Opinion of the Advocate General — ECLI:EU:C:2010:356
Date: 2010-06-17
Language of the case: German
Subject matter: Agriculture and Fisheries;Intellectual, industrial and commercial property;Approximation of laws;Plant health legislation;Patents
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, therefore, I conclude that, on a literal, schematic and purposive interpretation of Article 3(1)(b) of Regulation No 1610/96, a supplementary protection certificate for plant protection products cannot be granted on the basis of a marketing authorisation issued pursuant to Article 8(1) of Directive 91/414. C – Temporal limitation on the effects of the judgment on the reference for a preliminary ruling 81. If, in giving its judgment on this reference for a preliminary ruling, the Court should hold – as I have proposed – that a supplementary protection certificate for plant protection products may not be granted on the basis of a marketing authorisation under Article 8(1) of Directive 91/414, in the main proceedings, the referring court must, ultimately, set aside as void the supplementary protection certificate No 100 75 026 for ‘iodosulfuron and its C1 to C12 alykl esters and salts including iodosulfuron-methyl-sodium salt’. In that case, it would be clear that the certificate had been granted contrary to the provisions of Article 3 of Regulation No 1610/96 and, as a result, in accordance with Article 15(1) of that regulation, must be regarded as invalid. 82. However, the legal consequences of such a ruling would not be limited to the main proceedings. 83. Regard must be had in that connection to the settled case-law of the Court to the effect that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of European Union law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied. (27) In other words, a judgment on a reference for a preliminary ruling does not create or alter the law, but is purely declaratory, with the consequence that in principle it takes effect from the date on which the rule interpreted entered into force. (28) 84. In that connection, in its reference, the Bundespatentgericht notes that the well-established practice of the DPMA was to grant supplementary protection certificates for plant protection products on the basis of authorisations under Article 8(1) of Directive 91/414. In addition, it would appear – according to that court – that in other Member States, too, such certificates were granted on the basis of provisional authorisations. That was the case, for example, in Belgium, Italy and the United Kingdom. (29) The defendant, too, asserts that in other Member States of the European Union protection certificates were, and continue to be, granted regularly on the basis of authorisations in accordance with Article 8(1) of Directive 91/414. It claims that in its portfolio of protective rights at a European level some 75% of all its protection certificates were granted on the basis of such provisional authorisations. As proof to support those assertions, the defendant has submitted several protection certificates for plant protection products granted in Spain, Italy, the United Kingdom, France, Austria, the Netherlands and Ireland on the basis of provisional authorisations in accordance with Article 8(1) of Directive 91/414. (30) In addition, the defendant has submitted a position paper by the European Crop Protection Association of 28 September 2009. (31) According to the position paper, prior to the reversal in the decision-making practice of the DPMA in 2007, it was the uncontested practice of national patent authorities in all the Member States to grant supplementary protection certificates for plant protection products on the basis of marketing authorisations under Article 8(1) of Directive 91/414. As a result, at a European Union level some 90% of protection certificates granted were based on a provisional authorisation to place on the market the plant protection product concerned. (32) 85. If, in the present proceedings, the Court should rule that supplementary protection certificates for plant protection products may not be granted on the basis of an authorisation to place the product on the market in accordance with Article 8(1) of Directive 91/414, the legal consequences of that ruling would extend significantly beyond the question concerning the invalidity of the protection certificate granted to the defendant. The consequence of such a ruling would be that all supplementary protection certificates for plant protection products granted on the basis of provisional authorisations in accordance with Article 8(1) of Directive 91/414 would have to be regarded as void under the terms of Article 15(1) of Regulation No 1610/96. Thus, in accordance with Article 15(2) of that regulation, any person could submit an application or bring an action to have those certificates set aside as void. 86. Although a determination that a supplementary protection certificate is void does not exclude of itself the possibility that the owner of the basic patent may make a new application for a supplementary protection certificate for the plant protection product concerned, such an application must satisfy the requirements of Regulation No 1610/96. The most problematic issue in that connection is likely to be the period in which applications must be lodged, which, under Article 7(1), is six months from the date of the first authorisation to place the product on the market. In all cases in which that period has already expired and the possibility to reopen such no longer applies, a determination that protection certificates granted on the basis of provisional authorisations are void would result in the irrevocable extinction of the exclusivity rights of the certificate owners established therein. 87. Against that background, it appears to me appropriate to examine the possibilities of a temporal limitation on the effects of the judgment on the reference for a preliminary ruling in the present case. 88. Although Article 264 TFEU grants the Court of Justice express authority to limit the temporal effects of its judgments only in relation to actions for annulment, in consistent case-law, the Court has drawn upon the legal notion inherent in that provision also in proceedings for a preliminary ruling. The Court does that not only in the context of proceedings for a preliminary ruling, in which it must determine the validity of a provision of European Union law or an act of a European Union institution, (33) but also in the context of proceedings for a preliminary ruling in which it is asked to rule on the interpretation of a provision of European Union law. (34) 89. According to that case-law, in exceptional cases, in application of a general principle of legal certainty inherent in the legal order of the European Union, the Court may decide to restrict the right to rely upon a provision, which it has interpreted, with a view to calling into question legal relations established in good faith. (35) 90. The determination that a preliminary ruling on a new legal issue takes effect ex nunc allows for subsequent preliminary rulings on the same legal issue to rely on that temporal limitation. That is, if in an earlier preliminary ruling on a legal issue the Court ordered its judgment to apply ex nunc, in subsequent preliminary rulings on the same issue, too, the Court may limit the temporal effects of its reply to the date on which judgment was handed down in that earlier case. (36) If, on the other hand, the Court first replied to a question by way of a judgment on a reference for a preliminary ruling and did not order that judgment to apply ex nunc, in the context of a subsequent preliminary ruling on the same question, it has refused in consistent case-law to impose any temporal limitation on the effects of its judgment. (37) 91. As a general rule, the Court, in application of the general principle of legal certainty inherent in the legal order of the European Union, limits the temporal effects of its preliminary rulings only where, first, there is a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and, second, where it appears that both individuals and national authorities have been led to adopt practices which do not comply with European Union legislation by reason of objective and significant uncertainty regarding the implications of provisions of European Union law, to which the conduct of other Member States or the Commission may even have contributed. (38) 92. In the present case, it should be observed, first, that the Court has not hitherto interpreted Article 3(1)(b) of Regulation No 1610/96. 93. Moreover, as I have already indicated, it must be presumed that a judgment on a reference for a preliminary ruling which establishes that a supplementary protection certificate for plant protection products may not be granted on the basis of a provisional authorisation to place the product on the market pursuant to Article 8(1) of Directive 91/414 will risk having serious economic repercussions. (39) 94. However, the question as to whether there was objective and significant uncertainty regarding the implications of the condition laid down in Article 3(1)(b) of Regulation No 1610/96 for the grant of a supplementary protection certificate which led basic patent owners and national authorities to adopt unlawful practices concerning the grant of protection certificates cannot easily be answered. 95. As I have already argued, on a literal, schematic and purposive interpretation of Article 3(1)(b) of Regulation No 1610/96, the grant of a supplementary protection certificate for plant protection products on the basis of a marketing authorisation issued pursuant to Article 8(1) of Directive 91/414 is precluded. 96. However, it is apparent from information provided to the Court that the established practice of numerous Member State authorities competent to grant supplementary protection certificates for plant protection products was to grant such certificates on the basis of provisional marketing authorisations issued in accordance with Article 8(1) of Directive 91/414. In addition, it follows from the decision to refer in the present case that the referring court, too, in its capacity as a court dealing with appeals brought against decisions taken by the DPMA, approved that practice and quashed the decision of the DPMA to abandon that practice. (40) 97. It follows, further, from the decision making the reference in the present case that the practice of granting supplementary protection certificates on the basis of provisional authorisations must be understood as resulting from an extensive interpretation of Article 3(1)(b) of Regulation No 1610/96 which was intended to ensure as far as possible that the objectives of that regulation could be realised. (41) 98. According to the referring court, the development of that practice results, inter alia, from the fact that a provisional authorisation to place an active substance on the market as a plant protection product under Article 8(1) of Directive 91/414, as a general rule, will lead in practice to the inclusion of that active substance in Annex I and, immediately following the provisional authorisation, to a definitive authorisation under Article 4(1) of that directive. In its view, that follows from the strict requirements which, under Article 8(1)(a) and (b), in conjunction with Article 6(2) and (3), of Directive 91/414, are applicable to provisional authorisations in order to ensure the high level of protection required by the directive. The comprehensive dossier on the active substance and one or more preparations containing that active substance compiled in accordance with the requirements of Annexes II and III at considerable expense and involving considerable time investment on the part of the applicant allows Member States, for the purposes of a provisional authorisation, to establish in accordance with Article 8(1)(b) of Directive 91/414 that, from a toxicological and ecotoxicological perspective, the plant protection product is not expected to have harmful effects. Further detailed evaluation under the European Union procedure, in practice, confirms, as a rule, that projection and leads – where necessary, subject to the imposition of conditions – to the inclusion of the active substance in Annex I and to the definitive authorisation to place the product on the market in accordance with Article 4(1) of Directive 91/414. (42) 99. According to the referring court, in practice, the first provisional authorisation to place the product on the market in the Community is followed immediately by a definitive authorisation concerning the same product in accordance with Article 13(3) of Regulation No 1610/96. In its view, the legal basis to ensure that a definitive authorisation immediately follows the first provisional authorisation to place the product on the market in the European Union is provided by the fourth subparagraph of Article 8(1) of Directive 91/414. According to that provision, by way of derogation from Article 6, if, on expiry of the period, not exceeding three years, established in Article 8(1), a decision has not been taken concerning the inclusion of an active substance in Annex I, a further period may be ordered to enable a full examination to be made of the dossier and, where appropriate, of any additional information requested in accordance with Article 6(3) and (4). In the light of such further period, Member States have the power to extend the period of provisional authorisation originally granted. In the present case, too, in relation to the active substance iodosulfuron protected by the certificate at issue, by decision of 21 May 2003, in accordance with the fourth subparagraph of Article 8(1) of Directive 91/414, the Commission provided for a further period limited to 21 May 2005 to enable a full examination to be made of the dossier relating to that active substance. Thereupon, in Germany, the authorisation of 9 March 2000 originally limited to 8 March 2003, in accordance with Paragraph 15c(3) of the PflSchG, was extended to 21 May 2005. The definitive authorisation in accordance with Paragraph 15 of the PflSchG was granted on 13 January 2005, thus factually satisfying the requirement of Article 13(3) of Regulation No 1610/96, and, ultimately, the certificate at issue in the proceedings was granted for the correct period. (43) 100. It follows from those observations of the referring court that the practice, in contravention of the regulation, whereby supplementary protection certificates were granted on the basis of provisional authorisations in accordance with Article 8(1) of Directive 91/414, was in essence based on experience gained in everyday procedural practice in conjunction with specific provisions of Directive 91/414 and Regulation No 1610/96. In my view, those – primarily practical – considerations do not suffice to rebut the interpretation of Article 3(1)(b) of Regulation No 1610/96 which I propose, namely, that supplementary protection certificates for plant protection products may not be granted on the basis of provisional authorisations. However, in my view, having regard to the particular circumstances of the present case, those considerations allow the conclusion that objective and significant uncertainty existed as to the implications of the criterion for the grant of a supplementary protection certificate established in Article 3(1)(b) of Regulation No 1610/96, and that this uncertainty led applicants and national authorities to adopt the unlawful practice by which supplementary protection certificates were granted on the basis of provisional authorisations issued pursuant to Article 8(1) of Directive 91/414. 101. Therefore, having regard to the particular circumstances of the present case, I conclude that the interpretation of Article 3(1)(b) of Regulation No 1610/96 which I propose risks causing serious economic repercussions for the industry for plant protection products. In addition, it may be presumed that the practice of granting supplementary protection certificates on the basis of provisional authorisations in accordance with Article 8(1) of Directive 91/414 results from objective and significant uncertainty regarding the implications of the provisions concerned. Thus, both basic conditions are satisfied which, according to established case-law, are required for the purposes of a temporal limit on the effects of a preliminary ruling. 102. In that connection, it should be mentioned that, in cases in which it imposes a temporal limitation on the effects of a preliminary ruling, the Court generally provides for an exception from those ex nunc effects in favour of the parties to the main proceedings and others who have sought legal remedies in the broadest sense prior to the handing-down of the judgment. That exception generally applies in those cases in which the applicant in the main proceedings seeks to assert pecuniary or other claims and the Court has upheld the legal view on that point taken by the applicant. (44) The motive which essentially underlies such exceptions to the ex nunc effect is that it would be unjust to deny to those parties which have particularly sought to assert their rights prior to the handing-down of judgment the ex tunc effects of the judgment on the reference for a preliminary ruling. (45) 103. However, that is not the factual situation which obtains in the main proceedings here. If the claimant’s action to have the certificate set aside as void is upheld, that does not mean that the claimant could assert any rights of its own without retroactively weakening the legal position of the defendant in relation to others. Instead, the defendant would lose retroactively and erga omnes its position of exclusivity granted by the supplementary protection certificate. Thus, having regard to the particular circumstances of the present case, to exempt the claimant from the ex nunc effects of the ruling would impose a disproportionate burden on the defendant. In my view, therefore, in the present case, to include such an exception would be also unreasonable. 104. Finally, I should like to observe that I am not persuaded by the Commission’s argument that, in the present case, Article 3(1)(b) of Regulation No 1610/96 should be interpreted ex tunc in the manner I have proposed on the basis that the legal consequences of the judgment in this case could be temporally limited, if necessary, in further references for a preliminary ruling on the application of Article 15 of Regulation No 1610/96 to supplementary protection certificates which were granted in contravention of Article 3(1)(b) of Regulation No 1610/96. First, such a solution would result in extreme legal uncertainty as to the validity of supplementary protection certificates for plant protection products previously granted on the basis of provisional authorisations in accordance with Article 8(1) of Directive 91/414. In addition, such a solution would be incompatible with established case-law, according to which a limitation on the temporal effects of an interpretation handed down in a preliminary ruling may be imposed only in the case itself which delivers a ruling on the interpretation sought. (46) 105. If, in its ruling on the preliminary reference in this case, the Court should rule along the lines which I have proposed, namely, to the effect that a supplementary protection certificate for plant protection products may not be granted on the basis of an authorisation to place the product on the market issued pursuant to Article 8(1) of Directive 91/414, in the light of the foregoing, it appears to me reasonable and justified to limit the effects of that judgment to the future. VII – Conclusion 106. On the basis of the foregoing, I propose that the Court should reply to the Bundespatentgericht as follows: (1) Article 3(1)(b) of Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products must be interpreted as meaning that a supplementary protection certificate for plant protection products may not be granted on the basis of a marketing authorisation for that product which was issued pursuant to Article 8(1) of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market. (2) This interpretation of Article 3(1)(b) of Regulation No 1610/96 may not be relied upon for the purpose of any application to have set aside, as being void, supplementary protection certificates for plant protection products which were applied for, prior to the handing-down of the judgment in the present case, on the basis of provisional marketing authorisations issued pursuant to Article 8(1) of Directive 91/414. 1 – Original language: German. 2 – In accordance with the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007 (OJ 2007 C 306, p. 1), the preliminary-reference procedure is now governed by Article 267 TFEU. 3 – OJ 1996 L 198, p. 30. 4 – OJ 1991 L 230, p. 1, as amended by Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC (OJ 2005 L 70, p. 1). 5 – Gesetz zum Schutz der Kulturpflanzen of 15 September 1986, in the amended version of 14 May 1998 (BGBl. I p. 971, 1527, 3512), most recently amended by Article 13 of the Law of 29 July 2009 (BGBl. I p. 2542). 6 – Commission Decision 1999/392/EC of 31 May 1999 recognising in principle the completeness of the dossiers submitted for detailed examination in view of the possible inclusion of ZA 1296 (mesotrione), Iodosulfuron-methyl-sodium (AEF 115008) Silthiopham (MON 65500) and Gliocladium catenulatum in Annex I to Council Directive 91/414/EEC concerning the placing of plant- protection products on the market (OJ 1999 L 148, p. 44). 7 – Commission Decision 2003/370/EC of 21 May 2003 allowing Member States to extend provisional authorisations granted for the new active substances iodosulfuron-methyl-sodium, indoxacarb, S-metolachlor, Spodoptera exigua nuclear polyhedrosis virus, tepraloxydim and dimethenamid-P (OJ 2003 L 127, p. 58). 8 – OJ 2003 L 247, p. 20. 9 – The German version of Directive 91/414 does not use the term ‘Genehmigung’ to mean authorisation but refers systematically by means of the term ‘Zulassung’ to the authorisation of plant protection products. In Article 2(11) of the directive the ‘authorisation of a plant protection product’ [in German: ‘Zulassung eines Pflanzenschutzmittels’] is defined as an ‘administrative act by which the competent authority of a Member State authorises, following an application submitted by an applicant, the placing on the market of a plant protection product in its territory or in a part thereof’. The German version of Regulation No 1610/96 refers to authorisations [‘Zulassungen’] in accordance with Directive 91/414 as authorisations [‘Genehmigungen’] to place plant protection products on the market. In the light of that, hereinafter, in German, I will use the term ‘Genehmigung’ uniformly to mean authorisation both when referring to Directive 91/414 and to Regulation No 1610/96. 10 – See the ninth recital in the preamble to Directive 91/414, in which, in addition, protection of human and animal health and of the environment is mentioned as taking priority in that connection over the objective of improving plant production. 11 – See the eleventh recital in the preamble to Directive 91/414. 12 – Article 5(1) of Directive 91/414. 13 – Article 5(5) of Directive 91/414. 14 – See recital 5 in the preamble to Regulation No 1610/96. 15 – See recital 11 in the preamble to Regulation No 1610/96. 16 – See point 46 et seq. of this Opinion. 17 – See point 51 of this Opinion. 18 – See recitals 5 to 12 in the preamble to Regulation No 1610/96. 19 – On that point, see Case C‑127/00 Hässle [2003] ECR I‑14781, paragraph 77, and the Opinion of Advocate General Stix-Hackl in that case, point 85 et seq., concerning the interpretation of the identically worded Article 13(1) of Regulation No 1768/92. 20 – See, for example, Case C‑482/07 AHP Manufacturing [2009] ECR I‑7295, paragraph 23 et seq.; Case C‑431/04 Massachusetts Institute of Technology [2006] ECR I‑4089, paragraph 22 et seq.; and Case C‑392/97 Farmitalia [1999] ECR I‑5553, paragraph 20. 21 – OJ 1992 L 182, p. 1. 22 – On that point, see, for example, Schennen, D., ‘Auf dem Weg zum Schutzzertifikat für Pflanzenschutzmittel’, GRUR Int. 1996, p. 102 et seq. See also Galloux, J.-C., ‘Le certificat complémentaire de protection pour les produits phytopharmaceutiques’, JCP 1996 Ed. E, p. 499, point 1. Differences between Regulation No 1610/96 and Regulation No 1768/92 generally stem from provisions included in Regulation No 1610/96 as a result of experiences encountered with Regulation No 1768/92. To ensure a coherent interpretation of both regulations even on those points, recital 17 in the preamble to Regulation No 1610/96 indicates essentially that the innovations introduced by Regulation No 1610/96 apply also in the interpretation of Regulation No 1768/92. That recital is based on a proposal by the Council; see Common Position (EC) No 30/95 adopted by the Council on 27 November 1995 with a view to adopting Regulation (EC) No 1610/96 of the European Parliament and the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products (OJ 1995 C 353, p. 36; the second paragraph of point 9 of the Council’s statement of reasons). However, in point 13 of the statement of reasons accompanying Common Position No 30/95 the Council stressed also that the consideration given to provisional authorisations in Article 13 of Regulation No 1610/96 constitutes an aspect which is specific to the procedure for the placing on the market of plant protection products and, hence, that the coherence with Regulation No 1768/92 does not extend to that specific aspect of the calculation of the certificate’s duration. 23 – On the other hand, it is irrelevant whether at the date of the grant of the supplementary protection certificate the basic patent remains in force; see, for example, S. Jones and G. Cole, (eds), CIPA Guide to the Patents Acts, London, 6th edition, 2009, p. 1214. 24 – In that connection, reference may also be made to point 1.3 of the Opinion of the Economic and Social Committee of 27 April 1995 on the 'Proposal for a European Parliament and Council Regulation (EC) concerning the creation of a supplementary protection certificate for plant protection products' (OJ 1995 C 155, p. 14). It is emphasised there that the period between authorisation to market the product and patent expiry is approximately nine years in the European Union. 25 – On that coherence see, for example, D. Schennen, cited above in footnote 22, p. 108, who emphasises that the procedure for application for and grant of the certificate under Regulation No 1610/96 does not differ from the scheme established by Regulation No 1768/92. 26 – On that point, see Case C‑258/99 BASF [2001] ECR I‑3643. In that case, the manufacturer of a pesticide had refined its production process, primarily by raising the level of purity of the active substance. In 1967, the Netherlands authorities granted the first marketing authorisation for the plant protection product and in 1987 they granted a new authorisation for the improved plant protection product. In relation to the new process for the manufacture of the purer form of the active substance a European process patent had been granted. It was questionable whether, on the basis of the process patent, a supplementary protection certificate could be applied for in relation to the improved plant protection product. In the Court’s view, both plant protection products were based on the same product within the meaning of Regulation No 1610/96. Accordingly, the authorisations granted in 1967 and 1987, which for the purposes of Article 3(1)(b) of Regulation No 1610/96 were regarded as having been granted in accordance with an equivalent provision of national law, also concerned the same product. Against that background, the Court held that the conditions laid down in Article 3(1)(a) and (d) of Regulation No 1610/96 for the grant of a new supplementary protection certificate had not been satisfied. 27 – Case C‑292/04 Meilicke and Others [2007] ECR I‑1835, paragraph 34; Case C‑209/03 Bidar [2005] ECR I‑2119, paragraph 66; Joined Cases C‑367/93 to C‑377/93 Roders and Others [1995] ECR I‑2229, paragraph 42; and Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16. 28 – See Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 35. 29 – Paragraph 34 of the reference for a preliminary ruling of 28 April 2009. 30 – Annex 2 to the written observations of the defendant of 13 October 2009. 31 – ‘ECPA’s position – on the relationship between Supplementary Protection Certificates and National Provisional Authorizations’, attached as Annex 1 to the written observations of the defendant of 13 October 2009. 32 – ECPA position paper (cited in footnote 31), p. 3. 33 – Case C‑333/07 Régie Networks [2008] ECR I‑10807, paragraph 118 et seq.; Case C‑228/92 Roquette Frères [1994] ECR I‑1445, paragraph 17 et seq.; Joined Cases C‑38/90 and C‑151/90 Lomas and Others [1992] ECR I‑1781, paragraph 23 et seq.; and Case 300/86 Van Landschoot [1988] ECR 3443, paragraph 22 et seq. 34 – The authoritative judgment on that point is Case 43/75 Defrenne [1976] ECR 455, paragraph 69 et seq. 35 – Case C‑426/07 Krawczyński [2008] ECR I‑6021, paragraph 42; Meilicke and Others, cited above in footnote 27, paragraph 35; Bidar, cited above in footnote 27, paragraph 67; Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 51; Case C‑104/98 Buchner and Others [2000] ECR I‑3625, paragraph 39; and Case C‑262/96 Sürül [1999] ECR I‑2685, paragraph 108. 36 – See, for example, Case C‑262/88 Barber [1990] ECR I‑1889, paragraph 40 et seq., limiting the temporal effects of the judgment to the date on which judgment was handed down, and Case C‑109/91 Ten Oever [1993] ECR I‑4879, paragraph 15 et seq., limiting the temporal effects of the judgment to the date of the Barber judgment. On that point, see also Kokott, J. and Henze, T., ‘Die Beschränkung der zeitlichen Wirkung von EuGH-Urteilen in Steuersachen’, NJW 2006, p. 177, at p. 181. 37 – See, for example, Krawczyński, cited above in footnote 35, paragraph 43 et seq. and Meilicke and Others cited above in footnote 27, paragraph 35 et seq. 38 – See Bidar, cited above in footnote 27, paragraph 69, Grzelczyk, cited above in footnote 35, paragraph 53, and Roders and Others, cited above in footnote 27, paragraph 43. 39 – See point 84 et seq. of this Opinion. 40 – See point 22 of this Opinion. 41 – See paragraph 37 of the reference for a preliminary ruling of 28 April 2009. 42 – See paragraph 38 of the reference for a preliminary ruling of 28 April 2009. 43 – See paragraph 39 et seq. of the reference for a preliminary ruling of 28 April 2009. 44 – See, for example, Régie Networks, cited above in footnote 33; Sürül, cited above in footnote 35; Roquette Frères, cited above in footnote 33; Ten Oever, cited above in footnote 36; Barber, cited above in footnote 36; and Defrenne, cited above in footnote 34. 45 – See Kokott, J. and Henze, T., cited above in footnote 36, p. 182. 46 – See, for example, Krawczyński, cited above in footnote 35, paragraph 43, and Meilicke and Others, cited above in footnote 27, paragraph 36.