18.

Before examining the present case, it may be useful to consider some of the cases in which the Court has already had to address the issue of the proportionality of penalties for the breach of specific obligations. The judgment in Buitoni ( 15 ) concerned licences for the importation of tomato concentrate from nonmember countries. The licences were issued only if the applicant had previously lodged a security, which was released once proof of importation had been submitted. The relevant Commission regulation specified that this proof had to be submitted within a period of six months, which — as a recital in the preamble to the regulation in question mentioned — had been introduced ‘for administrative reasons’. The regulation provided for forfeiture of the security if the proof was not furnished within this period. The Court ruled that this ‘fixed penalty’, which was imposed for an infringement which was considerably less serious than that of failure to fulfil the obligation which the security itself was intended to guarantee, had to be treated as ‘excessively severe’ and consequently as disproportionate. ( 16 ) The RUMI case ( 17 ) concerned aid granted for denatured skimmed-milk powder intended as animal feed. Payment of the aid was refused in that case because the Commission formed the view that the denaturing process had departed very slightly from the specified norms. The Court pointed out that there was a considerable risk that the product in question might be used for other, unauthorized purposes and that the Commission was therefore entitled to lay down ‘strict conditions’. In the Court's view, the Commission was justified in adopting provisions ‘which entail withholding of the aid and loss of the security for failure to fulfil the principal obligation laid down in the tendering procedure and was not obliged to vary the severity of the measure in question according to the gravity of the tenderer's failure to comply with that obligation’. ( 18 ) The Court gave a similar ruling in its judgment in Société Laitière de Gacé. ( 19 ) The judgment in Fromançais ( 20 ) concerned tenders for the sale of cheap butter for specified purposes. The successful tenderer was required to ensure that the butter was processed within a specified period. The regulation provided for forfeiture of the security lodged by the successful tenderer if processing was not carried out within this period. The Court found that the aim of this rule was to prevent speculation. This aim was ‘of fundamental importance’ to the proper functioning of the system. The Court concluded from this that withholding the security in full when this period was exceeded was not a disproportionate measure. ( 21 ) The judgment in Maas, ( 22 ) finally, concerned aid for the export of grain in connection with food aid for Ethiopia. Shipment had to be completed within a specified period; furthermore, the provisions of the regulation in question stated that no ships which had been in service for more than 15 years could be used. Failure to comply with those provisions entailed forfeiture of the security which had to be lodged. The Court ruled that forfeiture of the security could not be justified where the shipment period was exceeded by only a short time, provided that this did not impair the ‘proper functioning’ of the food-aid system. ( 23 ) With regard to the ship used, the Court pointed out that the party concerned had informed the intervention agency in advance, as it was required to do under the relevant provisions. The intervention agency could therefore have averted the infringement of the obligation in question by objecting to the choice of that ship. The Court also pointed out that a more recent regulation dealing with food aid for Lesotho no longer imposed a similar obligation. From this the Court concluded that this obligation was not viewed by the Commission itself ‘as being of fundamental importance to the proper accomplishment of the transport operation’. The total forfeiture of the security was therefore to be regarded as a disproportionate penalty. ( 24 )