Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. The finn Otto Pressler, the applicant in the main proceedings, had 23028 litres of table wine distilled for it in the winegrowing year 1986/87 on the basis of a distillation déclaration approved on 9 June 1987 by the Bundesamt für Ernährung und Forstwirtschaft (Federal Office for Food and Forestry, hereinafter referred to as the Bundesamt). On 27 July 1987 the applicant submitted a written request for aid together with a customs certificate stating the distillation had been carried out in conformity with the approved distillation declaration.
2. The Commission dismissed the doubts raised by the national court, pointing out that Article 10a of Regulation 2102/84 may not be regarded as a provision that prescribes a penalty. It recalls that the Court, in its judgment in Case C-217/88, held that a similar provision, namely Article 6(1) of Regulation No 337/79, which excludes producers from various voluntary measures if they fail to comply with the obligation to deliver the table wine for compulsory distillation, did not constitute a sanction but merely set out a condition for eligibility for certain intervention measures provided for by the regulation.
3. I must admit that I find it difficult to draw a precise distinction between provisions which lay down conditions or obligations the breach of which may entail unfavourable legal consequences for the person concerned and provisions which prescribe the refusal of a benefit in regard to which he has a legitimate expectation, the latter provisions being said to constitute penalties in the stria sense of the term?
4. It seems to me to emerge with sufficient clarity from this case-law that, in general, provisions entailing disadvantageous legal consequences for the person concerned must conform to the principle of proportionality.
5. A brief description of the system of intervention in the wine sector will help to make more comprehensible the scope of the contested provision.
6. From the legislative background outlined above it appears that there does indeed exist a link between voluntary participation in a measure within the context of the common organization of the market in wine and the submission of the stock declarations, inasmuch as the declarations enable the Commission to judge the market situation and adopt the necessary measures. It also appears evident that it is necessary to set time-limits for the submission of the declarations in order to ensure the orderly application of the intervention measures.
7. In the light of the foregoing considerations, I therefore suggest that the Court should reply to the question referred to it by the Verwaltungsgericht Frankfurt am Main as follows:
1 Originii language: Italian.
2 OJ 1987 L 84, p. 1.
3 OJ 1987 L 58, p. 53.
4 OJ 1984 L 194, p. 1.
5 OJ 1984 L 131, p. 5.
6 OJ 1989 L 54, p. 1. The rules laid down in Ankle 15 of Regulation No 337/79 were replaced by those laid down in Article 41 of Regulation (EEC} No 822/87, od che bam of which the appbcant requests ltd.
7 Judgment in Commission v Falami Republic of Genatny [1990] ECR I-2879, paragraph 18.
8 That the dividing line between the two is not particularly clear is evident from the fact that in Commission v Federal Republic of Germany, cited above, Advocate General Jacobs described the measures in question as penalties and that Commission Regulation No 2459/84, which inserted Article 10a into Regulation 2102/84, mentions in the third recital in the preamble, the need to provide for penalties to apply in the event of failure to submit a declaration or where a declaration is incorrect or incomplete.
9 Judgement in Case 272/81 [1982] ECR 4167.
10 Judgment in Case 273/81 [1982] ECR 4193.
11 Judgment in Case 15/83 [1984] ECR 2171.
12 Judgment in Case 266/84 ECR [1986] 149.
13 Judgment in Case C-357/88 [1990] ECR I-1669.
14 Judgment in Cist C-358/88 [1990] ECR I-1687.
15 See most recently die judgment in /ta/crade, Case C-199/90 [19911 ECR I-5545, paragraph 12; the judgment in Philipe Brothers , Cale C-155/89 [1990] ECR I-3265, paragraph 34; the judgment in Ungenfelser, Cuc C-118/89 [1990] ECR I-2637, paragraph 12.
16 Judgment in Liareafdxr, supra, judgment in Case 47/86 Roquree (19871 ECR 2889; judgment in Cale 21/85 Mus [1986] ECR 3537.