Opinion of Advocate General

Mr President,

Members of the Court,

1. In these cases, the Court is requested to rule on whether the Commission was legally able to make a regulation retroactive.

2. On 19 March 1986 the Commission adopted Regulation (EEC) No 805/86 introducing a charge on denatured skimmed-milk powder coming from Spain. The reasons for that special export charge were set out as follows in the preamble to the regulation:

3. The Commission considered itself in a position to state in February 1987:

4. The Commission subsequently submitted a draft regulation to the Management Committee for Milk and Milk Products. That draft, which was approved by the Management Committee on 12 February, included two amendments to Regulation No 805/86. The word skimmed was deleted and it was decided that the products subject to a charge under the amended regulation were not at the same time subject to an accession compensatory amount.

5. The plaintiffs in the main action are two Spanish companies marketing milk powder. Between 12 February and 16 March, they exported to Germany 207 and 120 tonnes of milk powder respectively, the fat content of which was, according to the documents before the Court, 12 and 18% respectively. The companies argued that it was not technically possible or economically profitable to add fat to skimmed-milk powder containing less than 1.5% fat content in order to obtain a product with a fat content of 12% or more. In my opinion, that information can only be understood as meaning that the companies contend that the products which they exported were not covered by Regulation No 805/86 as originally drafted. I shall return later to the significance of that point.

6. It is not possible to come to a decision on these cases on the question of the validity of the amending regulation without first ascertaining what was the wording of the amendment or, in other words, what products were affected by the special export charge after the amendment.

7. There are two possible interpretations of the amending regulation.

8. It clearly appears from the Commission's observations in this case that the Commission considers that the first of the two possible interpretations is the right one. From among numerous examples, I may quote the following statement taken from its written observations, according to which the amendment was decided:

9. It is not easy to ascertain which of the two interpretations is the right one. Admittedly, at first sight the choice seems simple. Where an institution which has adopted a measure which is unfavourable to private individuals considers that it should be interpreted restrictively, that is to say in favour of the individuals, and where it has been able to put forward in support of that interpretation a persuasive line of argument based on the purpose of the measure, it seems indisputable that it is appropriate to choose that interpretation. However, the difficulty in this case comes from the fact that the actual wording of the amendment — the term skimmed-appearing in the original regulation is quite simply deleted — is difficult to reconcile with the restrictive interpretation.

10. It would take a little good will to understand the recitals in the preamble as meaning that the regulation sought solely to prevent the original regulation from being evaded by the addition of fat to skimmed-milk powder imported into Spain before 1 March 1986.

11. In any event, this has two significant consequences as regards these cases.

12. Against that background, I consider that the general conditions specified by the Court for a measure to apply, by way of exception, retroactively, that is to say that the purpose of the measure so demands and that the legitimate expectation of those concerned is duly protected.

13. It seems to me, on the other hand, more difficult to accept that the Commission did not adopt the regulation before 16 March. The Commission has not put forward any convincing justification for that delay and the problem of the significance to be attached, regard being had to legal certainty, to such delay is, in my opinion, a very difficult question to resolve. The Commission clearly cannot simply state that the traders involved were probably in any event aware of the fact that a draft regulation had been submitted to and approved by the Management Committee. In other circumstances it would be natural to consider that the late adoption of an unfavourable measure necessarily results in a failure to attribute to it the retroactive effect which it seeks. However, in this case I do not consider that the delay should have that result. That is due to the special objective of the regulation which is to prevent traders who have already tried once to speculate on foreseeable gaps in the Community agricultural rules to circumvent the Community legislation once more.

14. In short, I consider that the regulation, construed in accordance with its objective, meets the conditions specified by the Court for accepting the retroactive effect of a measure.

15. It appears from the settled case-law of the Court that the requirement laid down by Article 190 of the Treaty for a statement of reasons must be considered in the light of the legal and factual context of the measure at issue. The plaintiffs in the main proceedings have contended that as far as concerns retroactivity the requirement of a statement of reasons is stricter, and that the statement must include in particular the information justifying the retroactive effect.

16. The preamble includes the following statement of reasons:

17. I therefore propose that the Court should answer the questions raised as follows:

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.