Europa The incomplete state of the common organization of the market in sheepmeat and goatmeat, which is due in particular to the fact that a support measure, namely the variable slaughter premium, is reserved for producers of a specific region and is liable to improve their competitive position, may call for corrective measures to restore equality between producers in all regions so far as their competitive position is concerned, in particular by charging an amount equivalent to the aforesaid premium (‘clawback’) upon exportation outside the region concerned of products in respect of which the premium had been granted. The detailed rules for charging the clawback must be such as to ensure that the clawback neutralizes the effect of the premium on departure from the region concerned of the products which benefited from that support measure, without that system working either to the advantage or to the disadvantage of producers in that region.
For that reason, Article 9(3) of Regulation No 1837/80, as amended by Regulation No 871/84, must be construed as requiring the recovery, upon exportation of the products which benefited from the slaughter premium, of an amount exactly equal to that granted by way of the premium. Article 4(1) of Regulation No 1633/84, adopted by the Commission on an enabling basis in order to ensure its application, permits the charging, by way of the clawback, of an amount based on the rate of the premium fixed for the week during which exportation takes place, whereas the premium actually granted is based on the rate fixed for the week during which the animal was first placed on the market, with the result that in most cases the amount of the premium is not exactly equal to that of the clawback. That is why Article 4(1) is not valid, just as Article 4(2) is invalid in so far as it requires a security to be lodged in order to cover the amount due pursuant to Article 4(1).
The invalidity of Article 4(1) and (2) concerns, however, only the detailed rules for calculating the amount of the clawback and does not affect the actual principle of charging the clawback. Accordingly, the Member State concerned is not relieved of the obligation to ensure compliance with such provisions of Regulation No 1633/84 as are valid and are intended to make the charging of the clawback possible; that State is obliged, in particular, to require the production of documents relating to export operations and to impose effective penalties where false statements are made in such documents.
2. If it were possible for the invalidity of Article 4(1) and (2) of Regulation No 1633/84 – which relate, under the common organization of the market in sheepmeat and goatmeat, to the system of charging the clawback – to be relied upon in support of claims concerning the charging of the clawback in respect of periods prior to the date of the judgment establishing such invalidity, it would give rise to significant financial consequences and serious organizational difficulties as a result of the reopening of accounts long since closed and the need for the clawback to be recalculated in respect of the past.
In those circumstances, overriding considerations of legal certainty preclude legal situations which have produced all their effects in the past from being called in question. However, it is necessary to derogate from that principle in favour of traders or those entitled through them who have asserted their rights before the date of the judgment by initiating proceedings or by making an equivalent complaint under the applicable national law.
Citations:
C-38/90, [1992] EUECJ C-38/90
Links:
European
Updated: 01 June 2022; Ref: scu.160435