3.

The next two questions to which I now turn are also in substance the same in both cases. They relate to the retroactive application of Regulations Nos 649/73 and 741/73 to the wines included for the first time in the monetary compensation system by Regulation No 649/73. In this connexion all that has to be taken into consideration is the fact that in the first case the wines in question were removed from a private customs warehouse before Regulation No 649/73 was actually published and that in the second case they had been directly imported before that date. (a) As the court making the reference has correctly assumed the application of the said regulations from the actual date of publication of Regulation No 649/73, that is 12 March 1973, raises no problems. From that moment Regulation No 649/73, by which certain wines were for the first time included in the monetary compensation system, cannot be said to have retroactive effect. It is true that Regulation No 741/73 appears to have retroactive effect — if the date of publication is compared with the date of its applicability. However in this connexion, since only an adjustment of the monetary compensatory amounts was involved, reference may be made to the judgment in Case 7/76. That judgment makes it clear that in such circumstances, that is to say where certain goods have already been included in the monetary compensation system — and this applies to wines as from 12 March 1973 — and where the monetary compensatory amounts are merely adjusted in accordance with the currency trend, there cannot be said to have been any actual retroactive effect. (b) On the other hand, in so far as the regulations in question were intended to be applied before 12 March 1973, which is true of Regulation No 649/73 as from 26 February 1973 and of Regulation No 741/73 as from 5 March 1973, there was a genuine retroactive effect. However, since the removals from the private customs warehouse and the imports at issue in the main action were effected only as from 9 March 1973 the question of the extent to which that retroaction was lawful need now only be examined in relation to that date, that is with reference to a relatively short period of time. As the Court is aware, the Commission has endeavoured to dispel doubts which might compel consideration in this connexion from the standpoint of the rule of law and I also believe — if I may say so at once — that it succeeded convincingly in so doing. (aa) Thus it is important to note that under Community law retroactive effect is not in principle ruled out, as can be inferred from those of the Court's decided cases which are mentioned on page 14 of the Commission's observations. This is in keeping with national law and Mr Advocate General Warner adduced evidence of this in his Opinion in Case 7/76 ([1976] ECR 1230). This applies under German law — a quite recent judgment of 15 February 1978 of the Federal Constitutional Court was cited on this point during the oral procedure — in so far at least as there is no legitimate expectation. (bb) Furthermore, the Commission has rightly pointed out that it is precisely in the field of monetary compensation, with its special requirements, that measures having retroactive effect are to a certain extent permissible. Thus it should be borne in mind that pursuant to Article 3 of Regulation No 974/71 monetary compensation is intended in principle to become effective as from the event which activates it. It is also evident that a rapid increase in speculation may suddenly have repercussions on groups of products which have not so far been subject thereto and actuate the corresponding patterns of trade which, if the measures that cannot always be adopted immediately are not made retroactive, might lead to unwarranted advantages which are not to be regarded as deserving of protection. It should be mentioned in a quite general way that in principle the legitimate expectation is subject in this field to considerable limitations, but that since the adoption of Regulation No 974/71 it has in general to be accepted that if there are significant alterations in the currency. structure new groups of products will also be covered by the monetary compensation system. Moreover, this applies particularly since the modification of the system by Regulation No 509/73. Thus an extension to other products, to be precise to those, such as Italian wine, which as a result of the rapid decline in the rate of exchange of the lira in February and March 1973 became ‘sensitive’, was certainly to be anticipated. (cc) However, the Commission has rightly not been content with such reasoning, with specific reference to the fact that the inclusion of new products in the monetary compensation system nevertheless requires a discretionary decision of the Community authorities. Under such circumstances it considers that additional factors are necessary to justify retroactive effect. It would however be regarded as sufficient in each case that relevant information was supplied in good time by other means or that reference was made in good time to a previous decision, together with a statement of its essential content. I believe that this view can be accepted and I also believe that the Commission has demonstrated to the Court that in this respect at the relevant time everything necessary was done in connexion with the regulations with which we are concerned in these two cases. If we are to confine ourselves for the time being to Regulation No 649/73, reference must first be made to certain information which was published in the news service ereinigt ‘Vereinigte Wirtschaftsdienste’ of 20 and 21 February 1973. Attention was there drawn to the floating of the exchange rate of the lira and the pound sterling, Regulation No 974/71 as amended was published and the need to introduce monetary compensatory amounts with retroactive effect was mentioned. It is also significant that immediately after the monetary compensatory amounts were fixed (on 26 February 1973) an appropriate notice was displayed by the spokesman's group in Brussels. There is no doubt that many undertakings make arrangements to receive information of such announcements. Specialist business services also arrange for further rapid circulation thereof. On this aspect of the matter reference can again be made to the ‘Vereinigte Wirtschaftsdienste’, this time to statements in the issue of 28 February 1973 to the effect that the monetary compensatory amounts applicable from 26 February 1973 had already been circulated for several days by professional and trade organizations. It also appears to be relevant that a telex message containing the monetary compensatory amounts fixed by Regulation No 649/73 was sent on 26 February 1973 to the administrations of the Member States, and this in connexion with the statements of the representatives of the Member States on the Management Committee that the rates could be applied as from 26 February 1973. This meant that appropriate information could be sought from the competent authorities and that the amounts were immediately applied to import transactions which were effected from that day onwards, and consequently were not levied retroactively. It is true that the same does not apply to removal from a private customs warehouse in which the customs administration is not directly involved. However, as the Commission has justly observed, as far as that is concerned probably no other view is tenable and the reason for this is not only that undertakings which maintain such warehouses also regularly effect direct imports but also that the keeping of customs warehouses constitutes an advantage which for the parties concerned — as far as the protection of a legitimate expectation is concerned — is naturally not permitted to lead to any improvement in their position. Finally, the Commission was also right to point out that the way the question of retroactive effect, as so far stated, is dealt with cannot be affected by the fact that by a measure of 29 March 1973 the Federal Ministry of Finance arranged that during the period from 26 February to 8 March 1973 the increased monetary compensatory amounts were not to be levied on goods which had been included for the first time in the monetary compensation system; it also correctly stated that the fact that the extent of the retroactive effect had been slightly increased by the delayed issue of the Official Journal is of no significance. The said measure, which obviously came into being without the Commission's being consulted, in fact provided in any event for the full application of monetary compensation as from 9 March with the result that as from that date there could no longer be said to be a legitimate expectation in respect of the conduct of the German authorities. Furthermore, to the initiated the delay in issuing the Official Journal came as no surprise, for it was no secret that in the months of February and March 1973 the Office for Official Publications was for various reasons — because of the publication of a large number of documents on the occasion of the accession of three new Member States as well as the currency crisis — in a full state of emergency. If however this argument is held to be able to justify the retroactive effect of Regulation No 649/73, then the same reasoning also applies to Regulation No 741/73 which altered the compensatory amounts with effect from 5 March 1973. In this connexion it is important that the preconditions for a change in the monetary compensatory amounts existed as from 5 March 1973. It is also of interest that the ‘Vereinigte Wirtschaftsdienste’ of 28 February 1973 drew attention to the fact that the Commission, even before the notification of the rates applicable as from 26 February, had announced another alteration and that the new rates were to be applied as from 5 March but that it was doubtful whether any notification would be made in time. In addition, the deviations from parity with the dollar, on the basis of which the monetary compensatory amounts could at least be estimated, were also made public in that announcement. Those figures were also notified by telex on 5 March 1973 to the administrations of the Member States and a reference to the change in the monetary compensatory amounts was published in part C of the Official Journal of 5 March 1973. On the other hand, I must agree with the Commission that the fact that Regulation No 649/73, the rates whereof were to be altered by Regulation No 741/73, was not published until after the date from which the amended rates were to be applied, is to be regarded as unimportant. In my view the Commission has convincingly explained how this unusual situation arose. When the change in the rates due to the currency trend proved to be necessary, Regulation No 649/73 was already being printed; in order to avoid further delays, especially as it was impossible to say when publication in the Official Journal was to be expected, an immediate amendment of the regulation was abandoned. In fact under these circumstances the publication of Regulation No 649/73 cannot be said to have created a legitimate expectation, since well before the publication of the Official Journal of 9 March 1973 attention was drawn in the beforementioned Official Journal of 5 March 1973 to the changes in the compensatory amounts which had become necessary. I would therefore express the view that there is no reason why Regulations Nos 649/73 and 741/73 should not also be applied to wines which were made subject to monetary compensation for the first time by Regulation No 649/73 and which had been removed from a private customs warehouse or imported before the publication of that regulation.