OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 21 JANUARY 1981 ( 1 )

Mr President,

Members of the Court,

In the proceedings for a preliminary ruling to be dealt with today we once again have to consider problems which have arisen in connexion with the application of Council Regulation No 563/76 of 15 March 1976 on the compulsory purchase of skimmed-milk powder held by intervention agencies for use in feedingstuffs (Official Journal L 67 of 15 March 1976, p. 18).

It is generally known that the arrangements introduced by that regulation were aimed at reducing the Community's stocks of skimmed-milk powder by making greater use of the protein contained in the skimmed-milk powder for animal feed. To that end the regulation made the grant of aid for some vegetable products containing protein such as colza, rape, soya beans and so forth, and the release into free circulation in the Community of certain imported feedingstuffs, subject to the obligation to purchase certain quantities of skimmed-milk powder. To ensure compliance with that obligation the grant of aid and release into free circulation was made dependent on the furnishing of proof in a certain form that the prescribed amounts of skimmed-milk powder had been purchased and denatured or on the provision of a security which was forfeited in the event of that obligation's not being complied with.

In three preliminary rulings given on 5 July 1977 in Case 114/76 Bela-Mühle Josef Bergmann KG v Grows-Farm GmbH & Co., 116/76 Granaria BV v Hoofdproduktschap voor Akkerbouwprodukten, and in Joined Cases 119 and 120/76 Ölmühle Hamburg AG v Hauptzollamt Hamburg-Waltershof and Firma Kurt A. Becher v Hauptzollamt Bremen-Nord [1977] ECR 1211 et seq. the Court of Justice declared that regulation to be null and void. It arrived at that result on the ground that the regulation introduced the obligation to purchase skimmed-milk powder at such a disproportionate price that it constituted a discriminatory distribution of the burden of costs between the various agricultural sectors and was not justified as a measure needed to attain the objective in view, namely the disposal of stocks of skimmed-milk powder.

Following the judgments in those cases, on 17 November 1978 SpA International Chemical Corporation, the plaintiff in the main action, which is engaged in the manufacture of compound feedingstuffs, brought an action before the Tribunale Civile, Rome, against the Amministrazione delle Finanze dello Stato for the refund of securities amounting to LIT 61057554. Those securities had been provided directly by the plaintiff itself or by its suppliers, to whom they had been returned by the plaintiff, for the import of products subject to Regulation No 563/76 and had been forfeited because no purchases had been made.

In addition the plaintiff sued the defendant for the payment of refunds in the sum of LIT 173494317 to which the plaintiff claimed to be entitled under Article 16 of Regulation Ño 2727/75 of the Council on the common organization of the market in cereals (Official Journal L 281 of 1 November 1975, p. 1) in respect of various consignments of feedingstuffs exported between 4 August and 1 October 1976 consisting mainly of cereals with the addition of other products including, up to 20% on average, extract of soya bean and ground-nut meal imported from non-member countries under the inward processing arrangements.

The plaintiff rested its first application primarily on the view that the declaration in the Bela-Mühle and other cases that Regulation No 563/76 is null and void must also apply to the transactions which it had effected before those judgments were given. In consequence the forfeited securities were to be refunded since they had been provided as security for the fulfilment of an obligation contrary to Community law.

In the defendant's view, however, the fact that the Court of Justice has declared the regulation to be null and void in other cases is no ground for holding the regulation in question to be inapplicable in this case. The finality of the assessment of charges made pursuant to the Community law in force precludes an action for recovery on the ground of unjust enrichment.

The plaintiff maintains in its claim for the payment of refunds that it availed itself of the opportunity to use inward processing arrangements, afforded by Article 10 (2) of Commission Regulation No 677/76 of 26 March 1976, laying down detailed rules for the application of Regulation No 563/76 (Official Journal L 81 of 27 March 1976, p. 23), simply in order not to have to put up a security for the imported vegetable feedingstuffs which moreover could be freely imported into the Community without customs duties or levies. The mixture of the imported vegetable feedingstuffs and of cereals originating in the Community or which had been in free circulation there produced under the inward processing arrangements came under tariff heading 23.07 B of the Common Customs Tariff and as such had to be re-exported; no refund was granted for it.

The defendant, on the other hand, takes the view that a refund is not due because the exported feedingstuffs were composed of products which had not entered into free circulation in the Community. Under Article 8 (1) of Regulation No 192/75 of the Commission of 17 January 1975, laying down detailed rules for the application of export refunds in respect of agricultural products (Official Journal L 25 of 31 January 1975, p. 1), a refund is granted only in respect of those products which originated in the Member States or were in free circulation there. The present case, however, is concerned with products from the cereals sector in which case the refund is fixed for the product as a whole and not for a single component thereof.

By order of 12 November 1979 the First Chamber of the Tribunale Civile, Rome, stayed the proceedings and referred the following questions to the Court under Article 177 of the EEC Treaty for a preliminary ruling:

“1. Under Article 177 of the Treaty is a declaration that a Community regulation is null and void effective erga omîtes or is it binding only on the court a quo; more particularly, in that case may the principle contained in the judgment of 27 March 1963 in Joined Cases 28, 29 and 30/62 be extended to a declaration of nullity?

2. Again in the latter case, is Regulation No 563/76 of 15 March 1976 null and void for the same reasons as those set out in the judgments of 5 July 1977 in Cases 114, 116 and Joined Cases 119 and 120?

3. If the said regulation is null and void, must the principles on which the Community legal order is based be held to allow or not to allow or to allow upon certain terms and within certain time-limits the refund to an individual of a payment which was not due, and if so does the declaration of nullity give the individual himself the right to claim back under the national law of the various States the amount that he has previously paid on the basis of the rule which has been declared null and void and, if so, is this subject to specific terms or time-limits or to given conditions, especially having regard to the case in which the claim is for the reimbursement of sums paid by the plaintiff to his suppliers?

4. With reference to Community law, and in particular to the Commission's Regulations No 192/75 of 17 January 1975, No 2727/75 of 29 October 1975, No 2743/75 of 29 October 1975, No 677/76 of 26 March 1976, No 1871/76 of 30 July 1976, No 2141/76 of 31 August 1976 and No 2372/76 of 30 September 1976, must a refund be held to be payable on exports of compound feedingstuffs in respect of the cereal components alone and does it conflict with the general principles derived from the said provisions for the refund to be granted on exports of compound products and only in respect of certain of their components where the other components were imported only temporarily?”

My views on those questions are as follows :

Questions 1 and 2

The first two questions relate to the binding effect of preliminary rulings given by the Court of Justice under Article 177 of the EEC Treaty on the question of the validity of acts of Community institutions. The national court would like to know whether when deciding the main action it is bound by the preliminary rulings of the Court of Justice of 5 July 1977 in the Bela-Miihle and other cases in which Regulation No 563/76 was declared null and void, or whether it may or must make a fresh reference to the Court of Justice on the validity of the regulation in question.

It is well-known that academic opinion differs as to whether judgments given by the Court of Justice under Article 177 of the EEC Treaty declaring legal acts of the Community to be null and void are binding only inter partes or erga omnes as well. Since the Court is well acquainted with the academic argument on this issue and the difficulties associated with it have already been thoroughly dealt with in the opinions of Mr Advocate General Gand of 28 October 1965 in Case 16/65 Firma G Schwarze v Einfuhr- und Vorratsstelle fiir Getreide und Futtermittel [1965] ECR 877, at p. 891, of Mr Advocate General Warner of 20 September 1977 in Case 112/76 Renato Manzoni v Fonds National de Retraite des Ouvriers Mineurs and in Cases 22/77, 32/77 and 37/77 [1977] ECR at p. 1657 and of Mr Advocate General Capotorti of 12 September 1979 in Case 238/78 Ireks-Arkady GmbH v Council and Commission [1979] ECR 2955, at p. 2976, I can confine myself to reminding the Court of the principal arguments and, so far as any guidance on this matter can be obtained from the judgments of the Court, to a brief analysis of them.

In this context it cannot be denied that the procedure under Article 177 of the EEC Treaty, for an act of an institution to be held incompatible with the Treaty, does not have the same scope in its application and the same effect as proceedings under Articles 173 and 174 of the EEC Treaty by which such an act is declared void. However, as Mr Advocate General Warner emphasized in particular in his opinion in the case just cited, it must not be concluded from that distinction between those two types of procedure that a ruling of the Court under Article 177 has binding effect only in the case in which it is given. Indeed such a view would not be in accordance with the concept and purpose of Article 177 which is to ensure that Community law is interpreted and applied uniformly in all the Member States. This can be substantiated by a number of judgments of the Court of Justice although they mainly concern the question of the interpretation of Community law.

For example the Court of Justice once again confirmed most recently in the judgments of 27 March 1980 in Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205 and of 27 March 1980 in Joined Cases 66, 127 and 128/79 Amministrazione delle Finanze dello Stato v Meridionale Industria Salumi and Others [1980] ECR 1237 that “the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the EEC Treaty, 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”. It follows “that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation ...”.

In view of the declaratory nature of judgments providing an interpretation it was therefore logical for the Court of Justice to hold in the judgment of 27 March 1963 in Joined Cases 28, 29 and 30/62 Da Costa & Schaake NV, Jacob Meijer NV and Hoechst-Holland NV v Nederlandse Belastingadministratie, [1963] ECR 31 that the obligation imposed by the third paragraph of Article 177 upon national courts or tribunals of last instance may be emptied of its substance by the authority of an interpretation given by the Court of Justice under Article 177 when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case. If courts of last instance which are bound in principle to make a reference are freed from that obligation, however, because owing to the binding authority of preliminary rulings they must adhere to the interpretation given by the Court of Justice in any event, such authority is binding a fortiori on all lower courts or tribunals. However, as is apparent from the Da Costa case and the judgment of 24 June 1969 in Case 29/68 Milch-, Fettund Eier-Kontor GmbH v Hauptzollamt Saarbrücken [1969] ECR 165, such binding authority does not bar national courts from being able to make a fresh reference for interpretation to the Court.

Those principles must also apply to preliminary rulings on the validity of Community acts as is accepted by all the parties to the proceedings. That follows already from the fact that Article 177 of the Treaty and Article 20 of the Statute of the Court of Justice govern both proceedings for a preliminary ruling and proceedings to determine validity. As a result the Court of Justice has never hesitated, with reference to the special nature of the procedure for a preliminary ruling, to consider the question of validity in the context of a reference for an interpretation.

Furthermore the following considerations are evidence that the Court of Justice also assumes that a preliminary ruling on the validity of a Community act has effects which extend beyond the specific case before the national court: the Court itself has repeatedly relied on preliminary ruling declaring certain regulations void when dealing with actions for damages brought by persons other than the parties to the disputes pending before the national courts in the context of which the preliminary rulings were given (see the judgment of 25 May 1978 in Joined Cases 83 and 94/76, 4, 15 and 40/77 Bayerische HNL Vermehrungsbetriebe GmbH & Co. KG and Others v Council and Commission [1978] ECR 1209; judgment of 28 March 1979 in Case 90/78 Granaria BV v Council and Commission [1979] ECR 1081; judgment of 4 October 1979 in Case 238/78 Ireks-Arkady GmbH v Council and Commission [1979] ECR 2955; judgment of 4 October 1979 in Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 P. Dumortier Frères SA. and Others v Council [1979] ECR 3091).

Further evidence that the Court of Justice considers preliminary rulings to be binding more than just inter partes is to be found in the judgment of 8 April 1976 in Case 43/75 Gabrielle Defrenne v , Société Anonyme Belge de Navigation)r Aérienne Sabena, [1976] ECR 455.In that case the Court of Justice felt constrained, in view of the considerable difficulties to which its judgment could give rise, as regards the past, in legal relations entered into in good faith, to restrict the possibility of invoking the interpretation placed by the Court's judgment on Article 119 of the EEC Treaty with the aim of obtaining a new substantive decision on those legal relations. Finally, the Court of Justice's view that preliminary rulings under Article 177 are to be treated as regards their effect as being the same as judgments establishing invalidity under Article 173 of the Treaty emerges quite clearly in the judgments of 15 October 1980 in Cases 4/79 Société Coopérative “Providence Agricole de la Champagne” 109/79 S.à r.l. Maïseries de Beauce, and 145/79 Roquette Frères. In those judgments the Court of Justice, applying the second paragraph of Article 174 of the EEC Treaty by analogy, restricted the possibility or relying on the invalidity of a regulation pronounced in the context of a preliminary ruling to the period following delivery of those judgments. However, such analogous application of the second paragraph of Article 174 of the EEC Treaty is only possible and practical if, as Mr Advocate General Capotorti suggested in his opinion in the Ireks-Arkady case, it is assumed that a regulation which has been declared void in the context of a preliminary ruling is void ex tunc and also that the invalidity established in that way has the same effect as if the regulation in question had been declared void erga omnes under Article 173.

Further support for the view that preliminary rulings are to be equated with judgments establishing invalidity as regards their effect is also to be found in the judgment of the Court of Justice of 30 October 1975 in Case 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279, of 19 October 1977 in Joined Cases 117/76 and 16/77 Albert Ruckdeschel & Co. and Hansa-Lagerhaus Ströh & Co. v Hauptzollamt Hamburg-St. Annen and Diamalt AG v Hauptzoľlamt Itzehoe, [1977] ECR 1753 and in the judgment of 19 October 1977 in Case 124/76 SA Moulins et Huileries de Pont-à-Mousson v Office National Interprofessionnel des Céréales, [1977] ECR 1795. In those last two judgments the Court of Justice held, clearly on the basis of the first paragraph of Article 176 of the EEC Treaty, that it is a matter for the institutions responsible for the Community's agricultural policy to take the measures required to correct the incompatibility of a regulation with overriding Community law found to exist in proceedings for a preliminary ruling. In the Rey Soda case it was further made clear that it rests primarily with the national agencies to draw the consequences in their legal system of the declaration of such invalidity made under Article 177 of the EEC Treaty.

A further indication that judgments given pursuant to Article 177 of the EEC Treaty are to be treated as being the same as regards their effect as those in which a legal act is declared to be void is finally to be found in the judgment of 13 February 1979 in Case 101/78 Granaria BV v Hoofdproduktschap voor Akkerbouwprodukten [1979] ECR 623. In that case the Court of Justice decided that every regulation which is brought into force in accordance with the Treaty imposes upon all persons subject to Community law the obligation to acknowledge that regulations are fully effective so long as they have not been declared to be invalid by a competent court. Under Articles 173 and 184 of the Treaty, however, it rests with the Court of Justice alone to make a finding as to the lawfulness of regulations on the one hand and on the other to decide on the validity of regulations in accordance with Article 177. Conversely it follows that as soon as the Court of Justice has declared a regulation to be invalid, irrespective of the nature of the proceedings, the regulation may no longer be applied.

That conclusion is not defeated by the fact that in its judgments of 3 February 1977 in Case 62/76 Jozef Strehl v Nationaal Pensioenfonds voor Mijnwerkers [1977] ECR 211 and of 20 October 1977 in Case 32/77 Antonio Giuliani v Landesversicherungsanstalt Schwaben [1977] ECR 1857 the Court allowed a new reference as to the validity of a regulation after the Court had already declared the relevant provisions to be invalid in its judgment of 21 October 1975 in Case 24/75 Teresa and Silvana Petroni v Office National des Pensions pour Travailleurs Salariés [1975] ECR 1149. Clearly the purpose behind admitting a new reference is that a national court which, through being unaware of a relevant preliminary ruling or for other reasons, is in doubt about the validity of a Community act, is not prevented from requesting a preliminary ruling from the Court of Justice. But that does not remove the binding effect which a preliminary ruling on the validity of a Community act has in regard to all national courts if they do not make a fresh reference to the Court.

Since in view of that result it is no longer necessary to examine the second question I accordingly suggest by way of conclusion that the first two questions should be answered to the effect that a declaration given pursuant to Article 177 of the EEC Treaty that a Community regulation is invalid is binding on all national courts subject to a fresh reference being made to the Court.

Question 3

By the third question the national court seeks clarification whether, if Regulation No 563/76 must be regarded as invalid ab initio, Community law allows a claim for the refund of a payment which was not legally due and if so upon what terms and within what time-limits. The reason for that question becomes clear once it is known that under Article 2033 of the Italian Civil Code the reclaiming of such a payment remains admissible for ten years irrespective of whether or not the burden of the payment has in the meantime been passed on to others.

Accordingly the plaintiff in the main action also took the view that the Court's current case-law on the reclaiming of payments which were not legally due shows that as Community law stands at present in the absence of Community rules on actions for annulment or on the refund of charges wrongly demanded disputes on such refunds fall within the jurisdiction of the national courts and must be decided by them according to national procedural and substantive law. As the Court of Justice has expressly declared, the different treatment which individuals receive in the various Member States as a result must be accepted.

On the other hand the Italian Government, the Council and the Commission, point out that under that case-law disputes on the refund of payments which were not legally due come within the jurisdiction of national courts of the Member States and are to be decided by them under their national law only to the extent to which Community law has not directly regulated the matter in question. However, it is in any event a pre-condition for the application of national law that a claim for a refund could be upheld on the basis of Community law: but that precondition is not met in this case, as can be seen from Regulation No 563/76 which was declared invalid. The passing on to subsequent purchasers of the financial burdens connected with the obligation to purchase arose in fact from the regulation itself and represented an essential characteristic of the system established by that regulation. But if the Community rules themselves expressly provide for the passing on of the financial burdens prescribed therein, the structure of the legal relationships between the successive contracting parties a fortiori precludes any claim for the refund of payments which were not legally due. The further point is made that account must also be taken of the fact that the Court of Justice has dismissed the claims for damages of the purchasers of the compound feeding-stuffs to whom the financial burdens were passed.

If the plaintiffs claim to condictio indebiti were conceded then in the view of the Italian Government, the Council and the Commission the plaintiff would be put at an advantage in regard to both its competitors who had gone ahead with the compulsory purchase of skimmed-milk powder as well as its assigns to whom the financial burdens were passed and who did not recover anything from their claims for compensation. Since, moreover, the plaintiff in the main action has not suffered any loss it would be unjustly enriched, too. Were it not to be assumed, in the cases in which the effect of a refund would be to create unjust enrichment and cast doubt on countless legal relationships, that Community law precludes the refund of a payment which was not legally due, the principle of legal certainty would be severely impaired. Should the Court not wish to rule out ab initio the condictio indebiti in such cases it must at any rate have regard to the requirements of fairness and legal certainty by applying the second paragraph of Article 174 of the EEC Treaty by analogy. The Court should also remain free to limit retroactively in a later judgment the effect in time of preliminary ruling declaring the regulation to be invalid.

1. As all the parties to the proceedings are clearly at one, a legal appraisal of those arguments should be on the basis of the case-law of the Court of Justice concerning the reclaiming of payments which were not legally due, according to which disputes over the refund of such payments fall within the jurisdiction of the national courts of the individual Member States and are to be decided by them in accordance with national law so far as Community law does not govern the matter. That remains the case irrespective of whether the payment consists of national charges which owing to the incompatibility of the relevant provisions with Community law were wrongly charged (see Cases 61/79 Denkavit Italiana, 811/79 Amministrazione delle Finanze dello Stato v Ariete SpA, judgment of 10 July 1980, and 826/79 Amministrazione delle Finanze dello Stato v Mireco, judgment of 10 July 1980), whether the case is one concerning the reclaiming or the refund of payments due to the Community (see the judgment of 5 March 1980 in Case 265/78 H. Ferwerda BV, Rotterdam, v Produktschap voor Vee en Vlees [1980] ECR 617, in Joined Cases 66, 127 and 128/79 Meridionale Industria Salumi and Others [1980] ECR 1237 and the judgment of 12 June 1980 in Joined Cases 119/79 and 126/79 Lippische Hauptgenossenschaft v Bundesanstalt fur landwirtschaftliche Marktordnung [1980] ECR 1863) or whether as in the judgment of 12 June 1980 in Case 130/79 Express Dairy Foods Limited v Intervention Board for Agricultural Produce [1980] ECR 1887 a Community charge was imposed pursuant to a regulation of Community law later declared invalid. Those decisions show that the Court has expressly accepted that rules on the challenging of illegally imposed charges or on the refund of charges which were not legally due vary from one Member State to another and even within Member States depending on the nature of the taxes and charges. It has always merely confined itself to the observation that national law, as distinct from procedures in which similar but purely national disputes are decided, must be applied without discrimination and that the procedural arrangements may not have the effect of making the exercise of rights accorded by Community law virtually impossible. Those assertions must also apply to this case which, as in the Express Dairy Foods case, concerns the reclaiming charges due to the Community which have been illegally levied pursuant to a Community regulation which has been declared invalid. So we have to examine whether a special provision or a general principle of Community law exists in the present case as distinguished from the Express Dairy Foods case which precludes the application of national law which in principle has application, and thus whether Community law bars the raising of a claim of condictio indebiti which then falls to be settled according to national law.

2. In my view the answer must be in the affirmative for the following reasons: first of all, the fact that Regulation No 563/76 on the compulsory purchase of skimmed-milk powder was designed to reduce stocks by making the purchase of skimmed-milk powder compulsory may not be overlooked. The provision of a security was likewise intended to ensure compliance with that obligation. The preamble to the regulation shows that the Commission considered that the objectives of those arrangements were best met by passing on the burden of those measures to the successive buyers of the specified products while sharing it more equitably among all the operators. Accordingly, Article 5 of the regulation provided that even in the case of contracts concluded before the date of entry into force of the regulation the successive buyers were to bear the burden of the costs arising under the arrangements laid down in the regulation. Thus the aim of that provision was to prevent the manufacturers of feedingstuffs being liable to suffer any damage during current contracts due to the compulsory purchase of skimmed-milk powder required by the regulation. Such damage, consisting in the difference between the price of skimmed-milk powder and the lower price which producers would have paid for substitute products or in the loss of the security, would have occurred during current contracts however if the regulation had not expressly provided for the burden of those costs to be passed on to purchasers. On the other hand, as the Commission rightly points out, such a provision was not needed for contracts concluded after the entry into force of the regulation since the burden of costs arising from the regulation could be passed on to purchasers anyway. Contrary to the plaintiff's contention, such a transfer to purchasers of the costs arising from the regulation was not excluded on the ground of actual market conditions either, since demand for compound feedingstuffs is by its nature constant and secondly all manufacturers of feedingstuffs bore the same burdens at that time. Nor is the passing on of the burden of costs to subsequent buyers put in doubt or voided, as the plaintiff believes, by the fact that in the Bela-Mühle and other cases the Court retrospectively declared the regulation in question to be invalid. For, as we know from the judgment in Case 101/78 Granaria BV, it follows from the principles of the rule of law that all persons subject to Community law must acknowledge that Regulation No 563/76 is fully effective so long as it has not been declared to be invalid by a competent court. That means however that the plaintiff is seeking the refund of payment not legally due which in the final analysis it did no have to pay under the Community law in force and applicable at that time. In view of that legal position it is accordingly clear in principle that a condictio indebiti under Community law would result in the unjust enrichment of the plaintiff.

3. It is generally known however that the Court has on several occasions already dealt with the question whether payments which were not legally due are to be refunded if the trader affected has passed on the charges to his purchasers. The Court has already emphasized in its judgment of 27 February 1980 in Case 68/79 Hans Just I/S, Copenhagen v Danish Military for Fiscal Affairs [1980] ECR 501 that the protection of rights guaranteed in the matter by Community law does not require an order for the recovery of charges improperly made to be granted in conditions which would involve the unjust enrichment of those entitled and that there is nothing, from the point of view of Community law, to prevent national courts from taking account in accordance with their national law of the fact that it has been possible for charges improperly levied to be incorporated in the prices of the undertaking liable for the charges and to be passed on in that way to the purchasers of the products in question. Although that decision was obviously directed at the legal situation in Denmark according to which courts have to bear in mind that charges which were not legally due have been passed on in subsequent transactions, the Court reaffirmed its view in the later judgments in the Denkavit and Express Dairy Foods cases (61/79 and 130/79). In both cases it held that a claim for the recovery of payments which were not legally due is governed by the relevant national legal systems which, if I understand the matter correctly, do not look solely to the unjust enrichment of those entitled as regards the claiming of the sums owed. Since in the Express Dairy Foods case Community law did not make provision for any passing on of the charges and it was not clear whether those entitled had in fact passed them on, the Court merely pointed out that “there is nothing to prevent national courts from taking [that fact into] account”. Conversely, however, it must be said that if, as in this case, Community law does make provision for charges to be passed on to subsequent purchasers, that fact must be taken into account if no proof to the contrary is adduced.

4. A further argument which seems to justify ruling out the condictio indebiti in this case is deducible from the case-law of the Court on non-contractual liability. For example, in Joined Cases 83 and 94/76, 4, 15 and 40/77 Bayerische HNL Vermehrungsbetriebe and Others the Court stated inter alia that individuals may be required, in the sectors coming within the economic policy of the Community, to accept within reasonable limits certain harmful effects on their economic interests as a result of a legislative measure without being able to obtain compensation from public funds even if that measure has been declared null and void. That principle may also be applied to the condictio indebiti; a fortiori therefore individuals in the sectors coming within the economic policy of the Community may be required to accept that they have no claim for recovery from public funds if they were able to pass on the charges to purchasers pursuant to the Community provisions and if they do not provide evidence to the contrary proving that they have not used the opportunity to pass on the charges.

5. Finally, the principle of equal treatment generally recognized in Community law requires the exclusion of the condictio indebiti in the present case. The effect of Regulation No 563/76 was in fact that traders who had purchased skimmed-milk powder could pass on the resultant burden to the subsequent purchasers and thereby recover their security. Those undertakings which did not comply with the obligation to purchase admittedly lost their security but they were also able to pass on that burden to their purchasers. Since, as we have been told, the amount of the security was approximately equal to the financial costs arising from the obligation to purchase, it may be said that in the final analysis the passing on of charges to subsequent purchasers had the same effect. But if the securities were returned to the manufacturers of feedingstuffs that would result in their being put at an advantage compared to those competitors which had undertaken the compulsory purchase of skimmed-milk powder. Those who have complied with the regulation would receive nothing whereas those who have complied with the obligations under the regulation only in part -would get their securities back and to that extent be unjustly enriched vis-à-vis their competitors who are barred from claiming compensation owing to the judgment of the Court of Justice in the Bayerische HNL case. Moreover, as the Council in particular points out, these proceedings for a preliminary ruling must be considered in conjunction with the other judgments of the Court which have been given in relation to Regulation No 563/76. It is clear that in the Bayerische HNL and Granaria (101/78) cases the Court of Justice dismissed the actions for damages brought after Regulation No 563/76 was declared invalid for the reasons already mentioned. First, it would however be inequitable to refuse damages to the assigns to whom the charges arising from that regulation were passed and unjustly to enrich the others who had passed them on. Secondly it should not be overlooked that the Italian undertakings were able to claim the condictio indebiti for a period of ten years owing to the legal position in Italy whereas Granaria and Bayerische HNL obtained no indemnity in their actions for damages brought within a short period.

6. Since those considerations already demonstrate that the undertakings which have passed on the burden of costs to subsequent purchasers pursuant to Regulation No 563/76 are not entitled by virtue of the principles underlying the Community's legal system to any refund of the payments which were not legally due there is no longer any need in my view to examine in detail the further question discussed by the parties to the proceedings as to whether the requirements of fairness and legal certainty must be taken into account by limiting the effect of the invalidity of the regulation in time by applying the second paragraph of Article 174 of the EEC Treaty by analogy. The Italian Government, the Council and the Commission take the view that even after having declared a regulation to be invalid the Court of Justice may on a later occasion expand on its earlier decision and define the extent of the invalidity. Owing to the principle of legal certainty and in view of the current case-law of the Court such a solution does not seem to me to be possible in this case. The Court has already accepted in the Defrenne case that it is only exceptionally, that is to say if no other solution appears possible, that it may consider itself bound for the reasons given in that judgment to restrict the ability of all those concerned to rely on an interpretation with a view to obtaining a new decision on the merits. However, such a restriction must be contained in the judgment ruling on the reference, as the Court expressly reiterated in the Salumi case. If not for the reason of legal certainty a fortiori, then for the reasons given in my observations on the first two questions, that restriction must also apply to preliminary rulings deciding as to the validity of an act of an institution. Consequently, in the Société Coopérative “Providence Agricole de la Champagne” (4/79) Niaiseries de Beauce 1 109/79) and Roquette (145/79) cases, too, the Court declared certain acts of the Community to be invalid and at the same time limited the effect in time of those declarations of invalidity.

7. In view of that result it, is no longer necessary to examine the question discussed in particular by the Italian Government, whether the application for the repayment of the amounts which the plaintiff paid back to its suppliers should be treated as a claim for the recovery of payments which were not legally due, or whether it is in truth a claim for damages for which only the Community and not the Member State may be sued.

Question 4

By the fourth question the national court in effect seeks clarification as to whether an export refund may be claimed in respect of the cereal content of the compound feedingstuff coming under tariff heading 23.07 B which the plaintiff exported during the period from 4 August to 1 October 1976. That feedingstuff was composed of cereals which originated in the Member States or had been in free circulation in the Member States as well as of vegetable products containing protein which had been imported under customs control arrangements within the meaning of Article 10 (2) of Commission Regulation (EEC) No 677/76 of 6 March 1976 laying down detailed rules for the application of the system for compulsory purchase of skimmed-milk powder provided for in Council Regulation (EEC) No 563/76 (Official Journal L 81 of 27 March 1976, p. 23).

In the plaintiffs view it is unacceptable that having utilized the system of customs control provided for in Article 10 (2) of Regulation No 677/76 the plaintiff should not be entitled to export refunds in accordance with Article 8 (1) of Regulation No 192/75 of the Commission of 17 January 1975 laying down detailed rules for the application of export refunds in respect of agricultural products (Official Journal L 25 of 31 January 1975, p. 1), whereas other traders, who have not taken advantage of the inward processing arrangements, are. The choice between temporary importation and the provision of a security was provided for in Commission Regulation No 677/76 which, on account of the invalidity of Council Regulation No 563/76 on which it is based, must also be regarded as invalid. The plaintiff took advantage of the system of customs control provided for in Article 10 (2) of Regulation No 677/76 merely in order to escape the obligation to purchase skimmed-milk powder or to provide a security as laid down in Regulation No 563/76 which was later held to be void. The plaintiff was thus compelled to resort to a method of importation the effect of which is, in the defendant's view, that the plaintiff is not granted the refund to which it would otherwise be entitled. In the plaintiff's view, however, no legal consequences should ensue from its intention to escape the effects of a regulation which is illegal.

Irrespective of whether Regulation No 563/76 is valid or not the plaintiff believes that on a proper construction of Article 8 (1) of Regulation No 192/75 an export refund should have been paid in any event on the cereals originating in the Community contained in the feeding-stuffs in queestion. That is borne out by the aim of the refund arrangements which are meant to equalize the difference existing between the prices prevailing in the Community and those prevailing outside it. For the same reason, if cereals which have been in free circulation in the Community form 65 % or more of a product a partial refund should be granted in respect of that proportion irrespective of whether the rest of the product's components were all in free circulation in the Community or imported under a system of customs control; that is clear from in particular Article 16 (2) of Regulation No 2727/75 and Article 7 (1) or Regulation No 2743/75 as well from Regulation No 1871/76 and No 2372/76.

In my opinion, however, that line of argument should not be followed for several reasons. We know from the Granaria case that for so long as Regulation No 563/76 was not declared void in accordance with the Treaty the national authorities charged with its application were bound to regard it as being fully effective. Needless to say, that must also be true of Commission Regulation No 677/76 adopted to implement Regulation No 563/76.

Therefore the plaintiff, like all other traders, had the choice of either putting the vegetable feeding-stuffs in question into free circulation in the Community or of importing those products for a temporary period only under the inward processing arrangements.

Under Article 3 of Regulation No 563/76 the release of products into free circulation in the Community was subject to the presentation of a “protein certificate” the grant of which depended in turn on the provision of a security or the presentation of a certificate of purchase of skimmed-milk powder. An export refund should then have been granted under the first subparagraph of Article 8 (1) of Regulation No 192/75 in respect of the goods released into free circulation in the Community in that way.

However, the plaintiff, as we know, opted in the course of its commercial venture for the possibility provided for in Article 10 (2) of Regulation No 677/76 of temporarily importing oil-seed from non-member countries under the inward processing arrangements and so it did not have to bear the charges arising in connexion with the purchase of skimmed-milk powder or thourgh the loss of the security. In view of the close tie existing between those burdens arising upon importation and the refunds to be granted on exports it is therefore logical that the plaintiff is not entitled to refunds under the first subparagraph of Article 8 (1) of Regulation No 192/75. That inter-relation is made evident in particular by the fact that, as we were told by the Commission, the refunds were increased after it turned out that the original rates of refund were not sufficient to make up for the loss of securities.

Contrary to the plaintiffs opinion, that rule is not altered by the third subparagraph of the provision which states that “when compound products qualifying for a refund fixed on the basis of one or more of their components are exported, that refund shall be paid only in so far as the component or components in respect of which the refund is claimed come within the terms of Article 9 (2) of the Treaty”. As the Commission told us, that provision in fact relates to only agricultural products which are exported in the form of products not listed in Annex II to the EEC Treaty. Since the compound feedingstuffs coming under tariff heading 23.07 B of the Common Customs Tariff do not belong to that category, the refund, although calculated on the basis of the cereal product content, is fixed for the product as a whole and not in respect of the cereal component.

The plaintiff appears to take the further view that the relevant Council regulations did not permit the Commission to fix the refunds for compound products as it did. In order to refute that argument it is sufficient to point out that under the relevant Council regulations the Commission has discretion to determine whether in view of the requirements of the market refunds shall be granted or not.

Likewise, no breach of the principle of equal treatment recognized by Community law is to be discerned, as the plaintiff says it is, in the fact that there is no partial entitlement to a refund on a product's cereal component either in this case. It must be remembered in particular here that those traders who released similar oil-seed into free circulation in the Community, thereby becoming entitled to a refund upon the exportation of the compound products, also have to bear the charges connected with the so-called protein certificate without being able to claim a refund in so far as no evidence is adduced that they have not passed on those charges.

However, the plaintiff, who is claiming export refunds for feedingstuffs which have been manufactured with oil-seed imported only on a temporary basis from non-member countries under the inward processing arrangements would on the other hand be put in a better position than its competitors if it were to be granted the same refund. So the Italian authorities' interpretation of the first subparagraph of Article 8 (1) of Regulation No 192/75 may be accepted for that reason too.

To conclude I propose that the questions put to the Court be answered as follows :

1. All national authorities and courts are bound by a declaration that a Community regulation is void, subject to a new reference being made to the Court.

2. In so far as no evidence is adduced to show that the relevant financial charges have not been passed on to subsequent purchasers Community law precludes any claim for the refund of payments made pursuant to Council Regulation No 563/76 of 15 March 1976 which has been declared void.

3. No export refunds may be granted in respect of products coming under tariff heading 23.07 B of the Common Customs Tariff which were manufactured before that regulation was declared void from vegetable products containing protein imported on a temporary basis only from non member countries under the system of customs control referred to in Article 10 (2) of Commission Regulation No 677/76 of 26 March 1976 as well as from cereals in free circulation in the Community.

( 1 ) Translated from the German.