JOINED OPINION OF MR ADVOCATE GENERAL TESAURO DELIVERED ON 23 JANUARY 1990. - OBERHAUSENER KRAFTFUTTERWERK WILHELM HOPERMANN GMBH V BUNDESANSTALT FUER LANDWIRTSCHAFTLICHE MARKTORDNUNG. - REFERENCE FOR A PRELIMINARY RULING: VERWALTUNGSGERICHT FRANKFURT AM MAIN - GERMANY. - AGRICULTURE - SPECIAL MEASURES FOR PEAS AND FIELD BEANS - TIME-LIMIT FOR NOTIFICATION THAT PRODUCTS HAVE ENTERED AN UNDERTAKING - TIME-LIMIT FOR MAKING APPLICATIONS FOR AID. - CASES C-357/88 AND C-358/88.



European Court reports 1990 Page I-01669



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . By two separate orders for reference, received at the Court Registry on 12 December 1988, the Verwaltungsgericht ( Administrative Court ) Frankfurt am Main is asking the Court to interpret two provisions contained in Commission Regulation ( EEC ) No 2192/82 of 6 August 1982 laying down detailed rules for the application of the special measures for peas and field beans, ( 1 ) as amended by Commission Regulation ( EEC ) No 3322/82 of 10 October 1982 . ( 2 )

As will be seen, the two questions raised are essentially connected and the provisions to be interpreted fall within a single legislative framework . Reasons of economy therefore prompt me to deliver a single opinion in both cases .

2 . The legislative framework . Council Regulation ( EEC ) No 1431/82 of 18 May 1982 laying down special measures for peas and field beans ( 3 ) provides for the grant of aid for products harvested in the Community and used in the manufacture of animal feed ( Article 3(1 ) ).

3 . On the basis of Article 3(5 ) and Article 4 of that regulation, the Council adopted on 19 July 1982 Regulation ( EEC ) No 2036/82 adopting general rules concerning special measures for peas and field beans . ( 4 )

Under Article 5(1 ) of that regulation, the aid is granted to any user provided that he lodges an application with the agency appointed by the Member State, together with a certificate confirming that the producer has obtained at least the minimum price and that the quantity indicated in the certificate has in fact been used, after having been placed under supervision, in the undertaking itself .

Placing under supervision is in its turn defined in Article 3(4 ) as the operation whereby the competent agency in the Member State, at the request of the user of the products, determines on the user' s premises, the quantity and quality of the products to be used for human or animal consumption .

Article 11(2 ) provides, finally, that the products are to be weighed and sampled when they reach the undertakings where they are actually used .

4 . In pursuance of Article 3(7 ) of Regulation No 1431/82, the Commission adopted Regulation No 2192/82 on whose interpretation the dispute turns .

Article 18 of the latter regulation, in the version in force at the time of the facts underlying these questions, provided that, on the entry of the products into the undertaking, the party concerned was immediately to notify the competent agency of the Member State in writing . That notification was to constitute an application for placing under supervision .

However, the possibility was provided for the person concerned to delay the placing under supervision of the products entering into the undertaking . In such a case, the operator had a further period of 30 working days to inform the competent agency of the quantity which he in fact wished to place under supervision and thus to use within the undertaking .

Under Article 29(2 ) as amended by Article 1(13 ) of Regulation No 3322/82, the aid had to be paid to the user making an application therefor, provided that he had lodged with the agency appointed by the Member State the certificate attesting the payment of the minimum price to the producer and prior verification by the agency responsible for supervision of the fact that the quantity stated was in fact used within the period of 150 days of the date on which the application for placing under supervision was lodged .

Finally, Article 22(1 ) of Regulation No 2192/82, in the version in force at the time of the events which led to the present case, provided that the application for aid referred to in Article 5(1 ) of Regulation No 2036/82 had to be lodged not later than the day on which the application to place products under supervision was lodged .

5 . In these references for a preliminary ruling the national court is essentially asking the Court to construe the nature of the obligations laid down in Article 18(1 ) and Article 22(1 ) of Regulation No 2192/82, as amended by Regulation No 3322/82 .

More specifically, in Case 357/88 the Verwaltungsgericht Frankfurt am Main is asking whether observance of the period for notifying the entry of the products into the undertaking provided for in Article 18(1 ) is a condition for the grant of the aid, whilst in Case 358/88 the national court is asking whether the period for lodging an application for aid under Article 22(1 ) is a preclusive time-limit .

6 . I will first reply to the latter question, by observing that the mandatory nature of the time-limit laid down in Article 22(1 ) is demonstrated with sufficient clarity by the general context of the relevant legislation .

It should be pointed out above all in this connection that it is only when the application for aid is lodged that the user states whether the aid is applied for under Article 3(1 ) ( use in the manufacture of animal feed ) or Article 3(2 ) ( use in the manufacture of products for human consumption ) of Regulation No 1431/82 ( see Article 22(3 ) of Regulation No 2192/82 ).

Moreover, the amount of the aid to be granted is to be the amount in force on the day the person concerned lodges the application ( see Article 6(1 ) of Regulation No 2036/82 ).

Accordingly, to hold that the period provided for is merely indicative would entail making the assumption that the legislature wished to extend to traders the possibility of taking a waiting position in order possibly to profit from price changes, thereby subsequently deriving a profit, which is patently contrary to the objectives pursued by the legislation in question, which are to favour the development of the production of peas and field beans, and not to benefit certain traders . ( 5 )

The particular importance which the legislature sought to attribute to observance of that period is moreover clear from the fact that Article 23 of Regulation No 2192/82 fixes the hour by which the application must be made .

7 . As regards observance of the obligation of immediate notification of the entry of the products into the undertaking, mentioned in Article 18(1 ) of Regulation No 2192/82, it should be pointed out that the failure to observe that obligation seriously calls in question observance of the provision laid down in Article 11(2 ) of Council Regulation No 2036/82, according to which on entry of the products into the undertaking, the weight must be determined and samples taken in order that the quality and the degree of humidity of the products may be verified .

Furthermore, it is precisely from that first notification that the period of time for placing under supervision begins to run and therefore the other period laid down for the submission of the application for aid .

Observance of the period of 150 days, which is fixed as the time-limit for the actual use of the products and runs from the date on which the application for placing under supervision is lodged would be difficult to verify if there was no actual certainty as to the initial point of reference, which is precisely the notification of the entry of the products into the undertaking .

8 . In other words, in a system such as that contained in the rules in question, which seeks to ensure the correct utilization of the aid provided for, the time-limits fixed cannot be regarded as being merely of an indicative nature, since non-compliance therewith deprives the whole procedure of the necessary rigour, which entails serious consequences, not only from the point of view of proper administrative management, but also in regard to the effectiveness of supervision and the determination of the amount of aid to be granted .

9 . Moreover, it does not seem to me that such an interpretation of the rules in question is contrary to the principle of proportionality, as stated on several occasions by the Court, or that the Commission is in that way being allowed to impose additional conditions for obtaining the aid, thereby exceeding the powers conferred on it .

10 . On the first point, it is clear from the case-law of the Court that, in order to ascertain whether a Community provision complies with the principle of proportionality, it is first necessary to verify whether the means which it employs are appropriate to achieve the objective pursued and whether or not they go beyond what is necessary to achieve it . ( 6 )

It seems to me to emerge sufficiently clearly from what has been said that to penalize, by the loss of entitlement to aid, non-compliance with the obligations laid down in the provisions in question does not constitute for those concerned a disproportionate sacrifice, since, as has been shown, strict compliance with those obligations is necessary in order to ensure the proper functioning of the system of aids provided for by the Community institutions .

It should also be borne in mind that, with particular reference to the terms of Article 22(1 ) of Regulation No 2192/82, prescription as a result of the late submission of an application is, as a general rule, the normal consequence of the expiry of any mandatory time-limit and not a penalty . ( 7 )

11 . As to the other argument put forward by the applicant in the main proceedings to the effect that, if the periods in question were considered preclusive, the result would be to grant to the Commission the possibility, by means of a regulation laying down detailed rules of application, of setting additional conditions for the grant of subsidies in relation to those provided for in Council Regulation No 2036/82, it is sufficient to observe - and this is borne out by the case-law of the Court - that when the Commission exercises its implementing powers in the context of an agricultural market, it is authorized to adopt all measures necessary or useful in order to implement the basic regulation, provided they are not contrary to the latter or to the rules for application laid down by the Council . ( 8 )

In the present case, it appears evident that the fixing of a period for the submission of applications for aid, just like the obligation to notify the competent agency at the correct time of the entry of the products into the undertaking, are not contrary to the basic provisions adopted by the Council, inasmuch as those detailed rules are based on the requirement to ensure the functioning of the system of subsidies .

12 . In the light of the foregoing considerations, I therefore propose that the Court should reply to the two questions raised by the Verwaltungsgericht Frankfurt am Main to the effect that observance of the period referred to in Article 18(1 ) of Regulation No 2192/82, laid down in order to inform the competent agency of the entry of the product into the undertaking, is a condition for the grant of the subsidy and that the period mentioned in Article 22(1 ) of that regulation, for submission of the application for subsidies, is a preclusive time-limit .

(*) Original language : Italian .

( 1 ) OJ 1982, L 233, p . 5 .

( 2 ) OJ 1982, L 351, p . 27 .

( 3 ) OJ 1982, L 162, p . 28 .

( 4 ) OJ 1982, L 219, p . 1 .

( 5 ) See the first recital in the preamble to Regulation ( EEC ) No 1431/82 .

( 6 ) See most recently, in particular, the judgments of 30 June 1987 in Case 47/86 Roquette Frères v ONIC (( 1987 )) ECR 2889, paragraph 19, of 18 March 1987 in Case 56/86 Sociéte pour l' exportation des sucres (( 1987 )) ECR 1423, paragraph 28 and of 14 January 1987 in Case 291/84 Zuckerfabrik Bedburg AG v OBEA (( 1987 )) ECR 49, paragraph 36 .

( 7 ) See the judgment of 22 January 1986 in Case 266/84 Denkavit France (( 1986 )) ECR 149, paragraph 21 .

( 8 ) See in particular the judgments of 18 January 1990 in Case C-345/88 Firma Butterabsatz (( 1990 )) ECR I-159, of 14 February 1989 in Case 13/88 Knoeckel (( 1989 )) ECR 337, of 18 October 1988 in Case 121/87 Bayernwald Fruechteverwertung GmbH (( 1988 )) ECR 6273 and of 15 May 1984 in Case 121/83 Zuckerfabrik GmbH (( 1984 )) ECR 2039 .