(Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven)

(Beef and veal – Early marketing premium for veal calves – Time-limit for lodging premium applications – Rules for calculating time-limit – Validity of Regulation (EEC) No 3886/92)

Summary of the Judgment

(Council Regulation No 1182/71, Art. 3(1), second subpara., and (2)(c))

(Council Regulation No 1182/71, Art. 3(2)(c); Commission Regulation No 3886/92, Art. 50a)

(Commission Regulation No 3886/92, Art. 50a)

(Commission Regulation No 3886/92, Art. 50a)

5. Agriculture – Common organisation of the markets – Beef and veal – Early marketing premium for veal calves – Total exclusion of the premium whenever the period for making applications is exceeded – Infringement of principle of proportionality – None

(Commission Regulation No 3886/92, Art. 50a)

1.Under Article 3(2)(c) of Regulation No 1182/71 determining the rules applicable to periods, dates and time-limits, a period expressed in weeks ends with the expiry of the last hour of whichever day in the last week is the same day of the week, or falls on the same date, as the day from which the period runs. That provision, which enables the dies ad quem or day on which the period ends to be determined, is to be interpreted by reference to the second subparagraph of Article 3(1) of that regulation, under which the day from which the period runs is the day during which the event took place. In other words, if an event which is the point from which a period of a week starts to run happens on a Monday, the period will end on the following Monday, which will be the dies ad quem. Since that rule is sufficient to determine the manner in which the time-limit is calculated and the day on which the period of time fixed by the law expires, there is no need to seek to determine the day on which the time-limit started to run and the number of days during which it ran.

(see paras 33, 36)

2.Article 3(2)(c) of Regulation No 1182/71 determining the rules applicable to periods, dates and time-limits is to be interpreted as meaning that a period expressed in weeks, such as that laid down by Article 50a of Regulation No 3886/92 laying down detailed rules for the application of the premium schemes provided for in Regulation No 805/68 on the common organisation of the market in beef and repealing Regulations No 1244/82 and No 714/89, as amended by Regulation No 2311/96, ends with the expiry of the last hour of whichever day in the last week is the same day of the week as the day on which the slaughter took place.

(see para. 38, operative part 1)

3.When applying Article 50a of Regulation No 3886/92 laying down detailed rules for the application of the premium schemes provided for in Regulation No 805/68 on the common organisation of the market in beef and repealing Regulations No 1244/82 and No 714/89, as amended by Regulation No 2311/96, a Member State may not establish the time at which a premium application was lodged pursuant to national procedural rules which apply within its national legal system to comparable national periods for making applications. Article 50a contains a clear rule which must be applied uniformly in the Community, so as to maintain equality between economic operators.

(see paras 40-41, operative part 1)

4.Article 50a of Regulation No 3886/92 laying down detailed rules for the application of the premium schemes provided for in Regulation No 805/68 on the common organisation of the market in beef and repealing Regulations No 1244/82 and No 714/89, as amended by Regulation No 2311/96, must be interpreted as meaning that a premium application may be regarded as having been ‘lodged’ in due time only if the competent authority received it prior to the expiry of the time‑limit. The fact that the competent authority was in a position to transmit certain data to the Commission is irrelevant to the calculation of a time‑limit, which must be applied uniformly throughout the Community in order, particularly, to maintain equality of treatment between economic operators.

(see paras 44-45, operative part 1)

5.Having regard to the aims of monitoring the scheme and checking observance of the conditions for the grant of premium, which are short-term measures intended, first, to reduce the excess supply of beef and veal on the market as a result of the BSE crisis and, secondly, to maintain prices for farmers, it does not seem that the legislator has manifestly infringed the principle of proportionality in adopting Article 50a(1) of Regulation No 3886/92 laying down detailed rules for the application of the premium schemes provided for in Regulation No 805/68 on the common organisation of the market in beef and repealing Regulations No 1244/82 and No 714/89, as amended by Regulation No 2311/96, in so far as that article excludes the applicant from receiving the premium entirely whenever the period for making applications is exceeded, irrespective of how and by what extent.

(see paras 53, 55-56, operative part 2)

Article 4i(2), (5) and (6) of Regulation No 805/68 provide, in particular, as follows:

–of a weight of not more than the average slaughter weight of calves in the Member State concerned, less 15%. The average slaughter weight per Member State shall be that deriving from Eurostat statistics for 1995 or any other official published statistical information for that year accepted by the Commission,

–held, immediately before slaughter, in the Member State of slaughter for a period to be determined.

In accordance with the procedure laid down in Article 27, the Commission:

–shall set the early marketing premium at a level enabling a sufficient number of calves to be slaughtered in line with market requirements,

–may, at the request of a Member State, authorise the early marketing premium to be applied on a differentiated regional basis within a Member State, provided that the animals have been held immediately before slaughter in the slaughter area for a period to be determined,

–may suspend the granting of either or both of the premiums referred to in this article.

The Commission shall check, six months after the entry into force of the schemes referred to in this article, whether such schemes have achieved satisfactory results.

Should this not be the case, the Commission shall submit an appropriate proposal to the Council, on which the Council, acting by a qualified majority, shall decide taking into account, in particular, the distribution of adjustment efforts between the Member States and possible distortions to trade.

Regulation No 3886/92 contains the detailed rules for the application of the premium schemes provided for in Regulation No 805/68.

Article 50(1) of Regulation No 3886/92, as amended by Regulation No 2311/96, provides:

‘Premium conditions

The slaughter shall take place in a slaughterhouse which makes a commitment to the competent authority to participate in the proper implementation of the premium scheme, in particular as specified in Articles 50a and 50b.’

Article 50a of Regulation No 3886/92, added by Regulation No 2311/96, provides:

‘Premium application

One application may be made in respect of several animals on condition that the necessary information on each of these animals is provided in accordance with paragraph 2.

Article 52 of Regulation No 3886/92, as amended by Regulation No 2311/96, provides:

‘Communications

Member States shall communicate to the Commission:

as regards the early marketing premium for veal calves:

Member States shall notify the Commission of the measures taken to implement the premium;

no later than 2 December 1996 Member States shall notify the Commission of the carcase specification used for veal carcases in 1995 when communicating the production figures to the Statistical Office of the Commission;

Member States shall notify the Commission each Wednesday:

–of the number of animals for which the premium was applied for during the preceding week and since the beginning of the scheme,

–of the number of animals accepted for premium since the beginning of the scheme,

–of the total number of veal animals slaughtered in each week from 1 December 1996 onwards;

Member States shall notify the Commission each quarter of carcase weights broken down in 10‑kilogram groups of:

–veal animals for which premium applications have been received,

–other veal animals.’

National legislation

The rules governing applications for premium laid down in Article 50 of Regulation No 3886/92 are stated in the Verordening kalverslachtpremie (Regulation on the slaughter premium for calves), adopted on 11 December 1996 by the Productschap (Cattle and Meat Board) (PBO-blad 1997, No 25). Articles 2 and 3 of that regulation provide:

Article 2

–which was slaughtered on or after 1 December 1996 ...

Article 3

Article 6:9 of the Wet houdende algemene regels van bestuursrecht (Algemene wet bestuursrecht, General Code of Administrative Law) of 4 June 1992 (Stbl. 1998, p. 1), provides as follows:

The facts in the main proceedings and the questions referred for a preliminary ruling

Toeters’ case

By a form dated 3 April 1998, Toeters applied to the Productschap for slaughter premium for 209 calves, stating 12, 13 and 16 March 1998 as the dates of slaughter. That form was sent by post on 7 April 1998 and received by the Productschap on 8 April 1998.

By letter of 26 May 1998, the Productschap rejected Toeters’ application in full on the ground that the form had not been lodged with it within the time-limit of three weeks following the animals’ slaughter. According to the Productschap, the time‑limits for lodging the applications had expired on 3, 6 and 7 April 1998 respectively.

By decision of 21 January 1999, the Productschap rejected as unfounded Toeters’ objection to the decision rejecting his application for premium.

On 8 February 1999, Toeters brought an action against that rejection before the referring court.

Toeters claims, among other things, that the total rejection of his application for premium, covering a sum of about EUR 11 300, is disproportionate in relation to the lodging of the application a few days late.

Verberk’s case

By three forms dated 18 February 1998, Verberk applied to the Productschap for slaughter premium for 68, 49 and 102 calves, which were stated to have been slaughtered on 28, 27 and 27 January 1998 respectively. As the postmark showed, those forms were posted on 19 February 1998. They reached the Productschap’s services on 20 February 1998.

By letter of 24 February 1998, the Productschap rejected those three applications on the ground that the forms had not been lodged within the time‑limit of three weeks after slaughter. According to the Productschap, those time‑limits for lodging the applications had expired on 19, 18 and 18 February 1998 respectively.

By decision of 15 April 1999, the Productschap rejected as unfounded Verberk’s objection to the decision rejecting his applications for premium.

On 27 May 1999, Verberk brought an action against that decision of 15 April 1999 before the referring court.

Verberk claims that one of his applications, namely the application concerning the 68 calves slaughtered on 28 January 1998, was actually made within the time‑limit, because it was posted within the statutory time‑limit of three weeks.

Verberk also claims that the complete rejection of his premium application because he exceeded the time‑limit by a brief period is incompatible with the principle of proportionality.

25

Before the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry), he particularly maintained that, by Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes (OJ 1992 L 355, p. 1), the Council provided that that system is to apply particularly to the premium schemes for beef and veal producers established by Articles 4a to 4h of Regulation No 805/68. Under Article 8 of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36), except in cases of <i>force majeure</i>, late lodgement of an aid application leads to a reduction of the amount of the aid sought according to the number of days by which the time-limit has been exceeded. Such a rule complies with the principle of proportionality. However, the disputed slaughter premium for calves based on Article 4i of Regulation No 805/68 is not covered by that legislation.

26

The College van Beroep voor het bedrijfsleven is unsure as regards the interpretation to be given to Article 3(2)(c) of Regulation No 1182/71. Taking the example of a premium application which has to be lodged within three weeks after slaughter, the time‑limit would start to run, under Article 3(1) of that regulation, on the day of slaughter, but disregarding the remaining part of that day. On the other hand, if Article 3(2) of that regulation were to be applied, the time‑limit would be calculated from the day following slaughter and would end with the expiry of the last hour of the day which, in the last week, is the same day of the week as the day following slaughter. In the latter case, the time-limit always includes one day more than the number of days in those weeks.

27

In the decision of reference, the College van Beroep voor het bedrijfsleven points out in addition that, if one applied the national procedural rules to determine the date of lodgement of an application, namely Article 6:9 of the General Code of Administrative Law, the applications in question in the main proceedings would have to be regarded as having been lodged in accordance with Article 50a of Regulation No 3886/92. They were posted prior to the expiry of the time‑limit and were received by the addressee less than a week after such expiry.

28

In the national court’s view, there is no apparent reason why regarding those applications as having been lodged in due time would undermine the effective monitoring for the purpose of which the Commission imposed the time-limit, contravene the monitoring measures which it put in place to that end by means of Article 50b of Regulation No 3886/92 or disturb the efficient functioning of the scheme.

29

In the light of those matters, the College van Beroep voor het bedrijfsleven referred the following questions to the Court for a preliminary ruling:

(a) Is Article 3(2)(c) of Regulation (EEC, Euratom) No 1182/71 to be interpreted as meaning that a period expressed in weeks such as that laid down by Article 50a of Regulation (EEC) No 3886/92 ends with the expiry of whichever day in the last week is the same day of the week as the day following the day on which the slaughter took place?

30

By Question 1(a), the referring court is asking whether Article 3(2)(c) of Regulation No 1182/71 is to be interpreted as meaning that a period expressed in weeks, such as that laid down by Article 50a of Regulation No 3886/92, ends with the expiry of the last hour of whichever day in the last week is the same day of the week, or falls on the same date, as the day from which the period runs.

31

As the second subparagraph of Article 3(1) of Regulation No 1182/71 makes clear, where a period expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place is not to be considered as falling within the period in question. That provision expresses the Latin adage <i>dies a quo non computatur in termino</i> which is a rule of law recognised by many of the Member States’ legal systems.

32

The <i>dies a quo</i>, or day during which the event took place, is therefore the day from which the period starts to run, and from which the period of time fixed by the law will be calculated, which, in the main proceedings, is three weeks.

33

Under Article 3(2)(c) of Regulation No 1182/71, a period expressed in weeks ends with the expiry of the last hour of whichever day in the last week is the same day of the week, or falls on the same date, as the day from which the period runs. That provision, which enables the <i>dies ad quem</i> or day on which the period ends to be determined, is to be interpreted by reference to the second subparagraph of Article 3(1) of that regulation, under which the day from which the period runs is the day during which the event took place. In other words, if an event which is the point from which a period of a week starts to run happens on a Monday, the period will end on the following Monday, which will be the <i>dies ad quem</i>.

34

That interpretation of Regulation No 1182/71 corresponds to the rule in Article 4(1) of the European Convention on the Calculation of Time‑Limits, signed at Basle on 16 May 1972 (hereinafter ‘the Basle Convention’), under which ‘where a time‑limit is expressed in weeks, the <i>dies ad quem</i> shall be the day of the last week whose name corresponds to that of the <i>dies a quo</i>’.

35

It corresponds also to the rule used for calculating time‑limits in court proceedings. Under Article 80(1)(b) of the Rules of Procedure of the Court of Justice, a period expressed in weeks ends with the expiry of whichever day in the last week is the same day of the week as the day during which the event or action from which the period is to be calculated occurred or took place (see, to that effect, Case 152/85 <i>Misset</i> v <i>Council</i> [1987] ECR 223, paragraphs 7 and 8).

36

Since that rule is sufficient to determine the manner in which the time-limit is calculated and the day on which the period of time fixed by the law expires, there is no need to seek to determine the day on which the time-limit started to run and the number of days during which it ran. Whether one regards the time-limit as having started to run on the <i>dies a quo</i> at the moment when the event occurred, or at midnight on the <i>dies a quo</i> (see, to that effect, Article 3(1) of the Basle Convention) or at the beginning of the day following the <i>dies a quo</i>, as could be the effect of an interpretation of the opening words of Article 3(2)(c) of Regulation No 1182/71, the important point is that the <i>dies a quo</i> may not be taken into account in calculating the period of time fixed by the law (<i>non computatur in termino</i>).

37

In addition, an excessively strict literal interpretation of the opening words of that Article 3(2)(c), according to which the period would start to run only on the day after the <i>dies a quo</i>, could have the effect, in circumstances such as those of the main proceedings, of rendering a premium application lodged on the very day of the calves’ slaughter inadmissible, as being out of time, even though on the <i>dies a quo</i>. That was surely not the intention of the Community legislature which, when it adopted the rules relating to the calculation of time‑limits, intended only to lay down the manner in which a period is to be calculated, where rules attach certain legal effects to exceeding that period.

In the light of those various factors, the answer to Question 1(a) must be that Article 3(2)(c) of Regulation No 1182/71 is to be interpreted as meaning that a period expressed in weeks, such as that laid down by Article 50a of Regulation No 3886/92, ends with the expiry of the last hour of whichever day in the last week is the same day of the week as the day on which the slaughter took place.

Question 1(b)

By Question 1(b), the referring court is asking whether a Member State is free, when applying Article 50a of Regulation No 3886/92, to establish the time at which a premium application has been lodged pursuant to national procedural rules which apply within the national legal system of that Member State to comparable, national periods for making applications.

39

In that regard, it must be held that Article 50a contains a clear rule which must be applied uniformly in the Community, so as to maintain equality between economic operators.

40

The reply to the question referred must therefore be that, when applying Article 50a of Regulation No 3886/92, a Member State may not establish the time at which a premium application was lodged pursuant to national procedural rules which apply within its national legal system to comparable, national periods for making applications.

Question 1(c)

By Question 1(c), the referring court is asking whether Article 50a of Regulation No 3886/92 must be interpreted as meaning that a premium application has been ‘lodged’ in due time if it can be shown to have been posted prior to the expiry of the three‑week period and to have been received by the competent authority after the expiry of that period but at such a time that it could have communicated the relevant data to the Commission on the same day as would have been the case had it received the premium application within that period.

42

As the Advocate General pointed out in paragraph 33 of his Opinion, Article 50a clearly means that an application can be regarded as having been ‘lodged’ only when its addressee receives it. It is not therefore sufficient that an application was posted within the time‑limit.

43

In addition, the fact that the competent authority was in a position to transmit certain data to the Commission is irrelevant to the calculation of a time‑limit, which must be applied uniformly throughout the Community in order, particularly, to maintain equality of treatment between economic operators.

44

In the light of those factors, the answer to the question referred must be that Article 50a of Regulation No 3886/92 must be interpreted as meaning that a premium application may be regarded as having been ‘lodged’ in due time only if the competent authority received it prior to the expiry of the time‑limit.

The second question

By the second question, the referring court is asking whether Article 50a(1) of Regulation No 3886/92 is valid in so far as it prevents applicants from receiving the premium entirely whenever the period for making applications is exceeded, irrespective of how and by what extent.

46

In that regard, it must be held that Article 50a contains a clear rule which must be applied uniformly in the Community, so as to maintain equality between economic operators.

47

The reply to the question referred must therefore be that, when applying Article 50a of Regulation No 3886/92, a Member State may not establish the time at which a premium application was lodged pursuant to national procedural rules which apply within its national legal system to comparable, national periods for making applications.

In that regard, it is appropriate to make clear that, when the Community legislature fixes a mandatory time‑limit for lodging an application, the barring of claims which the failure to observe that time‑limit entails is not a penalty, but merely the consequence of failure to fulfil the conditions laid down by the law (see, to that effect, Case 266/84 Denkavit [1986] ECR 149, paragraph 21).

Where, for example, the legislator provides that late lodgement of an aid application is to lead to a 1% reduction per working day in the amounts applied for, to which the farmer would have been entitled if the application had been lodged within the deadline, as provided by Article 8 of Regulation No 3887/92, which was relied upon before the referring court, it is not regulating, generally, the penalties applicable to failure to observe a time‑limit, but is laying down, in that case, the legal effects, which vary according to the date it is lodged, of that application’s late lodgement.

It follows that the reduction of the amount granted, if a premium application is lodged out of time, does not constitute a general principle applying to all cases where the agricultural regulations lay down a time‑limit for the submission of an application, but a deliberate choice by the legislator which decided that observance of the time‑limit was not essential to the management of a particular premium scheme.

In this case, it has to be determined whether the Community legislature made a manifest error of assessment in not providing for a reduction in the amount of premium granted, by reference to the date the applications were lodged. That review is to be carried out in the light of the principle of proportionality.

In that regard, it is to be remembered that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, for example, Joined Cases C‑133/93, C‑300/93 and C-362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraph 41; Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 60, and Case C-375/96 Zaninotto [1998] ECR I‑6629, paragraph 63).

With regard to the judicial scrutiny of compliance with the abovementioned conditions, in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 34 EC to 37 EC. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see the cases cited above, Crispoltoni, paragraph 42, and National Farmers’ Union, paragraph 61).

As the Kingdom of the Netherlands and the Commission have pointed out in the observations which they submitted to the Court, the premium in question in the main proceedings is a contingency measure intended, first, to reduce the excess supply of beef and veal on the market as a result of the BSE crisis and, secondly, to maintain prices for farmers.

The importance of the observance of the time‑limits for lodging premium applications is clear from the ninth, tenth and eleventh recitals in the preamble to Regulation No 2311/96, which are as follows:

‘Whereas, in order to permit effective monitoring of the scheme, applications should be submitted not later than three weeks after slaughter; whereas such applications should be accompanied by all the information needed to check them thoroughly;

Whereas effective checking measures should be introduced; whereas they should be based in particular on administrative and physical checks at the slaughter establishment concerned and in the fattening houses;

Whereas, to allow the scheme to operate properly, Member States should regularly communicate certain data on applications for premiums and their acceptance, as well as on calves slaughtered’.

Having regard to the aims of monitoring the scheme and checking observance of the conditions for the grant of premium, it does not seem that the legislator has manifestly infringed the principle of proportionality in not providing for a reduction of the amount of premium granted by reference to the date on which the application was lodged.

The reply, therefore, to the second question must be that consideration of it has disclosed nothing capable of affecting the validity of Article 50a(1) of Regulation No 3886/92 in so far as it excludes the applicant from receiving the premium entirely whenever the period for making applications is exceeded, irrespective of how and by what extent.

Costs

57Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) rules as follows:

(b) When applying Article 50a of Regulation No 3886/92, a Member State may not establish the time at which a premium application was lodged pursuant to national procedural rules which apply within its national legal system to comparable, national periods for making applications.

(c) Article 50a of Regulation No 3886/92 must be interpreted as meaning that a premium application may be regarded as having been ‘lodged’ in due time only if the competent authority received it prior to the expiry of the time‑limit.

Signatures.

Language of the case: Dutch.