Judgment of the Court of 15 February 1978. - SA Ancienne Maison Marcel Bauche and SARL François Delquignies v Administration Française des Douanes. - Reference for a preliminary ruling: Tribunal d'instance de Valenciennes - France. - Replacement sugar. - Case 96/77.



European Court reports 1978 Page 00383

Greek special edition Page 00165

Portuguese special edition Page 00165



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - EXPORT TO NON- MEMBER COUNTRIES - ASSIGNMENT OF LICENCES - SUBSTITUTION OF PRODUCT - DEFLECTION OF TRADE - APPLICATION OF MONETARY COMPENSATORY AMOUNTS - COMMISSION REGULATION NO 101/77 - VALIDITY

2 . MEASURE ADOPTED BY AN INSTITUTION - AMENDMENT OF AN EARLIER PROVISION - SITUATIONS ARISING UNDER THE LATTER - FUTURE EFFECTS - APPLICATION OF THE AMENDING RULE

Summary

1 . COMMISSION REGULATION ( EEC ) NO 101/77 IS VALID .

2 . A LAW AMENDING A LEGISLATIVE PROVISION APPLIES , SAVE AS OTHERWISE PROVIDED , TO THE FUTURE EFFECTS OF SITUATIONS WHICH AROSE UNDER THE PREVIOUS LAW .

Parties

IN CASE 96/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL D ' INSTANCE , VALENCIENNES , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

S.A . ANCIENNE MAISON MARCEL BAUCHE

S.A.R.L . FRANCOIS DELQUIGNIES

PLAINTIFFS ,

E . D . AND F . MAN LIMITED

INTERVENER ,

AND

ADMINISTRATION FRANCAISE DES DOUANES ( FRENCH CUSTOMS ADMINISTRATION ),

DEFENDANT ,

Subject of the case

ON THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 101/77 OF 19 JANUARY 1977 ( OFFICIAL JOURNAL L 17 OF 20 JANUARY 1977 , P . 11 )

Grounds

1BY AND ORDER OF 21 JULY 1977 RECEIVED AT THE COURT REGISTRY ON 29 JULY 1977 THE TRIBUNAL D ' INSTANCE , VALENCIENNES , REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS CONCERNING THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 101/77 OF 19 JANUARY 1977 ( OFFICIAL JOURNAL L 17 OF 20 JANUARY 1977 , P . 11 ) AMENDING COMMISSION REGULATION ( EEC ) NO 572/76 OF 15 MARCH 1976 ( OFFICIAL JOURNAL L 68 , P . 5 ) FIXING MONETARY COMPENSATORY AMOUNTS , WITH SPECIAL REFERENCE TO SUGAR .

2IT EMERGES FROM THE ORDER MAKING THE REFERENCE THAT THE FRENCH COMPANIES WHICH ARE PLAINTIFFS IN THE MAIN ACTION HAVE ASKED THE NATIONAL COURT TO DECLARE REGULATION NO 101/77 NULL AND VOID OR AT LEAST TO DECLARE THAT IT DOES NOT APPLY TO THEM AND ACCORDINGLY ORDER THE FRENCH CUSTOMS AUTHORITIES TO REPAY THEM THE MONETARY COMPENSATORY AMOUNTS WHICH THEY LEVIED PURSUANT TO THE SAID REGULATION ON A CONSIGNMENT OF WHITE SUGAR OF FRENCH ORIGIN ON ITS BEING EXPORTED FROM FRANCE TO NON-MEMBER COUNTRIES .

3THIS CONSIGNMENT HAD BEEN COUNTED AGAINST EXPORT LICENCES FOR ' SUGAR C ' ISSUED IN THE FEDERAL REPUBLIC OF GERMANY TO A GERMAN UNDERTAKING AND ASSIGNED BY THE LATTER TO AN ENGLISH UNDERTAKING , THE INTERVENER IN THE MAIN ACTION AND PURCHASER OF THE SUGAR IN QUESTION FROM THE FIRST PLAINTIFF , WHICH EXPORTED IT THROUGH ITS CUSTOMS AGENT , THE SECOND PLAINTIFF IN THE MAIN ACTION .

4IN ORDER TO DETERMINE WHETHER REGULATION NO 101/77 IS VALID IT IS ADVISABLE IN THE FIRST PLACE TO CONSIDER THE LEGAL SITUATION BEFORE THE ENTRY INTO FORCE OF THE SAID REGULATION ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR .

5AS ARTICLE 2 ( 2 ) OF REGULATION ( EEC ) NO 3330/74 OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OFFICIAL JOURNAL L 359 OF 31 DECEMBER 1974 , P . 1 ) INDICATES , THE SUGAR MARKETING YEAR COMMENCES ON 1 JULY OF EACH YEAR AND ENDS ON 30 JUNE OF THE FOLLOWING YEAR .

6TITLE III OF THE REGULATION PROVIDES QUOTA ARRANGEMENTS FOR SUGAR PRODUCERS FOR 1975/76 TO 1979/80 INCLUSIVE ON THE FOLLOWING LINES :

- IN ACCORDANCE WITH ARTICLE 24 EACH UNDERTAKING IS ALLOTTED A BASIC QUOTA , CALLED ' QUOTA A ' , AND MAY SELL THE SUGAR PRODUCED WITHIN THIS QUOTA , DIRECTLY ON THE COMMUNITY MARKET AT THE INTERVENTION PRICE .

- PURSUANT TO ARTICLE 25 EACH UNDERTAKING MAY IN ADDITION BE ALLOTTED A MAXIMUM QUOTA , CALLED ' QUOTA B ' , EQUAL TO ITS QUOTA A MULTIPLIED BY A COEFFICIENT , AND MAY ALSO SELL ON THE COMMUNITY MARKET THE SUGAR PRODUCED WITHIN THE LIMITS OF THE DIFFERENCE BETWEEN THE BASIC QUOTA AND THE MAXIMUM QUOTA ON PAYMENT OF A PRODUCTION LEVY ( ARTICLE 27 ).

- THE SUGAR PRODUCED OVER AND ABOVE THE MAXIMUM QUOTA , CALLED ' SUGAR C ' , MAY NOT BE DISPOSED OF ON THE INTERNAL MARKET AND MUST BE EXPORTED IN THE NATURAL STATE ON THE WORLD MARKET BEFORE 1 JANUARY FOLLOWING THE END OF THE SUGAR MARKETING YEAR DURING WHICH IT HAS BEEN PRODUCED ( ARTICLE 26 ).

7ARTICLE 12 OF THE REGULATION PROVIDES THAT EXPORTS OF SUGAR C SHALL BE MADE CONDITIONAL UPON SUBMISSION OF AN EXPORT LICENCE , VALID THROUGHOUT THE COMMUNITY , WHICH IS TO BE ISSUED BY MEMBER STATES TO ANY APPLICANT IRRESPECTIVE OF THE PLACE OF HIS ESTABLISHMENT IN THE COMMUNITY .

8ARTICLE 5 ( 3 ) OF COMMISSION REGULATION ( EEC ) NO 2990/76 OF 9 DECEMBER 1976 ( OFFICIAL JOURNAL L 341 OF 10 DECEMBER 1976 , P . 14 ) AS AMENDED BY COMMISSION REGULATION ( EEC ) NO 278/77 OF 9 FEBRUARY 1977 ( OFFICIAL JOURNAL L 39 OF 10 FEBRUARY 1977 , P . 17 ) LIMITS THE VALIDITY OF AN EXPORT LICENCE TO THE END OF THE FIFTH MONTH FOLLOWING THAT IN WHICH THE LICENCE WAS ISSUED .

9AFTER THE ENTRY INTO FORCE ON 1 JANUARY 1971 OF COMMISSION REGULATION ( EEC ) NO 2645/70 OF 28 DECEMBER 1970 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( III ), P . 957 ) A PRODUCER MANUFACTURING SUGAR IN EXCESS OF THE MAXIMUM QUOTA HAD NO OPPORTUNITY TO REPLACE IT WITH SUGAR NOT PRODUCED BY HIM , SINCE ARTICLE 2 ( 2 ) ( C ) THEREOF PROVIDED THAT A PRODUCER WHO EXPORTS SUGAR C MUST SUBMIT A STATEMENT TO THE EFFECT THAT THE EXPORTED SUGAR WAS PRODUCED BY HIM .

10NEVERTHELESS , REGULATION ( EEC ) NO 458/73 OF THE COMMISSION OF 2 FEBRUARY 1973 ( OFFICIAL JOURNAL L 53 OF 26 FEBRUARY 1973 , P . 16 ) AFFORDED THE OPPORTUNITY FOR SUCH A SUBSTITUTION .

11THE SECOND RECITAL IN THE PREAMBLE TO THE SAID REGULATION STATES THAT IT IS DESIRABLE THAT THE MANUFACTURER CONCERNED BE AFFORDED THE POSSIBILITY OF EXPORTING SUGAR NOT PRODUCED BY HIMSELF AND THAT IT IS ALSO NECESSARY TO PROVIDE IN SUCH CASE FOR A STANDARD PAYMENT WHICH MAY IN ANY EVENT BE REGARDED AS OFFSETTING ANY BENEFIT DERIVED FROM SUCH SUBSTITUTION .

12THESE CONSIDERATIONS WERE GIVEN SPECIFIC EXPRESSION BY ARTICLE 1 OF REGULATION NO 458/73 , PARAGRAPH ( 1 ) OF WHICH REPEALS SUBPARAGRAPH ( C ) OF ARTICLE 2 ( 2 ) OF REGULATION ( EEC ) NO 2645/70 , REFERRED TO ABOVE , AND PARAGRAPH ( 2 ) OF WHICH ADDS A PARAGRAPH ( 3 ) TO THE SAID ARTICLE 2 , PROVIDING INTER ALIA THAT WHERE THE SUGAR EXPORTED WAS NOT PRODUCED BY THE MANUFACTURER CONCERNED THE LATTER IS TO PAY A SUM OF TWO U.A./PER 100 KG OF SUGAR .

13THE COMMISSION EXPLAINS THAT THE STANDARD PAYMENT WAS INTENDED TO OFFSET ANY SAVINGS , ON TRANSPORT FOR EXAMPLE , CAUSED BY THE SUBSTITUTION .

14IN ACCORDANCE WITH ARTICLE 3 OF REGULATION NO 458/73 THE PROVISIONS OF ARTICLE 1 REFERRED TO ABOVE APPLY RETROACTIVELY FROM 1 JANUARY 1971 BEING THE DATE OF THE ENTRY INTO FORCE OF REGULATION NO 2645/70 .

15IT MUST ALSO BE NOTED THAT THE PROVISIONS OF COMMISSION REGULATION ( EEC ) NO 572/76 AND IN PARTICULAR FOOTNOTE ( 1 ) ( A ) TO PART 7 OF ANNEX I TO THAT REGULATION SHOWS THAT NO MONETARY COMPENSATORY AMOUNT WAS APPLIED WHEN SUGAR C WAS EXPORTED .

16ALL THE PROVISIONS REFERRED TO ABOVE PROVIDED THE BASIS FOR THE CALCULATION OF THE PRODUCTION OF AND TRADE IN SUGAR BEFORE THE SUGAR MARKETING YEAR 1976/77 .

17IT EMERGES FROM THE FILE THAT THE CURRENCY MARGINS DURING THE YEARS SUBSEQUENT TO THE ENTRY INTO FORCE OF REGULATION NO 458/73 BETWEEN MEMBER STATES WHOSE CURRENCIES APPRECIATED ( FOR INSTANCE THE FEDERAL REPUBLIC OF GERMANY ) AND THOSE WHOSE CURRENCIES DEPRECIATED ( FOR INSTANCE FRANCE ) WIDENED TO SUCH AN EXTENT THAT IN JANUARY 1977 FOR EXAMPLE , ALTHOUGH THE INTERVENTION PRICE FOR 100 KG OF WHITE SUGAR EXPRESSED IN UNITS OF ACCOUNT REMAINED THE SAME THROUGHOUT THE COMMUNITY , ITS VALUE EXPRESSED IN NATIONAL CURRENCY CONVERTED , FOR THE PURPOSES OF COMPARISON , INTO AMERICAN DOLLARS WAS , OWING TO THE EXCHANGE RATES USED IN THE AGRICULTURAL SECTOR , DOLLARS 4963 IN THE FEDERAL REPUBLIC OF GERMANY AND DOLLARS 3783 IN FRANCE .

18CONSEQUENTLY THE OPPORTUNITIES FOR SUBSTITUTION AFFORDED BY REGULATION NO 458/73 TOGETHER WITH THE FIXED PARITIES MAINTAINED BY THE COMPENSATORY AMOUNTS OFFERED CONSIDERABLE ADVANTAGES TO MANUFACTURERS ESTABLISHED IN THE FEDERAL REPUBLIC OF GERMANY , WHO HELD SUGAR IN EXCESS OF THE MAXIMUM QUOTA .

19IN FACT WHEN SUCH A MANUFACTURER ASSIGNED THE EXPORT LICENCE FOR SUCH SUGAR TO A MANUFACTURER ESTABLISHED IN FRANCE WHO EXPORTED FROM FRANCE TO NON- MEMBER COUNTRIES A CORRESPONDING QUANTITY OF SUGAR PRODUCED BY HIM WITHIN THE LIMITS OF THE MAXIMUM QUOTA HE WAS THEN IN A POSITION TO SELL HIS SUGAR AS THOUGH IT WERE PART OF HIS OWN QUOTA AND IN THIS WAY TO TAKE ADVANTAGE OF THE COMMUNITY INTERVENTION PRICES WHICH WERE HIGHER IN REAL TERMS IN THE FEDERAL REPUBLIC OF GERMANY OR , IF THE SUGAR WAS EXPORTED , TO RECEIVE THE MONETARY COMPENSATORY AMOUNT .

20FURTHERMORE SUCH A TRANSACTION WAS EQUIVALENT TO IMPORTING INTO GERMANY , FREE OF ANY MONETARY COMPENSATORY AMOUNT , A QUANTITY OF FRENCH SUGAR PRODUCED WITHIN THE LIMITS OF QUOTAS A OR B CORRESPONDING TO THE ORIGINAL AMOUNT OF GERMAN SUGAR C .

21THE FILE ALSO SHOWS THAT DURING THE FIRST HALF OF THE 1976/77 SUGAR MARKETING YEAR TWO-THIRDS OF GERMAN SUGAR C WAS INVOLVED IN SUBSTITUTION TRANSACTIONS .

22SINCE THE COMMISSION TOOK THE VIEW THAT SUCH PRACTICES RAN COUNTER TO THE OBJECTIVE WHICH COMMUNITY RULES WERE SEEKING TO ATTAIN AND ADVERSELY AFFECTED THE COMMUNITY , IT ADOPTED REGULATION NO 101/77 AMENDING REGULATION NO 572/76 .

23THE COMMISSION STATES IN THE SECOND RECITAL IN THE PREAMBLE TO REGULATION NO 101/77 THAT THE EXPORT OF SUGAR C ' MAY GIVE RISE TO DEFLECTIONS OF TRADE SINCE IT MAY BE REPLACED IN INTRA-COMMUNITY TRADE BY SUGAR WHICH HAS BEEN PRODUCED WITHIN THE LIMITS OF THE QUOTA AND IS SUBJECT TO THE APPLICATION OF COMPENSATORY AMOUNTS ' AND THAT A TRADER ' WHO ENGAGES IN SUCH DEFLECTIONS BENEFITS THEREFROM UNFAIRLY ' .

24IN ORDER TO PREVENT SUCH PRACTICES ARTICLE 1 OF THE REGULATION PROVIDES THAT THE FOOTNOTE TO PART 7 OF ANNEX I TO REGULATION NO 572/76 SHALL BE AMENDED TO READ AS FOLLOWS :

' NO MONETARY COMPENSATORY AMOUNT SHALL BE APPLIED TO SUGAR EXPORTED TO NON-MEMBER COUNTRIES PURSUANT TO ARTICLE 26 OF REGULATION ( EEC ) NO 3330/74 . IT SHALL BE LEVIED , HOWEVER , WHERE THE CUSTOMS EXPORT FORMALITIES ARE COMPLETED IN A MEMBER STATE OTHER THAN THAT IN WHICH THE EXPORT LICENCE WAS ISSUED . '

25ARTICLE 2 OF THE REGULATION PROVIDES FOR ITS ENTRY INTO FORCE ON 20 JANUARY 1977 BUT STATES THAT IT IS NOT TO APPLY TO EXPORTS EFFECTED ON THE BASIS OF LICENCES ISSUED BEFORE THAT DATE .

26SINCE THE FIRST , SECOND , FOURTH AND FIFTH QUESTIONS SUBMITTED BY THE NATIONAL COURT ARE CONCERNED WITH VARIOUS ASPECTS OF THE COMMISSION ' S POWERS TO APPLY MONETARY COMPENSATORY AMOUNTS TO A PRODUCT ' EXPRESSLY EXCLUDED ' FROM THE INTERVENTION ARRANGEMENTS , IT IS ADVISABLE TO DEAL WITH THESE QUESTIONS TOGETHER .

27THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS WAS INTRODUCED BY REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ) ( I ), P . 257 ) AND THE DETAILED RULES FOR ITS APPLICATION WERE LAID DOWN SUBSEQUENTLY BY THE COMMISSION AND AMENDED INTER ALIA , AS FAR AS THIS CASE IS CONCERNED , BY REGULATION NO 572/76 REFERRED TO ABOVE .

28ARTICLE 1 ( 2 ) OF REGULATION NO 974/71 PROVIDES THAT PARAGRAPH ( 1 ) THEREOF SHALL APPLY :

' ( A ) TO PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ;

( B)TO PRODUCTS WHOSE PRICE DEPENDS ON THE PRICE OF THE PRODUCTS REFERRED TO UNDER ( A ) AND WHICH ARE GOVERNED BY THE COMMON ORGANIZATION OF THE MARKET OR ARE THE SUBJECT OF A SPECIFIC ARRANGEMENT UNDER ARTICLE 235 OF THE TREATY ' .

29ACCORDING TO THE PLAINTIFFS AND THE INTERVENER IN THE MAIN ACTION , SINCE SUGAR C IS NOT A PRODUCT FOR WHICH INTERVENTION MEASURES HAVE BEEN PROVIDED , REGULATION NO 101/77 HAS NO LEGAL BASIS .

30THIS ARGUMENT FAILS TO TAKE INTO ACCOUNT THE REAL PURPOSE OF REGULATION NO 101/77 .

31IN FACT THE LATTER REGULATION DOES NOT AFFECT THE PRINCIPLE THAT ' NO MONETARY COMPENSATORY AMOUNT SHALL BE APPLIED TO SUGAR EXPORTED TO NON-MEMBER COUNTRIES PURSUANT TO ARTICLE 26 OF REGULATION ( EEC ) NO 3330/74 . . . ' SET OUT IN FOOTNOTE ( 1 ) ( A ) TO PART 7 OF ANNEX I TO REGULATION NO 572/76 .

32THE SECOND RECITAL IN THE PREAMBLE TO REGULATION NO 101/77 STATES THAT IT APPLIES TO EXPORTS OF SUGAR C ONLY IN SO FAR AS IT ' MAY BE REPLACED IN INTRA- COMMUNITY TRADE BY SUGAR WHICH HAS BEEN PRODUCED WITHIN THE LIMITS OF THE QUOTA AND IS THUS SUBJECT TO THE APPLICATION OF COMPENSATORY AMOUNTS ' .

33HENCE THE CHARGE INTRODUCED BY THE REGULATION IS IN FACT IMPOSED UPON SUGAR A OR B EXPORTED ON THE BASIS OF AN EXPORT LICENCE FOR SUGAR C .

34THE PLAINTIFF COMPANIES AND THE INTERVENER IN THE MAIN ACTION ALSO SUBMIT THAT BY LEVYING MONETARY COMPENSATORY AMOUNTS ON SUGAR C , REGULATION NO 101/77 HAS ILLEGALLY AMENDED REGULATION ( EEC ) NO 3330/74 OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR , WHICH EXEMPTED SUGAR C FROM THE APPLICATION OF ANY COMMUNITY INTERVENTION MEASURE AND CONSEQUENTLY FROM THE APPLICATION OF COMPENSATORY AMOUNTS .

35THIS ARGUMENT CANNOT BE UPHELD .

36IN FACT THE FOREGOING MAKES IT CLEAR THAT REGULATION NO 101/77 LEAVES INTACT THE COMMON ORGANIZATION OF THE MARKETS IN SUGAR ESTABLISHED BY REGULATION NO 3330/74 AND THAT ITS SOLE EFFECT IS TO MAKE A MINOR AMENDMENT TO THE DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS LAID DOWN BY REGULATION NO 974/71 FOR THE PURPOSE OF DEALING WITH VERY SPECIFIC AND RESTRICTED CIRCUMSTANCES .

37CONSEQUENTLY THE ANSWER TO THE NATIONAL COURT MUST BE THAT CONSIDERATION OF THE FIRST , SECOND , FOURTH AND FIFTH QUESTIONS HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 101/77 .

38THE THIRD QUESTION ASKS WHETHER THE COMMISSION WAS EMPOWERED TO ADOPT REGULATION NO 101/77 , DESCRIBING A TRANSACTION EXPRESSLY AUTHORIZED BY REGULATION NO 458/73 AS A ' DEFLECTION OF TRADE ' FROM WHICH THE TRADER CONCERNED ' BENEFITS . . . UNFAIRLY ' WITHOUT REPEALING THE LATTER REGULATION , WHICH PROVIDES FOR A STANDARD PAYMENT OF TWO U.A . PER 100 KG OF SUGAR TO OFFSET ANY BENEFIT DERIVED FROM THE SUBSTITUTION AUTHORIZED .

39THE PLAINTIFF COMPANIES AND THE INTERVENER IN THE MAIN ACTION TAKE THE VIEW THAT REGULATION NO 101/77 IS INCONSISTENT WITH REGULATION NO 458/73 WHICH IT DOES NOT MENTION EITHER IN THE REFERENCES OR IN THE RECITALS IN ITS PREAMBLE AND WHICH HAS NOT BEEN REPEALED BY THE COMMISSION .

40THEY ALLEGE THAT WHEN THE COMMISSION DESCRIBED THE TRANSACTION OF SUGAR SUBSTITUTION EXPRESSLY AUTHORIZED BY REGULATION NO 458/73 , WHICH IS MOREOVER OFFSET BY THE STANDARD PAYMENT REFERRED TO ABOVE , AS A DEFLECTION OF TRADE FROM WHICH THE TRADER CONCERNED BENEFITS UNFAIRLY , IT WAS IN BREACH OF ITS DUTY TO GIVE A STATEMENT OF THE REASONS UPON WHICH ITS REGULATIONS ARE BASED .

41THEY FURTHER ALLEGE THAT THE COMMISSION WAS ALSO IN BREACH OF THE PRINCIPLE OF LEGAL CERTAINTY WHICH SHOULD ALLOW TRADERS TO CARRY OUT AUTHORIZED TRANSACTIONS WITHOUT HAVING THEM SUBSEQUENTLY DECLARED TO BE ILLEGAL .

42IT MUST BE POINTED OUT IN THE FIRST PLACE THAT REGULATION NO 101/77 NEITHER PROHIBITS SUBSTITUTION TRANSACTIONS NOR MAKES THEM IMPOSSIBLES BUT MERELY IMPOSES CHARGES ON SUCH TRANSACTIONS AS ARE EFFECTED BY MEANS OF EXPORTS FROM MEMBER STATES WITH SOFT CURRENCIES AND WHICH YIELD A PROFIT NOT CONTEMPLATED BY REGULATION NO 458/73 .

43THUS THE OBJECTIVE WHICH THE TWO REGULATIONS SEEK TO ATTAIN ARE NOT INCOMPATIBLE .

44IN FACT THE AIM OF REGULATION NO 458/73 IS TO FACILITATE TRADE BY ALLOWING SUBSTITUTION TRANSACTIONS WHEREAS REGULATION NO 101/77 IS DESIGNED TO PREVENT DEFLECTIONS OF TRADE WHICH ARE CAUSED NOT BY THE SYSTEM OF SUBSTITUTION AS SUCH , BUT BY ARTIFICIAL TRANSACTIONS MADE ATTRACTIVE UNDER THE SYSTEM OF COMPENSATORY AMOUNTS BY SUCH SUBSTITUTION .

45LASTLY THERE IS NO INCONSISTENCY BETWEEN THE INTRODUCTION BY REGULATION NO 458/73 OF THE STANDARD PAYMENT TO OFFSET THE BENEFITS DERIVED FROM SUBSTITUTION AS SUCH AND THE INTRODUCTION BY REGULATION NO 101/77 OF MONETARY COMPENSATORY AMOUNTS FOR THE REDUCTION OF BENEFITS , ARISING PURELY FROM CURRENCY FLUCTUATIONS , WHICH DID NOT EXIST WHEN REGULATION NO 458/73 WAS ADOPTED AND WHICH , IN THE FORM OF SPECULATIVE PROFITS , WERE ONLY SUBSEQUENTLY REALIZED .

46HENCE THE STATEMENT OF THE REASONS UPON WHICH REGULATION NO 101/77 IS BASED IS NOT DEFECTIVE AND THE REGULATION IS NOT IN BREACH OF THE PRINCIPLE OF LEGAL CERTAINTY IN THE SENSE REFERRED TO ABOVE .

47IN ITS SIXTH QUESTION THE NATIONAL COURT ASKS WHETHER THE ADOPTION DURING THE SUGAR MARKETING YEAR OF NEW RULES HAVING IMMEDIATE APPLICATION TO TRANSACTIONS IN PROGRESS DOES NOT MAKE SUCH RULES RETROACTIVE , CONTRARY TO THE PRINCIPLE OF LEGAL CERTAINTY .

48ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE A LAW AMENDING A LEGISLATIVE PROVISION APPLIES , SAVE AS OTHERWISE PROVIDED , TO THE FUTURE EFFECTS OF SITUATIONS WHICH AROSE UNDER THE PREVIOUS LAW .

49IT MUST BE BORNE IN MIND THAT REGULATION NO 101/77 DOES NOT APPLY TO EXPORTS OF SUGAR EFFECTED ON THE BASIS OF LICENCES ISSUED BEFORE 20 JANUARY 1977 , THE DATE OF THE ENTRY INTO FORCE OF THAT REGULATION .

50NONE OF THE PROVISIONS OF REGULATION NO 974/71 GIVES EXPORTERS THE RIGHT TO THE RETENTION IN FORCE OF A GIVEN METHOD OF CALCULATING COMPENSATORY AMOUNTS OR TO PROTECTION , AS REGARDS PRODUCTS COMING WITHIN THE FIELD OF APPLICATION OF THE SAID REGULATION , FROM THE APPLICATION OF NEW MONETARY COMPENSATORY AMOUNTS .

51IN PURSUANCE OF ARTICLE 1 OF THE ABOVEMENTIONED REGULATION THE RIGHT TO RECEIVE A COMPENSATORY AMOUNT OR THE DUTY TO PAY IT IS CREATED ONLY BY THE PERFORMANCE OF THE EXPORT TRANSACTION AND ONLY FROM THE MOMENT WHEN THIS TAKES PLACE .

52ACCORDINGLY THE ANSWER TO THE NATIONAL COURT MUST BE THAT REGULATION NO 101/77 DOES NOT HAVE ANY RETROACTIVE EFFECT CAPABLE OF ADVERSELY AFFECTING ACQUIRED RIGHTS .

53THE NATIONAL COURT ' S LAST QUESTION IS WHETHER REGULATION NO 101/77 COULD BE LAWFULLY APPLIED TO ' TRADERS WHO . . . HAD CONCLUDED FIRM AND DEFINITE CONTRACTS ' BEFORE 20 JANUARY 1977 ' BY WHICH THEY BOUND THEMSELVES SUBJECT TO FIRM AND DEFINITE CONDITIONS TO PURCHASE C QUOTA SUGAR OR TO BECOME ASSIGNEES OF C QUOTA LICENCERS ' .

54IT IN FACT RAISES THE QUESTION OF THE APPLICATION OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION TO THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS .

55THE COURT HELD IN ITS JUDGMENT OF 14 MAY 1975 IN CASE 74/74 , COMPTOIR NATIONAL TECHNIQUE AGRICOLE ( CNTA ) S.A . V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1975 ) ECR 549 , PARAGRAPH 39 : ' THE CONDITIONS GOVERNING THE APPLICATION AND ABOLITION OF THE SYSTEM OF COMPENSATORY AMOUNTS IN A SPECIFIC SECTOR DO NOT TAKE INTO ACCOUNT THE INDIVIDUAL SITUATIONS OF TRADERS AND DO NOT GUARANTEE THEM A CONTINUOUS APPLICATION OF THE SYSTEM ' .

56TAKING INTO ACCOUNT THE OBJECTIVE OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS THE SAME REASONING APPLIES TO THE INTRODUCTION OF A MONETARY COMPENSATORY AMOUNT IN CIRCUMSTANCES COVERED BY THE FIELD OF APPLICATION OF THE SYSTEM BUT WHICH HAD NOT PREVIOUSLY ARISEN .

57FURTHERMORE , SINCE REGULATION NO 101/77 AIMED AT DISCOURAGING TRANSACTIONS IN PROGRESS IN THE SUGAR SECTOR WHICH WERE CAPABLE OF LEADING TO DEFLECTIONS OF TRADE , SUCH A REGULATION , JUSTIFIED BY THE EXISTENCE OF AN OVERRIDING COMMUNITY INTEREST , WAS TO BE EXPECTED BY THE TRADERS CONCERNED .

58SO THE ARGUMENT BASED ON AN ALLEGED BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION CANNOT BE UPHELD .

Decision on costs

COSTS

59THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

60AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL D ' INSTANCE , VALENCIENNES , BY ORDER DATED 21 JULY 1977 HEREBY RULES :

CONSIDERATION OF THE QUESTIONS RAISED BY THE TRIBUNAL D ' INSTANCE , VALENCIENNES , HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT VALIDITY OF COMMISSION REGULATION ( EEC ) NO 101/77 OF 19 JANUARY 1977 .