Emsland-Stärke GmbH v Landwirtschaftskammer Hannover.
Date: 2006-03-16
31. The principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of Community law; nor can the conduct of a national authority responsible for applying Community law, which acts in breach of that law, give rise to a legitimate expectation on the part of a trader of beneficial treatment contrary to Community law (Case 316/86 Krücken  [1988] ECR 2213, paragraph 24, and Joined Cases C-31/91 to C-44/91 Lageder and Others  [1993] ECR I-1761, paragraph 35).
43. In that regard, it should be noted that the Court has consistently held that the principle of legal certainty is a fundamental principle of Community law which requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly (see, in particular, Case C-143/93 van Es Douane Agenten  [1996] ECR I-431, paragraph 27, and Case C-110/03 Belgium  v Commission  [2005] ECR I-2801, paragraph 30). The principle of legal certainty must be observed all the more strictly in the case of a measure liable to have financial consequences (Case 326/85 Netherlands  v Commission  [1987] ECR 5091, paragraph 24).
44. Moreover, a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis (see, in particular, Case 117/83 Könecke  [1984] ECR 3291, paragraph 11, and Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I-6453, paragraph 52).
50. In the area of checks and penalties for irregularities committed under Community law, the Community legislature has, by adopting Regulation No 2988/95, laid down a series of general principles and has required that, as a general rule, all sectoral regulations comply with those principles (Case C-295/02 Gerken  [2004] ECR I-6369, paragraph 56).
53. With regard, second, to the question whether the sanction provided for in Article 13(4) of Regulation No 97/95 is effective, proportionate and dissuasive, the Court has consistently held that, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it  (see, in particular, Case C-426/93 Germany  v Council  [1995] ECR I-3723, paragraph 42, and Case C-26/00 Netherlands  v Commission  [2005] ECR I-0000, paragraph 126).
54. As regards judicial review of compliance with those conditions, it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 34 EC and 37 EC. Consequently, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, in particular, Case 265/87 Schräder  [1989] ECR 2237, paragraph 22, and Case C-331/88 Fedesa and Others  [1990] ECR I‑4023, paragraph 14).
56. It should also be observed that the penalty established by that provision is not absolute but reflects the extent and seriousness of the irregularity committed, as provided for in Article 2(3) of Regulation No 2988/95 (see, to that effect, Case C‑354/95 National Farmers’ Union and Others  [1997] ECR I-4559, paragraph 53).
57. Lastly, in view of the importance of the objective of protecting producers pursued by Article 13(4) of Regulation No 97/95, and given the wide measure of discretion enjoyed by the Community institutions in that area, it cannot be regarded as unjustified or disproportionate to impose a dissuasive and effective penalty such as the one contained in that provision in the event of an intentionally or unintentionally incorrect statement by a starch-producing undertaking applying for a premium with regard to the description ‘producer’ (see, to that effect, National Farmers’ Union and Others,  paragraph 53).
62. Moreover, the fact that the competent authority was informed of the fact that the starch-producing undertaking had obtained potatoes from a trader obtaining them directly or indirectly from producers doe s not in itself mean that the irregularity in question cannot be described as an irregularity ‘caused by negligence’, or indeed ‘intentional’, within the meaning of Article 5(1) of Regulation No 2988/95.
63. Article 13(4) of Regulation No 97/95 does not contain any derogation from application of the penalty which it introduces, unlike provisions such as Article 9(2) of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36).  That provision, which is referred to in Case C-304/00 Strawson and Gagg & Sons  [2002] ECR I-10737, paragraph 62, and to which Emsland-Stärke refers in its observations, states that the penalty it provides for must not be imposed if the farmer shows that his action was accurately based on incorrect information recognised by the competent authority.