ECFI Agriculture – Common organization of the markets – Sheepmeat and goatmeat – Variable slaughter premium – Equivalent amount levied on export to another Member State (`clawback’) – Recovery of clawback unlawfully charged – Detailed rules laid down by Regulation No 1922/92 – Breach of the principles of protection of legitimate expectations, legal certainty or proportionality – None
(Commission Regulation No 1922/92, Art. 2)
In so far as Article 2 of Regulation No 1922/92 amending Regulation No 1633/84 laying down detailed rules for applying the variable slaughter premium for sheep and determining the conditions for the reimbursement of the clawback following the judgment of the Court of Justice in Joined Cases C-38/90 and C-151/90 Lomas and Others provides for reimbursement merely of the difference between the clawback paid under Article 4 of the amended Regulation and the amount of the premium actually received, it breaches neither the principle of protection of legitimate expectations nor the principle of legal certainty. Given that the requests for payment of the clawback under Article 4 were not wholly devoid of legal authority, that the operators granted a premium should have expected that it would have to be recouped on export of the products and that the national law applicable on the date of the Court’s judgment made it difficult to recover in full amounts unlawfully charged by a public authority, it does not appear that the traders concerned could legitimately harbour the slightest expectation, based on the facts or on national law, of full recovery of the clawback paid before that judgment was delivered.
Nor is the validity of Article 2(1) affected by the fact that the second subparagraph thereof provides an alternative method of calculating the amount to be reimbursed, based on the average amount of the premiums over a period of four weeks, since that alternative was made available in recognition of the difficulties encountered by some operators in providing proof as to premiums actually paid.
So far as concerns the difficulties mentioned above, the placing of the burden of proof on the exporters is not manifestly inappropriate and consequently does not contravene the principle of proportionality, since a prudent trader, knowing that he would be liable to pay the clawback, should have taken the necessary steps to obtain the evidence which would be required in due course to establish the amounts in question.
Citations:
T-455/93, [1997] EUECJ T-455/93
Links:
Statutes:
Commission Regulation No 1922/92, Art. 2
European, Agriculture
Updated: 06 June 2022; Ref: scu.172684