2.

Before I turn to the question whether Article 15 of Regulation No 1380/75 is compatible with the general principles of Community law and, in particular, with the principle of proportionality, I think two preliminary observations are called for. It is common ground that the plaintiff exported goods to the value of FF 48000, which confers entitlement to the payment of monetary compensatory amounts. The plaintiff estimated the amount of monetary compensatory amounts due to it as FF 19543.40, which is not disputed by the defendant. The Member States were empowered to grant monetary compensatory amounts by Council Regulation No 974/71 of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States. I shall not consider in detail the particular conditions for the application of monetary compensatory amounts. I set out my views in that regard in extenso in the Opinion which I delivered on 14 May 1985 in Joined Cases 71 and 72/84 ( 13 ) before the Fourth Chamber of the Court. To summarize, the application of monetary compensatory amounts was considered only in cases where changes in the parities of the currencies might lead to a disturbance in trade in agricultural products. However, the reference margins for the calculation of the monetary compensatory amounts were defined anew by Regulation No 1112/73. ( 14 ) Henceforth the criterion was to be the disparity between the conversion rate used in the common agricultural policy and the conversion rate derived from the so-called central rate. The significance of monetary compensatory amounts has thus changed since their introduction. Initially they were conceived as an instrument to neutralize short-term fluctuations in currency rates, whilst later they were used to equalize the different price levels for agricultural products in the Community which arose from the application of different representative conversion rates for such products to agricultural prices uniformly expressed at first in units of account and subsequently in ECU. Monetary compensatory amounts have thus been transformed from an instrument for temporarily combating disturbances in agricultural trade resulting from currency fluctuations into an essential part of the common organization of the market. It was resolved to apply those amounts in order to enable intra-Community trade in agricultural products to continue in view of the existence of different national price levels for agricultural products in spite of the adoption of uniform prices expressed in ECU. That is quite apparent in this case where for goods to the value of approximately FF 48000 a monetary compensatory amount of FF 19000 was calculated, that is to say an amount representing more than 40% of the value of the goods. According to the case-law of the Court, in order to establish whether a provision of Community law is consistent with the principle of proportionality it is necessary to establish, in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim and, in the second place, whether they are necessary for its achievement. ( 15 ) The 14th recital in the preamble to Regulation No 1380/75 contains the following justification of the various time-limits laid down in the regulation: ‘Whereas, in the interests of sound administration, it seems desirable to require that application for payment of the compensatory amount be made within a reasonable period; whereas, in order to prevent distortions of competition between the trade interests concerned in the Member States, a time-limit should be laid down for payment of the compensatory amount; whereas the fact that in exceptional cases this time-limit cannot be respected should be taken into consideration’. ( 16 ) In its observations to the Court, the Commission has relied essentially upon the second sentence in that recital, stating that trade interests could obtain unjustified advantages in the absence of a uniform time-limit. First it must be observed in that regard that the recital relating to distortions of competition between the trade interests concerned in the Member States refers to the time-limit accorded to the national authorities for payment of the monetary compensatory amounts. Distortions of competition to the detriment of trade interests could arise if there were any delay in payment of the monetary compensatory amounts, since traders would thus at the very least be confronted with different conditions relating to capital and interest. In this case, the monetary compensatory amounts were paid by the exporting State, that is France, as a result of an agreement between the Member States concerned. It is scarcely conceivable and therefore unlikely that a Member State whose exports are intended to be encouraged by the grant of monetary compensatory amounts would obstruct its own exports by delaying the payment of such amounts. However, I have considerable misgivings as to whether that argument necessarily entails forfeiture of the right at issue in this case merely because the trader has submitted his claim for payment out of time. According to Article 8 (1) of Regulation No 1380/75, the monetary compensatory amount to be granted or levied is the amount applicable on the day of export or on the day of import. Thus if the rate at which the monetary compensatory amounts are to be paid is determined by the day of import or the day of export, I fail to see how the trader concerned can influence the amount due to him by lodging his claim out of time. A belated claim can only lead to a belated payment of the monetary compensatory amount and thus to a loss for the trader. Since however it is in the trader's own interest to receive the amounts due to him as soon as possible, it is difficult to see for what reason he should be encouraged, by the setting of a time-limit for the submission of claims, to act promptly in order to avoid distortions of competition. Thus the only remaining justification for the rule in Article 15 of Regulation No 1380/75 which bars claims submitted out of time is the statement in the 14th recital of that regulation that a time-limit is in the interests of sound administration. In that connection, it must certainly be acknowledged that the Commission itself and the national authorities have a legitimate interest in being able to close their files on certain administrative matters after a reasonable period. The Commission must therefore be entitled to prescribe that claims for the payment of monetary compensatory amounts must be submitted within a reasonable period, failing which certain penalties may be imposed. In that regard it must also be borne in mind that by Council Regulation No 2746/72 of 19 December 1972 ( 17 ) responsibility for the financing of monetary compensatory amounts was taken over by the Community. Consequently, the grant of monetary compensatory amounts involves not only a national administrative procedure but also a subsequent balancing of accounts between the Member State which grants the amounts and the Commission as part of the clearance of accounts in respect of the European Agricultural Guidance and Guarantee Fund. For those reasons, it is certainly necessary to set certain time-limits for the submission of claims for the payment of monetary compensatory amounts and to ensure observance of such time-limits by the imposition of penalties. Nevertheless both the time-limits and the penalties must be in proportion to the aim pursued, namely sound administration. The preamble to Commission Regulation No 1371/81 of 19 May 1981, ( 18 ) which partly replaced Regulation No 1380/75, gives rise to certain doubts as to whether the six-month period prescribed by Article 15 of that regulation is reasonable. The preamble to the former regulation contains the following recital: ‘Whereas experience has shown that the time-limit for submission of the relevant documents, if grants of monetary compensatory amounts are to be made, should be increased’. Accordingly, Article 17 (2) of Regulation No 1371/81 contains the following provision : ‘Except in cases of force majeure, entitlement to the grant of monetary compensatory amounts shall be lost unless the relevant documents are submitted within the 12 months following the day on which the customs authorities accepted the import entry or the export declaration.’ It is also doubtful whether the penalty, namely complete forfeiture of the monetary compensatory amounts, is reasonable. In its judgment of 20 February 1979 in Case 122/78 ( 19 ) the Court stated that in a case where a security is lodged to obtain an import or export licence, forfeiture of the security is proportionate if the particular import or export transaction voluntarily entered into by the trader is not carried out. With regard to forfeiture of the security in the event of the submission of proof out of time, however, the Court held that: ‘On the other hand, the provisions of Article 3 of Regulation No 499/76, prompted by “administrative reasons”, provide not only for a period within which these proofs must be furnished but also the loss of the whole of the security in the event of failure to comply with that period. That fixed penalty, which is applied to an infringement which is considerably less serious than that of failure to fulfil the obligation which the security itself is intended to guarantee, which is sanctioned by an essentially proportionate penalty, must therefore be held to be excessively severe in relation to the objectives of administrative efficiency in the context of the system of import and export licences.’ This case, which concerns forfeiture of the monetary compensatory amounts where the claim is submitted out of time, calls for the following remarks: the grant of monetary compensatory amounts does not depend on the existence of a relationship between a main and an ancillary obligation, in which non-fulfilment of either obligation attracts the same penalty. The two situations are however comparable, in so far as in both failure to carry out the export transaction is attended by the same legal consequences as the submission of the claim out of time, namely forfeiture of the monetary compensatory amounts. A further peculiarity of this case is that, except in the case of force majeure, which, as I have already explained, does not arise here, the rule which bars claims submitted out of time is of general application, that is to say independently of whether or not the claim was out of time for reasons beyond the control of the trader concerned. In the latter case, however, the legal consequence provided for in Article 15 of Regulation No 1380/75, namely forfeiture of the monetary compensatory amounts, must be regarded as out of all proportion. The fact that the trader may, under Article 11 (5) of Regulation No 1380/75, take steps after the expiry of the three-month period to obtain other equivalent documents in no way affects that finding. That provision gives the trader an option which, if exercised, can expedite his claim for the grant of monetary compensatory amounts. It is impossible in my view to infer from that option, which is provided for the trader's benefit, an obligation to obtain equivalent documents in the event of negligence on the part of the authorities. Moreover, Article 11 (5) of Regulation No 1380/75 not only confers an advantage on the trader but at the same time relieves the administration of the need to contend with applications by the trader to have other documents accepted as equivalent in the first three months after completion of customs formalities. Furthermore, the remaining period of three months is no doubt too short to enable the trader to take steps to obtain equivalent documents from the authorities of another Member State and to have those documents accepted by his own national authorities. Finally, I wish to draw attention to a further inaccuracy in the wording of Article 15 of Regulation No 1380/75. Although I do not intend to take issue with the general wording of that provision, I nevertheless find it curious that in a Community regulation on intra-Community trade adopted in 1975, that is seven years after the establishment of the Customs Union, there is still mention of customs formalities. It is, however, precisely the concept of customs formalities which has led to further obscurities in this case. It is not clear which customs formalities are intended, whether customs export formalities or customs import formalities Moreover, the regulation leaves open the question of the time at which customs import formalities are completed. Article 8 contains a rule for customs export formalities, but there is no rule for customs import formalities, completion of which must be evidenced by Control Copy T5. Although that question has been answered by the national court itself and has thus not been referred to the Court in these proceedings, it must be pointed out that in the plaintiff's view customs formalities are not completed until Control Copy T5 is returned to the office of departure. According to that view, the correctness of which need not be considered here, the question of the interpretation of Article 15 simply did not arise since the period prescribed for the submission of claims could not have started to run owing to the failure to return the control copy. Although the Community legislature is entitled to prescribe reasonable periods for the submissions of claims, it must make it quite clear when time starts to run. Moreover, the Commission has in the meantime recognized that the wording of Article 15 of Regulation No 1380/75 is imprecise. According to Article 17 (2) of Regulation No 1371/81 which replaced it, the period now runs from the day on which the customs authorities accepted the import entry or the export declaration. To summarize, therefore, I have come to the conclusion that the rule in Article 15 of Regulation No 1380/75 is invalid in so far as it sets a time-limit for the submission of claims for monetary compensatory amounts even in cases where, although no force majeure is involved, the person concerned cannot submit the documents in support of his claim until they are out of time, for reasons which are beyond his control. In those circumstances it is unnecessary to give a specific answer to the subsidiary question concerning the interpretation of the concept of force majeure.