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

The facts of the case, the procedure and the observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

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. The appellant then appealed to the Bundesfinanzhof (Federal Finance Court) against the decision of the Finanzgericht.

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. According to Article 3 of Regulation No 649/73 of 1 March 1973, that regulation entered into force ‘on the day of its publication in the Official Journal of the European Communities’. It was published in Official Journal L 64 which, although it bore the date of 9 March 1973, was not available at the sales office of the Office for Official Publications of the European Communities until 12 March 1973 owing to administrative difficulties. In Germany, it was distributed the following day. According to the said Article 3, the regulation applied as from 26 February 1973. Regulation No 741/73 of 5 March 1973 entered into force on 19 March 1973, the day of its publication, but applied as from 5 March 1973.

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: 1. Is a regulation to be regarded as published within the meaning of Article 191 of the Treaty establishing the European Economic Community: (a) on the date borne by the Official Journal in question; (b) at the time when the Official Journal in question is in fact available at the Office for Official Publications of the European Communities; or (c) at the time when the Official Journal in question is actually available in the territory of the particular Member State? 2. Was Regulation (EEC) No 741/73 of the Commission of 5 March 1973 also applicable to wine which was first made subject to monetary compensatory amounts by Regulation (EEC) No 649/73 of the Commission of 1 March 1973 and which was imported before the last-mentioned regulation was in fact published? 3. If Question 2 is answered in the negative: Was Regulation (EEC) No 649/73 of the Commission of 1 March 1973 applicable to the said wine?

6. The order making the reference was lodged at the Court Registry on 26 April 1978. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Commission of the European Communities. 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.

II — Written observations submitted to the Court by the Commission

A — Question 1

The Commission recalls that in its judgment of 31 March 1977 in Case 88/76, Société pour l'Exportation des Sucres v Commission [1977] ECR 709, the Court held that the time at which a regulation is to be regarded as published within the meaning of Article 191 of the Treaty is the day of its actual publication in the Official Journal. According to the Commission, the Official Journal is to be regarded as published at the time of its publication by the Office for Official Publications in Luxembourg. The principle of legal certainty and the principle of equal treatment for all traders require that regulations should enter into force at the same time throughout the territory of the Community; anyone who takes the necessary steps can procure the Official Journal upon its publication in Luxembourg; as from that time, the legislature loses its unfettered authority over the text; if reference had to be made to the time when the Official Journals were available in the different Member States, considerable loss of time would have to be accepted owing to inevitable delays.

The Commission also submits that its opinion corresponds in essence to the situation in most of the Member States, in which actual delivery of the national official publication to a central organization suffices to allow legislative provisions to enter into force in the whole of the country. The situation in France is however an exception, because laws and decrees enter into force in Paris in principle one day after their publication in the French Journal Office, and as regards the rest of the national territory in principle one day after the arrival of the French Journal Officiel containing the legislative texts in the chief town of the ‘département’ or ‘arrondissement’ (department or administrative district). Nevertheless in France in urgent cases publication may be carried out by means of posting-up. However, in the Commission's submission, the French example cannot be followed by the Community institutions because the possibility of publishing by means of posting-up is not open to them.

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. The Commission submits that if the answer to Question 1 is the one which it suggests, Question 2 concerns the period from 5 to 11 March 1973. It adds that for the purpose of the decision in the main action, the relevant period is from 9 to 11 March 1973. The Commission then studies the validity of Regulation No 649/73 for the latter period. In its submission, if that regulation was not applicable at that time, the same is true a fortiori of Regulation No 741/73.

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. In this connexion, the Commission also refers to paragraph 24 of the decision of the Court in Case 7/76, IRCA (cited above). In the Commission's submission, there is no reason to protect advantages derived from inevitable administrative delays due to rapid changes in the monetary situation: on the contrary, it follows from Article 3 of Regulation No 974/71 that in the event of any appreciable alteration in the international monetary situation, it is to be expected that new categories of goods will be brought under the monetary compensation system with effect from the time when the monetary fluctuations occur. Since the Commission's decision as to the inclusion of new goods in the system is discretionary, it cannot be foreseen with certainty in each case. For this reason, in the Commission's view, it must be accepted that in such a situation interested persons cannot be refused all protection of their expectation that the existing legal situaton will be maintained. However, the Commission submits that before the publication of the measure adopted in the Official Journal, it can prevent such an expectation from arising on the part of interested persons by making the tenor of its decision generally known in another way or by letting it be understood that a decision is imminent. Applied to the present case, these general considerations lead the Commission to the following conclusions: Owing to alterations which it was essential to make to the monetary compensation system following the fall in the lira as from 13 February 1973, new amounts could not be fixed until after the entry into force of the alterations made to the system by Regulation No 509/73 of the Council of 22 February 1973 (Official Journal L 50 of 23 February 1973, p. 1); after the Management Committee had on the same day given its opinion on the readjustment of the compensatory amounts, and the Member States had declared that they would be able to apply those new amounts as from 26 February 1973, it appeared possible to the Commission to give effect to the measures adopted as from that date. Since, owing to the accession of the new Member States and to the monetary crisis, it was not possible at that time exactly to foresee when a regulation would appear in the Official Journal, and since, having regard to the dramatic situation, it was also not possible to accept delays in the entry into force of the monetary measures decided upon, the Commission considered that it had to extend the validity of certain of those measures to periods shortly prior to publication. The Commission submits that in view of the monetary crisis, which the mass media in all the Member States reported for several weeks, expectation of the maintenance in force of the monetary measures could only be very limited. Even before the regulations in question were published, the Commission had itself sent the text of them to the administrative authorities in the Member States by telex. Thus the contents of Regulation No 649/73 were communicated to the Member States on 26 February 1973. At that time the said expectation had already ceased to exist for another reason: the Commission had made it known that retroactive charging of the compensatory amounts was to be foreseen for short periods, as appears from the information issued by the ‘Vereinigte Wirtschaftsdienste’.

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). In the Commission's opinion, the application of that regulation to the period from 9 to 11 March 1973 cannot be objected to either: the material conditions for an alteration of the monetary compensatory amounts fixed by Regulation No 649/73 had been fulfilled since 5 March 1973; on 5 March 1973 the Commission had informed the administrative authorities in the Member States by telex of the new amounts applicable, and it appears from the information distributed by the ‘Vereinigte Wirtschaftsdienste’ that interested persons already knew about them before the rates in force as from 26 February 1973 had been published in the Official Journal; the Commission had not communicated the exact figures, but they could be estimated on the basis of the changes in the exchange rates; finally, Official Journal C 8 of 5 March 1973 contains a concise announcement concerning the alterations made by Regulation No 741/73. If, before the publication of a regulation, the attention of interested parties is drawn to the fact that it will be retroactively amended by another regulation coming shortly after it, the publication of the former regulation cannot, in the Commission's submission, provide grounds for the protection of expectations concerning the maintenance of the situation which the former regulation brought into being, even if it concerns periods which have elapsed. The Commission further observes that such a procedure is unusual and requires special justification, since normally every citizen can trust that a provision will not already be out of date when it enters into force and that it cannot be amended with retroactive effect. The Commission submits that in the present case consideration of the critical monetary developments in Spring 1973 and the emergency situation prevailing at the time of the publication of the Official Journal required an exception. In the circumstances of this case it would have been unreasonable to amend a regulation which it had already been decided to adopt but which had not yet been published, since then its publication would have been even further delayed.

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. The appellant further took the view that the importation of 12 March was also not caught because on that date Regulation No 649/73 was not yet available, at least in the territory of the Federal Republic of Germany.

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

4. The Court had asked the Commission the following question: The Commission answered by reference to a statement by the Office for Official Publications in the following terms: According to the Commission, the Office also stated that the information is posted up on a blackboard situated at the entrance to its building, and that it is posted up only when all the language versions are available. The Commission drew the Court's attention in particular to the fourth indent of the said declaration, which is in the following terms: The Advocate General delivered his opinion at the hearing on 6 December 1978.

‘How can it be ascertained and proved at what time an issue of the Official Journal was actually available at the sales office in Luxembourg?’

‘Precisely with the aim of determining the date of publication of issues of the Official Journal within the meaning of the Declaration of the Councils of 23 January 1967, the Office for Official Publications keeps a register of the dates and times of arrival of each language version. The staff of the Office for Official Publications have instructions to post each part up as soon as it has arrived: sample checks to supervise observance of this provision have never found it wanting.’

‘The date of publication of an act shall be deemed to be the date on which the Official Journal in which it is published is actually available in the four languages at the sales office in Luxembourg. The date of publication borne by each issue of the Official Journal shall correspond to that date.’

Decision

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. These questions were raised in the context of proceedings pending between a German undertaking and the competent customs authority concerning monetary compensatory amounts charged when three consignments of wine from Italy were cleared into free circulation on 9 and 12 March 1973.

Question 1

2. The first question is in the following terms:

‘Is a regulation to be regarded as published within the meaning of Article 191 of the Treaty establishing the European Economic Community:

a) on the day borne by the Official Journal in question;

b) at the time when the Official Journal in question is in fact available at the Office for Official Publications of the European Communities; or

c) at the time when the Official Journal in question is actually available in the territory of the particular Member State?’

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. The Official Journal is published by the Office for Official Publications of the European Communities, situated in Luxembourg, which has received formal instructions from the Council intended to ensure that the date of publication borne by each issue of the Official Journal corresponds to the date on which that issue is in fact available to the public in all the languages at the said Office. These provisions give rise to a presumption that the date of publication is in fact the date appearing on each issue of the Official Journal. However, should evidence be produced that the date on which an issue was in fact available does not correspond to the date which appears on that issue, regard must be had to the date of actual publication. A fundamental principle in the Community legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it.

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. The unity and uniform application of Community law require that, save as otherwise expressly provided, a regulation should enter into force on the same date in all the Member States, regardless of any delays which may arise in spite of efforts to ensure rapid distribution of the Official Journal throughout the Community.

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.

Questions 2 and 3

6. Questions 2 and 3 are worded as follows :

‘Was Regulation (EEC) No 741/73 of the Commission of 5 March 1973 also applicable to wine which was first made subject to monetary compensatory amounts by Regulation (EEC) No 649/73 of the Commission of 1 March 1973 and which was imported before the last-mentioned regulation was in fact published?

If Question 2 is answered in the negative: was Regulation (EEC) No 649/73 of the Commission of 1 March 1973 applicable to the said wine?’

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. According to the second and third paragraphs of Article 3 of the aforesaid regulation, the amounts resulting from its application were however to apply from 26 February 1973, or even — in favour of parties concerned — from 13 February 1973. Regulation No 741/73 of 5 March 1973 altering the monetary compensatory amounts fixed by Regulation No 649/73 entered into force on the day of its publication in the Official Journal, that is 19 March 1973, but according to Article 2 of the regulation it applied from 5 March 1973. Thus the questions submitted first raise the issue whether Regulation No 649/73 could validly attribute retroactive effects to itself as from its entry into force, in particular by extending the monetary compensatory amounts system for the first time to the wine in question.

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. As regards monetary compensatory amounts in particular the system introduced by Regulation No 974/71 implies in principle that the measures adopted take effect as from the occurrence of the events which give rise to them, so that in order to make them fully effective it may be necessary to provide for the applicability of newly-fixed monetary compensatory amounts to facts and events which occurred shortly before the publication of the regulation fixing them in the Official Journal. It is inherent in the system of monetary compensatory amounts that traders must expect any appreciable change in the monetary situation possibly to entail the extension of the system to new categories of goods and the fixing of new amounts. In this case on the date laid down for the applicability of the new amounts, the Commission adopted special measures for them to be brought to the attention of the various sectors of industry concerned. The applicability of Regulation No 649/73 to events occurring as from 26 February 1973, that is to say during a period of two weeks before its actual publication, was therefore not such as to jeopardize expectations deserving protection. In the light of this finding in relation to Regulation No 649/73, and having regard to the extraordinary situation prevailing at the time, no overriding consideration pertaining to legal certainty prevents Regulation No 741/73, adopted on 5 March 1973, from altering the monetary compensatory amounts resulting from the aforementioned regulation from being given effect as from 5 March 1973, notwithstanding the fact that Regulation No 649/73 had not yet been published in the Official Journal.

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.

Costs

10. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

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.