1 By order of 8 October 1990, which was received at the Court on 22 October 1990, the Verwaltungsgericht Frankfurt am Main referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the validity of Article 10a of Commission Regulation (EEC) No 2102/84 of 13 July 1984 on harvest, production and stock declarations relating to wine-sector products (Official Journal 1984 L 194, p. 1), as amended by Article 1 of Commission Regulation (EEC) No 2459/84 of 20 August 1984 (Official Journal 1984 L 231, p. 5).
2 That question arose in proceedings between Otto Pressler, Weingut-Weingrosskellerei GmbH & Co. KG (hereinafter referred to as "Otto Pressler") and the Bundesamt fuer Ernaehrung und Forstwirtschaft (hereinafter referred to as the "Bundesamt"), the German intervention agency in the context of the common agricultural policy, with regard to aid for the preventive distillation of wine.
3 The first subparagraph of Article 4(1) of Regulation No 2102/84, which was adopted on the basis of Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organization of the market in wine (Official Journal 1979 L 54, p. 1), as amended, replaced by Council Regulation (EEC) No 822/87 of 16 March 1987 (Official Journal 1987 L 84, p. 1), requires traders to declare each year to the competent authorities of the Member States the stocks of concentrated grape must and wine held by them. Article 5(3) provides that the declarations are to be made not later than 7 September in respect of quantities held on 31 August. Under Article 8(2), a summary of the declarations provided for in Article 4 is to be communicated by the Member States to the Commission before 30 November.
4 Article 10a(1) of Regulation (EEC) No 2102/84, as amended by Commission Regulation (EEC) No 2459/84, provides that persons required to submit harvest, production or stock declarations who do not submit such declarations by the dates specified in Article 5 are not to qualify for the benefit inter alia of the measures provided for preventive distillation.
5 The Bundesamt noted that the stock declaration had not been submitted before 7 September but only on 11 September 1986 and therefore refused to grant the aid for the preventive distillation of 23 028 litres of table wine.
6 An action against that decision of the Bundesamt was brought before the Verwaltungsgericht Frankfurt am Main, which stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling: "Is Article 10a of Commission Regulation (EEC) No 2102/84 of 13 July 1984 on harvest, production and stock declarations relating to wine-sector products, as amended by Article 1 of Commission Regulation (EEC) No 2459/84 of 20 August 1984, valid?"
7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case in the main proceedings, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
8 In their observations submitted to the Court, the Bundesamt and Otto Pressler state that the total loss of the aid if the time-limit for submission of distillation declarations is slightly exceeded infringes the principle of proportionality.
9 The Commission, on the other hand, argues that a measure may be regarded as a penalty only where it adversely affects an existing legal position or at least a legitimate expectation. This is not so in the case of Article 10a of Regulation No 2102/84, which merely lays down a condition for the grant of the benefit of certain intervention measures which the Commission may decide to adopt subsequently. That being so, the measure at issue before the national court should not be appraised by reference to the strict criteria of the proportionality rule applicable to penalties, but rather by reference to the criteria which are traditionally applied in the agricultural sector to measures having adverse legal consequences for the persons concerned.
10 In order to reply to the question put by the national court, it should be recalled that the Court, in numerous judgments, has examined the conformity of measures adopted in the sphere of the common organizations of the market with the principle of proportionality, when those measures entailed unfavourable legal consequences for traders, without requiring that the measure should adversely affect a right or a legitimate expectation.
11 As Advocate General Tesauro has noted, at point 3 of his Opinion, the Court has examined in particular, in the light of the principle of proportionality, measures which provide for the exclusion from a benefit in the event of failure to comply with certain conditions or certain time-limits for carrying out operations or submitting requests or documents.
12 In order to determine whether a provision of Community law, in particular in the sphere of the common organizations of the agricultural markets, is in conformity with the principle of proportionality, it should be considered whether the measures introduced by that provision exceed the limits of what is appropriate and necessary in order to attain the objective pursued by the rules which have been breached. More particularly, it should be verified whether the means which the provision in question applies in order to achieve the aim pursued correspond to the importance of that aim and whether they are necessary in order to achieve it (see, in particular, the judgment in Case C-118/89 Lingenfelser [1990] ECR I-2637).
13 It should be noted in that connection that Article 31(1) of Regulation No 822/87 requires the Commission to draw up before 10 December of each year a forward estimate of the Community' s wine resources and needs on the basis of which the system of aid for distillation provided for in Article 42 of that regulation is implemented. Article 39(5) provides that Member States are to notify the Commission of the quantities of table wine produced. Until the end of the 1989/90 wine year, that notification was to be made before 15 February of each year and the decisions concerning compulsory distillation were to be taken before 28 February. Under Article 41 of Regulation 822/87, the decision to proceed with compulsory distillations automatically entails the possibility of support distillation of the kind in question in the main proceedings.
14 As is apparent from the second recital in the preamble to Regulation No 2459/84, adequate information about production and stocks in the wine sector is essential to the correct implementation of intervention measures and can only be acquired, under present circumstances, from declarations regarding harvests and stocks submitted by the various parties concerned.
15 Although, therefore, it is clear that the date of 10 December is of essential importance under the system, inasmuch as the Commission must be put in a position to draw up the forward estimate before the beginning of each wine year, the same cannot be said of the date of 7 September laid down in Article 5(3) of Regulation No 2102/84. According to the Commission' s own statements, that date was determined in the light of the twofold requirement to obtain reliable information at a date as close as possible to 31 August, the end of the marketing year, and to allow the national authorities a period sufficiently long to gather, process and transmit the declarations before 30 November.
16 In view of the fact that 7 September is very close to the end of the wine year and that national authorities have a very long time in which to communicate to the Commission a summary of the declarations, it does not appear that strict observance of the date of 7 September for the submission of harvest declarations is indispensable in order to ensure that the Commission has adequate information about production and stocks in the wine sector by 10 December.
17 It follows from the foregoing that the reply to be given to the question referred to the Court by the Verwaltungsgericht Frankfurt am Main should be that Article 10a of Commission Regulation (EEC) No 2102/84 is invalid inasmuch as it excludes traders from the benefit of an aid for distillation, irrespective of the extent to which the time-limit of 7 September, laid down in Article 5(3) of that regulation, is exceeded for the submission of the harvest declarations.