Report for the Hearing in Case C-319/90
I — Facts and procedure
1. Title I, Articles 7, 10, 11, 12a, 14, 14a and 15 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), establishes a series of voluntary support measures for the wine market which consists essentially of aid for storage or re-storage of wines and the distillation of wines.
2. Articles 1 to 5 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) lay down detailed rules regarding the declarations to be made by traders.
3. Article 10a(l) of Regulation (EEC) No 2102/84, as amended by Commission Regulation (EEC) No 2459/84 of 20 August 1984 (Official Journal 1984 L 231, p. 5), provides that
4. Otto Pressler Weingut-Weingroßkellerei GmbH & Co KG (hereinafter referred to as Otto Pressier) had 23028 litres of table wine distilled for it in the winegrowing year 1986/87 on the basis of a distillation declaration approved on 9 June 1987 by the Bundesamt für Ernährung und Forstwirtschaft (hereinafter referred to as Bundesamt). During a check primarily concerned with the submission of the harven and production declarations, 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 requested.
5. The objection raised by Ono Pressler against that decision was dismissed by the Bundesamt on 4 January 1988. Otto Pressler then brought an action before the Verwaltungsgericht Frankfurt am Main (Administrative Court, Frankfurt am Main).
6. The Verwaltungsgericht entertains doubts as to the validity of Article 10a of Regulation No 2102/84 with regard to the principle of proportionality. It considers that all negative legal consequences for a trader, including exclusion from advantages under the organization of the market, flowing from the nonobservance of his obligations constitute a penalty.
7. Accordingly, the Verwaltungsgericht, by order of 8 October 1990, stayed the proceedings and, pursuant to Article 177 of the EEC Treaty, referred the following question to the Court of Justice of the European Communities for a preliminary ruling:
8. The Verwaltungsgericht's order was received at the Court Registry on 22 October 1990.
9. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 1 February 1991 by the Bundesamt, represented by Ursula Holzhauser, Regierungsrätin, and by the Commission of the European Communities, represented by Ulrich Wölker, of the Commission's Legal Service, acting as Agent.
10. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
11. By decision of 19 June 1991, pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court assigned the case to the Sixth Chamber.
II — Written observations submitted to the Court
1. The Bundesamt, the defendant in the main proceedings, shares the Verwaltungsgericht's doubts as to the validity of Article 10a of Reguládon No 2102/84. There does indeed exist a link between the voluntary participation in a measure within the context of the common organization of the market in wine and the submission of declarations in that those declarations allow the Commission to gauge the sute of the market. To ensure that intervention measures are effective, it is also necessary to set time-limits for the submission of declarations. Exceeding those time-limits has less serious consequences than non-fulfilment of one of the main obligations relating to distillation and it therefore only constitutes a breach of a secondary obligation. In conformity with the Court's judgment in Case C-118/89 Ungenfelser [1990] ECR I-2637, it must be recognized that the objective of submitting sufficient information to the Commission can be achieved even when the time-limit for the submission of declarations has been slighdy exceeded. Furthermore, Article 2 of Commission Regulation (EEC) No 3024/86 of 1 October 1986 (Official Journal 1986 L 281, p. 8), laying down, for the 1986/87 wine year, detailed implementing rules for distillation as provided for in Article 11 of Regulation (EEC) No 337/79 (Official Journal 1986 L 281, p. 8), establishes a system for the approval of delivery contracts or declarations before the submission of the production declaration. The present case concerns a belated stock declaration, the content of which is not of any significance for a specific distillation measure.
2. The Commission points out that Article 10a of Regulation No 2102/84 should not be regarded as a penalty. The Court, in its judgment in Case C-217/88 Commission v federal Republic of Germany [1990] ECR I-2879, considered that a similar provision, namely Article 6(1) of Regulation No 337/79, which excludes producers from various voluntary measures if they fail to fulfil the obligation to deliver the table wine for compulsory distillation, does not constitute a penalty but merely sets out a condition for eligibility for certain intervention measures provided for by the regulation.
1 Language of the case: Iulian.