Opinion of Advocate General Gulmann delivered on 3 December 1992

1 Original language: Danish.

2 OJ 1986 L 75, p. 15.

3 Under Article 1(2) of the regulation it is for the trader to prove that the skimmed-milk powder was not imported, but produced in Spain.

4 OJ 1987 L 75, p. 14.

5 See point 2.4 of the Commission's observations.

6 The preamble to the regulation includes the following recitals:Whereas, in order to prevent quantities of skimmed-milk powder imported into Spain and denatured, in accordance with the provisions in force in Spain, before 1 March 1986 from being re-exported on abnormally advantageous terms a charge on exports of that product was introduced by Commission Regulation (EEC) No 805/86, as amended by Regulation (EEC) No 3956/86; whereas, for the same reasons, the application of the said regulation should be extended to milk powder, regardless of its fat content; ... Whereas in order to prevent speculation in the product covered by this regulation the tatter's provisions should be introduced as a matter of urgency.

7 Sec in particular the judgments in Joined Cases C-90/90 and C-91/90 Neu [1991] ECR I-3617 and Case C-314/89 Rauh [1991] ECR I-1647.

8 See, inter alia. Case C-368/89 Crispoltoni [1991] ECR I-3695, paragraph 17, Case 98/78 Racke [1979] ECR 69, paragraph 20, and Case 99/78 Decker [1979] ECR 101 at paragraph 8. Particular reference should be made to the judgment in Case C-337/88 Società Agricola Fattoria Alimentare [1990] ECR I-1 in which the purpose of making the measure in question retroactive was, as in these cases, to prevent speculative movements in connection with the transitional schemes applying at the time of accession of new Member States.

9 The Commission stated as follows in paragraph 5 of its written observations:In other words, in order to reestablish the effect of Regulation (EEC) No 805/86, which was compromised by manipulations circumventing its provisions, Regulation (EEC) No 744/87 had to provide for express retroactivity, but not as to the substance, since it was merely intended to ensure that the objective of Regulation (EEC) No 805/86 was achieved as if it had never ceased to be operative. When contemplating the contested regulation in this light, it should be noted that there is no question of genuine retroactivity but rather a provision which is necessary for reestablishing and, therefore, permanently safeguarding the effectiveness of the rule which was circumvented.

10 See paragraph 6 of the Commission's observations.

11 See in particular the judgments in Case C-27/90 Société Industrielle de Transformation des Produits Agricoles (SITPA) [1991] ECR I-133 and Case 125/77 Koninklijke Scholten-Honig and De Verenigde Zetmeeütedrijven De Bijenkorf[1978] ECR 1991.

12 Some doubt has been expressed in this case as to whether the issue of the retroactivity of the amending regulation was submitted to the Management Committee. Since the Commission has confirmed that the issue was indeed submitted to the Management Committee, I do not consider that there is any need to go further into that matter.