Opinion of mr advocate general Capotorti

Mr President,

Members of the Court,

1. It is well known that in the context of the common organization of agricultural markets the importation and exportation of products subject to a single-price system take place on the basis of the relevant licences, having a fixed period of validity, the issue of which is conditional upon the giving of a security. The essential function of that security is to guarantee fulfilment of the obligation to import or export during the period of validity of the licence, as is stated in the sixth recital of the preamble to Regulation (EEC) No 193/75 of the Commission of 17 January 1975. According to Article 17 (2) of that regulation release of the security is subject to production of proof of completion of the customs import or export formalities. Article 3 of Commission Regulation (EEC) No 499/76 of 5 March 1976 added a further paragraph to Article 18 of Regulation No 193/75, providing that where the proof referred to in Article 17 has not been furnished within the six months following the expiry of the licence, the security shall be forfeit save in case of force majeure. The third recital of the preamble to that regulation states that that provision was introduced for administrative reasons.

2. Such, therefore, are the considerations on which the national court based its request to the Court of Justice to give a preliminary ruling on the validity of Article 3 of Regulation No 499/76. However, in formulating its request the Tribunal Administratif, Paris, also mentioned the interpretation of the said article; this point should be settled immediately in order to clear the field of a false problem.

3. I shall now turn to the problem of the validity of the provision under examination, summarizing the arguments of the Commission. In its written observations the latter defended the legality of Article 3 of Regulation No 499/76, its main contention being that that provision became necessary in order to achieve two objectives: to align the various administrative practices in the Member States in relation to the conditions and time-limits for the release of securities and to establish a term for the final closure of each individual file.

4. The key to the solution of the problem under consideration lies in the assessment of the penalty laid down by Article 3 of Regulation No 499/76 in the light of the principle of proportionality, according to which any burden placed on those affected by Community rules must lie within the limits necessary for obtaining the objective sought and require the least possible sacrifice on the part of those concerned. It is scarcely necessary to note this is now a settled principle of Community law (from the case-law of this Court it is sufficient to cite the judgments of 13 July 1962 in Case 19/61, Mannesmann [1962] ECR 357, of 17 December 1970 in Case 25/70, Einfuhr- und Vorratsstelle für Getreide [1970] ECR 1161, of 24 October 1973 in Case 5/73, Balkan-Import-Export [1973] ECR 1091, of 13 November 1973 in Joined Cases 63 to 69/70, Werhahn [1973] ECR 1229, of 11 May 1977 in Joined Cases 99 and 100/76, De Beste Boter and Hoche [1977] ECR 861 and of 5 July 1977 in Case 114/76, Bela-Mühle [1977] ECR 1211). I would draw particular attention to the judgment of 11 May 1977 in Joined Cases 99 and 100/76, because that case concerned the problem of a deposit in an agricultural matter in relation to observance of the principle of proportionality, where it was decided that the limit of what was appropriate and necessary to attain the objective desired was not exceeded in view of the fact that in that case forfeiture of the deposit could not be regarded as in the nature of a penalty for not fulfilling an independent obligation (paragraph 11 of the Decision).

5. For the above reasons it is my opinion that the Court of Justice should reply to the question referred to it by the Tribunal Administratif, Paris, by judgment of 22 February 1978, by ruling that Article 3 of Commission Regulation No 499/76 of 5 March 1976 is invalid.

1 Translated Írom the Italian.