establish whether, in the event of the regulation's being declared void, there is any question of an exception to that principle. Such an exception could be based on the second paragraph of Article 174 of the EEC Treaty: the Court could apply that provision by analogy to this case, which is concerned exclusively with the past, and state that the legal effects of the regulation are definitive despite the fact that it has been declared void.
The Commission, which bases its view on the assumption that only very few importers were affected by Regulation No 851/76, argues in favour of the application thereof principally on the ground that a decision declaring it void would merely have the effect of allowing the parties concerned an unjustified competitive advantage derived solely from their unlawful conduct.
As the Commission concedes, however, the Court has hitherto made use of the facility provided for in the second paragraph of Article 174 only exceptionally, inter alia where important considerations of legal certainty have militated in favour of the continued application of the provision declared invalid. As a matter of principle I consider it wrong to have recourse to that provision in order to perpetuate an invalidated regulation to the detriment of certain parties, purely for the sake of doing justice in a single case. The continued application of an invalid regulation on the grounds advanced by the Commission would mean that the importers concerned would forfeit their right to reimbursement resulting in principle from the invalidity of the rule.
III —
On the basis of the foregoing conclusions I therefore propose that, in reply to the question referred to the Court, it should be stated that consideration of Commission Regulation No 851/76 has disclosed no factor of such a kind as to affect its validity.
(
1
)	Translated from the German.
(
2
)	Judgment of 10 December 1974 in Case 48/74 Charmasson v Minister for Economic Affairs and Finance [1974] ECR 1383.
(
3
)	Judgment of 29 March 1979 in Case 231/78 Commission v United Kingdom [1979] ECR 1447.
(
4
)	Judgment of 20 April 1978 in Joined Cases 80 and 81/77 Société Les Commissionnaires Réunis Sàrl v Receveur des Douanes and Sarl Les Fils de Henri Ramel v Receveur des Douanes [1978] ECR 927.
(
5
)	Judgment of 25 September 1979 in Case 232/78 Commission v France [1979] ECR 2729.
(
6
)	Judgment of 15 September 1982 in Case 106/81 Julius Kind KG ν European Economic Community [1982] ECR 2885.
(
7
)	Judgment of 10 December 1974 in Case 48/74 Charmasson v Minister for Economic Affairs and Finance [1974] ECR 1383.
(
8
)	Judgment of 3 February 1976 in Case 59/75 Pubblico Ministero v Flavia Manghera and Others [1976] ECR 91.
(
9
)	Judgment of 17 February 1976 in Case 45/75 REWEZentrale des Lebensmittel-Großhandels GmbH v Hauptzollamt Landau-Pfalz [1976] ECR 181.
(
10
)	Judgment of 17 February 1976 in Case 91/75 Hauptzollamt Göttingen v Wolfgang Miritz GmbH & Co. [1976] ECR 217.
(
11
)	Judgment of 29 March 1979 in Case 231/78 Commission v United Kingdom [1979] ECR 1447.
(
12
)	Judgment of 20 April 1978 in Joined- Cases 80 and 81/77 Société Les Commissionnaires Réunis Sàrl v Receveur des Douanes and Sàrl Les Fils de Henri Ramel v Receveur des Douanes [1978] ECR 927.
(
13
)	Judgment of 13 November 1964 in Joined Cases 90 and 91/63 Commission v Luxembourg and Belgium [1964] ECR 625.
(
14
)	Judgment of 20 April 1978 in Joined Cases 80 and 81/77 Société Les Commissionnaires Réunis Sàrl v Receveur des Douanes and Sàrl Les Fils de Henri Ramel v Receveur des Douanes [1978] ECR 927.
(
15
)	Judgment of 10 December 1974 in Case 48/74 Cbarmasson v Minister ¡or Economic Affairs and Finance [1974] ECR 1383.
(
16
)	Judgment of 15 September 1982 in Case 106/81 Julius Kind KG ν European Economic Community [1982] ECR2885.
(
17
)	Judgment of 13 March 1979 in Case 91/78 Hansen GmbH & Co. v Hauptzollamt Flensburg [1979] ECR