2.

Both the defendant institutions plead the inadmissibility of Granaria's first claim on the ground that it does not fulfil the conditions prescribed by Article 175 of the EEC Treaty. The effect of that provision is that every private person may, having duly called upon the Commission or Council to act and two months having passed from the date of that request, bring proceedings before the Court of Justice complaining that those institutions have ‘failed to address to that person any act other than a recommendation or an opinion’. Since the aforesaid judgment of the Court in Joined Cases 117/76 and 16/77 had not declared Regulation No 1125/74 of the Council invalid and so could not have revived the previous rules laid down by Article 11 of Regulation No 120/67, the Commission and the Council, if they had wanted to accede to Granaria's request and pay it the refunds for the period after 1 August 1974, could not legitimately have addressed an individual act to it. Only an amendment of the legislation, that is to say the adoption of a new regulation, could have allowed Granaria's claim to be satisfied; but the failure to adopt a regulation cannot be challenged by an interested natural or legal person under Article 175. In any case the principle of equality of treatment would have constituted another obstacle to the suggestion that a decision could be taken in favour of Granaría, short of a general amendment of the rules: Granaría would, in such a way, have received unjustifiably preferential treatment as compared with the other producers of quellmehl. The applicant, for its part, insists that it merely intended to request that an individual decision be addressed to it, granting it the refunds for the quellmehl produced by it as from 1 August 1974. It claims to be entitled to such refunds on the ground that the judgment of the Court in Cases 117/76 and 16/77 revived the rules which operated prior to Regulation No 1125/74: the incompatibility of that regulation with the principle of equality, declared by the Court, rendered it ineffective ex tunc, says the applicant, thus annulling the amendment of Article 11 of Regulation No 120/767. In my opinion, that view is erroneous. The aforesaid judgment of 19 October 1977 expressly stated (paragraph 11 of the decision) that the established illegality of Regulation No 1125/74 did not inevitably involve a declaration of invalidity. In support of that solution the Court gave three arguments. In the first place (paragraph 12 of the decision) the infringement of the principle of equality which had been found to exist resulted from an omission rather than a provision of Regulation 1125/74, since Article 5 thereof, instead of expressly abolishing the refunds for quellmehl, had replaced the old version of Article 11 of Regulation No 120/67 by a new one, which merely omitted to make any mention of that product. In the second place (paragraph 13 of the decision), such illegality ‘cannot be removed merely by the fact that the Court, in proceedings under Article 177, rules that the contested provision is … invalid’. Although this extract does not in my opinion prejudge the serious issue concerning the ability of a preliminary ruling to terminate erga omnes the effects of general measures which have been declared invalid, it certainly implies that, in cases like the one in question, to deprive the unlawful measure of effect is not sufficient to remedy the unlawfulness. What is required is a new provision from the competent Community institutions; and the third reason for taking this line is ‘the existence of several courses of action which would enable the two products in question once again to be treated equally and to make good any damage sustained by those concerned and … the fact that it is for the institutions responsible for the common agricultural policy to assess the economic and political considerations on which the choice of action depends’ (last part of paragraph 13 of the decision). Thus the judgment of 19 October 1977 clearly avoided linking to the illegality of the regulation a declaration of its invalidity and hence its ineffectiveness ex tunc. This last solution was suggested in my opinion in Cases 117/76 and 16/77 [1977] ECR 1773, although I myself considered that in any case a special measure of the Council was necessary ‘laying down the amount and the rules for the application of the production refund for manufacturers of quellmehl for the period subsequent to the entry into force of Regulation (EEC) No 1125/74’; but the Court preferred to leave entirely to the Council the task of remedying the unlawful situation created by that regulation. And it is worth pointing out that the very language used by the Court — where it spoke of the fact that in law the situation created by Article 5 of Regulation No 1125/74 was incompatible with the principle of equality — confirms the suggestion that it was not just a question of a single provision and that therefore the problem would not be resolved simply by removing the effects thereof and automatically reviving the previous situation, but that it was necessary to require the Community institutions to reconsider the entire situation of the refunds for producers of quellmehl, adopting general measures in conformity with the rule which had been infringed. It is hardly necessary to recall that, in principle, the illegality of an act, due to its incompatibility with a superior rule of law, does not necessarily lead to its invalidity. The incompatibility may be removed by a subsequent measure, emanating from the same authority that had issued the unlawful act, and designed to create a situation conforming to the superior rule, without prejudice to any liability for the damage caused by the unlawful act. Since, then, Regulation No 1125/74 was not declared invalid by the Court, it is otiose to discuss whether a preliminary ruling which contains a declaration of the type in question can produce effects similar to those of a judgment of nullity, and whether, in particular, it may be relied upon by an individual who was not a party to the proceedings in which the preliminary ruling was given. I am of the opinion that the matters considered so far can only lead to the view that Granaría was not entitled to require the Commission and the Council to address to it a measure providing for the payment of the refunds for the period subsequent to 1 August 1974, so that the failure to adopt such a measure did not constitute any infringement of Community law (and was not contrary to the operative part of the judgment of 19 October 1977). But this conclusion must lead to the rejection of the substance of the application based on the institutions' failure to act, not to a finding of inadmissibility. For purposes of admissibility it is sufficient that the provisions of the third paragraph of Article 175 were observed, that is to say that, before bringing an action, the person concerned must have called upon the institutions to address a given measure to him. That is what occurred in this case. The fact that such a measure lay outside the powers of the institutions, and that they would have instead to adopt a general provision in accordance with the judgment which has already been cited several times, is relevant to the substance of the case, but not to the admissibility of the action; but to maintain that the party concerned was asking for a regulation in substance, since that constituted the only method capable of achieving his objective in practice, would be to disregard the fact that in reality he asked for an individual decision. So in my opinion the action based on Article 175 of the EEC Treaty must be considered admissible, but unfounded.