Keywords

Summary



Keywords

Agriculture - Common organization of the markets - Raw tobacco - System of premiums - Agricultural conversion rate applicable to the amount of the premium - Determination - Introduction, by Regulation No 3477/93 of a date linked to the year in which the tobacco was harvested - Transitional measures adopted after the entry into force of the regulation - Whether lawful

(EC Treaty, Arts 39(1)(c) and 190; Council Regulations No 2075/92, Art. 27, and No 3813/92, Arts 12(c) and 13; Commission Regulation No 3477/93, Arts 1 and 5)

Summary

Article 1 of Regulation No 3477/93 concerning the agricultural conversion rates to be applied in the tobacco sector, which was adopted on 17 December 1993 and applied with effect from 1 July 1993, provides that the rate to be applied for conversion into national currency of the premium for leaf tobacco and the advance on the premium payment is no longer the rate valid at the time when the tobacco left the place in which it was under supervision but, bearing in mind the date of delivery, the rate valid on 1 August of the year of harvest or that valid on 1 January of the following year. By providing, at the same time, in Article 5 of the regulation that, as regards tobacco from harvests prior to 1993, leaving supervision from 1 July 1993, the conversion rate is to be the rate applicable on 1 July 1993, the Commission did not breach the principles of protection of legitimate expectations, non-retroactivity or equal treatment of traders in the Community or commit any misuse of powers. Nor did it infringe Article 39(1)(c) of the Treaty concerning the objective of stabilising of the markets and it observed the Management Committee procedure and the obligation to state reasons provided for by Article 12(c) of Regulation No 3813/92 and Article 190 of the Treaty, respectively.

As regards, more specifically, the principle of protection of legitimate expectations, and bearing in mind that traders cannot claim a vested right to the maintenance of an advantage which they derive from the establishment of the common organization of the markets and which they enjoyed at a given time, the provision at issue, which removes the possibility for processors in receipt of the premium to choose when the operative event is to occur during a certain period following the harvest, cannot breach that principle, particularly since it is a transitional measure, the purpose of which is to avoid the inconsistency which would have resulted from the simultaneous application of the old and the new agrimonetary provisions.

Next, as regards the principle of non-retroactivity, although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.

In that respect, 1 July 1993 was a key date in the context of both the new common organization of the market introduced by Regulation No 2075/92 which provided that the premium would, from that date, ultimately be payable to the tobacco growers, and the application of the new agrimonetary system, by Regulation No 3813/92, meaning that it was entirely logical, and because the purpose to be attained so required, for that date also to be set by the transitional measure in Article 5 as the limit for application of the old agrimonetary provisions concerning the old system of premiums. Processors were made aware of the significance of that date by the regulations published beforehand and since both Article 27 of Regulation No 2075/92 and Article 13 of Regulation No 3813/92 provided that transitional measures could be adopted. Processors had even less legitimate reason to expect that they would continue to benefit from the old provisions because they derogated from the principles of the agrimonetary system and had no economic justification: processors had already received payment in advance of the whole of the premium at the time the tobacco was placed under supervision and the provisions encouraged processors to remove the tobacco from supervision on the basis of ecu exchange rates rather than conditions on the tobacco market.

As regards the principle of equal treatment, before the adoption of Regulation No 3477/93 the difference between the date of payment of the advance equal to the whole of the premium and the date on which the right to the premium accrued meant that traders from Member States with a weak currency were treated more favourably than traders from Member States with strong currencies, since they benefited from the difference, resulting from devaluation, between the amount of the premium, which was expressed in national currency, and the amount of the advance paid on the premium. Accordingly, by terminating the application of those provisions, Article 5 had the specific effect of re-establishing equal treatment of Community operators by abolishing the benefits enjoyed by certain traders as a result of the rules determining the operative event for conversion rates, for which there was no economic justification.

Finally, as regards the Management Committee procedure, despite the opposition of certain delegations, that Committee had approved, on 11 June 1993, a draft regulation which provided that 1 July 1993 was the date determining the operative event in respect of harvests prior to 1993. The fact that the Commission had endeavoured, before adopting the text, to find a compromise acceptable to the delegations which had refused to approve it, cannot be interpreted as an implied withdrawal of the text requiring submission of a new draft to the Management Committee. Similarly, the need to do so did not arise either as a result of the retroactive effect of the text, because of its late adoption, since retention of the date fixed did not cause the operators loss resulting from a reduction in the amount of premium received, against which they would have been able to protect themselves if they had been aware of the regulation several months earlier, or the addition made to one of the recitals in the original text, in so far as that addition merely expands and clarifies the statement of reasons with regard to the position of tobacco from harvests prior to 1993, which were already mentioned in the original text, without amending the content of the decision which was adopted.