Judgment of the Court of 25 October 1978. - Koninklijke Scholten-Honig NV and De Verenigde Zetmeelbedrijven "De Bijenkorf" BV v Hoofdproduktschap voor Akkerbouwprodukten. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Isoglucose. - Case 125/77.



European Court reports 1978 Page 01991

Greek special edition Page 00625

Portuguese special edition Page 00681



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . MEASURE ADOPTED BY AN INSTITUTION - REGULATION - STATEMENT OF REASONS ON WHICH BASED - REFERENCE TO LEGISLATIVE CONTEXT

( EEC TREATY , ART . 190 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY - CONCEPT

( EEC TREATY , SECOND SUBPARAGRAPH OF ART . 40 ( 3 ))

3 . MEASURE ADOPTED BY AN INSTITUTION - AMENDMENT OF A FORMER PROVISION - SITUATIONS ARISING UNDER THE LATTER - FUTURE CONSEQUENCES - APPLICATION OF THE AMENDING PROVISION

Summary

1 . EVEN THOUGH THE STATEMENT OF THE REASONS ON WHICH A REGULATION IS BASED MAY BE LACONIC , IT MUST NEVERTHELESS BE EXAMINED AND ASSESSED IN THE CONTEXT OF THE WHOLE OF THE RULES OF WHICH THE REGULATION IN QUESTION FORMS AN INTEGRAL PART .

2 . THE PROHIBITION OF DISCRIMINATION LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY IS MERELY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THAT PRINCIPLE REQUIRES THAT SIMILAR SITUATIONS , SHALL NOT BE TREATED DIFFERENTLY UNLESS THE DIFFERENTIATION IS OBJECTIVELY JUSTIFIED .

3 . LAWS AMENDING A FORMER LEGISLATIVE PROVISION APPLY , UNLESS OTHERWISE PROVIDED , TO THE FUTURE CONSEQUENCES OF SITUATIONS WHICH AROSE UNDER THE FORMER LAW .

Parties

IN CASE 125/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

KONINKLIJKE SCHOLTEN-HONIG N.V . AND DE VERENIGDE ZETMEELBEDRIJVEN ' ' DE BIJENKORF ' ' B.V .

AND

HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN ,

Subject of the case

ON THE VALIDITY OF COUNCIL REGULATION ( EEC ) NO 1862/76 OF 27 JULY 1976 ( OFFICIAL JOURNAL 1976 , L 206 , P . 3 ) AMENDING REGULATION ( EEC ) NO 2742/75 ON PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS AND OF COMMISSION REGULATION ( EEC ) NO 2158/76 OF 31 AUGUST 1976 LAYING DOWN RULES FOR THE APPLICATION OF REGULATION ( EEC ) NO 2742/75 ( OFFICIAL JOURNAL 1976 , L 241 , P . 21 ),

Grounds

1BY A DECISION OF 12 OCTOBER 1977 , WHICH WAS RECEIVED AT THE COURT ON 19 OCTOBER 1977 , THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN , PURSUANT TO ARTICLE 177 OF THE TREATY , REFERRED TO THE COURT OF JUSTICE VARIOUS QUESTIONS CONCERNING THE VALIDITY OF COUNCIL REGULATION ( EEC ) NO 1862/76 OF 27 JULY 1976 AMENDING REGULATION ( EEC ) NO 2742/75 ON PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS ( OFFICIAL JOURNAL 1976 , L 206 , P . 3 ) AND ALSO THE VALIDITY AND INTERPRETATION OF COMMISSION REGULATION ( EEC ) NO 2158/76 OF 31 AUGUST 1976 LAYING DOWN RULES FOR THE APPLICATION OF REGULATION ( EEC ) NO 2742/75 ( OFFICIAL JOURNAL 1976 , L 241 , P . 21 ).

2THE REFERENCE BY THE NATIONAL COURT SHOWS THAT THE PLAINTIFF COMPANIES IN THE MAIN ACTION APPEALED AGAINST A DECISION OF THE HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN , THE NETHERLANDS INTERVENTION AGENCY , BY WHICH THAT AGENCY CLAIMED , IN PURSUANCE OF THE PROVISIONS OF COUNCIL REGULATION ( EEC ) NO 1862/76 AND OF COMMISSION REGULATION ( EEC ) NO 2158/76 PAYMENT OF A LEVY APPLICABLE TO THE PROCESSING , CARRIED OUT DURING THE PERIOD FROM 1 AUGUST TO 31 OCTOBER 1976 INCLUSIVE , OF MAIZE STARCH INTO GLUCOSE HAVING A HIGH FRUCTOSE CONTENT .

3THE FILE SHOWS THAT THE PLAINTIFFS BEFORE THE NATIONAL COURT ARE STARCH PRODUCERS WHO MANUFACTURE ISOGLUCOSE , A GLUCOSE SYRUP HAVING A HIGH FRUCTOSE CONTENT , THE SALE OF WHICH ON THE COMMUNITY MARKET IN APPRECIABLE QUANTITIES GOES BACK ONLY TO 1976 AND WHICH IS MANUFACTURED FROM STARCH OBTAINED FROM VARIOUS CEREALS BUT MOST FREQUENTLY FROM MAIZE , A SUBSTANTIAL PART OF WHICH IS IMPORTED FROM NON-MEMBER COUNTRIES .

4ALTHOUGH ISOGLUCOSE HAS IN MANY RESPECTS THE SAME CHARACTERISTICS AS CANE OR BEET SUGAR IT DIFFERS IN CERTAIN RESPECTS FROM THE TWO LATTER PRODUCTS ESPECIALLY INASMUCH AS , IN THE PRESENT STATE OF TECHNICAL KNOWLEDGE , IT CANNOT BE CRYSTALLIZED AND AT PRESENT CAN ONLY COMPETE WITH SUGAR IN INDUSTRIES USING SUGAR IN A LIQUID FROM .

5IN ORDER TO ASSESS THE VALIDITY OF REGULATIONS NOS 1862/76 AND 2158/76 IT IS APPROPRIATE TO EXAMINE IN THE FIRST PLACE THE LEGAL SITUATION AS IT EXISTED PRIOR TO THE ENTRY INTO FORCE OF THOSE REGULATIONS IN THE MATTER OF THE SYSTEM OF PRODUCTION REFUNDS IN THE CEREALS SECTOR .

6ACCORDING TO THE NINTH RECITAL IN THE PREAMBLE TO REGULATION ( EEC ) NO 2727/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL 1975 , L 281 , P . 1 ): ' ' IN VIEW OF THE SPECIAL MARKET SITUATION FOR CEREAL STARCH , POTATO STARCH AND GLUCOSE PRODUCED BY THE ' DIRECT HYDROLYSIS ' PROCESS IT MAY PROVE NECESSARY TO PROVIDE FOR A PRODUCTION REFUND OF SUCH A NATURE THAT THE BASIC PRODUCTS USED BY THIS INDUSTRY CAN BE MADE AVAILABLE TO IT AT A LOWER PRICE THAN THAT RESULTING FROM THE APPLICATION OF THE SYSTEM OF LEVIES AND COMMON PRICES ' ' .

7ARTICLE 11 ( 1 ) OF THE REGULATION PROVIDES THAT A PRODUCTION REFUND ' ' MAY BE GRANTED :

( A ) FOR MAIZE AND COMMON WHEAT USED IN THE COMMUNITY FOR THE MANUFACTURE OF STARCH ;

( B ) FOR POTATO STARCH ;

( C ) FOR MAIZE GROATS AND MEAL USED IN THE COMMUNITY FOR THE MANUFACTURE OF GLUCOSE BY DIRECT HYDROLYSIS . ' '

8UNDER ARTICLE 11 ( 3 ) THE COUNCIL , ACTING BY A QUALIFIED MAJORITY ON A PROPOSAL FROM THE COMMISSION , IS TO ADOPT RULES FOR THE APPLICATION OF THE ARTICLE AND FIX THE AMOUNT OF THE PRODUCTION REFUND .

9IN PURSUANCE OF THAT PROVISION THE COUNCIL ADOPTED REGULATION NO 2742/75 OF 29 OCTOBER 1975 ON PRODUCTION REFUNDS IN THE CEREALS AND RICE SECTORS ( OFFICIAL JOURNAL L 281 , P . 57 ) BY WHICH , ON THE BASIS IN PARTICULAR OF ' ' AN ASSESSMENT OF THE SITUATION RESULTING FROM THE LEVEL OF COMMON PRICES AND FROM THE COMPETITION BETWEEN , ON THE ONE HAND , MAIZE STARCH , RICE STARCH AND POTATO STARCH AND , ON THE OTHER , THE SUBSTITUTE CHEMICAL PRODUCTS ' ' ( SECOND RECITAL IN THE PREAMBLE TO THE REGULATION ), IT FIXED THE AMOUNTS OF THE PRODUCTION REFUND FOR THOSE PRODUCTS .

10BY REGULATION ( EEC ) NO 1862/76 , WHICH ENTERED INTO FORCE ON 1 AUGUST 1976 , THE COUNCIL AMENDED REGULATION ( EEC ) NO 2742/75 HAVING REGARD TO THE FACT THAT ' ' IN VIEW OF THE SITUATION WHICH WILL EXIST AS FROM THE BEGINNING OF THE 1976/77 MARKETING YEAR , PARTICULARLY AS A RESULT OF THE APPLICATION FOR THAT MARKETING YEAR OF COMMON PRICES FOR CEREALS AND RICE , IT IS NECESSARY TO INCREASE THE PRODUCTION REFUNDS ; . . . HOWEVER , GIVEN THE OBJECTIVES OF THE PRODUCTION REFUND SYSTEM , SUCH AN INCREASE SHOULD NOT BE RETAINED IN THE CASE OF PRODUCTS USED IN THE MANUFACTURE OF GLUCOSE HAVING A HIGH FRUCTOSE CONTENT ; . . . THE BEST METHOD OF IMPLEMENTING A MEASURE OF THIS TYPE IS TO PROVIDE FOR RECOVERY FROM THE MANUFACTURERS CONCERNED OF THE AMOUNT OF THE INCREASE IN PRODUCTION REFUNDS , ACCORDING TO THE PRODUCT USED ' ' .

11ALTHOUGH , IN PURSUANCE OF ARTICLE 1 OF THAT REGULATION , PRODUCTION REFUNDS WERE INCREASED , ARTICLE 2 , WHICH ADDED A NEW ARTICLE 5A TO REGULATION NO 2742/75 , LAID DOWN SPECIAL RULES AS REGARDS THE PRODUCTION REFUND FOR ONLY ONE PRODUCT PROCESSED FROM STARCH , GLUCOSE HAVING A HIGH FRUCTOSE CONTENT .

12ACCORDING TO THAT ARTICLE THE AMOUNT OF THE REFUND FOR STARCH PROCESSED INTO THAT PRODUCT IS MAINTAINED AT THE LEVEL OF THAT OF THE PREVIOUS MARKETING YEAR AND IS ABOLISHED AS FROM THE 1977/78 MARKETING YEAR .

13UNDER THE NEW ARTICLE 5A ( 3 ) THE DIFFERENCE BETWEEN THE AMOUNT OF THE PRODUCTION REFUND FOR STARCH PROCESSED INTO GLUCOSE HAVING A HIGH FRUCTOSE CONTENT AND THE AMOUNT FOR STARCH USED FOR ANY OTHER PURPOSE IS TO BE RECOVERED BY MEMBER STATES FROM MANUFACTURERS .

14THEREFORE , IN THE CASE OF PRODUCTS USED SUBSEQUENTLY FOR THE MANUFACTURE OF GLUCOSE HAVING A HIGH FRUCTOSE CONTENT , ARTICLE 2 OF REGULATION NO 1862/76 BY USING THE EXPEDIENT OF ' ' RECOVERY ' ' IN FACT REFUSED THE INCREASE IN THE PRODUCTION REFUND FOR THE 1976/77 MARKETING YEAR AND ABOLISHED IT AS FROM THE FOLLOWING MARKETING YEAR .

15THE COMMISSION BY ENACTING REGULATION NO 2158/76 ADOPTED CERTAIN PROVISIONS FOR IMPLEMENTING THE NEW ARTICLE 5A OF REGULATION NO 2742/75 .

16PURSUANT TO ARTICLE 4 OF REGULATION NO 2158/76 THOSE PROVISIONS ENTERED INTO FORCE ON 3 SEPTEMBER 1976 AND WERE APPLICABLE AS FROM 1 AUGUST 1976 .

17THE NATIONAL COURT BY ITS FIRST QUESTION ASKS WHETHER ARTICLE 2 OF REGULATION NO 1862/76 , WHICH ADDS ARTICLE 5A TO REGULATION NO 2742/75 IS INVALID BECAUSE THERE IS NO STATEMENT OF THE REASONS UPON WHICH IT IS BASED .

18THE REASONS ON WHICH ARTICLE 2 OF REGULATION NO 1862/76 IN BASED , IN SO FAR AS THEY EMERGE FROM THE PREAMBLE TO THAT REGULATION , ARE LIMITED TO THE MERE STATEMENT THAT , ' ' GIVEN THE OBJECTIVES OF THE PRODUCTION REFUND SYSTEM , SUCH AN INCREASE SHOULD NOT BE RETAINED IN THE CASE OF PRODUCTS USED IN THE MANUFACTURE OF GLUCOSE HAVING A HIGH FRUCTOSE CONTENT ' ' .

19HOWEVER , THE STATEMENT OF REASONS , LACONIC AS IT IS , EVEN OMITTING TO MENTION THE ABOLITION OF REFUNDS FOR THE MANUFACTURE OF THAT PRODUCT , MUST NEVERTHELESS BE EXAMINED AND ASSESSED IN THE CONTEXT OF THE WHOLE OF THE RULES OF WHICH REGULATION NO 1862/76 FORMS AN INTEGRAL PART .

20THE STATEMENTS QUOTED ABOVE FROM THE PREAMBLES TO REGULATIONS NOS 2727/75 AND 2742/75 SHOW THAT THE PRIMARY OBJECTIVE OF PRODUCTION REFUNDS , AS REGARDS THE MARKET IN STARCHES , IS TO ABOLISH THE DISADVANTAGE TO WHICH THE STARCH INDUSTRY IS SUBJECTED BY REASON OF THE APPLICATION OF COMMON PRICES FOR THE RAW MATERIALS USED BY THE INDUSTRY AND TO ENABLE IT TO MAINTAIN COMPETITIVE PRICES IN COMPARISON WITH THE PRICES OF SUBSTITUTE CHEMICAL PRODUCTS .

21WHEN CONSIDERED IN THE CONTEXT OF THE SYSTEM IN WHICH THEY TOOK EFFECT , THE REFUSAL TO INCREASE THE REFUND AND ITS SUBSEQUENT ELIMINATION FOR STARCH INTENDED FOR THE MANUFACTURE OF ISOGLUCOSE , A PRODUCT WHICH IS NOT OR IS HARDLY IN COMPETITION WITH SUBSTITUTE CHEMICAL PRODUCTS , MAY BE EXPLAINED BY THE NATURE OF THE ABOVE-MENTIONED OBJECTIVES OF THE SYSTEM OF PRODUCTION REFUNDS TO WHICH REFERENCE IS MADE IN THE PREAMBLE TO REGULATION NO 1862/76 .

22THAT REFERENCE TO THE PURPOSES OF THE REFUND SYSTEM , WHICH MOREOVER ARE WELL KNOWN TO THE CIRCLES CONCERNED , SATISFIES THE REQUIREMENT UNDER ARTICLE 190 OF THE TREATY FOR A STATEMENT OF REASONS AND THUS THE VALIDITY OF REGULATION NO 1862/76 CANNOT BE CHALLENGED ON THOSE GROUNDS .

23THE NATIONAL COURT IN ITS SECOND QUESTION ASKS WHETHER ARTICLE 2 OF REGULATION NO 1862/76 IS INCOMPATIBLE WITH THE PRINCIPLE OF NON-DISCRIMINATION WHICH IS FUNDAMENTAL TO THE TREATY AND WHICH IS SET OUT IN PARTICULAR IN ARTICLE 40 OF THE TREATY AND WHETHER ARTICLE 2 OF THE REGULATION IS FOR THAT REASON INVALID .

24KONINKLIJKE SCHOLTEN-HONIG N.V ., THE ONLY ONE OF THE PLAINTIFFS WHICH HAS SUBMITTED OBSERVATIONS , LAYS PARTICULAR STRESS ON THE FACT THAT WHEN REGULATION NO 1862/76 PUTS MANUFACTURERS OF STARCH FOR THE PRODUCTION OF ISOGLUCOSE INTO AN EXCEPTIONAL SITUATION , IT DISCRIMINATES BETWEEN THE LATTER AND THE MANUFACTURERS OF STARCH FOR OTHER PURPOSES .

25THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY PROVIDES THAT THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ' ' SHALL EXCLUDE ANY DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY ' ' .

26THE PROHIBITION OF DISCRIMINATION LAID DOWN IN THE ABOVE-MENTIONED PROVISION IS MERELEY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW .

27THIS PRINCIPLE REQUIRES THAT SIMILAR SITUATIONS SHALL NOT BE TREATED DIFFERENTLY UNLESS THE DIFFERENTIATION IS OBJECTIVELY JUSTIFIED .

28IT MUST THEREFORE BE ASCERTAINED WHETHER ISOGLUCOSE IS IN A SITUATION COMPARABLE TO THAT OF OTHER PRODUCTS OF THE STARCH INDUSTRY , IN PARTICULAR IN THE SENSE THAT THEY CAN BE SUBSTITUTED FOR ISOGLUCOSE IN THE SPECIFIC USE TO WHICH THE LATTER PRODUCT IS NORMALLY PUT .

29IT IS CLEAR THAT THERE IS NO COMPETITION BETWEEN STARCH AND ISOGLUCOSE OR BETWEEN ISOGLUCOSE AND THE OTHER PRODUCTS DERIVED FROM STARCH EXCEPT POSSIBLY GLUCOSE .

30IT EMERGES FROM THE FILE THAT THE CONSIDERABLE DIFFERENCES IN THE SWEETENING POWERS OF ISOGLUCOSE ON THE ONE HAND AND GLUCOSE ON THE OTHER MEAN THAT THE TWO PRODUCTS HAVE DIFFERENT APPLICATIONS SO THAT THEY CANNOT BE IN A COMPARABLE COMPETITIVE SITUATION WITH REGARD ONE TO THE OTHER .

31FURTHERMORE AS ISOGLUCOSE IS A PRODUCT WHICH IS AT LEAST PARTIALLY INTERCHANGEABLE WITH SUGAR , THE MAINTENANCE OF THE PRODUCTION REFUND IN FAVOUR OF MANUFACTURERS OF ISOGLUCOSE MIGHT AT A SUBSEQUENT STAGE HAVE CONSTITUTED DISCRIMINATION AGAINST MANUFACTURERS OF SUGAR WHO , FOR THEIR PART , DO NOT ENJOY AN EQUIVALENT ADVANTAGE .

32HENCE ARTICLE 2 OF REGULATION NO 1862/76 DOES NOT INFRINGE THE RULE OF NON-DISCRIMINATION BETWEEN COMMUNITY PRODUCERS SET OUT IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY .

33THE NATIONAL COURT ASKS IN THE THIRD QUESTION WHETHER THE ALTERATION EFFECTED BY REGULATION NO 1862/76 IN THE SYSTEM OF GRANTING REFUNDS TO THE STARCH INDUSTRY IS INCOMPATIBLE WITH THE PRINCIPLE OF LEGAL CERTAINTY , AND , IF SO , WHETHER THE SAID REGULATION IS IN WHOLE OR IN PART INVALID , IN SO FAR AS IT MAKES PROVISION FOR THE SAID ALTERATION .

34THE PLAINTIFF COMPANY REFERRED TO ABOVE LAYS PARTICULAR STRESS ON THE FACT THAT THE SUDDEN CHANGE OF POLICY EFFECTED BY REGULATION NO 1862/76 CONFLICTS WITH THE PRINCIPLE OF LEGAL CERTAINTY .

35IT CLAIMS THAT IN FACT THE SYSTEM OF PRODUCTION REFUNDS DATES BACK AS FAR AS REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 33 ), WHICH WAS THE FIRST REGULATION ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS , AND THAT IT HAS REMAINED IN FORCE WITHOUT BEING AMENDED UNTIL THE ADOPTION OF REGULATION NO 1862/76 WITHOUT THE COMMUNITY AUTHORITIES ' HAVING GIVEN ANY INDICATION THAT THERE MIGHT BE A CHANGE OF POLICY AS FAR AS THE GRANTING OF REFUNDS IS CONCERNED .

36IT IS STATED THAT SOME OF THE STARCH MANUFACTURERS , RELYING WITH LEGAL JUSTIFICATION ON THE MAINTENANCE OF THIS POLICY , HAVE INVESTED CAPITAL IN THE MANUFACTURE OF ISOGLUCOSE EVEN BEFORE REGULATIONS NOS 2727/75 AND 2742/75 WERE ADOPTED .

37ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE THE LAWS AMENDING A LEGISLATIVE PROVISION APPLY , UNLESS OTHERWISE PROVIDED , TO THE FUTURE CONSEQUENCES OF SITUATIONS WHICH AROSE UNDER THE FORMER LAW .

38IT IS NECESSARY TO CALL ATTENTION IN THE FIRST PLACE TO THE FACT THAT ISOGLUCOSE , A PRODUCT WHICH MOREOVER WAS NOT IN EXISTENCE AT THE TIME OF THE ADOPTION OF REGULATION NO 120/67 , WHICH BROUGHT INTO FORCE A COMPULSORY SYSTEM OF PRODUCTION REFUNDS , DOES NOT FALL WITHIN THE CATEGORY OF PRODUCTS WHICH THIS SYSTEM IS DESIGNED TO HELP .

39FURTHERMORE WHEN ISOGLUCOSE APPEARED IN APPRECIABLE QUANTITIES ON THE COMMUNITY MARKET THE SYSTEM OF REFUNDS , AS MAY BE SEEN FROM ARTICLE 11 OF REGULATION NO 2727/75 , WAS ONLY OPTIONAL .

40MOREOVER , AS FAR AS CONCERNS THE COMPLAINT THAT THE CHANGE IN THE SYSTEM OF PRODUCTION REFUNDS WAS INTRODUCED SUDDENLY , IT IS ADVISABLE TO BEAR IN MIND THAT PURSUANT TO THE PROVISIONS OF ARTICLE 2 OF REGULATION NO 1862/76 THE AMOUNT OF THE REFUND FOR STARCH PROCESSED INTO ISOGLUCOSE WAS RETAINED BUT NOT INCREASED FOR THE 1976/77 MARKETING YEAR BEFORE BEING ABOLISHED AS FROM THE FOLLOWING MARKETING YEAR .

41THE ARGUMENTS WITH REGARD TO LEGITIMATE EXPECTATION THEREFORE HAVE NO FOUNDATION .

42THE NATIONAL COURT ASKS IN THE FOURTH QUESTION WHETHER THE COUNCIL AND THE COMMISSION , BY ADOPTING REGULATIONS NOS 1862/76 AND 2158/76 RESPECTIVELY , HAVE MISUSED THEIR POWERS BY ALTERING THE SYSTEM OF PRODUCTION REFUNDS WITH A VIEW TO HELPING THE SUGAR INDUSTRY - WHICH WAS NOT ONE OF THE OBJECTIVES OF REGULATION NO 2727/75 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS .

43IN FORMULATING THE COMMON AGRICULTURAL POLICY THE INSTITUTIONS ARE ENTITLED TO TAKE ACCOUNT OF THE INTERPLAY OF DIFFERENT MARKETS .

44THEREFORE THE COUNCIL AND THE COMMISSION COULD LAWFULLY TAKE INTO CONSIDERATION THE RISK THAT PRODUCTION REFUNDS IN RESPECT OF STARCH FOR THE MANUFACTURE OF ISOGLUCOSE MIGHT DISTURB THE SUGAR MARKET , ALTHOUGH THE SAID REFUNDS DID NOT APPEAR TO BE NECESSARY FOR ATTAINMENT OF THE OBJECTIVES OF THE ORGANIZATION OF THE MARKET IN CEREALS .

45THERE CAN THEREFORE BE NO QUESTION OF A MISUSE OF POWERS ON THE PART OF THE COUNCIL OR THE COMMISSION .

46COMMISION REGULATION NO 2158/76 , PURSUANT TO ARTICLE 4 THEREOF , ENTERED INTO FORCE ON 3 SEPTEMBER 1976 BUT WAS APPLICABLE AS FROM 1 AUGUST 1976 .

47THE FIFTH QUESTION ASKS WHETHER , HAVING REGARD TO THIS FACT , ARTICLE 4 OF COMMISSION REGULATION NO 2158/76 MUST BE INTERPRETED AS MEANING THAT , TAKING ACCOUNT OF THE PROVISIONS OF REGULATION NO 1862/76 , THOSE FUNDS IN RESPECT OF THE MANUFACTURE OF GLUCOSE WITH A HIGH FRUCTOSE CONTENT WHICH WERE GRANTED IN THE PERIOD FROM 1 AUGUST TO 3 SEPTEMBER 1976 MAY BE RECOVERED ON THE BASIS OF THE PROVISIONS OF REGULATION NO 2158/76 AND OF THOSE OF REGULATION NO 1862/76 , AND , IF SO , WHETHER IT MUST FOLLOW THAT REGULATION NO 2158/76 IS INVALID IN WHOLE OR IN PART , NAMELY IN SO FAR AS IT MAKES PROVISION FOR THE RECOVERY OF REFUNDS AS MENTIONED ABOVE .

48THE DUTY OF MEMBER STATES TO RECOVER THE DIFFERENCE BETWEEN THE PRODUCTION REFUNDS FOR STARCH PAID IN THE 1976/77 MARKETING YEARS AND THE REFUNDS APPLICABLE TO STARCH FOR THE MANUFACTURE OF ISOGLUCOSE IS DERIVED FROM THE PROVISIONS OF ARTICLE 2 OF REGULATION NO 1862/76 WHICH ENTERED INTO FORCE ON 1 AUGUST 1976 .

49THE DETAILED RULES FOR THE APPLICATION OF REGULATION NO 1862/76 WERE ADOPTED BY REGULATION NO 2158/76 .

50REGULATION NO 2158/76 WHICH ENTERED INTO FORCE ON 3 SEPTEMBER 1976 BUT WHICH WAS APPLICABLE AS FROM 1 AUGUST 1976 , THE DATE ON WHICH , IN PURSUANCE OF REGULATION NO 1862/76 , THE MEMBER STATES ' DUTY TO RECOVER THE ABOVE-MENTIONED DIFFERENCE TOOK EFFECT , MEANS THAT THE DETAILED RULES FOR THE TAKING EFFECT OF THAT DUTY CORRESPOND TO IT IN POINT OF TIME .

51THE FIRST PART OF THE FIFTH QUESTION SHOULD THEREFORE BE ANSWERED IN THE AFFIRMATIVE AND THE ANSWER TO THE SECOND PART SHOULD BE THAT THE VALIDITY OF REGULATION NO 2158/76 CANNOT BE CALLED IN QUESTION ON THE GROUND THAT THE REGULATION TAKES EFFECT AS FROM 1 AUGUST 1976 .

Decision on costs

COSTS

52THE COSTS INCURRED BY THE COUNCIL OF THE EUROPEAN COMMUNITIES AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

53AS THESE 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 COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY A DECISION OF 12 OCTOBER 1977 , HEREBY RULES :

1 . CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COUNCIL REGULATION ( EEC ) NO 1862/76 OF 27 JULY 1976 AND COMMISSION REGULATION ( EEC ) 2158/76 OF 31 AUGUST 1976 .

2 . BY VIRTUE OF ARTICLE 4 OF REGULATION ( EEC ) NO 2158/76 IN CONJUNCTION WITH ARTICLES 2 AND 3 OF REGULATION ( EEC ) NO 1862/76 THE PROVISIONS OF REGULATION ( EEC ) NO 2158/76 , WHICH LAY DOWN DETAILED RULES FOR THE RECOVERY OF PRODUCTION REFUNDS PAID FOR THE MANUFACTURE OF ISOGLUCOSE , APPLY TO REFUNDS PAID IN THE PERIOD FROM 1 AUGUST 1976 TO 3 SEPTEMBER 1976 .