Balbiino AS v Põllumajandusminister and Maksu- ja Tolliameti Põhja maksu- ja tollikeskus.
Date: 2009-06-04
30. Thus the Court has held that Article 58 of the Act of Accession mentioned in paragraph 3 above precludes the obligations contained in Community legislation which has not been published in the Official Journal of the European Union  in the language of a new Member State from being imposed on individuals in that State, even though those persons could have learned of that legislation by other means. However, the fact that a Community regulation is not enforceable against individuals in a Member State in the language of which it has not been published has no bearing on the fact that, as part of the acquis communautaire , its provisions are binding on the Member State concerned as from its accession ( Skoma-Lux , paragraphs 51 and 59).
32. In those circumstances, the rule stated in Skoma-Lux  does not preclude the enforcement against individuals of those of the provisions of Regulations Nos 1972/2003 and 60/2004 which were taken up in the ÜLTS. That rule might nevertheless remain of residual application if certain provisions of those regulations which were not implemented by the ÜLTS were relied on by the Estonian authorities against individuals before the official publication of the regulations in Estonian. As the Advocate General observes in point 40 of his Opinion, it will be for the national court, if necessary, to interpret the ÜLTS in order to ascertain whether such circumstances exist.
Question 1
37. It should be observed to begin with that Article 4(2) of Regulation No 1972/2003 provides that, to determine each holder’s surplus stock, the new Member States are to take into account in particular the ‘averages of stocks available in the years preceding accession’. In the absence of more precise rules as to the relevant period or the method of calculating the averages of stocks available, such a formulation gives the Member States a discretion in defining the criteria on the basis of which those elements are implemented, in compliance with the objectives pursued by the regulation and the general principles of Community law (see, to that effect, Case C‑313/99 Mulligan and Others  [2002] ECR I‑5719, paragraphs 33 to 36).
47. It must be noted that Article 4(2) of Regulation No 1972/2003 and Article 6(3) of Regulation No 60/2004 do not contain any provision requiring the Member States to apply, or prohibiting them from applying, a coefficient uniformly to operators’ transitional stocks for the purpose of calculating the surplus stock. Those provisions set out a non-exhaustive list of certain criteria for the calculation of operators’ surplus stocks, while leaving the Member States the option of supplementing them as they think fit. As has already been stated in paragraphs 37 and 38 above, the Member States have a discretion in this respect.
48. Applying a coefficient of 1.2 to the transitional stock is prima facie favourable to operators, since it tends to reduce the surplus stock. According to the Estonian Government, the coefficient was fixed on the basis of the rate of growth of Estonian agricultural production observed during the period from 2000 to 2004. The coefficient thus makes it possible to update the average stock on 1 May of the years 2000 to 2003 in the light of that rate of growth and to determine a transitional stock – and hence a surplus stock – which reflects proportionately the development of growth observed across the whole agricultural sector in Estonia from 1 May 2000 to 1 May 2004. It thus helps to establish an objective basis of comparison between the stock on 1 May 2004 and the average stock on 1 May of the previous four years.
49. Having regard to those characteristics, the choice of such a coefficient does not undermine the objectives pursued by Regulations Nos 1972/2003 and 60/2004 and does not infringe the principles of proportionality and equal treatment.
50. It must there therefore be concluded that neither Article 4(2) of Regulation No 1972/2003 nor Article 6(3) of Regulation No 60/2004 precludes the application of a coefficient such as that used in the ÜLTS for the purpose of calculating the transitional stock.
57. It is apparent from recitals 1 and 3 in the preamble to Regulation No 1972/2003 that its objective is to preserve the common organisation of markets by avoiding, by means of a system of deterrent charges on surplus stocks in the new Member States, certain agricultural products being moved artificially to those States with a view to enlargement. The aim is thus to prevent abnormal patterns of trade from disrupting the common organisation of markets.
69. As already stated in paragraph 57 above, Regulation No 1972/2003 aims to avoid abnormal patterns of trade disrupting the common organisation of markets. The regulation does not intend to penalise speculative conduct on the part of operators but, first, to prevent, by a system of deterrent charges, stocks from being built up for speculative purposes and, second, to neutralise the economic advantages anticipated by those holding them (see, by analogy, Case C‑179/00 Weidacher  [2002] ECR I‑501, paragraphs 22, 28 and 42).
71. Consequently, whether it is the surplus stock charge established by Regulation No 1972/2003 or the measures introduced by Regulation No 60/2004 to eliminate stocks of sugar and other products which are concerned, those instruments which are intended to protect the common organisation of markets apply to all surplus stocks within the meaning of those regulations, regardless of whether the holders of the stocks have actually derived an advantage from marketing them.