law://eu/cjeu/1981/c-147-81/hd_1_1_2_2@2026-11-12The Commission of the European Communities is concerned first of all to establish that it is impossible to provide an interpretation of Article 1 (3) of Regulation No 572/78 which could justify a failure to charge the whole of the levy when the period prescribed for processing has been only minimally exceeded. Whilst the Commission recognizes that the Court of Justice has already had occasion, in reliance on an interpretation in accordance with the Treaty, to depart from the wording of similar provisions (judgment of 21 June 1979 in Case 240/78 [1979] ECR 2137 and the judgment of 3 June 1980 in Case 135/79 [1980] ECR 1713) it nevertheless considers that an interpretation ‘in accordance with’ the Treaty may be envisaged only if it corresponds to the objective of a provision and if the legislature did not clearly intend that another construction should take precedence. In this case the provision prescribing the subsequent charging of the levy, even where the period prescribed for processing is exceeded by a relatively slight margin, is in accordance with the clear intention of the Commission and the objective of the particular arrangements regarding imports laid down by Article 14 of Regulation No 805/68 of the Council. In such conditions the Court is not entitled, by means of an interpretation, to put itself in the place of the legislature. Furthermore, according to the Commission, it is impossible to determine by way of an interpretation the cases in which failure to observe the time-limit is merely slight and what the appropriate penalty accordingly is. That too is one of the prerogatives of the legislature.The Commission next considers the question of the validity of Article 1 (3) and (8) of Commission Regulation no 572/78. With regard to the compatibility of the provision in question with the powers conferred by Regulation No 805/68 of the Council the Commission first of all claims that, in this case, it is not the arrangements regarding the security as such which adversely affect the plaintiff but the very fact that Regulación No 572/78 makes provision for a period of three months for processing and for the subsequent charging of the levy where that period is exceeded. It is irrelevant for the outcome of the case whether the system with regard to the security as such is lawful since, even if there is no security capable of being retained, an undertaking which has exceeded the prescribed period of three months remains bound to pay the levy. The Commission considers that the fixing of a time-limit for processing and the penalty attached to any failure to observe that limit fall entirely within the powers transferred by the Council to the Commission pursuant to Article 14 of Regulation No 805/68. In fact, in accordance with that provision the Commission is required to enact implementing provisions for the special arrangements for the importation of certain meat for processing provided for by Article 14 and in particular the provisions necessary for supervising the use of the meat. Supervision of the use of the meat inevitably entails fixing a time-limit for processing which the Commission was required to determine within the framework of an appropriate margin of discretion, which it did by fixing a period for processing amounting at the most to one day short of four months and at the least to three months and one day. In fact Article 14 of Regulation No 805/68 already provides for a three-monthly allocation of requirements for imported meat for processing determined for one year in the Council's estimate and it is accordingly natural that the Commission should make provision for a regular allocation not only of imports but also of processing for the year as a whole. In any case, a short period is justified by the need to avoid storing unprocessed frozen meat with a view to speculation and to ensure effective control within the undertakings.Finally, with regard to the observance of the principle of proportionality none of the provisions in question is in breach of it in any way. The Commission in fact considers it necessary to distinguish cases where forfeiture of the security takes the form of a genuine penalty from those in which, as in the present case, a trader merely loses a special advantage granted in advance provided that he complies with the conditions relating to the grant of that advantage. In cases of the latter kind, as soon as the conditions laid down are disregarded the right granted is forfeit without the authority's being required to examine in detail whether the disregard of the conditions was total or merely partial. Furthermore, the Commission considers that in Regulation No 572/78 it took sufficient account of the principle of proportionality by tolerating failure to observe the time-limit in cases of force majeure and by providing that any levy paid should be charged subsequently only on that part of the consignment of imported meat which was not processed within the prescribed period. Likewise, the judgments of the Court of Justice cited by the plaintiff are irrelevant since in the two cases referred to a slight failure to observe a mere procedural time-limit was punished by the forfeiture of a security in its entirety whilst in this case the purpose of the time-limit is a concern to ensure that the person concerned performs the main obligation binding him to the administration, which is necessitated by the objective of the system laid down. In cases of that type the Court has on the other hand held that forfeiture of a security as a penalty for exceeding the periods prescribed was in accordance with the principle of proportionality (judgment of 17 December 1970 in Case 11/70 [1970] ECR 1125, judgment of 30 January 1974 in Case 186/73 [1974] ECR 533 and judgment of 11 May 1977 in Joined Cases 99 and 100/76 [1977] ECR 861).The Commission also considers that the reasoning of the Finanzgericht Hamburg, to the effect that the interest of consumers requires that the security should not be declared forfeit for failure to comply with a time-limit for processing which was already relatively short, is unfounded. In fact, that time-limit was fixed precisely in the interest of consumers, in order to prevent delays in processing for speculative purposes. Such an advantage easily counterbalances the disadvantage resulting for the consumer, in the relatively rare cases in which processing is not carried out within the prescribed period, namely that the processor will pass on in his selling price the additional charge represented by the levy. In conclusion, the Commission proposes that the Court of Justice should give the following reply to the question submitted for a preliminary ruling by the Finanzgericht Hamburg:“Consideration of the question submitted to the Court has disclosed no factor of such a kind as to affect the validity of Article 1 (2), (3) and (8) of Regulation No 572/78 with regard to the subsequent imposition of the levy, for which provision is made where the period prescribed for processing is exceeded, or with regard to the prior lodging of a security involved in this system.”
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