Odette Nikou Petridi Anonymos Kapnemporiki AE v Athanasia Simou and Others.
Date: 1998-03-26
25 Since its decision is not open to appeal under national law, the Irinodikio, Echinos, considers that it is obliged to refer the matter to the Court for a preliminary ruling. From the judgment making the reference it can be ascertained that the national court raises five questions, which may be framed as follows:
1. Is Council Regulation No 1114/88 amending Regulation No 727/70 valid, inasmuch as it provides that, in the event of the maximum guaranteed quantity for the production of leaf tobacco in the whole of the Community being exceeded, the intervention prices and premiums are to be reduced, generally and without distinction, and irrespective of whether the producer did or did not exceed the quantity provided for?
2. Are Regulations Nos 1251/89 and 1252/89 valid as regards the laying down of maximum guaranteed quantities for the Tsebelia tobacco variety of the 1989 harvest and does the application thereof infringe the general principles of the prohibition concerning retroactive application of Community legislation, the protection of the legitimate expectations of producers and purchasers and processors of tobacco, and the principle of legal certainty?
3. If the reply to the preceding question is affirmative, then in view of the finding by the Commission of actual overproduction and an exceeding by 44.1% of the maximum guaranteed quantities of the Tsebelia and Mavra varieties in the 1989 harvest, and the imposition for that reason of a reduction in the premium and intervention price in the maximum amount of 15%, is Commission Regulation No 2046/90 valid and may we seek to apply clause 8, in particular the second paragraph, of the cultivation contracts entered into on the basis of Commission Regulation No 4263/88?  If the prices or the premiums are adjusted pursuant to Article 4(5) of Regulation (EEC) No 727/70, is the contract price to be adjusted in line with the change in the price and premiums?
4. Are the factors which in 1991 led the Court of Justice in Case C-368/89 to annul the regulation laying down maximum guaranteed quantities for the 1988 harvest of tobacco of the Bright variety likewise present in this case in view of the fact that the Commission made the same mistake in delaying the determination of maximum guaranteed quantities for the 1989 harvest?
5. Finally, in the event that the Court of Justice should rule that the regulations in question are valid, who is ultimately liable to repay the amount by which the premium has been reduced?
29 As the Council and Commission point out, the Court, in paragraph 30 of its judgment in Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others v Fattoria Autonoma Tabacchi and Donatab [1994] ECR I-4863 (`Crispoltoni II'),  ruled that such arguments were not capable of affecting the validity of Regulation No 1114/88.
30 First, the Court referred, in paragraph 31 of that judgment, to the broad discretion which the Community institutions have in regard to the common agricultural policy, which reflects the responsibilities imposed on them.  The Court also confirmed, in paragraph 32, that those institutions must secure the permanent harmonisation between the various objectives of the common agricultural policy set out in Article 39 of the Treaty, which may prove to be contradictory, and, where necessary, allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions are made, on condition, however, that such harmonisation does not have the effect of rendering impossible the realisation of the other objectives.
31 As the Court pointed out in paragraph 34 of Crispoltoni II, pursuing the sole objective of ensuring a fair standard of living for producers and processors of raw tobacco, in particular by increasing their individual earnings, would involve a serious risk of rendering impossible, in a market characterised by excess production, the realisation of the objective of stabilising the market in raw tobacco pursued through the introduction of the MGQ system by Regulation No 1114/88, in accordance with one of the objectives of the common agricultural policy set out in Article 39 of the Treaty.
32 The Court accordingly concluded, in paragraph 30 of the judgment in Crispoltoni II, that Regulation No 1114/88 was not incompatible with the objectives of the common agricultural policy set out in Article 39 of the Treaty.
33 Second, the Court took the view, in paragraph 47 of Crispoltoni II, that, in adopting Regulation No 1114/88, the Council had acted not only in compliance with the principle of proportionality, in that it did not choose a measure which was manifestly inappropriate having regard to the objective pursued, but also in accordance with the need to effect the appropriate adjustments by degrees prescribed by Article 39(2)(b) of the Treaty.
34 When the Council adopted Regulation No 1114/88 it was, as the Court pointed out in paragraph 46, entitled to consider, without making any manifest error of assessment, that the MGQ system was less onerous for tobacco growers than an individual quota system, since under the former the production of those concerned was not limited, in that they could always sell their products to the intervention agencies, although at a price or premium reduced by a maximum of 15%, while under the latter the growers receive no support for that part of their production which exceeded their individual quota.  Moreover, the mere fact that the system had proved insufficiently effective was not enough to justify the conclusion that Regulation No 1114/88 was invalid.
35 In the third place, the Court pointed out, in paragraph 52 of the judgment in Crispoltoni II, that the principle of non-discrimination does not preclude a Community regulation which introduced a system of guarantee thresholds for the entire Community market involving a reduction in the production aid of all the producers concerned, even if the exceeding of those thresholds was not due to an increase in their production.  It held that, in such a system, all Community producers must together bear equally the consequences of the decisions which the Community institutions are led to adopt in order to respond to the risk of an imbalance which may arise on the market between production and outlets.
40 It must first be borne in mind that, in Crispoltoni I, the Court held that Regulations Nos 1114/88 and 2268/88 were invalid in so far as they provided for a MGQ for Bright variety tobacco harvested in 1988.
41 In paragraphs 14 to 16 of that judgment, the Court found that Regulations Nos 1114/88 and 2268/88 had a retroactive effect in so far as they provided for reductions in the intervention prices and premiums if the MGQ for Bright variety tobacco harvested in 1988 was exceeded, and in so far as they had been published at the end of April 1988 and the end of July 1988 respectively, that is to say, at a date when the seed beds for the current year had already been sown, in the first case, and transplantation of the young plants into the fields had already been completed, in the second case.
42 In paragraph 17 of that judgment, the Court first pointed out that, although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.
43 The Court went on to point out, in paragraph 18 of that judgment, that, by establishing a system of MGQs, Regulation No 1114/88 sought to curb any increase in the Community's tobacco production and at the same time to discourage the growing of varieties that are difficult to dispose of.  Such a purpose, the Court stated, could not be achieved, with respect to the 1988 harvest of Bright variety tobacco, by the regulations published at the end of April and July of that year.
44 The Court accordingly concluded, in paragraphs 20 and 21 of the judgment in Crispoltoni I, that Regulations Nos 1114/88 and 2268/88 could not be regarded as having retroactive effect in so far as the purpose to be achieved by those regulations did not so demand.  The Court also held that those regulations had infringed the legitimate expectations of the traders concerned.  Although those traders must have seen as foreseeable measures to limit any increase in production of varieties which were difficult to dispose of, they were entitled to expect that they would be notified in good time of any measures having effects on their investments.  That, however, had not been the case.
45 So, in its judgment in Crispoltoni I, the Court ruled on the retroactive application to the 1988 tobacco harvest of the MGQ system with which the traders concerned were unfamiliar, both in regard to the nature of the new measures for the organisation of the tobacco market in the Community and in respect of the date on which those measures were to come into effect.