61985CC0338_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1 . The questions put to the Court by the Pretore, Lucca, in the context of proceedings between Pardini and the Italian Ministry of Foreign Trade and the Banca toscana concern two matters of whose importance in principle the Court is aware : the legality of the adoption of measures having retroactive effect, and the meaning and scope of the principle of the protection of legitimate expectations . Although it is possible to discern a certain attitude to those matters in the Court' s case-law, this case nevertheless has special features which accentuate the difficulties .
I - Jurisdiction
2 . Before examining the substance of this case it is necessary to consider a preliminary procedural point . As the Court is aware, the Commission, in its written observations, initially expressed serious doubts regarding the admissibility of the reference and the Court considered it necessary to put certain questions to the Italian Government regarding certain aspects of the interlocutory procedure in cases of urgency under Article 700 of the Italian Code of Civil Procedure, under which the Pretore made the reference to the Court . At the same time both the Italian Government and the plaintiff in the main proceedings were asked to give their views on the crux of the matter, namely the jurisdiction of the Court to reply under Article 177 of the EEC Treaty to questions put to it by a national court or tribunal where the latter considers that a preliminary ruling is necessary for it to give its judgment - which appears to me to be a more correct concept than that of the admissibility of the reference .
3 . Although replies given to the Court' s questions have clarified the stage in the proceedings reached in the main action and the course of the interlocutory procedure under Italian law, and although the Commission in essence withdrew its objections in that regard at the hearing and left the question to the discretion of the Court, I have to say that my own doubts have not been fully dispelled . The account of the essential features of the national procedure in the context of which the reference has been made to the Court still leaves some doubt as to the Court' s jurisdiction .
4 . Although the Court has already had cause on numerous occasions to consider the interpretation of Article 177 itself, as far as I am aware it has not yet considered the particular matter raised in this case . The wording of that provision and its spirit clearly contemplate a reply being given to questions of interpretation and validity of Community law put by a national court or tribunal where the Court' s reply is intended to assist that court or tribunal in itself giving a ruling in a dispute . In the instant case the decision making the reference is an order for interim measures made by the Pretore ex parte; he made the reference to the Court of Justice on the express application of Pardini, whose application in this respect was based on the need to provide the court hearing the merits - which is not the Pretore hearing interlocutory matters, and indeed it is not certain that proceedings on the merits will be commenced - with the elements of Community law which it considers necessary in order to resolve the dispute . It is that unusual feature which obliges me to make a few general remarks on the admissibility of a reference to the Court for a preliminary ruling such as the instant reference .
5 . It should be noted as a preliminary point that the decision for reference in this case was apparently adopted in breach of the Italian Code of Civil Procedure, which required the Pretore to set a date for the parties to appear before him for argument on the question whether interim measures granted ex parte should be confirmed, varied or discharged . However, it appears that the Italian Court of Cassation takes the view that such a breach does not vitiate the order and that the Pretore remains entitled to summon the parties at any time as long as the substantive proceedings have not been commenced .
6 . However, the irregularity of the national procedure cannot have any effect upon the bringing of the matter before the Court of Justice . The Court held in Reina ( 1 ) that it is not for the Court of Justice to consider whether the decision making the reference to it was taken in accordance with the rules of national law governing the organization of the courts and their procedure .
7 . Of greater significance is the following point . By necessity it is only the court called upon to resolve the dispute which may make a reference to the Court of Justice . That requirement follows in the first place from the very wording of Article 177 . In the case of courts or tribunals against whose decisions there is a judicial remedy under national law, it is expressly provided that that court or tribunal may request the Court of Justice to give a preliminary ruling to enable it to give judgment . That mandatory requirement is the corollary of the wide autonomy enjoyed by the court or tribunal making the reference . The decisions whether it is appropriate to make a reference, when it should be made and the wording and relevance of the question referred fall within the exclusive jurisdiction of the court or tribunal making the reference, and it enjoys that autonomy not only with regard to the parties in the main proceedings but also with regard to superior courts or tribunals . There is no better illustration of that point than the Court' s judgment in Rheinmoehlen ( 2 ) where, after referring to the fact that under the second paragraph of Article 177 national courts
"have the widest discretion in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving interpretation, or consideration of the validity, of provisions of Community law, necessitating a decision on their part",
the Court held as follows :
"It follows from these factors that a rule of national law whereby a court is bound on points of law by the rulings of a superior court cannot deprive the inferior courts of their power to refer to the Court questions of interpretation of Community law involving such rulings ".
In other words, a national court or tribunal cannot be deprived of the right to bring a matter before the Court of Justice by a decision of a higher court or tribunal reversing or setting aside the decision to refer the matter .
8 . The complement to the autonomy of national courts and tribunals is that no such court or tribunal may be forced to accept a reply to a preliminary question which it has not itself formulated .
9 . There is no doubt that a reference for a preliminary ruling assumes that the judgment of the Court of Justice will be taken into account in the first place by the court or tribunal making the reference itself . It is that notion which led the Court to state, for example in the Irish Creamery case, ( 3 ) in response to the argument that the admissibility of a reference for a preliminary ruling could be challenged on the basis that it was premature, that since the court or tribunal making the reference "will have to take responsibility for giving judgment in the case" it is for that court or tribunal to decide at what stage in the proceedings and at what moment it is appropriate to bring the matter before the Court . That notion was also employed by the Court in Damiani ( 4 ) and Moser ( 5 ) to make clear that it is on that ground that it is for that court or tribunal to assess the relevance of the questions raised and the need for a preliminary ruling "so as to enable it to give judgment . ( 6 ) The Court alluded to that case-law in its recent judgment in Pretore di Salò, ( 7 ) in which it referred, as it did, moreover, in its order of 5 March 1986 in Woensche, ( 8 ) to "the national court to which such a judgment (( preliminary ruling )) is addressed ".
10 . Everything therefore points to the conclusion that only the court or tribunal which is to give judgment following the Court of Justice' s preliminary ruling may refer a question to the Court under Article 177 . The protagonists in this dialogue between courts are a national court or tribunal seised of a specific dispute and the Court of Justice which is asked, in the context of that dispute, to provide it with the elements of Community law needed to resolve the dispute, even though, by virtue of the authoritative nature of the Court' s judgments, the preliminary ruling will have repercussions outside the case in relation to which it was given .
11 . It is certainly implicit in the authoritative nature of preliminary rulings that courts or tribunals with appellate jurisdiction are bound by preliminary rulings given at the behest of a first instance court or tribunal . However, in such a case, the court making the reference will in fact have given its judgment on the basis of the Court' s ruling and that ruling will come before the superior courts or tribunals by means of national appeal procedures . In that perspective, the question of the authoritative nature of preliminary rulings does arise but in a manner completely different from that in the instant case . Moreover, the Court has held that a national court or tribunal may bring a matter before the Court of Justice a second time . In addition, as regards the geographical scope of the authority of preliminary rulings, the Court has never directly clarified the position of national courts or tribunals seised of a matter which has given rise to such a ruling at first instance . However, it is not without interest to note that unlike the operative part of judgments given in contentious proceedings, where the expression "the Court hereby declares" is frequently used, in preliminary rulings the usual formulation is "the Court hereby rules" which expresses an objective view of the interpretation given by way of preliminary ruling . That is confirmed by the Court' s judgment in Benedetti, ( 9 ) where it stated that
"the purpose of a preliminary ruling is to decide a question of law ...".
The same approach appears in Denkavit Italiana, ( 10 ) where the Court held as follows :
"The interpretation which, in the exercise of the jurisdiction conferred upon it by Article 177, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force ."
12 . Furthermore, the Court' s order in Woensche, cited above, unambiguously states that
"a judgment in which the Court gives a preliminary ruling on the interpretation or validity of an act of a Community institution conclusively determines a question or questions of Community law ...".
The predominant view amongst academic writers is that in the first instance the court making the reference and every other national court or tribunal before which the issue which has been the subject of a preliminary ruling arises are bound by that ruling, although they retain the power to bring the matter before the Court once more, a power which the Court has always recognized and the conditions for the exercise of which were defined in the Court' s judgment in International Chemical Corporation ( 11 ) and in its order in Woensche . Moreover, as early as the Da Costa case, ( 12 ) the Court stated that the authoritative nature of the interpretation given may free the courts or tribunals referred to in the third paragraph of Article 177 from the obligation to bring a matter before the Court . That conclusion was both confirmed and refined in the Court' s judgment in Cilfit . ( 13 )
13 . There remains the question of the statement of the reasons for the order for reference . The Court held, apparently for the first time, in Foglia v Novello ( 14 ) that :
"In order that the Court of Justice may perform its task in accordance with the Treaty it is essential for national courts to explain, when the reasons do not emerge beyond any doubt from the file, why they consider that a reply to their questions is necessary to enable them to give judgment ."
That obligation to provide reasons, laid down in a rather peculiar case, was reiterated in the Court' s judgment in Holdijk, ( 15 ) where it stated that a statement of reasons is required not only to enable the Court to give a reply which is of use to the national court but also to enable the Member States and other interested parties to make effective use of their right to submit observations . Finally, the Court referred to the same obligation to provide reasons in its judgments in Haug-Adrion ( 16 ) and Bertini . ( 17 )
14 . However, with the exception of Foglia v Novello, the Court has never declared that it lacked jurisdiction in the face of a reference for which no reasons were stated, and even in that case the Court' s decision that it lacked jurisdiction was taken for reasons other than the absence of a statement of reasons . Whilst it is true that in Bertini the Court stated that the absence of a statement of grounds was regrettable, it held that it would not be in the interests of procedural economy to decline to give a reply solely for that reason . Similarly, in Haug-Adrion, the Court was able, by examining the documents in the case, to establish the subject-matter of the preliminary question even though that question was couched in very general and very imprecise terms . The provision of reasons is certainly important, as is shown, for example, by the Court' s judgment in Tissier, ( 18 ) where it was able to extract the questions requiring a preliminary ruling above all from the reasoning of the judgment making the reference .
15 . The order made by the Pretore, Lucca, does not set out any grounds, and one could even be inclined to take the view that it was decided to make a reference to the Court on the ground put forward by the plaintiff in the main proceedings, that is to say to enable the court hearing the merits of the case to resolve the issue which might come before it . If that were undeniably and exclusively the case I would not hesitate to propose to the Court that it decline jurisdiction . However, the matter may be open to doubt . Moreover, it follows from the information provided by the Italian Government and the plaintiff in the main proceedings that the Pretore remains seised of the matter until it comes before a court for a decision on the merits and in particular that the Pretore may, after hearing the parties, confirm, vary or discharge the measures ordered in the light of the replies to be given by the Court of Justice . However unlikely it may be, it is that possibility - and that alone - which persuades me to propose to the Court that it accept jurisdiction . Nevertheless, I think it is essential that the Court should use this opportunity to state clearly that a court cannot seek a preliminary ruling from the Court of Justice on behalf of another court .
II - Substance
16 . I turn therefore to the substance of the case . This case raises complex questions concerning the temporal application of agro-monetary provisions . The questions which the Court put to the Commission and to the Italian Government make that clear . However, by way of the preliminary questions, and going beyond the particular circumstances of the instant case, the Court is called upon to rule on principles of fundamental importance .
A - Retroactivity
17 . The question of retroactivity, which is the essential issue of the first two questions put by the Pretore, arises in relation to the interpretation of Article 7 ( 1 ) of Commission Regulation No 1160/82 of 14 May 1982 providing for the advance fixing of monetary compensatory amounts . ( 19 ) That provision states as follows :
"The monetary compensatory amounts fixed in advance shall be adjusted if a new representative rate, decided on before the application for advance fixing was lodged, comes into effect ."
It should be noted that that wording is almost identical to that of Article 7 of Commission Regulation No 243/78 providing, for the first time, for the advance fixing of monetary compensatory amounts . ( 20 )
18 . The reason the Court has been asked to interpret that provision is that the Council, by Regulation No 1223/83 of 20 May 1983 on the exchange rates to be applied in agriculture, ( 21 ) fixed a new parity between the Italian lira and the green currency and, on the same day, the Commission adopted two regulations for its implementation, namely Regulations Nos 1244/83 ( 22 ) and 1245/83, ( 23 ) which had a dual effect with regard to the case before the Court :
firstly, they discontinued monetary compensatory amounts, including amounts fixed in advance, for the period from 17 to 23 May 1983;
secondly, they placed a temporal restriction on the exercise of the right under the final subparagraph of Article 4 ( 1 ) of Regulation No 1134/68 of the Council of 30 July 1968 ( 24 ) to obtain cancellation, in certain circumstances, of the advance fixing and of the document or certificate attesting it . This aspect is the subject of the fourth question and will be considered at a later stage .
19 . Regulation No 1223/83, which was published in the Official Journal of the European Communities of 21 May 1983, entered into force, according to Article 8 thereof, on 23 May 1983 . On 20 May 1983, by virtue of the two Commission regulations, which were published in the Official Journal of the European Communities of 23 May 1983 and entered into force on the same day, monetary compensatory amounts were discontinued for Italy with effect from 17 May 1983, although Annex VII to Regulation No 1223/83 provided that the new representative rate for the Italian lira which was the reason for the discontinuance was applicable only from 23 May . In other words, the issue is the date from which the adjustment of monetary compensatory amounts fixed in advance should take place .
20 . It is on this issue that the disagreement between the Commission on the one hand and the Italian Government and Pardini on the other is at its most acute . In the Commission' s view, monetary compensatory amounts fixed in advance must be adjusted on the day on which the Council decides to change the representative rates . Thus, prior to its formal adoption, prior to its publication in the Official Journal and prior to its entry into force the Council regulation produces effects as a result, in this case, of its announcement to the press . Pardini and the Italian Government, on the other hand, take the view that monetary compensatory amounts fixed in advance are to be adjusted only on the day on which the regulation altering the representative rates enters into force .
21 . Consequently, there are four dates to be taken into consideration :
17 May, the date on which the Council' s decision was actually reached and announced to the press ( although the Italian reservation had not been withdrawn at that stage );
20 May, the date on which the Council' s regulation was adopted;
21 May, the date on which the regulation was published in the Official Journal;
finally, 23 May, the date on which it entered into force .
The first two questions refer to the dates of 17, 20 and 21 May . However, the question of principle is whether Council Regulation No 1223/83 may produce effects before 23 May, the date on which it entered into force .
22 . The general rule, set out in Article 191 of the EEC Treaty, is as follows :
"Regulations shall be published in the Official Journal of the Community . They shall enter into force on the date specified in them or, in the absence thereof, on the 20th day following their publication ."
In its judgment in Neumann ( 25 ) the Court stated that :
"This wide liberty granted to the authors of a regulation cannot, however, be considered as excluding all review by the Court, particularly with regard to any retroactive effect ."
23 . I am tempted to say, in accordance with the most widely accepted principle, that a regulation cannot produce any legal effects prior to its entry into force . Such a conclusion is dictated by considerations of legal certainty, and non-retroactivity appears to be a fundamental principle, but in economic affairs legal principles are subject to exceptions, as the Court has recognized . However, before examining whether there is any valid reason why a Council regulation altering the representative rates for green currencies should provide the legal basis for a Commission regulation retroactively adjusting monetary compensatory amounts fixed in advance in a case such as the present, it is necessary to determine the precise situation on the basis of a literal and reasonable reading of the provisions .
24 . It appears to me that according to Article 7 ( 1 ) of Regulation No 1160/82 monetary compensatory amounts fixed in advance are to be adjusted only when new representative rates take effect . In this case, in accordance with Article 8 of Regulation No 1223/83 and with Annex VII thereto, which so provide in express terms, the new rates are operative from 23 May 1983 . Although those provisions are relatively clear, their meaning is nevertheless open to different interpretations .
25 . The Commission put forward an argument based on a reading of the provisions, together with considerations relating to the operation of the system, in order to maintain that the retroactive application of new coefficients for monetary compensatory amounts is lawful . In its view, monetary compensatory amounts fixed in advance may be adjusted with effect from the day on which the Council takes its substantive decision to alter the representative rates, in the first place because the expression "decided on" in Article 7 ( 1 ) of Regulation No 1160/82 can refer only to the time at which the Council takes its decision . That view is explained by the fact that once a decision has been taken to alter the representative rates traders can no longer allege that they had no notice that monetary compensatory amounts were about to be reduced .
26 . Was there a "decision" of the Council on 17 May 1983? It may seriously be doubted whether that is the case . Italy' s reservation was not withdrawn until three days later, that is to say on 20 May 1983, which is the date on which the regulation was adopted according to the text published in the Official Journal . It must be emphasized that so long as the regulation had not been officially adopted it could be no more than a "preliminary decision", and the question which arises is not whether the decision was adopted on 17 May but rather whether the announcement of the imminent adoption of new representative rates may justify the adjustment, from that date, of monetary compensatory amounts fixed in advance, that is to say before the formal adoption of the decision .
27 . The wording of the provision does not favour such a reading, and it is therefore the Commission' s argument that once the press release had been issued traders no longer had a legitimate expectation that the rates applicable at the time of advance fixing would actually be applied to them that requires careful examination . I am, of course, aware of Commission Regulation No 3152/85 of 11 November 1985, ( 26 ) which was relied upon in argument before the Court and according to which a decision on the alteration of the agricultural conversion rate is deemed to be known once it has been announced publicly . However, that regulation relates solely to the right to cancel certain documents and in any event is subsequent to the regulation which the Court is called upon to interpret in the instant case . It is therefore of no relevance to this case . Nevertheless, if it was sought to draw any lessons from that regulation, such lessons would in my view go against the position put forward by the Commission . It might be thought that, since the Commission considered it necessary to state that an alteration may be deemed to be known from the "publication of a press release by the body responsible for the alteration of the relevant agricultural conversion rate", ( 27 ) the question had not been settled prior to that regulation .
28 . The position in the case before the Court is therefore that it appears to follow from the relevant provisions, first of all, that the decision concerning the alteration of the representative rates for green currencies must be made before the lodging of an application for advance fixing and, secondly, that monetary compensatory amounts fixed in advance cannot be adjusted until after those new rates have become operative . In the instant case the Commission maintains that the announcement of an imminent decision is equivalent to the adoption of the decision itself and that consequently the adjustment of monetary compensatory amounts fixed in advance - provided for, let us recall, on the entry into force of the new rates - may be made retroactive to the date of that announcement .
29 . In the light of the applicable provisions I am unable to subscribe to the Commission' s view . No legal decision exists prior to its formal adoption and there can be no adjustment of monetary compensatory amounts until the alteration of the representative rates becomes effective .
30 . However, although that seems to me to be the reply in the light of the provisions in question, could there be a valid reason, an "overriding matter of public interest", to quote the expression used by the Court in its judgment in CNTA, ( 28 ) for giving some other interpretation to those provisions? Let me say immediately that an interpretation which gives regulations retroactive effect is called for only in the presence of conclusive arguments and mandatory requirements, in this case of an economic nature .
31 . It must be recalled first of all that according to the Court' s case-law Community law does not exclude all possibility of a regulation having retroactive effect . ( 29 ) However, the Court has emphasized that a provision of a regulation may have retroactive effect only "exceptionally ... where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected."(30 ) Do the circumstances of the Pardini case justify retroactivity and, if so, to which date?
32 . Despite the fact that there is no reference to such considerations in the preamble to the Commission regulation, the Commission states that its objective was to prevent speculation . In that regard it should be noted that it had already laid down measures in Regulation No 243/78 ( see the third recital in the preamble ) against the risk of "abuses for speculative ends" which may result from advance fixing, in particular of monetary compensatory amounts . According to that regulation those measures are, in particular, the simultaneous advance fixing of monetary compensatory amounts and the levy or refund, an identical period of validity for the advance fixing of monetary compensatory amounts and the levy or refund, which is not to exceed six months, and the fact that the certificate relating to the advance fixing of monetary compensatory amounts is limited to the territory of the Member State in which the person concerned states that he wishes to carry out the import or export transaction . In the present case the Commission emphasizes in particular a matter which has been a consistent thread in its argument, namely respect for legitimate expectations . In the Commission' s view, since those persons who on 17 May 1983 lodged applications for import licences with advance fixing on the same date could expect that monetary compensatory amounts would be reduced within a short time they could not rely on the principle of the protection of legitimate expectations in order to claim that the amounts fixed in advance should be maintained .
33 . However, since it cannot be said that any decision was lawfully adopted before 20 May 1983, the date on which Italy withdrew its reservations and the date referred to in the regulation itself, I take the view that, in the light of Article 7 ( 1 ) of Regulation No 1160/82, monetary compensatory amounts fixed in advance may be discontinued at the earliest only with effect from the date on which the regulation was published, namely 21 May 1983 . That would be the case if it were necessary to accept that the purpose to be achieved by the rules required that solution and that, even prior to the entry into force of new representative rates, the absence of legitimate expectations no longer enabled traders to consider that the rates fixed in advance would apply to them .
34 . That line of argument requires an examination of the principle of the protection of legitimate expectations or, more precisely, the question of the moment from which a trader can no longer claim to have such expectations . It should be recalled that the protection of legitimate expectations, as a legal principle, has been evolved in particular in German law, where Vertrauensschutz means that "certain expectations which a natural or legal person, as a result of his consistent conduct, arouses on the part of a person with whom he has legal relations or on the part of any persons with a legal interest in the matter produce legal effects ". ( 31 ) The concept of legitimate expectations, which is invoked frequently and in connection with various types of dispute, has featured in the Court' s case-law since 1965, ( 32 ) and in its judgment in Toepfer ( 33 ) the Court recognized that the principle forms part of the Community legal order "with the result that any failure to comply with it is an 'infringement of this Treaty or of any rule of law relating to its application' within the meaning of" Article 173 .
35 . To return to the instant case, the Commission maintains that it was from the moment that a change in the conversion rates for green currencies was communicated to the press that traders could no longer properly rely on the concept of legitimate expectations in order to justify the continued application of monetary compensatory amounts fixed before the entry into force of new representative rates but after that communication . Taking that line of reasoning to its limits, should one not go so far as to say that, in the light of the general move to abolish monetary compensatory amounts and thus the constant effort to reduce the divergence between green currencies and the actual currencies, a change in the representative rates involving a reduction in those amounts is constantly to be expected? Following the same line of reasoning, could it not be argued, for example, that traders can no longer rely on the concept of legitimate expectations from the moment that the Commission' s proposal is published in the Official Journal, that is to say, in this case, 7 February 1983? ( 34 ) The Commission itself accepts that decisions altering the representative rates for green currencies are awaited over a period of several months, that their general contents are foreseeable and that its own proposals in that regard are generally known . Nevertheless, it takes the view that it is only from the moment that an agreement, however imperfect and informal, is reached within the Council and communicated to the press that traders who have obtained advance fixing on that same day can no longer claim to have a legitimate expectation that the amounts fixed in advance at the old rate will continue to be applied .
36 . The Commission therefore considers that a press release nullifies legitimate expectations . Its attitude seems to suggest that retroactivity may be the rule once the obstacle of legitimate expectations is overcome . Such a view puts the principles of the protection of legitimate expectations and non-retroactivity on an equal footing . It must be rejected categorically : non-retroactivity is the general rule and retroactivity an exception which must never prejudice legitimate expectations or a fortiori vested rights .
37 . In truth, it seems to me that as regards amounts fixed in advance it is proper to appeal to the concept of vested rights rather than that of legitimate expectations .
38 . Whilst it follows from the Court' s case-law that no right to compensatory amounts is acquired until the transaction in respect of which they are provided has actually been carried out, ( 35 ) that does not appear to be the case in relation to advance fixing . Advance fixing was introduced specifically to enable traders to cover themselves against monetary risks . The third recital in the preamble to Regulation No 243/78 providing for the advance fixing of monetary compensatory amounts states that "the economic justification for advance fixing" is "the degree of certainty that traders require ...". It may be deduced by implication from the Court' s judgment in CNTA ( 36 ) that advance fixing confers a vested right on the beneficiary . In that regard reference may also be made to the Court' s judgment in Merkur ( 37 ) in which it recognized that the system of advance fixing of "accession" compensatory amounts ( United Kingdom ) conferred on the applicant, who had obtained an export licence fixing compensatory amounts in advance, a right to those amounts .
39 . More generally, the Court stated in Union Malt that "the holder of an export licence fixing the refund in advance has an established right to receive the refund fixed in advance when the export is carried out ". ( 38 ) Logically, that principle applies to all cases of advance fixing .
40 . Whatever may be the factors of an economic nature justifying retroactive rules, legal certainty must be maintained . As Advocate General Warner observed, retroactivity must not be accepted "in order to make life easier for the executive ". ( 39 ) In fact, at the hearing, the Commission' s agent accepted that it was solely on administrative grounds that retroactive provisions were adopted by the Commission for compensatory amounts . A solution more in compliance with the law would have been to require the national organizations administering the common agricultural policy to suspend the issuing of import licences with advance fixing; such a solution, as the Commission accepted at the hearing, is completely consistent with the relevant provisions . It is surprising that the Commission permitted advance fixing even though it envisaged the adjustment, with retroactive effect, of compensatory amounts fixed in advance; the Court was informed at the hearing that that was its usual practice . Advance fixing cannot be made wholly illusory . It was provided for in order to protect traders against monetary fluctuations, but if the Commission' s line of reasoning were upheld it would place traders in a cleft stick : either the intended transaction must be carried out on less favourable terms, or even at a loss, or the security lodged in order to ensure that the transaction is carried out on the terms fixed in advance is forfeited . Such an alternative cannot be regarded as satisfactory .
41 . Although "the nature of the system" and "the needs of the machinery", to which the Court has referred in a different context but with reference nevertheless to monetary compensatory amounts, ( 40 ) may justify the entry into force of a Community measure with effect from a date prior to its publication in exceptional cases where the purpose to be achieved so demands and the legitimate expectations of those concerned are duly respected, ( 41 ) it nevertheless remains the case, as the Court has held, in particular in its judgments in Racke and Decker, that
"in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication" ( 42 )
and that
"a fundamental principle in the Community legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it ". ( 43 )
42 . It seems to me that Article 7 ( 1 ) of Regulation No 1160/82 must be taken to mean that only monetary compensatory amounts fixed in advance after the actual publication of the new representative rates are to be adjusted and that that adjustment takes place after the entry into force of those new rates for transactions carried out after that date . That means that the discontinuance of monetary compensatory amounts under the Commission' s regulations in force from 23 May could affect only amounts fixed in advance between 21 and 23 May . That conclusion and the discussion which precedes it lead me to give an affirmative reply to the first question put by the Pretore, Lucca, which renders superfluous a reply to the second question .
B - Cancellation
43 . The difficulties associated with retroactivity become all the greater when attention is turned to the two final questions put by the Pretore relating, in substance, to the right to cancel import licences fixed in advance .
44 . In essence the Pretore seeks an interpretation of a number of provisions contained in various Council and Commission regulations in order to ascertain whether the holder of an import licence fixing both the levies and the compensatory amounts may apply for their cancellation in certain circumstances .
45 . In order to answer that question it is necessary to examine the provisions in question . The first relevant provision is the final subparagraph of Article 4 ( 1 ) of Regulation No 1134/68 of the Council, which provides that
"any person who has obtained advance fixing of such amounts for a specific transaction may, by written application which must reach the competent authority within 30 days of the entry into force of the measures fixing the altered amounts, obtain cancellation of the advance fixing and of the relevant document or certificate ."
46 . The Commission maintains that that provision applies only to amounts fixed in ecus and expressed in national currency and not to monetary compensatory amounts, which are calculated and expressed in national currency . In addition, Article 4 ( 1 ) relates solely to "an alteration of the relationship between the parity of the currency of a Member State and the value of the unit of account" ( now the ecu ) and not between the green currency and the actual currency .
47 . Article 4 ( 1 ) of Council Regulation No 1223/83, which concerns, it will be recalled, the exchange rates to be applied in agriculture, provides that the provisions of Regulation No 1134/68 are to apply to the matters which it governs . Article 4 ( 2 ) provides that Article 4 ( 1 ) of Regulation No 1134/68 "shall apply only if the application of the new representative rates is disadvantageous to the party concerned ". An identical provision is to be found in Article 4 of Council Regulation 878/77 on the exchange rates to be applied in agriculture, ( 44 ) which was repealed by Regulation No 1223/83 . Provision for the application, in certain circumstances, of the final subparagraph of Article 4 ( 1 ) of Regulation No 1134/68 is also made in Article 2 of Council Regulation 1054/78 laying down detailed rules for the application of Regulation 878/77 . ( 45 ) It is since the entry into force of Regulation No 1054/78, which lays down the conditions upon which cancellation of advance fixing may be requested, that the question of the cancellation of compensatory amounts fixed in advance arises because, as I have already stated, it is only since Regulation No 243/78 of 1 February 1978 that monetary compensatory amounts may be fixed in advance .
48 . In Regulation No 1244/83, adopted pursuant to Council Regulation No 1223/83, the Commission restricted the application of the final subparagraph of Article 4 ( 1 ) of Council Regulation No 1134/68 - and thus the right to request the cancellation of licences fixed in advance - to those issued before 17 May 1983 .
49 . The Commission states that where the representative rates of green currencies are adjusted there is no need to provide for the possibility of seeking cancellation of compensatory amounts fixed in advance because they are amended by the Commission itself, due regard being had to traders' legitimate expectations . Levies and refunds fixed in advance, on the other hand, are automatically adjusted by the Member States without regard to traders' legitimate expectations, which justifies, in the Commission' s view, the fact that the right to request cancellation thereof is provided for in its regulation only in favour of those traders who, at the time of the advance fixing, were entitled to expect that the levies or refunds, would be maintained at the rates fixed in advance, that is to say in this case the holders of licences issued before 17 May 1983 .
50 . I do not think that this difference between the rules applicable to compensatory amounts fixed in advance and those applicable to levies and refunds fixed in advance can be sustained . It cannot be argued, as is maintained by the Commission, that traders' legitimate expectations are always safeguarded when the relationship between the parity of the currency of a Member State and the ecu or the representative rate of the green currency is altered . Such a view raises once again the question of the moment from which traders may be considered not to be entitled to expect that the rates fixed in advance will be maintained, and I have already expressed my view that in that respect it would be more correct from a legal point of view to analyse the position in terms of a vested right on the part of the holder of an import licence with advance fixing . To deny traders the right to request cancellation of licences fixing compensatory amounts in advance on the ground that those amounts are adjusted with due regard to the legitimate expectations of the holders of such licences seems arbitrary to me in so far as the Commission takes the view that every trader must be deemed to have been informed of the reduction in monetary compensatory amounts from a date determined by it ( in the instant case the announcement of an imminent decision where, as was admitted by the Commission at the hearing, the date of its adoption by the Council cannot be foreseen with certainty ). In other words, traders must, according to the Commission, either go through with the transaction originally envisaged by them on terms different from those which existed when the licence comprising advance fixing was obtained ( on provision of a bank guarantee ), or repudiate the transaction and thereby forfeit the amount of the security . Such an inequitable solution is not dictated either by the provisions or by the needs of the machinery . It must be possible to obtain cancellation of licences with advance fixing in respect of all amounts fixed in advance, be they levies, refunds or monetary compensatory amounts, on the conditions laid down by Community legislation .
51 . As the Court is aware, those conditions have been gradually refined . The cancellation of advance fixing and of the certificate or document attesting it, which was originally provided for in Article 4 of Regulation No 1134/68 of the Council, is possible, according to Article 4 ( 2 ) of Council Regulation 878/77, "only if the application of the new representative rates is disadvantageous to the party concerned ".
52 . The second recital in the preamble to Commission Regulation No 1054/78 states that the right to cancel advance fixing in respect of applications lodged before the alteration of the amount in question is limited to such applications as were submitted before the alteration was foreseeable .
53 . For the sake of completeness it should be noted that the second recital in the preamble to Commission Regulation No 3152/85, which is not germane to the instant case, states that "those concerned may be considered as having accepted the disadvantage in cases where they undertook commitments at a time when the alteration of the agricultural conversion rate was known, concerning an operation to be effected after that alteration" and that "cancellation is not justified in such cases ".
54 . It follows from the provisions applicable in this case that licences with advance fixing will be cancelled only where the holders of such licences suffer a disadvantage by virtue of the alteration of the rate of the green currency . If, as is stated by the Commission, no disadvantage is caused to persons who have fixed monetary compensatory amounts and levies in advance by the alteration of the former by the Commission and of the latter by the Member States, there is no reason to deny them the right to request cancellation on that latter ground . The Commission has, moreover, failed to convince me of the need, and therefore of the legality, of a differentiated system of advance fixing .
55 . Consequently, I propose that the Court should rule as follows :
Article 7 ( 1 ) of Commission Regulation No 1160/82 must be interpreted as meaning that compensatory amounts fixed in advance cannot be adjusted before new representative rates have come into effect and that it does not affect amounts so fixed before the date of publication in the Official Journal of the European Communities of the regulation setting the new representative rate;
The final subparagraph of Article 4 ( 1 ) of Regulation No 1134/68 must be interpreted as meaning that any trader who holds an import licence with advance fixing of levies and monetary compensatory amounts is entitled to have that licence cancelled in the event of an alteration in the representative rates which is disadvantageous to him provided that the application for advance fixing was submitted before such alteration was published in the Official Journal of the European Communities;
The final indent of Article 1 of Commission Regulation No 1244/83 does not apply to requests for the cancellation of licences with advance fixing issued before 21 May 1983 .
(*) Translated from the French .
( 1 ) Judgment of 14 January 1982 in Case 65/81 Reina v Landeskreditbank Baden-Woerttemberg (( 1982 )) ECR 33, in particular at pp . 42 and 43 .
( 2 ) Judgment of 16 January 1974 in Case 166/73 Rheinmoehlen-Doesseldorf v Einfuhr - und Vorratsstelle foer Getreide und Futtermittel (( 1974 )) ECR 33, at pp . 38 and 39 .
( 3 ) Judgment of 10 March 1981 in Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers Association and Others v Government of Ireland and Others (( 1981 )) ECR 735 .
( 4 ) Judgment of 14 February 1980 in Case 53/79 Office national des pensions pour travailleurs salariés v Damiani (( 1980 )) ECR 273 .
( 5 ) Judgment of 28 June 1984 in Case 180/83 Moser v Land Baden-Woerttemberg (( 1984 )) ECR 2539 .
( 6 ) Damiani, cited above, at p . 282, and Moser, cited above, at p . 2545; see also the Court' s judgment of 14 February 1984 in Case 278/82 Rewe - Handelsgesellschaft Nord mbH and Rewe-Markt Herbert Kureit v Hauptzollaemter Flensburg, Itzehoe and Loebeck-West (( 1984 )) ECR 721 .
( 7 ) Judgment of 11 June 1987 in Case 14/86 Pretore di Salò v Persons unknown (( 1987 )) ECR 2545 .
( 8 ) Case 69/85 Woensche Handelsgesellschaft v Federal Republic of Germany (( 1986 )) ECR 947 .
( 9 ) Judgment of 3 February 1977 in Case 52/76 Benedetti v Munari (( 1977 )) ECR 163, at p . 183 .
( 10 ) Judgment of 27 March 1980 in Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana (( 1980 )) ECR 1205, at p . 1223 .
( 11 ) Judgment of 13 May 1981 in Case 66/80 International Chemical Corporation v Amministrazione delle Finanze dello Stato (( 1981 )) ECR 1191 .
( 12 ) Judgment of 27 March 1963 in Joined Cases 28, 29 and 30/62 Da Costa en Schaake v Nederlandse Belastingadministratie (( 1963 )) ECR 31 .
( 13 ) Judgment of 6 October 1982 in Case 283/81 Cilfit v Ministry of Health (( 1982 )) ECR 3415 .
( 14 ) Judgment of 16 December 1981 in Case 244/80 Foglia v Novello (( 1981 )) ECR 3045, at p . 3062 .
( 15 ) Judgment of 1 April 1982 in Joined Cases 141 to 143/81 Holdijk (( 1982 )) ECR 1299 .
( 16 ) Judgment of 13 December 1984 in Case 251/83 Haug-Adrion v Frankfurter Versicherungs-AG (( 1984 )) ECR 4277 .
( 17 ) Judgment of 12 June 1986 in Joined Cases 98, 162 and 258/85 Bertini v Regione Lazio (( 1986 )) ECR 1885 .
( 18 ) Judgment of 20 March 1986 in Case 35/85 Procureur de la République v Tissier (( 1986 )) ECR 1207 .
( 19 ) Official Journal 1982 L 134, p . 22 .
( 20 ) Official Journal 1978 L 37, p . 5, repealed by Article 11 of Regulation No 1160/82, supra .
( 21 ) Official Journal 1983 L 132, p . 33, repealed by Council Regulation No 1678/85 of 11 June 1985 ( Official Journal 1985 L 164, p . 11 ).
( 22 ) Official Journal 1983 L 135, p . 1 .
( 23 ) Official Journal 1983 L 135, p . 3 .
( 24 ) Official Journal, English Special Edition 1968 ( II ), p . 396 .
( 25 ) Judgment of 13 December 1967 in Case 17/67 Neumann v Hauptzollamt Hof/Saale (( 1967 )) ECR 441, at p . 456 .
( 26 ) Official Journal 1985 L 310, p . 1 .
( 27 ) Article 1 ( 2 ) of Regulation No 3152/85, cited above .
( 28 ) Judgment of 14 May 1975 in Case 74/74 Comptoir national technique agricole v Commission (( 1975 )) ECR 533 .
( 29 ) Judgment of 31 March 1977 in Case 88/76 Société pour l' exportation des sucres v Commission (( 1977 )) ECR 709 .
( 30 ) Judgment of 25 January 1979 in Case 98/78 Racke v Hauptzollamt Mainz (( 1979 )) ECR 69 .
( 31 ) Joerg P . Miller, Vertrauensschutz im Voelkerrecht, 1971 Cologne and Berlin, quoted by P . Tavernier, Le juge communautaire et l' application dans le temps des règlements CEE, 1976 Annuaire français de droit international, 169, in particular at p . 195 .
( 32 ) Judgment of 13 July 1965 in Case 111/63 Lemmerz-Werke GmbH v High Authority (( 1965 )) ECR 677 .
( 33 ) Judgment of 3 May 1978 in Case 112/77 Toepfer v Commission (( 1978 )) ECR 1019 .
( 34 ) Official Journal 1983 C 32, p . 73 .
( 35 ) See, for example, judgment of 10 December 1975 in Joined Cases 95 to 98/74, 15 and 100/75, Union nationale des coopératives agricoles de céréales v Commission and Council (( 1975 )) ECR 1615 .
( 36 ) Judgment of 14 May 1975 in Case 74/74 (( 1975 )) ECR 533 at p . 539 .
( 37 ) Judgment of 8 June 1977 in Case 97/76 Merkur v Commission (( 1977 )) ECR 1063 .
( 38 ) Judgment of 26 January 1978 in Joined Cases 44 to 51/77 Groupement d' intérêt economique "Union Malt" v Commission (( 1978 )) ECR 57, at p . 80 .
( 39 ) Opinion delivered in Case 7/76 IRCA v Amministrazione delle Finanze dello Stato (( 1976 )) ECR 1213, at p . 1239 .
( 40 ) Judgment of 7 July 1976 in Case 7/76, cited above .
( 41 ) Case 98/78, cited above; judgment of 25 January 1979 in Case 99/78 Decker v Hauptzollamt Landau (( 1979 )) ECR 101 .
( 42 ) Cited above, at pp . 86 and 111 respectively .
( 43 ) Ibid ., at pp . 84 and 109 respectively .
( 44 ) Official Journal 1977 L 106, p . 27 .
( 45 ) Official Journal 1978 L 134, p . 40 .