1 BY ORDER OF 18 APRIL 1985, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 2 MAY 1985, 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 THE SECOND INDENT OF ARTICLE 38*(1)*(C ) OF COMMISSION REGULATION 3183/80 OF 3 DECEMBER 1980 LAYING DOWN COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL 1980, L*338, P.*1 ).
2 THAT QUESTION AROSE IN THE COURSE OF AN ACTION BROUGHT BY MAIZENA GMBH, HAMBURG, AND SIX OTHER PLAINTIFFS ( HEREINAFTER REFERRED TO AS "THE PLAINTIFFS ") AGAINST THREE DECISIONS OF THE BUNDESANSTALT FUER LANDWIRTSCHAFTLICHE MARKTORDNUNG ( HEREINAFTER REFERRED TO AS "THE DEFENDANT ").
3 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE PLAINTIFFS OBTAINED FROM THE DEFENDANT THREE EXPORT LICENCES WITH ADVANCE FIXING OF THE AMOUNT OF THE REFUND FOR THE PURPOSE OF EXPORTING CERTAIN PRODUCTS COVERED BY A COMMON ORGANIZATION OF THE MARKET . IN ORDER TO GUARANTEE FULFILMENT OF THE UNDERTAKING TO EXPORT, THEY LODGED SECURITY IN RESPECT OF EACH LICENCE, AS REQUIRED BY THE LEGISLATION . SUBSEQUENTLY, THE DEFENDANT RELEASED THE SECURITY IN ACCORDANCE WITH ARTICLE 30*(2 ) OF COMMISSION REGULATION NO 3183/80 AFTER THE PLAINTIFFS HAD PLACED THE PRODUCTS AT ISSUE UNDER CUSTOMS CONTROL IN THE FRAMEWORK OF PROCESSING ARRANGEMENTS GIVING A RIGHT TO PAYMENT OF THE REFUND .
4 UNDER THOSE ARRANGEMENTS THE PLAINTIFFS THEN OBTAINED ADVANCE PAYMENT OF AMOUNTS EQUAL TO THE EXPORT REFUNDS . FOR THAT PURPOSE THEY LODGED SECURITY GUARANTEEING REIMBURSEMENT OF THE AMOUNT PAID PLUS AN ADDITIONAL 20%, IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 6 OF COUNCIL REGULATION NO 565/80 ON THE ADVANCE PAYMENT OF EXPORT REFUNDS IN RESPECT OF AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL 1980, L*62, P.*5 ). THE TIME-LIMITS LAID DOWN FOR PROCESSING AND EXPORTATION WERE NOT COMPLIED WITH IN RESPECT OF PART OF THE GOODS AT ISSUE, AND THE GERMAN CUSTOMS AUTHORITIES THEREFORE DECLARED FORFEIT PART OF THE SECURITY LODGED IN ORDER TO OBTAIN THE ADVANCE PAYMENT, IN ACCORDANCE WITH THE FIRST INDENT OF THE SECOND PARAGRAPH OF ARTICLE 6 OF REGULATION NO 565/80 .
5 THE DEFENDANT THEN WITHDREW, IN PROPORTION TO THE QUANTITIES NOT EXPORTED, ITS DECISIONS RELEASING THE SECURITY LODGED IN RESPECT OF THE EXPORT LICENCES AND DEMANDED REPAYMENT OF A TOTAL AMOUNT OF DM*40*370.46, UNDER ARTICLE 42*(3 ) IN CONJUNCTION WITH ARTICLE 38*(1)*(C ) OF REGULATION NO 3183/80 . ONLY THESE DECISIONS REVOKING THE EARLIER DECISIONS ARE CONTESTED IN THE MAIN PROCEEDINGS .
6 IN THE STATEMENT OF THE GROUNDS FOR ITS ORDER, THE NATIONAL COURT, WHICH TAKES THE VIEW THAT ON THE EXPIRY OF THE TIME-LIMIT LAID DOWN FOR EXPORTATION THE SECURITY CEASES TO BE A GUARANTEE AND BECOMES A PENAL SANCTION, RAISES THE QUESTION WHETHER THE RULE LAID DOWN IN THE SECOND INDENT OF ARTICLE 38*(1)*(C ) OF REGULATION NO 3183/80 IS IN CONFORMITY WITH CERTAIN GENERAL PRINCIPLES OF LAW, NAMELY THE PRINCIPLES IN DUBIO PRO REO AND NULLA POENA SINE CULPA AND THE PRINCIPLE OF PROPORTIONALITY .
7 THE NATIONAL COURT THEREFORE STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE : "DOES THE SECOND INDENT OF ARTICLE 38*(1)*(C ) OF COMMISSION REGULATION ( EEC ) NO 3183/80 OF 3 DECEMBER 1980 INFRINGE SUPERIOR RULES OF COMMUNITY LAW INASMUCH AS IT IS TO BE REGARDED AS A MEASURE IMPOSING A SANCTION?"
8 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE LEGAL CONTEXT OF THE DISPUTE, THE FACTS OF THE CASE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT . THE LEGAL NATURE OF THE SECURITY
9 THE SECOND INDENT OF ARTICLE 38*(1)*(C ) OF REGULATION NO 3183/80 REQUIRES THE PROVISION OF FRESH SECURITY TO REPLACE THAT LODGED IN ORDER TO GUARANTEE COMPLIANCE WITH THE OBLIGATION IMPOSED ON THE TITULAR HOLDER OF AN EXPORT LICENCE BY ARTICLE 8*(1 ) OF THE REGULATION TO EXPORT PRODUCTS WITHIN THE PERIOD OF VALIDITY OF THE LICENCE .
10 WITH REGARD TO THE LEGAL NATURE OF THAT SECURITY, THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 17 DECEMBER 1970 IN CASE 11/70 INTERNATIONALE HANDELSGESELLSCHAFT V EINFUHR - UND VORRATSSTELLE GETREIDE (( 1970 )) ECR 1125 THAT THE SYSTEM OF SECURITY CONSTITUTES MACHINERY ADAPTED TO THE VOLUNTARY NATURE OF REQUESTS FOR LICENCES AND, BECAUSE OF ITS SIMPLICITY AND EFFICACY, IS A METHOD WHICH IS BOTH NECESSARY AND APPROPRIATE TO ENABLE THE COMPETENT AUTHORITIES TO DETERMINE IN THE MOST EFFECTIVE MANNER THEIR INTERVENTIONS ON THE MARKET . AFTER POINTING OUT THAT A SYSTEM OF FINES IMPOSED A POSTERIORI WOULD INVOLVE CONSIDERABLE ADMINISTRATIVE AND LEGAL COMPLICATIONS AT THE STAGE OF DECISION AND OF EXECUTION, THE COURT DECIDED THAT FORFEITURE OF THE SECURITY IN THE EVENT OF FAILURE TO FULFIL THE UNDERTAKING TO EXPORT CANNOT BE EQUATED WITH A PENAL SANCTION SINCE IT IS MERELY THE GUARANTEE THAT AN UNDERTAKING VOLUNTARILY ASSUMED WILL BE CARRIED OUT .
11 THE PROBLEM RAISED MUST THEREFORE BE LIMITED TO THE ISSUE WHETHER COMMUNITY RULES SUCH AS THOSE CONTAINED IN THE SECOND INDENT OF ARTICLE 38*(1)*(C ) OF REGULATION NO 3183/80, WHICH REQUIRES THE PROVISION OF FRESH SECURITY AFTER THE RELEASE OF SECURITY LODGED EARLIER IN CONNECTION WITH AN EXPORT LICENCE, ARE TO BE REGARDED AS RULES OF A CRIMINAL NATURE . IN CONJUNCTION WITH ARTICLE 42*(3 ) OF THE SAME REGULATION, THAT PROVISION APPLIES TO A CASE IN WHICH A TRADER HAS APPLIED FOR AND OBTAINED AN EXPORT LICENCE WITHIN THE MEANING OF ARTICLE 8 OF REGULATION NO 3183/80 AND SUBSEQUENTLY OPTS FOR THE SPECIAL ARRANGEMENTS LAID DOWN IN ARTICLE 30*(2 ) AND THE FOURTH INDENT OF ARTICLE 22*(1)*(B ) OF THAT REGULATION AND ARTICLE 4 OF REGULATION NO 565/80 . UNDER THOSE ARRANGEMENTS THE SECURITY IS RELEASED, AT THE REQUEST OF THE PERSON CONCERNED, EVEN THOUGH THE OBLIGATION TO EXPORT HAS NOT BEEN FULFILLED AND THUS CONTINUES TO EXIST, WHEN THE GOODS ARE PLACED UNDER CUSTOMS CONTROL IN CONNECTION WITH THE ADVANCE PAYMENT OF EXPORT REFUNDS . HOWEVER, FRESH SECURITY MUST BE PROVIDED, AND IS FORFEITED, IF IT SUBSEQUENTLY EMERGES THAT THE OBLIGATION TO EXPORT WAS NOT COMPLIED WITH DURING THE PERIOD OF VALIDITY OF THE EXPORT LICENCE .
12 IN THE LIGHT OF THOSE RULES, IT IS CLEAR THAT THE PROVISION OF FRESH SECURITY IN THE PLACE OF SECURITY WHICH WAS INTENDED TO ENSURE THE PERFORMANCE OF A CERTAIN UNDERTAKING BUT HAS BEEN RELEASED CEASES TO BE A GUARANTEE AND BECOMES A PENALTY WHEN THE UNDERTAKING HAS NOT BEEN COMPLIED WITH AND NO LONGER CAN BE COMPLIED WITH . HOWEVER, THE QUESTION ARISES WHETHER THAT PENALTY IS A CRIMINAL ONE OR WHETHER, HAVING REGARD TO ITS ESSENTIAL CHARACTERISTICS, IT SHOULD BE REGARDED AS A SPECIFIC ADMINISTRATIVE INSTRUMENT FORMING AN INTEGRAL PART OF THE SYSTEM OF SECURITY APPLICABLE IN THIS CASE AND DESCRIBED ABOVE .
13 IN THAT REGARD, IT SHOULD BE POINTED OUT FIRST OF ALL THAT IF TRADERS THEMSELVES DECIDE TO TAKE ADVANTAGE OF THE SPECIAL ARRANGEMENTS INVOLVING ADVANCE RELEASE OF THEIR SECURITY, THEY DO SO VOLUNTARILY AND IN THE LIGHT OF THE ECONOMIC ADVANTAGE WHICH THEY SEE THEREIN . THE PENALTY IS THUS NO MORE THAN A COUNTERBALANCE TO THE EARLY RELEASE OF THE SECURITY, WHICH IS NOT RELEASED DEFINITIVELY BUT MERELY PROVISIONALLY AND ON CONDITION THAT THE UNDERTAKING TO EXPORT IS CARRIED OUT WITHIN THE TIME-LIMITS LAID DOWN . ITS ONLY EFFECT, IF THE TIME-LIMIT FOR EXPORTATION IS NOT COMPLIED WITH, IS TO PLACE THE TRADER HAVING HAD THE BENEFIT OF THE EARLY RELEASE OF HIS SECURITY IN THE SAME ECONOMIC POSITION AS A TRADER WHO OPTED FOR THE GENERAL RULES, UNDER WHICH THE SECURITY LODGED IN CONNECTION WITH THE EXPORT LICENCE IS RELEASED ONLY AFTER THE ACTUAL EXPORTATION WITHIN THE TIME-LIMIT OF THE GOODS AT ISSUE . THUS IN A SYSTEM INVOLVING ADVANCE RELEASE OF THE SECURITY, THE PENALTY CONSTITUTES THE COROLLARY OF THE SYSTEM OF SECURITY AND IS INTENDED TO ACHIEVE THE SAME OBJECTIVES AS THE SECURITY ITSELF . THAT SANCTION ISIMPOSED AT A FLAT RATE AND IS INDEPENDENT OF ANY CULPABILITY ON THE PART OF THE TRADER . IT IS THEREFORE AN INTEGRAL PART OF THE SYSTEM OF SECURITY AT ISSUE AND IS NOT CRIMINAL IN NATURE .
14 CONSEQUENTLY, IN A SYSTEM OF SECURITY SUCH AS THAT DESCRIBED ABOVE THE TWO PRINCIPLES TYPICAL OF CRIMINAL LAW REFERRED TO BY THE NATIONAL COURT, NAMELY THE PRINCIPLES NULLA POENA SINE CULPA AND IN DUBIO PRO REO, ARE NOT APPLICABLE .
15 HOWEVER, THE PARTIES ARE NOT FOR THAT REASON DEPRIVED OF LEGAL PROTECTION . AS THE COURT HAS HELD IN ITS JUDGMENT OF 25 SEPTEMBER 1984 IN CASE 117/83 KONECKE V BALM (( 1984 )) ECR 3291, A PENALTY, EVEN OF A NON-CRIMINAL NATURE, CANNOT BE IMPOSED UNLESS IT RESTS ON A CLEAR AND UNAMBIGUOUS LEGAL BASIS . MOREOVER, THE COURT HAS ALWAYS EMPHASIZED THAT FUNDAMENTAL RIGHTS ARE AN INTEGRAL PART OF THE GENERAL PRINCIPLES OF COMMUNITY LAW WHICH IT IS CALLED UPON TO ENFORCE . FINALLY, IT IS SETTLED LAW ( SEE MOST RECENTLY THE JUDGMENT OF 18 MARCH 1987 IN CASE 56/86 SOCIETE POUR L' EXPORTATION DES SUCRES V OBEA (( 1987 )) ECR ...) THAT THE PROVISIONS OF COMMUNITY LAW MUST COMPLY WITH THE PRINCIPLE OF PROPORTIONALITY, THAT IS TO SAY, THE MEANS WHICH THEY EMPLOY MUST BE APPROPRIATE TO ACHIEVE THE OBJECTIVE PURSUED AND MUST NOT GO BEYOND WHAT IS NECESSARY TO ACHIEVE IT .
16 IN THIS CASE, THE DOUBTS EXPRESSED BY THE NATIONAL COURT CONCERNING THE COMPATIBILITY OF THE LEGISLATION IN QUESTION WITH SUPERIOR RULES OF COMMUNITY LAW MUST THEREFORE BE UNDERSTOOD AS QUESTIONING THE VALIDITY OF THAT LEGISLATION IN THE LIGHT OF THEIR LEGAL BASIS AND OF THE PRINCIPLE OF PROPORTIONALITY . LEGAL BASIS
17 THE DEFENDANTS CLAIM IN THEIR WRITTEN OBSERVATIONS SUBMITTED TO THE COURT THAT THERE IS NO CLEAR AND UNAMBIGUOUS LEGAL BASIS FOR A PENALTY IN THIS CASE . ARTICLE 42*(3 ) OF REGULATION NO 3183/80 PROVIDES THAT ARTICLE 38 OF THE REGULATION IS TO BE APPLIED MUTATIS MUTANDIS, BUT THE MEANING OF THAT EXPRESSION IS UNCLEAR . FURTHERMORE, ARTICLE 42*(3 ) OF THE REGULATION DOES NOT PROVIDE A SUFFICIENTLY CLEAR LEGAL BASIS INASMUCH AS IT IS NOT FORMULATED IN A MANNER APPROPRIATE TO A PROVISION IMPOSING A PENALTY . IT IS IN FACT ADDRESSED ONLY TO THE AUTHORITY WHICH ISSUED THE CERTIFICATE .
18 ARTICLE 42 OF REGULATION 3183/80 REQUIRES THE COMPETENT AUTHORITY TO APPLY THE PROVISIONS LAID DOWN IN ARTICLE 38*(1)*(C ) WHERE PRODUCTS HAVE BEEN PLACED UNDER CUSTOMS CONTROL AND THE TIME-LIMIT LAID DOWN FOR EXPORTATION HAS NOT BEEN COMPLIED WITH . DEMANDS FOR THE PROVISION OF FRESH SECURITY SUCH AS THOSE AT ISSUE IN THE MAIN PROCEEDINGS ARE THUS BASED ON A REFERENCE WHICH IS CLEAR AND ENTIRELY UNAMBIGUOUS . THE PRINCIPLE OF PROPORTIONALITY
19 THE NATIONAL COURT CONSIDERS THAT THIS PRINCIPLE HAS BEEN INFRINGED BY VIRTUE OF THE FACT THAT THE AMOUNT OF THE PENALTY DOES NOT DEPEND ON THE DEGREE OF CULPABILITY AND THAT NO DISTINCTION IS DRAWN BETWEEN DIFFERENT KINDS OF CULPABILITY : NEGLIGENCE, GROSS NEGLIGENCE AND INTENT .
20 IT IS SUFFICIENT TO POINT OUT IN THAT REGARD THAT DISTINCTIONS SUCH AS THOSE MENTIONED BY THE NATIONAL COURT ARE FOREIGN TO THE VERY NATURE OF THE PENALTY AT ISSUE, WHICH, AS HAS BEEN SHOWN ABOVE, IS PART OF A SYSTEM TO WHICH THE TRADER CHOSE VOLUNTARILY TO SUBMIT IN HIS OWN INTEREST AND UNDER WHICH NO RELIANCE CAN BE PLACED ON ANY NOTIONS OF SUBJECTIVE FAULT . THE CASE OF FORCE MAJEURE IS EXPRESSLY DEALT WITH IN ARTICLE 36*(1 ) OF REGULATION NO 3183/80 .
21 ON THE OTHER HAND, THE ARGUMENT PUT FORWARD BY THE PLAINTIFFS IN THEIR ORAL ARGUMENT BEFORE THE COURT TO THE EFFECT THAT A DOUBLE PENALTY WAS INFLICTED ON THEM ON THE BASIS OF THE SAME FACTS, CONTRARY TO THE PRINCIPLE NON BIS IN IDEM, INASMUCH AS THE PURPOSE OF THE SECURITY LODGED UNDER ARTICLE 6 OF REGULATION NO 565/80, WHICH WAS DECLARED FORFEIT, WAS THE SAME AS THE FRESH SECURITY WHICH THE PLAINTIFFS WERE CALLED UPON TO PROVIDE IN CONNECTION WITH THE EXPORT LICENCE, NAMELY TO ENSURE EXPORTATION OF THE GOODS, MUST BE CONSIDERED FROM THE POINT OF VIEW OF THE PRINCIPLE OF PROPORTIONALITY .
22 IN THAT REGARD, IT SHOULD BE NOTED THAT THE PURPOSE OF THE TWO SECURITIES AT ISSUE IS NOT THE SAME . THE FUNCTION OF THE SECURITY PROVIDED FOR UNDER ARTICLE 6 OF REGULATION NO 565/80 IS TO ENSURE REPAYMENT OF THE EXPORT REFUND PAID IN ADVANCE IF EXPORTATION DOES NOT TAKE PLACE, AND NOT TO GUARANTEE THE EXPORTATION ITSELF . THE SECURITY AT ISSUE IN THIS CASE IS INTENDED TO ENSURE THAT THE UNDERTAKING TO EXPORT DURING THE VALIDITY OF THE LICENCE WILL BE HONOURED .
23 SINCE, THEREFORE, THE PURPOSES OF THE TWO SECURITIES ARE COMPLETELY DIFFERENT, THE FORFEITURE OF BOTH OF THEM, EVEN IF IS TRIGGERED BY THE SAME EVENT, CANNOT BE REGARDED AS DISPROPORTIONATE IF THE DIFFERENT RISKS IN RESPECT OF WHICH THE SECURITIES WERE LODGED ACTUALLY MATERIALIZE .
24 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 5 FEBRUARY 1987 IN CASE 288/85 HAUPTZOLLAMT HAMBURG-JONAS V PLANGE KRAFTFUTTERWERKE (( 1987 )) ECR 611 ), THE ADDITIONAL 20% IS INTENDED TO AVOID THE UNJUSTIFIED ENRICHMENT OF THE EXPORTER CONCERNED WHERE IT TRANSPIRES THAT THE REFUND WAS NOT DUE . HAVING REGARD TO THE PURPOSE OF THE ADDITIONAL AMOUNT, A RATE OF 20% CANNOT BE REGARDED AS DISPROPORTIONATE .
25 IT FOLLOWS FROM THE FOREGOING THAT CONSIDERATION OF THE QUESTION REFERRED TO THE COURT HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THE SECOND INDENT OF ARTICLE 38*(1)*(C ) OF COMMISSION REGULATION NO 3183/80 .