JUDGMENT OF 25. 1. 1979 — CASE 99/78 DECKER v HAUPTZOLLAMT LANDAU

In Case 99/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) for a preliminary ruling in the proceedings pending before that court between

THE COURT, composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted to the Court by the Commission

A — Question 1

B — Questions 2 and 3

III — Oral procedure

Decision

Question 1

Questions 2 and 3

Costs

I —. Facts and procedure

1. On 9 and 12 March 1973 the undertaking Gustav Decker, the appellant in the main action, imported wine coming under subheading 22.05 of the Common Customs Tariff into Germany from Italy. The Hauptzollamt (Principal Customs Office) Landau, the respondent in the main action, charged monetary compensatory amounts on the importation of those products under Regulation No 741/73 of the Commission of 5 March 1973 altering the monetary compensatory amounts (Official Journal L 71 of 19 March 1973, p. 1)

2. The appellant in the main action lodged an objection against the charging of those compensatory amounts. The objection was unsuccessful. The appellant brought an action before the Finanzgericht (Finance Court) Rheinland-Pfalz, seeking repayment of the monetary compensatory amounts charged by the Hauptzollamt. The Finanzgericht dismissed the action.

3. Annex I, No 6, to Regulation No 649/73 for the first time extended monetary compensatory amounts to red and white wine of the same kind as that imported by the appellant. Regulation No 741/73 adjusted the said amounts to changes in the exchange rates of currencies.

4. It appears from the order making the reference that in its appeal on a point of law to the Bundesfinanzhof the appellant argued that the Fiananzgericht was wrong in holding that the retroactivity of Regulation No 741/73 was legally effective. The appellant considers that in making its imports it was entitled to assume that they would not be subjected to charges as nothing to the contrary had been published. Consequently, its rights were infringed by the retroactive detrimental change in its legal position. The appellant also took the view that the short-term economic development of the wine sector would not have been endangered if Regulation No 741/73 had not been adopted.

5. By an order of 21 March 1978 the Bundesfinanzhof stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

6. The order making the reference was lodged at the Court Registry on 26 April 1978.

II —. Written observations submitted to the Court by the Commission

A —. Question 1

B —. Questions 2 and 3

1. The Commission recalls that the Court has already expressly stated, in its judgment of 7 July 1976 in Case 7/76, IRCA v Amministrazione delle Finanze dello Stato [1976] ECR 1213, that Regulation No 649/73 validly applied with effect from 26 February 1973. It none the less states its views on the questions referred to the Court because in Case 7/76, unlike the present case, the Court was not yet aware of the delay in the publication of Regulation No 649/73 at the time when it delivered its judgment, and because the earlier judgment concerned a case in which new monetary compensatory amounts had been fixed by Regulation No 649/73 for goods already covered by the monetary compensation system.

2. On the issue of the retroactive effect of Regulation No 649/73, the Commission states that the case-law of the Court does not in principle prevent even provisions imposing taxation from having retroactive effect; likewise neither any rules of Community law nor the legal systems of the Member States expressly prohibit such effect.

3. In the Commission's opinion, the fact that the Official Journal did not appear until 12 March 1973 is irrelevant to the retroactive effect of the regulation: unlike Commission Regulation No 1579/76 (Official Journal L 172 of 1 July 1976, p. 59) which was at issue in Case 88/76, Société pour l'Exportation des Sucres, Regulation No 649/73 expressly provides that it applies even to periods which have already elapsed at the time of its publication; the slight delay in the appearance of the Official Journal did not alter the situation provided for.

4. In the Commission's submission, the validity of Regulation No 741/73 for the period beginning on 12 March 1973 may be inferred from the judgment of the Court in Case 7/76, IRCA (cited above).

5. According to the judgment of the Court in Case 7/76, IRCA (cited above), the extension of the validity of Regulation No 811/73 to a short period prior to its publication in the Official Journal cannot give rise to any objections.

III —. Oral procedure

1. The appellant in the main action, represented by C. Schulz-Knappe, and the Commission, represented by its Legal Adviser, P. Gilsdorf, acting as Agent, assisted by J. Sack, a member of its Legal Department, presented oral argument at the hearing on 14 November 1978. W. Verheyden, Director of the Office for Official Publications of the European Communities, answered questions put to him by the Court.

2. The appellant in the main action submitted inter alia that the importation of 9 March was not caught by the measures at issue, because on that date Regulations Nos 649 and 741/73 had not yet been published and importers were not to expect these regulations to be retroactive.

3. In essence the Commission repeated the arguments set out in its written observations.

4. The Court had asked the Commission the following question:

1. By an order of 21 March 1978 which was received at the Court on 26 April 1978 the Bundesfinanzhof pursuant to Article 177 of the EEC Treaty referred to the Court certain questions relating, on the one hand, to the interpretation of Article 191 of the Treaty and, on the other hand, to the scope of the provisions regarding the entry into force of certain Community regulations concerning monetary compensatory amounts in the wine sector.

2. The first question is in the following terms:

3. Article 191 of the Treaty provides that regulations shall be published in the Official Journal of the Community. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following their publication.

4. As regards the last alternative in the question submitted, it is important that the date on which a regulation is to be regarded as published should not varyaccording to the availability of the Official Journal of the Communities in the territory of each Member State.

5. Therefore the answer to the question raised should be that Article 191 of the EEC Treaty must be interpreted to mean that, in the absence of evidence to the contrary, a regulation is to be regarded as published throughout the Community on the date borne by the issue of the Official Journal containing the text of that regulation.

6. Questions 2 and 3 are worded as follows :

7. The first paragraph of Article 3 of Regulation No 649/73 of 1 March 1973 provided that that regulation was to enter into force on the day of its publication in the Official Journal; however, that regulation was published in an issue of the Official Journal which, although bearing the date 9 March 1973, was not in fact available at the seat of the Office for Official Publications, according to the statement of the Office itself, until 12 March 1973, upon which date it must be deemed to have entered into force.

8. 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.

9. Therefore the answer should be that consideration of the questions raised has disclosed no factor of such a kind as to affect the validity of Regulations No 649/73 of 1 March 1973 and No 741/73 of 5 March 1973 in so far as they were made applicable from 26 February 1973 and 5 March 1973 respectively.

10. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

On those grounds, THE COURT, in answer to the questions referred to it by the Bundesfinanzhof by an order of 21 March 1978, hereby rules:

1 Article 191 of the EEC Treaty must be interpreted to mean that, in the absence of evidence to the contrary, a regulation is to be regarded as published throughout the Community on the date borne by the issue of the Official Journal containing the text of that regulation.

2 Consideration of the questions raised has disclosed no factor of such a kind as to affect the validity of Regulations No 649/73 of 1 March 1973 and No 741/73 of 5 March 1973 in so far as they were made applicable from 26 February 1973 and 5 March 1973 respectively.