Opinion of Mr Advocate General Darmon delivered on 15 September 1992. - SpA Alois Lageder and others v Amministrazione delle Finanze dello Stato. - References for a preliminary ruling: Corte suprema di Cassazione - Italy. - Wine - Quality wines psr - "DOC and DOCG" designations - Provisional list - Monetary compensatory amounts - Mistake by the national authorities - Prescription - Protection of legitimate expectations. - Joined cases C-31/91 to C-44/91.



European Court reports 1993 Page I-01761



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. By these questions the Corte Suprema di Cassazione (Supreme Court of Cassation) asks the Court to interpret Article 1 of Regulation (EEC) No 1311/73 of the Commission (1) in the sphere of wine and wine products and, more specifically, quality wines p.s.r., and, more generally, to consider in the light of the purpose of monetary compensatory amounts and the principle of the protection of legitimate expectations whether it is possible for national authorities several years later to recover compensatory amounts which they had omitted to collect.

2. The facts may be summarized as follows. Between June and August 1973 a number of Italian wine exporters ° including Alois Lageder SpA (hereinafter "Lageder") ° delivered quality wines to the Federal Republic of Germany. Accompanying documents of type VA(2) were drawn up by the laboratory for analysis and research of the Istituto Agrario Provinciale di S. Michele all' Adige for each shipment. Because these deliveries concerned quality wines p.s.r. they were not subject to the rules relating to monetary compensatory amounts. It was not until 1977 and 1978 that the Italian finance authorities first claimed from, and then ordered payment by, the wine establishments which had carried out those exports of the monetary compensatory amounts wrongly not collected, on the ground that the Istituto Agrario Provinciale di S. Michele ° which, meanwhile, was no longer authorized to exercise a power which had now devolved on the Ministry of Agriculture ° had on that occasion issued certificates in reliance on a provisional list of quality wines p.s.r. which had ceased to be valid on 22 May 1973.

3. Although Lageder' s arguments were accepted at first instance, the Corte d' Appello di Trento (Court of Appeal, Trento), in its judgment of 22 August 1987, upheld the argument put forward by the Italian authorities. The case came before the Corte Suprema di Cassazione, which referred three questions to the Court for a preliminary ruling. The essential purpose of those questions is:

° to determine whether Article 1 of Regulation No 1311/73 allows only wines designated "denominazione di origine controllata" (DOC) and "denominazione di origine controllata e garantita" (DOCG) to be included in the list of quality wines p.s.r. referred to in Article 1(3) of Regulation (EEC) No 817/70 of the Council (2) or whether it retains the wines appearing on an earlier provisional list;

° to declare whether the financial authorities of a Member State have a right and an interest in collecting, several years after completion of the export transaction, the monetary compensatory amounts not collected owing to a mistake attributable to the authorities;

° to assess the compatibility of the belated recovery of the compensatory amounts with the Community-law principle of the protection of legitimate expectations.

4. Thirteen other cases between wine exporters and the same defendant in which similar problems are raised were joined for the purposes of the written and oral procedures by order of the Court dated 27 February 1991.

5. The answer to the first question submitted by the Corte Suprema di Cassazione requires a detailed examination of the Community rules applicable.

6. It should be pointed out at the outset that the organization of the market in wine and wine products has gone through three main stages: first the objectives and structures were defined, then there was a regulatory phase and finally there followed the codification and clarification of the provisions in force.

7. It was Regulation No 24 of the Council of 4 April 1962 (3) which first laid the foundations of the organization of the market in wine and wine products and provided for the early machinery ° the establishment of a viticultural land register, the introduction of a system for the declaration of harvests and stocks, the drawing up of a forward estimate, the establishment of a Management Committee for Wine ° designed to achieve the successful completion of a quality policy and to attempt to reduce surpluses, the principal cause of the difficulties experienced by certain producing countries.

8. The 1970s were marked by significant legislative activity in the form of the deployment of coherent operational policy instruments concerning both the market in wine and wine products in general and specific types of production. Thus Regulations (EEC) Nos 816/70 and 817/70 of the Council of 28 April 1970 (4) established an initial scheme which underwent a number of amendments.

9. Finally the complexity of the legislative system in force and the intricacy of the amending regulations led the Council to adopt on 5 February 1979 Regulations (EEC) Nos 337/79 and 338/79 (5) codifying the provisions applicable in the wine and wine products sector. (6) Those two measures repealed Regulation No 24, Regulations Nos 816/70 and 817/70 and all other related measures. This new machinery was in turn to be amended by Council Regulations (EEC) Nos 822/87 and 823/87. (7)

10. Since the exports from which the main proceedings stemmed were carried out between June and August 1973, the arrangements applicable to them must be precisely determined.

11. In order to provide clarification of the relevant legislative provisions, I shall separate the presentation of the provisions relating to accompanying certificates from those relating to the lists of quality wines p.s.r., although certain of the regulations concern both the accompanying documents and the lists.

12. In relation, first of all, to the lists of quality wines p.s.r., three measures must be considered by the Court.

13. In the first place, Regulation No 817/70, Article 1 of which initially consisted of only two paragraphs, provides that:

"This Regulation lays down special provisions for quality wines produced in specified regions.

' Quality wines produced in specified regions' (hereinafter called 'quality wines p.s.r.' ) means wine which satisfies the provisions of this Regulation and those adopted in application thereof, and are defined by national rules."

14. Next, Regulation (EEC) No 1627/71 of the Council of 26 July 1971 (8) added a third paragraph to Article 1 of Regulation No 817/70, worded as follows:

"Until Member States have adopted, in respect of the quality wines p.s.r. produced on their territory, the national provisions on conditions of production referred to in Articles 2, 3, 4, 6(1), 7 and 10, and until 31 August 1973 at the latest, wines appearing on a list adopted according to the procedure provided for in Article 7 of Regulation No 24 shall be considered as quality wines p.s.r. if they are in conformity with the other provisions of this Regulation." (9)

15. Finally, Regulation No 1311/73, cited above, defines as follows, in Article 1, the "list" referred to in the third paragraph of Article 1 of Regulation No 817/70:

"(This) list ... included the wines which, according to the legislation of the producer Member State, have right to the expressions specified for each of these Member States in Article 12(2) of Regulation (EEC) No 817/70."

This final regulation was published in the Official Journal on 19 May 1973 and entered into force on the third day thereafter, namely 22 May 1973.

16. Article 12(2) of Regulation No 817/70, to which it refers, provides:

"Without prejudice to any additional expressions which may be allowed by national laws, and subject to national provisions on the wines in question being observed, the specific expressions traditionally used which are referred to in paragraph 1 (10) shall be the following:

(c) Italy:

' Denominazione di origine controllata' and 'Denominazione di origine controllata e garantita' ; ...".

17. It follows from these three regulations that the provisional arrangements under Regulation No 1627/71, which were applicable "until 31 August 1973 at the latest", were supplemented, before the deadline prescribed by Article 1 of Regulation No 1311/73, which provides that wine can only be recognized as quality wine p.s.r. if it has been awarded the designation DOC or DOCG by the Italian State.

18. That interpretation is borne out by an analysis of Regulation (EEC) No 2247/73 of 16 August 1973, (11) which provides in Article 3 that each Member State is to communicate the names of the quality wines p.s.r. produced on its territory to the other Member States and to the Commission, which is to have them published in the Official Journal of the European Communities. That regulation, one of the purposes of which is to 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 provision still in force relating to the drawing up of the list ° which, it must be remembered, is a provisional list ° namely Regulation No 1311/73. Article 4 states that:

"Commission Regulation (EEC) No 1311/73 of 16 May 1973 on a provisional list of quality wines produced in specified regions and on the identification of such wines in the accompanying documents is repealed with effect from 31 August 1973."

19. As regards the accompanying certificates, the second point of this presentation of the measures, Regulation (EEC) No 1704/70 of the Commission of 25 August 1970, (12) concerning both these documents and the list of quality wines p.s.r., had as its purpose, inter alia, to amend Article 1 of Regulation (EEC) No 1022/70 (13) and stated that

"for the application of this Regulation the following wines shall be regarded as quality wines p.s.r.:

...

° wines originating in the Italian Republic mentioned in Annex III B, provided that those wines are accompanied by a certificate of origin issued by one of the agencies listed in Annex III C ... ." (14)

20. There is thus no doubt that Istituto S. Michele, which is mentioned in Annex III C, was able to issue a certificate evidencing the origin of wine from the date of entry into force of Regulation No 1704/70, that is to say, from 29 August 1970, until the date of expiry of Regulation No 1022/70, namely 31 March 1973. (15)

21. As was emphasized during the oral procedure, between 31 March 1973, the date of expiry of Regulation No 1022/70, and 22 May 1973, the date of the entry into force of Regulation No 1311/73, no specific list was applicable in relation to either quality wines p.s.r. or to the bodies hitherto empowered to issue certificates of approval. It would be inaccurate to speak of a legislative vacuum, however, since Regulation No 1627/71 continued to apply "until 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 in Article 7 of Regulation No 24) and Regulation (EEC) No 1769/72 of the Commission of 26 July 1972 (16) governed, from 1 April 1973, the establishment of the accompanying documents. Moreover, Regulation No 1311/73 simply referred to the provisions then applicable to quality wines p.s.r., namely Regulation No 1769/62 for certificates and, for the list of wines, the traditional specific expressions referred to in Article 12(2) of Regulation No 817/90, which for Italy are the descriptions DOC or DOCG.

22. Concerning, more specifically, the certificates, Article 4 of Regulation No 1769/72 provides that each Member State is to choose one or more competent agencies to issue the documents, that is to say, for quality wines p.s.r., forms VA(2) or VA(5). In the period in question (June-August 1973), where Italy was concerned, the "Ministero Agricoltura e Foreste, Servizio Repressione Frodi" had exclusive competence to issue those documents. (17)

23. It should also be emphasized that the fact that the form VA(2) or VA(5) has been obtained does not constitute irrebuttable evidence of the grant of status of quality wine p.s.r. and that economic operators acting in good faith cannot be taken by surprise by the invalidation of that document. Article 2 of Regulation No 1311/73 provides that:

"The confirmation that the wine in question may be confirmed as a quality wine p.s.r., provided that there is [no] evidence to the contrary, by the inscription of the name of the specified region in box 11 of the form VA(2) or VA(5) ...". (18)

24. All in all, the legislative mechanism applicable is as follows: until 22 May 1973, the date of the entry into force of Regulation No 1311/73, the provisional measures provided for in Regulation No 1627/73 were applied; with effect from 22 May 1973 the provisional list as defined in Regulation No 1311/73 includes only the wines confirmed as DOC or DOCG by the Italian State. Article 1 of that regulation, in conjunction with Article 1(3) of Regulation No 817/70, as amended, must therefore be interpreted as meaning that between 22 May 1973 and 31 August 1973 only the wines with the right to the appellation DOC or DOCG could come within the arrangements for quality wines p.s.r. and therefore be exported under that designation and subject to the formalities prescribed for that purpose outside the Member State.

25. Consequently, if during the abovementioned period the wines forming the subject-matter of the proceedings were not entitled to the appellation DOC or DOCG, the compensatory amounts should have been collected, in accordance with Regulations (EEC) Nos 648/73 (19) and 649/73 (20) of the Commission.

26. It is now necessary to determine, and this is the subject-matter of the second question of the Corte Suprema di Cassazione, whether compensatory amounts payable 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 authorities owing to their misinterpretation of the Community rules be time-barred, and after what time?

27. It was not until 1979 that the Council adopted Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties. (21)

28. The objectives of this regulation are two-fold. They are, first, to allow the competent authorities to make post-clearance recovery of the duties remaining due and, secondly, to ensure certainty for persons liable for payment by limiting the time within which the administrative authorities may take action. Accordingly, a period of three years (from the date of entry in the accounts of the amount originally required of the person liable for payment or from the date on which the customs debt was incurred) was laid down in Article 2 of the regulation as a time-limit for action to be taken by the competent authorities to recover the uncollected duties.

29. By reason of its substantive scope, the post-clearance recovery of the monetary compensatory amounts which is in point in the present case could fall within the area of application of Regulation No 1697/79. Article 1(2) provides:

"For the purposes of this Regulation:

...

(b) 'export duties' means agricultural levies, and other export charges laid down within the framework of the common agricultural policy, or in that of specific arrangements applicable, pursuant to Article 235 of the Treaty, to certain goods resulting from the processing of agricultural products;

...".

30. However, the question that arises is whether that regulation was retroactive. It was published in the Official Journal on 3 August 1979 and entered into force on 1 July 1980 (Article 11). Is it conceivable that it should be applied to a situation well before that date?

31. The Court has already answered that question quite clearly in its judgment in the Salumi II case. (22) The Court' s reasoning may be summarized as follows. Regulation No 1697/79 contains no transitional provision: consequently, it is necessary to take as a basis the principles of interpretation generally applied, which differ according to whether the rules to be interpreted are procedural rules or substantive rules. While procedural rules are to apply immediately to actions pending at the time of their entry into force, substantive rules, on the other hand, are not supposed to apply without express provision to situations established before their entry into force.

32. The Court stated that Regulation No 1697/79 cannot be regarded as a simple procedural provision:

"... that regulation contains both procedural and substantive rules which form an indivisible whole and the individual provisions of which may not be considered in isolation, with regard to the time at which they take effect". (23)

The Court went on to say:

"Therefore the provisions of the regulation may not be accorded retroactive effect unless sufficiently clear indications lead to such a conclusion. It is apparent that, far from indicating any retroactive effect, both the wording and the general scheme of the regulation lead to the conclusion that the regulation provides only for the future". (24)

The Court unambiguously concluded that

"the regulation covers only import or export transactions for which the payment of duties was made on or after 1 July 1980". (25)

33. The Court subsequently confirmed that interpretation in two judgments (26) in which it expressly referred to the Salumi II judgment.

34. Consequently, the Community rules on the post-clearance recovery of export duties which were wrongly not demanded of the person liable for payment, as defined in Regulation No 1697/79, cannot be applied in the present case. In order to give an effective answer to the question referred by the national court, it is necessary to go on to determine what principles are applicable in the absence of Community rules already in force.

35. The Court has already, in its judgment in Salumi I, (27) which also refused the retroactive application of Regulation No 1697/79, (28) referred a national court to the provisions in force in its national law, in the following words:

"Accordingly, in so far as no provisions of Community law are relevant, it is for the national legal system of each Member State to lay down the detailed rules and conditions for the collection of Community revenues in general and agricultural levies in particular and to determine the authorities responsible for collection and the courts having jurisdiction to decide disputes to which that collection may give rise but such procedures and conditions may not make the system for collecting Community charges and dues less effective than that for collecting national charges and dues of the same kind." (29)

36. The only two limits that the Court places on the application of domestic law, which it is in the habit of imposing generally, (30) are, first, the requirement that the scope and effectiveness of Community law are not to be adversely affected and, secondly, the requirement that there is to be no discrimination in the rules for recovery of a debt under Community law in comparison with those applying to recovery of a debt under national law.

37. Accordingly, since the Community provisions laid down in Regulation No 1697/79 cannot apply retroactively, the 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-barring of export duties which were wrongly not collected, provided that they do not discriminate against the recovery of Community debts as compared with the recovery of national debts and do not adversely affect the scope and effectiveness of Community law.

38. Finally, the last question submitted by the national court concerns the compatibility of post-clearance recovery of monetary compensatory amounts wrongly not collected, 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.

39. The principle of the protection of "legitimate expectations", which forms part of the more general principle of "legal certainty", has given rise to abundant case-law which it is unnecessary to examine in detail. (31)

40. It is well known that the principle of the protection of legitimate expectations consists in protecting

"any individual who is in a situation in which it appears that the administration' s conduct has led him to entertain reasonable expectations". (32)

41. The specific point with which we are concerned is that of determining the extent to which the post-clearance recovery of export duties which were not collected owing to a mistake by the national authorities, and which is to be effected according to the national law in force, may be governed by a principle which is not a national principle but a Community principle, the principle of "legitimate expectations".

42. The Court ruled for the first time on a similar case in the Padovani judgment. (33) As in the present case, the Court was asked whether Community law requires the authorities of the Member States responsible for collecting agricultural levies in accordance with the rules laid down in national law in which no account was taken of the protection of legitimate expectations to refrain from effecting post-clearance recoveries from operators who acted in good faith.

43. The national law was that of the same 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 expectations.

44. The Court, which was very conscious of these national discrepancies, said in that respect:

"It is apparent from a comparative examination of the relevant provisions of national law that it is not possible to identify principles common to the laws of the Member States or generally recognized by those laws from which a general principle of Community law requiring national authorities to refrain from rectifying an insufficient payment of Community levies after the expiry of a uniform period of time or in the event of an error attributable to the national authorities could be deduced." (34)

45. The Court concluded that:

"In those circumstances it cannot be considered that the restrictions which Regulation No 1697/79 places on the post-clearance recovery by national authorities of debts arising under Community law may reflect a Community principle of protection of legitimate expectations which already existed when that regulation came into force.

Since Community law does not govern the condition of recovery concerning the protection of legitimate expectations of traders, that question is governed by national law." (35)

46. Consequently, and without ignoring, first, the possible inequalities in the arrangements for recovery adopted by the various Member States and, secondly, the fact that it is impossible for traders to pass those levies on to the foreign importers so long after the exports in question, the answer to the Corte Suprema di Cassazione must be that the Community principle of the protection of legitimate expectations does not require the national authorities who apply their national law to waive post-clearance recovery of monetary compensatory amounts which in error were not collected at the outset from traders who acted in good faith.

47. I therefore conclude that the Court should rule:

(1) Article 1 of Regulation (EEC) No 1311/73 of the Commission of 16 May 1973 relating to a provisional list of quality wines produced in specified regions as well as the identification of these wines in the accompanying document must be interpreted as meaning that only wines bearing the designation "denominazione di origine controllata" (DOC) and the designation "denominazione di origine controllata e garantita" (DOCG) were entitled, during the period of validity of that regulation, namely between 22 May and 31 August 1973, to appear in Italy on the provisional list of wines able to claim the description quality wines p.s.r.

(2) In the absence of applicable Community provisions, it is for the national court to apply the provisions of national law on the time-barring of export duties wrongly not demanded from the person liable to pay them owing to an error on the part of the national authorities, provided that those provisions apply in a non-discriminatory manner to national claims and Community claims and that they do not affect either the scope or the effectiveness of Community law.

(3) The Community principle of the protection of legitimate expectations does not require the national authorities to refrain from making post-clearance recovery under their national law of monetary compensatory amounts which in error were not collected at the outset from traders who acted in good faith.

(*) Original language: French.

(1) ° Regulation of 16 May 1973 relating to a provisional list of quality wines produced in specified regions as well as the identification of these wines in the accompanying documents (OJ 1973 L 132, p. 20).

(2) ° Regulation of 28 April 1970 laying down special provisions relating to quality wines produced in specified regions (OJ, English Special Edition 1970 (I), p. 252); the third paragraph was introduced by Regulation (EEC) No 1621/71 of the Council of 26 July 1971 amending Regulations (EEC) Nos 816/70 and 817/70 as regards certain transitional measures on wine (OJ, English Special Edition 1971 (II), p. 604).

(3) ° Regulation No 24 on the progressive establishment of a common organization of the market in wine (OJ, English Special Edition 1959-62, p. 123).

(4) ° Regulation No 816 laying down additional provisions for the common organization of the market in wine (OJ, English Special Edition 1970 (I), p. 234); Regulation No 817/70, cited above.

(5) ° Regulation No 337/79 on the common organization of the market in wine (OJ 1979 L 54, p. 1); Regulation No 338/79 laying down special provisions relating to quality wines produced in specified regions (OJ 1979 L 54, p. 48).

(6) ° The first recital in the preamble to Regulation No 337/79 clearly shows the difficulty in understanding the rules then applicable:

Whereas, since their adoption, the basic provisions concerning the organization of the market in wine have been amended a number of times; whereas, by reason of their number, their complexity and their dispersal among various Official Journals, the relevant texts are difficult to use and thus lack the clarity which should be an essential feature of all legislation; ... .

(7) ° Regulation No 822/87 of 16 March 1987 on the common organization of the market in wine (OJ 1987 L 84, p. 1); Regulation No 823/87 of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions (OJ 1987 L 84, p. 59).

(8) ° Cited above, see note 2.

(9) ° Emphasis added.

(10) ° Paragraph 1 refers to the specific expressions traditionally used in the Member States to designate certain wines.

(11) ° Commission Regulation No 2247/73 on the control of quality wines produced in specified regions (OJ 1973 L 230, p. 12).

(12) ° Regulation amending Regulation (EEC) No 1022/70 introducing accompanying certificates for certain wines for a transitional period (Journal Officiel 1970 L 190, p. 15).

(13) ° Regulation of the Commission of 29 May 1970 introducing accompanying certificates for certain wines for a transitional period (Journal Officiel 1970 L 118, p. 20).

(14) ° Article 1.

(15) ° Regulation No 1022/70, initially applicable until no later than 31 December 1970 (Article 12(2)), was extended until 31 March 1973 by Regulation (EEC) No 734/73 of the Commission of 7 March 1973 amending Regulation (EEC) No 1022/70 following the creation of a system of accompanying documents for wine (OJ 1973 L 69, p. 31).

(16) ° Regulation No 1769/72 drawing up accompanying documents and determining the obligations of wine producers and traders other than retailers (OJ, English Special Edition 1972 (III), p. 909), as amended by Regulation (EEC) No 2814/72 of the Commission of 22 December 1972 (OJ, English Special Edition 1972 (30-31 December), p. 3).

(17) ° See the lists successively published in OJ 1973 C 31, p. 20 and OJ 1973 C 50, p. 2.

(18) ° Emphasis added.

(19) ° Regulation No 648/73 of 1 March 1973 laying down detailed rules for the application of monetary compensatory amounts (OJ 1973 L 64, p. 1).

(20) ° Regulation No 649/73 of 1 March 1973 fixing the monetary compensatory amounts (OJ 1973 L 64, p. 7).

(21) ° OJ 1979 L 197, p. 1.

(22) ° Joined Cases 212/80 to 217/80 Amministrazione delle Finanze dello Stato v Salumi [1981] ECR 2735.

(23) ° Paragraph 11.

(24) ° Paragraph 12.

(25) ° Paragraph 15.

(26) ° Case 8/82 Italgrani v Amministrazione delle Finanze dello Stato [1982] ECR 4323 and Case 210/87 Padovani and Others v Amministrazione delle Finanze dello Stato [1988] ECR 6177.

(27) ° Joined Cases 66/79, 127/79 and 128/79 Amministrazione delle Finanze dello Stato v Salumi and Others [1980] 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, paragraphs 10 and 12, and Joined Cases 205/82 to 215/82 Deutsche Milchkontor v Germany [1983] ECR 2633, paragraphs 19, 22 and 23.

(31) ° See Hubeau, F.: Le principe de la protection de la confiance légitime dans la jurisprudence de la Cour de justice des Communautés européennes , Cahiers de droit européen, 1983, p. 143.

(32) ° Judgment in Case 289/91 Mavridis v Parliament [1983] ECR 1731, paragraph 21.

(33) ° See references above, note 27.

(34) ° Paragraph 19.

(35) ° Paragraphs 20 and 21.