Opinion of Mr Advocate General Mischo delivered on 20 November 2001. - Gerald Weidacher (as administrator of the insolvent company Thakis Vertriebs- und Handels GmbH) v Bundesminister für Land- und Forstwirtschaft. - Reference for a preliminary ruling: Verwaltungsgerichtshof - Austria. - Article 149 of the Act of Accession of Austria, Finland and Sweden - Transitional measures - Surplus stocks - Article 4 of Commission Regulation (EC) No 3108/94 - Competence - Holder of the goods - Import charge applicable - Legitimate expectations - Proportionality - Equal treatment. - Case C-179/00.



European Court reports 2002 Page I-00501



Opinion of the Advocate-General

1 Whenever a new Member State accedes to the European Union, a series of transitional measures is adopted.

2 Indeed, even if the Treaty of Accession in principle requires immediate application of the acquis communautaire in the new Member State and in its relations with the old Member States, it is impossible simply to substitute from one day to the next, in all the areas covered by Community law, new rules which differ from those previously applicable.

3 The impossibility of such a substitution and its corollary, the need to define carefully the procedures under which one body of rules is to replace another, are particularly evident in the field of agriculture.

4 Indeed, in order to meet the objectives set out in Article 33 EC, the rules on the common agricultural policy have recourse to a very varied range of measures in many sectors concerning production which, in addition to free movement of products, either encourage production by means of various aids, or on the contrary, limit it by the use of quotas.

5 The accession of a new Member State signifies both the emergence of new agricultural producers and the establishment of new outlets for products covered by the various common market organisations, both of which call for adjustments.

6 As a general rule, however, those adjustments cannot be made from one day to the next, which is why there is an urgent need for transitional measures to avoid a situation where, for example, the market of the old Member States (in the case of a product subject to production quotas) is seriously destabilised by disposal of stocks built up before accession by a new Member State in which production was not restricted in any way, or, on the contrary, where products flood onto the market of a new Member State which has no system of production aids, those products having benefited from such aid within the framework of a common market organisation and, thus, having a competitive advantage such that local producers are unable to sell their stock.

7 As regards the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden which took effect on 1 January 1995, the Act concerning the conditions of accession and the modifications to the Treaties on which the European Union is founded (1) (hereinafter `the Act of Accession') is no exception to the rule.

8 In the fourth section of the Act, Title VI is concerned exclusively with agriculture. The second paragraph of its first article, Article 137, states that:

`Except where this Act provides otherwise:

- trade by the new Member States between themselves, with third countries or with the present Member States shall be subject to the regime applicable to the latter Member States. The regime applicable in the Community as at present constituted with regard to import duties and charges having equivalent effect, quantitative restrictions and measures having equivalent effect shall be applicable to the new Member States;

- the rights and obligations resulting from the common agricultural policy shall be applicable in full in the new Member States.'

9 Articles 138 to 150 are specifically the exceptional provisions `where this Act provides otherwise'.

10 Article 145(2) of the Act of Accession provides:

`Any stock of products in free circulation within the territory of the new Member States on 1 January 1995 and exceeding the quantity which could be regarded as constituting a normal carryover of stock must be eliminated by these Member States at their cost under Community procedures to be specified and within deadlines to be determined in accordance with the procedure referred to in Article 149(1). The concept of normal carryover stock shall be defined for each product on the basis of criteria and objectives particular to each common market organisation.'

11 Article 149(1) of the Act states:

`If transitional measures are necessary to facilitate the transition from the existing regime in the new Member States to that resulting from application of the common organisation of the markets under the conditions set out in this Title, such measures shall be adopted in accordance with the procedure laid down in Article 38 of Regulation No 136/66/EEC or, as appropriate, in the corresponding Articles of the other Regulations on the common organisation of agricultural markets. These measures may be taken during a period expiring on 31 December 1997 and their application shall be limited to that date.'

12 On the basis of that article, the Commission adopted Regulation (EC) No 3108/94 of 19 December 1994 on transitional measures to be adopted on account of the accession of Austria, Finland and Sweden in respect of trade in agricultural products. (2)

13 Article 4 of that regulation states:

`1. Without prejudice to Article 145(2) of the Act of Accession, and where stricter legislation does not apply at national level, the new Member States shall tax the holders of surplus stocks at 1 January 1995.

...

2. In order to determine the surplus stock of each holder, the new Member States shall take into account, in particular:

- averages of stocks available in the years preceding accession,

- the pattern of trade in the years preceding accession,

- the circumstances in which such stocks were built up.

The notion surplus stocks applies also to agricultural products intended for the market of the new Member States.

3. The amount of the tax referred to in paragraph 1 shall:

- in the case of a product from a third country, be the difference between the import charge applicable in the Community of Twelve as at 31 December 1994 and the import charge applicable in the new Member State as at that same date, where the former is greater than the latter,

...

4. In order to ensure that the tax referred to in paragraph 1 is correctly applied, the new Member States shall without delay carry out a census of stocks available as at 1 January 1995.

5. This Article shall apply to products covered by the following CN codes:

- in the case of Austria: 1006, 0806 20, 1702 10, 1509, 1510,

...'

14 A dispute between Mr Weidacher, receiver in bankruptcy administering the property of Thakis Vertriebs- und HandelsgesmbH (hereinafter `Thakis'), and the Bundesminister für Land- und Forstwirtschaft (the Austrian Ministry of Agriculture and Forestry) arose concerning the application of the measures adopted by the Austrian authorities in implementation of the above provisions and was brought before the Verwaltungsgerichtshof (Higher Administrative Court (Austria)). In the context of those proceedings, it was deemed necessary by the Verwaltungsgerichtshof to refer five questions to the Court of Justice for a preliminary ruling.

15 In October 1994, Thakis purchased a large quantity of olive oil in Tunisia. The oil, together with the transit documents, left Tunisia on 21 December 1994 and was cleared through customs on 29 December 1994 before being unloaded.

16 Earlier, on 13 December 1994, the part of the goods travelling to Austria had been pledged to an Austrian bank, A-Bank, for which reason the shipping documents had been drawn up in the name of the bank.

17 On 31 December 1994, part of the olive oil imported by Thakis was in the warehouse of an Austrian wine firm, under the control of A-Bank, the pledgee, and the rest in railway trucks in an Austrian station, under the responsibility of the carrier.

18 The Austrian authorities considered that as at 1 January 1995 Thakis was the holder of a surplus of 1 091 341 kg of Tunisian olive oil within the meaning of Article 4 of Regulation No 3108/94 and, consequently, on 1 February 1995, served an order on Thakis to secure a surety to guarantee a realisable fiscal credit in advance for holding surplus stock, before serving a taxation notice on 3 April 1995 in the sum of ATS 11 086 683. The amount was calculated in accordance with Article 4(3) of the regulation, based on the difference between the tax on imported olive oil applicable as at 31 December 1994 in the Community of Twelve and in Austria.

19 At that time, the charge in Austria was ATS 70 per 100 kg, with an additional rate of 18%, while the charge applied by the Community, under Commission Regulation (EC) No 3307/94 of 29 December 1994 fixing the minimum levies on the importation of olive oil and levies on the importation of other olive oil sector products (3) was ECU 66.31 per 100 kg (ATS 1 098.48/100 kg). During this period, Thakis went into liquidation.

20 The two decisions by the Austrian authorities, the notice to secure a surety and the notice of taxation were contested in the course of administrative proceedings by Thakis, and later by the receiver in bankruptcy.

21 The dispute concerned various points, some concerning the application to Thakis of Regulation No 3108/94 and others the lawfulness of the regulation.

22 The first concerned the dispute as to the classification of Thakis as `the holder' of olive oil stock as at 1 January 1995, since Thakis, on account of the pledge to which it had agreed, could not, either in fact or in law, dispose of the goods in any way.

23 The dispute also concerned a complaint regarding the recourse to Regulation No 3307/94 in order to determine the amount of the import charge into the Community of Twelve; that regulation, it was alleged, should not have been applied to imports of olive oil from Tunisia, such charges normally being made under Council Regulation (EC) No 287/94 of 7 February 1994 laying down special measures for the import of olive oil from Tunisia, (4) which sets the rate at ECU 7.8 per 100 kg.

24 On the matter of the lawfulness of Regulation No 3108/94, the Commission's competence to adopt it on the basis of Article 149(1) of the Act of Accession was contested. At the same time the principle of protection of legitimate expectations was claimed to have been breached as the regulation was intended to apply to operators from the new Member States which had effected transactions before its adoption.

25 The rejection of the administrative action led to the matter being brought before the Verwaltungsgerichtshof which, on the basis of the elements in the dispute outlined above, considered recourse to the preliminary ruling procedure to be necessary in order to refer a series of questions to the Court of Justice on both the interpretation and the validity of Regulation No 3108/94.

26 As the questions are extremely detailed, it seems preferable, rather than considering them in full, to outline their substance as I deal with each one, in the order in which the referring court lists them. It should be pointed out at this juncture that only the Austrian Government and the Commission submitted observations.

First question

27 In its first question, the Verwaltungsgerichtshof asks whether the levying of compensatory taxes, as provided for in Article 4 of Regulation No 3108/94, constitutes a necessary transitional measure, within the meaning of Article 149(1) of the Act of Accession in facilitating, in the agricultural sector, the replacement of national law by Community law, given that a reply in the negative would imply that that regulation was void because of the Commission's lack of competence.

28 There are two grounds underlying the question, one relating to the arguments expounded by Thakis before the national court, and the other to questions raised, in Thakis's view, by Article 149(1) of the Act of Accession.

29 Thakis submitted, before the Verwaltungsgerichtshof, that the objective of avoiding the deflection of trade established in Regulation No 3108/94 cannot be based on the transitional measures referred to in Article 149(1) of the Act of Accession; those measures, since they must facilitate the transition from the previous system in the new Member States to that resulting from application of the rules of the common market organisations must, in Thakis's view, benefit the operators in the new Member States, which is clearly not the case if they are subject to taxation.

30 The Verwaltungsgerichtshof considers that it is not evident that that provision authorises the adoption of measures other than those allowing for a transition spread over a relatively long period, instead of a sudden switch from national market organisations to common market organisations, or that the taxation of surplus stocks is necessary, given that Article 145(2) of the Act of Accession requires the new Member States to eliminate those stocks at their own expense.

31 As the Austrian Government and the Commission point out, that point at issue and those doubts arise from an incorrect interpretation of Article 149(1) of the Act of Accession.

32 Firstly, in the text of the article, there is nothing suggesting that the transitional measures which the Commission is authorised to adopt, in accordance with the procedure set out in Article 38 of Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organisation of the market in oils and fats (5) or, in certain cases, the corresponding articles of the other regulations establishing a common organisation of agricultural markets (known as the `Management Committee' procedure), must necessarily be favourable to the economic operators of the new Member States.

33 As the Commission rightly points out, it must be remembered that the principle on which Article 137(2) of the Act of Accession is based is the immediate application in the new Member States of the rules of the common agricultural policy. The purpose of the transitional measures, therefore, is not to disrupt the functioning of the common market organisations by the entry into their scope of the economic operators of the new Member States.

34 Whether the measures adopted by the Commission are well founded must not therefore be assessed in light of the consequences they may have on the operators of the new Member States, but the contribution they make to resolving problems resulting from application of the rules of the common market organisations to those operators.

35 Plainly, any solution to the problems cannot fail to take into account the difficulties faced by the operators of the new Member States and there is no question of deliberately sacrificing their interests to the complete and immediate application of the full gamut of rules of the common agricultural policy, but a transition measure, for the purposes of Article 149(1) of the Act of Accession, does not necessarily have to seek to restrict the disadvantages for those operators of the application of the rules of the common market organisations to them.

36 Nor is there in the text of Article 149(1) of the Act of Accession any requirement that the measures adopted by the Commission should seek to ensure a transition of minimal duration, nor that they should be introduced gradually, or at least cautiously.

37 The Commission's task is simply to adopt the necessary transitional measures so that Article 137(2) of the Act of Accession may be applied without ensuing chaos.

38 The fact that the transition period under a measure passed by the Commission is very short is of little significance; what is important is that the measure is necessary to effect the switch from one system to the other, that is, it provides an effective solution to a real problem which the transition poses.

39 Can stocks of products covered by a common market organisation in existence on 1 January 1995 be considered to constitute such a problem?

40 Clearly they can: in each case, those stocks will be seen to be significant and were constituted under conditions different from those prevailing in the Community of Twelve before that date.

41 Clearly, the purpose of constituting stock is either to use it or to resell the stored product, so that the accumulated stock either means that the holder using that product in the course of a production operation need not purchase the required quantities for his activity over a certain period (varying according to the amount of the stock), or the stock will be put on the market where sales, both in terms of turnover and profitability, will be governed by the competitive situation.

42 If a product stored in a new Member State has been purchased in particularly advantageous conditions in comparison with the conditions prevailing under the rules of the relevant common market organisation, it is clear that, following accession by the State, that will create problems on the market of that product.

43 Indeed, a holder who is reselling will, while procuring a sizeable advantage for himself, be able to offer his stock for sale at particularly attractive rates which his competitors in the old Member States will be unable to match in any way, inasmuch as their purchase costs will have been very much higher.

44 Similarly, where a holder does not resell the product himself but sells other goods manufactured using that product, the use of a raw material purchased at a much lower price than that paid by competitors will distort conditions of competition.

45 Inevitably, therefore, there will be a distortion of trade, that is to say precisely the result that a common market organisation is intended to avoid. The problem is then a very real one.

46 It remains to consider whether taxing surplus stocks in the new Member States on 1 January 1995 appears appropriate and necessary to deal with that problem. (6)

47 In respect of whether it is appropriate, it is sufficient to observe that Regulation No 3108/94 is entirely legitimate. Indeed, the taxing of surplus stocks for which it makes provision appears entirely judicious. On the one hand, the prospect of being taxed such as to remove the considerable discounted profits, in itself, constitutes an effective deterrent against operators.

48 What interest then can an operator have in swelling his stocks before accession, drawing, in so doing, on his finances, if it is already established that the sale of his stocks after 1 January 1995 will not produce profit greater than that usually resulting from his operations, and perhaps even less, given the costs of storage?

49 On the other hand, if that deterrent is insufficient for certain operators who are prepared to take major risks in the hope of uncertain profits, implementation of Regulation No 3108/94, that is actually taxing surplus stocks, is such as to remedy, at least partially, the difficulties created in the enlarged Community by the presence of stocks constituted at a low price, by making it impossible in any case for their holders to engage in unfair competition vis-à-vis other operators and to distort trade by undermining price-setting mechanisms.

50 In respect of the need for such taxation and the principles involved, I would begin by recalling the considerable discretionary power of the Community institutions in adopting measures to fulfil the objectives of the common agricultural policy.

51 It may also be observed, with reference to the third recital of Regulation No 3108/94, as the Commission points out, that recourse to alternative measures is less effective in guaranteeing the objective set out in Article 149(1) of the Act of Accession.

52 That recital states:

`... since the completion of the single market, the movement of agricultural products has not been subject to any control at the internal borders; ... therefore, systematic taxation of products which are the subject of deflection of trade, either on their consignment from one Member State to another or on their entry into a Member State from another, does not appear to be sufficiently effective; ... trade deflections liable to disrupt the market organisations often involve products moved artificially with a view to enlargement and do not form part of the normal stocks of the State concerned; ... provisions should be made for the taxation of surplus stocks in the new Member States.'

53 It will be noted, finally, that, contrary to what the national court suggests, the elimination of surplus stocks provided for under Article 145(2) of the Act of Accession and the taxation thereof are not mutually exclusive.

54 Indeed, as the Austrian Government points out, the taxation of surplus stocks reduces the burden on the new Member States arising from their obligations under that article to eliminate those stocks at their own expense and avoids a situation where the operators profit while strain is placed on the State's budget because of a charge created by those operators of their own volition.

55 Moreover, as the Commission observes, while the planned elimination of stocks will allow a balanced market to be re-established by adjusting supply to demand, it is not sufficient to impede a short-term trade deflection on the date of accession.

56 In fact, it is a combination of the elimination and taxation of stock which allows a smooth transition towards full application by the new Member States of the rules governing the common market organisations. In response to the first question, therefore, it is my opinion that the Commission was competent to adopt the measures set out in Article 4 of Regulation No 3108/94.

Second question

57 The second question referred by the Verwaltungsgerichtshof concerns observance of the principles of proportionality and the protection of legitimate expectations by Article 4 of Regulation No 3108/94.

58 The first principle may be dealt with briefly. It has been seen that, in principle, the taxation of surplus stocks constitutes an appropriate response to the risks created by surplus stocks in a future Member State before accession. Any operator, on the date when accession takes place, who holds a normal level of stock will not be taxed; only stocks which, on account of their abnormally high level, may be used speculatively, will be taxed. Nor do the taxation methods violate the principle of proportionality. Indeed, Article 4(3) of Regulation No 3108/94 setting the amount of the taxes provides that it shall `in the case of a product from a third country, be the difference between the import charge applicable in the Community of Twelve as at 31 December 1994 and the import charge applicable in the new Member State as at that same date, where the former is greater than the latter.' That means that the tax will do no more than neutralise any advantage obtained by the holder of the stock by acquiring the product on conditions (the conditions applicable in the future Member State) which are more favourable than those which would apply if, on 31 December 1994, he had imported the product into the Community of Twelve. Thus the principle of proportionality is fully observed: the unjustified advantage disappears entirely, but the holder of the stock is not penalised as such; he is simply placed on an equal footing with operators in the Community of Twelve with whom he is in competition on the same market as from 1 January 1995.

59 As regards the second principle, that is the principle of protection of legitimate expectations, the national court questions whether the regulation complies with the requirements of that principle since none of its provisions distinguishes between holders of surplus stocks according to whether they were placed in that situation before they ought to have known that the tax was planned or before the publication of the regulation, or whether they acted subsequent to the entry into force of the regulation.

60 In that regard, the regulation did not, in my opinion, infringe that principle. Firstly, it is worth pointing out that the expectations which merit protection may only be those which the Community institutions have created or at least contributed to creating. (7)

61 In this case, in fact, the situation is quite different, since, as the Commission points out, already from the date of the signature of the Act of Accession on 26 July 1994, economic operators knew that, under Article 149(1), the Commission was authorised to adopt transitional measures with a view to adapting the existing systems in the new Member States to the common market organisations, and that those measures might in certain cases have repercussions on dispositions already made by them.

62 On that basis, the date prior to 1 January 1995 when the measures were adopted is immaterial. In view of Article 149(1) of the Act of Accession, it would in my view have been naïve to imagine that it would be possible to flood the common market of the new Community of Fifteen with stock held in larger quantities than that normally held in the context of traditional economic activity, and acquired in particularly favourable conditions compared to those applicable to an operator from the Community of Twelve as at 31 December 1994, if he imported from a third country.

63 Given that the Act of Accession mandated the Community institutions to adopt the measures necessary in order to avoid disturbances in the trade of products covered by a common market organisation, none of the undertakings concerned could reasonably believe that the surplus stock held in the future new Member States would escape the vigilance of the institutions. On the contrary, they should have worked on the assumption that the institutions would indeed perform the task entrusted to them.

64 I must also point out, this being my last observation on the point, that it may be seriously doubted whether an operator may have recourse to the principle of protection of legitimate expectations where he has built up stock which, as an informed professional, he must have known might be subject to speculation, which, without being particularly bold, was likely to be very profitable.

65 On this point, it is interesting to note, on the basis of information communicated by the national court, that Thakis did not have sufficient storage space to store the olive oil it had imported in December 1994 and was obliged to rent vats from a wine business.

66 One would almost be tempted to say that this case is one where the maxim `no one may be heard to rely on his own misdeed' can be applied. Whatever the case, it should be stressed that, even if (which is not the case) the application of the principle of protection of legitimate expectations did not immediately appear to be ruled out, one would be entitled to question whether Thakis was in a position to rely on it.

67 I would therefore rule out that the validity of Article 4 of Regulation No 3108/94 may be called in question on the basis of failure to observe the principle of proportionality or that of the protection of legitimate expectations.

Third question

68 This question, which is extremely detailed in its wording, and while presented in an abstract form, concerns - taking account of the complex legal and financial processes preceding the importation of the quantities of Tunisian olive oil in issue by Thakis - whether that undertaking must in practice be considered as the holder of surplus stock within the meaning of Article 4(1) of Regulation No 3108/94 and if it might not also be considered that other interveners in those processes could also be regarded as having acquired the status of `holder'.

69 In fact, the national court is asking the Court of Justice to apply Community law to a concrete case. It should be recalled that that is not the task of the Court under Article 234 EC. In my view, the Court must simply define the concept of `holder' so that the national court, in the light of the decision of the Court of Justice, may decide whether Thakis, and other economic operators as the case may be, is, or is not, the holder of surplus stock subject to the taxation as set out in Article 4 of Regulation No 3108/94.

70 That approach is all the more imperative in this case as the concept evidently presupposes the application of national law, in particular as regards the consequences of a pledge, which is not within the Court's remit.

71 The Austrian Government and the Commission have adopted different positions on this third question. Indeed, while the Austrian Government considers that the purchaser only, in this case Thakis, must be classed as the holder, the Commission suggests a reply whereby the holder of surplus stocks within the meaning of Article 4(1) of Regulation No 3108/94 `is a person who, taking into account the national law applicable in the new Member State concerned, actually and materially holds those stocks.'

72 According to the Commission's explanations, that response is governed by the need to safeguard the effectiveness of the transitional measure as a whole, which, it states, would not be guaranteed if the tax affected only the owner who might very well reside in another Member State or in a third country and, by virtue of this fact, escape control by the Member State where the tax is levied.

73 In order to eliminate that risk, according to the Commission, the material definition, as proposed by it, should be actual possession of the stock.

74 Obviously, I shall not deny the need to interpret Community law so as to ensure its effectiveness. However, I believe that an appeal to effectiveness must not mean failing to conduct an analysis based on the ordinary meaning of the terms used and the context in which they appear (which would seem indeed to be of primary importance, effectiveness being a matter arising at a subsequent stage) in order to dispel any remaining uncertainties.

75 In this case, it must be recognised that the regulation uses the term `détenteur' and not `propriétaire' in French, `Besitzer' and not `Eigentümer' in German and `holder' and not `owner' in English. This certainly indicates that the Community legislature intended to avoid an economic operator escaping taxation on the basis of the fact that he does not have full rights of ownership over the stock in issue.

76 However, in my view, the scope of the term `holder' should not be exaggerated. Indeed, in most cases, the description of `a holder' may overlap with that of `owner', but on the other hand, the terms `holder' and `owner' are often used as synonyms, in French, German and in English.

77 As proof I would point to the fact that the term `shareholder' in English does not mean the actual holder of the share, which will very often be a financial establishment whose role is actually to keep shares in its safes, but the legal owner of the shares who receives the revenue from them, and who alone is entitled to sell them.

78 In regard to the context in which the term is used in Article 4 of Regulation No 3108/94, two observations may be made.

79 On the one hand, as has been seen, the tax aims to remove any economic advantage from the constitution of surplus stock, by removing the large, and strictly speculative, profit which might result from the sale of the stock. The person subject to the taxation must, of necessity, be the person who, because he can sell the stock, is able to realise the profit at which the tax is specifically aimed.

80 On that basis, the person with material control of the stock as at 1 January 1995, but who is legally unable to dispose of it, that is to sell it to a third party and profit from that sale price, because for example he is simply the holder of the pledge, or because he is responsible only for transporting the goods, or even because he has already resold the goods, (8) cannot be considered as a holder within the meaning of Article 4 of Regulation No 3108/94.

81 On the other hand, it would be inconsistent if the term `holder' were not to have the same meaning throughout Article 4. On a reading of paragraph 2 of that article which states,

`In order to determine the surplus stock of each holder, the new Member States shall take into account, in particular:

- averages of stocks available in the years preceding accession,

- patterns of trade in the years preceding accession,

- the circumstances in which such stocks were built up',

only a person who normally stocks that type of goods may hold a surplus stock since the surplus nature of the stock is determined individually for each holder, in particular from averages of stocks in the years preceding accession.

82 It is not possible, either in the case of the bank which, as at 1 January 1995, held a lien over a stock of Tunisian olive oil imported before that date by one of its clients or the carrier in whose tanks the oil in issue was being held on that date, to determine `surplus stock' for the simple reason that for those persons there is no point of reference which allows a comparison to be made. The control they exercise at a particular moment over a stock of imported Tunisian olive oil is in fact purely fortuitous and one cannot consider them to be operators on the olive oil market.

83 All those concordant aspects lead me to believe that, within the meaning of Article 4(1) of Regulation No 3108/94, the holder of surplus stock, even if he is not necessarily the owner of it under national law, must however be an economic operator in a position to place the stored product on the market and whose assets will be directly affected by its being put on the market.

84 An importer who sold the imported goods before the deadline of 1 January 1995 is no longer in a position to put them on the market after that date at the higher price for olive oil previously in force in the Community of Twelve, and after that date in the Community of Fifteen. He is therefore no longer in a position to realise the unjustified profit which the tax aims to neutralise.

85 Nor, likewise, is it legitimate to take into consideration the quantities already sold before that date in order to determine whether that importer, as at 1 January 1995, held stock exceeding the average of stocks available in the years preceding accession. Indeed, it is amongst purchasers that it must be determined whether there is surplus stock.

86 This interpretation is not such as to compromise the effectiveness of Regulation No 3108/94 which is of concern to the Commission, in so far as, on the supposition that the holder as defined in this way is not established in the Member State where the stock is held, that Member State will evidently have the option of seizing the stock in order to obtain payment of the debt.

Fourth question

87 The fourth question put by the national court concerns the interpretation to be given to Article 4(3) of Regulation No 3108/94 as regards precisely what should be understood, in the context of the import of Tunisian olive oil covered by CN Code 1509 10, by `import charge applicable in the Community of Twelve as at 31 December 1994.' The question is referred because, according to the national court, there coexisted as at 31 December 1994 two systems of imports for that product into the Community: under Regulation No 3307/94, Annex I, there was provision for a levy of ECU 66.31 per 100 kg and under Regulation No 287/94 a levy of ECU 7.8 per 100 kg.

88 It is sufficient to reply to that question that, no imports of Tunisian olive oil could be made by an operator as at 31 December 1994 within the framework of the system established under Regulation No 287/94. (9) It is apparent from Article 2 of Commission Regulation (EC) No 548/94 of 10 March 1994 laying down detailed rules for the application of Council Regulation (EC) No 287/94 laying down special measures for the import of olive oil from Tunisia that imports under the special regime of Regulation No 287/94 were legally impossible as at 31 December 1994, as referred to in Article 4(3) of Regulation No 3108/94.

89 The import certificates required in order to benefit from that regime could only be issued for the months from March to October. Apart from the fact that if a Community importer had made imports of Tunisian olive oil on 31 December 1994, he would have been charged to the levy at the rate set in Regulation No 3307/94, one cannot but endorse the Commission's argument when it observes that Article 4(3) of Regulation No 3108/94, in its wording, does not distinguish between the different non-Member States from which imports may come and is therefore intended to refer to the import charge generally applicable to products from non-Member States, as laid down in Regulation No 3307/94.

90 I might add, finally, that it would be strange to say the least if, in applying a regulation whose purpose is to fight deflections of trade of a speculative nature, one were, in calculating the tax payable by the holders of surplus stock, to refer to the rate set out in Regulation No 287/94, at which rate no operator in the Community of Twelve could be sure of benefiting.

91 That regulation, it will be recalled, as supplemented by Regulation No 548/94, allows imports of Tunisian olive oil to be made only within the limits of a predetermined quota. An application for a certificate for a given quantity to be imported during one of the months during which issue was authorised would guarantee, therefore, neither issue of the certificate nor of the quantity applied for. Consequently, nothing would justify the operators from the new Member States benefiting, in the case of unlimited quantities, from exceptional conditions granted to certain Community importers for limited quantities.

92 The answer to the fourth question should therefore be that it is indeed the rate set in Annex I to Regulation No 3307/94 which should be taken into consideration in applying Article 4(3) of Regulation No 3108/94.

Fifth question

93 The grounds justifying that reply also form a basis for the reply to the fifth question by which the referring court wishes to ascertain whether application of that levy constitutes a breach, as regards operators in the new Member States, of the principle of equal treatment, thus calling in question the validity of Article 4 of Regulation No 3108/94. As the Commission rightly points out, operators in the Community of Twelve who, during a part of 1994 but not after October, were able in certain cases to make imports attracting a small levy, as part of the preferential regime under the Additional Protocol to the Cooperation Agreement between the European Economic Community and the Republic of Tunisia, signed at Tunis on 25 April 1976, (10) cannot be considered to be in a situation comparable with that of operators in the new Member States who deliberately decided, as at 1 January 1995, to store surplus stocks of Tunisian olive oil imported under a totally different system from that of the common organisation of the market in the sector of oils and fats, a sector of one of the future Member States in which none of the future States were inclined to tax imports highly in the absence of national production.

94 Article 4(3) of Regulation No 3108/94, far from establishing a discriminatory regime, from a competitive point of view, placed operators from the new Member States (who, from 1 January 1995, were able to put the stocks of olive oil constituted cheaply before that date, into free circulation in the Community) on an equal footing with Community operators who had effected imports under the Community regime before the accession of the new Member States. It cannot therefore be regarded as having breached the principle of equal treatment.

Conclusion

95 On the basis of all the foregoing arguments, I propose that the Court should reply to the questions referred to it by the Verwaltungsgerichtshof as follows:

- an examination of Article 4 of Commission Regulation (EC) No 3108/94 of 19 December 1994 on transitional measures to be adopted on account of the accession of Austria, Finland and Sweden in respect of trade in agricultural products in the light of Article 149(1) of the Act concerning the conditions of Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, and of the principles of the protection of legitimate expectations, proportionality and equality of treatment, has not disclosed any matters of such a nature as to call in question its validity;

- a holder of surplus stock, within the meaning of Article 4 of Regulation No 3108/94, is an operator who is in a position to put the stored product on to the market and whose assets will directly register the economic result from putting that product on to the market;

- the term `import charge applicable in the Community of Twelve as at 31 December 1994' in Article 4(3) of Regulation No 3108/94 must be understood as referring, in the case of Tunisian olive oil falling within CN code 1509 10, each time to the levy of ECU 66.31 per 100 kg as provided for in Annex I to Commission Regulation (EC) No 3307/94 of 29 December 1994 fixing the minimum levies on the importation of olive oil and levies on the importation of other olive oil sector products.

(1) - OJ 1994 C 241, p. 21 and OJ 1995 L 1, p. 1.

(2) - OJ 1994 L 328, p. 42.

(3) - OJ 1994 L 341, p. 53.

(4) - OJ 1994 L 39, p. 1.

(5) - OJ, English Special Edition 1965-1966, p. 221.

(6) - The Court permitted taxation of this kind established under a strictly national measure with regard to sugar stocks held in Sweden on the date of accession (Case C-27/96 Danisco Sugar [1997] ECR I-6653).

(7) - See, inter alia, Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809, paragraph 19.

(8) - Which, it appears from the decision to refer and point A of the third question put by the national court, may have been the case for Thakis.

(9) - OJ 1994 L 69, p. 3.

(10) - OJ 1987 L 297, p. 36.