1.

The questions referred to the Court for a preliminary ruling by the Tribunal d'Instance, Paris are further evidence of the importance of the judgments of the Court of 15 October 1980, ( 2 ) in particular of the Roquette judgment, and the interest which they aroused. In the Roquette case the Court was faced with seven questions referred to it for a preliminary ruling by the Tribunal d'Instance, Lille, by judgment of 29 June 1979. The first six questions indirectly put in issue the validity of Regulation (EEC) No 652/76 of 24 March 1976 changing the monetary compensatory amounts following changes in exchange rates for the French franc. In the Roquette judgment the Court held that: ‘(1) Regulation No 652/76 of the Commission of 24 March is invalid: in so far as it fixes the compensatory amounts applicable to maize starch on a basis other than that of the intervention price of maize after deduction of the production refund on starch; ... in so far as it fixes the compensatory amounts applicable to all the different products obtained by the processing of a given quantity of the same basic product, such as maize or wheat, in a specified manufacturing process at a figure appreciably higher than the compensatory amount fixed for that given quantity of the basic product, ... (3) The fact that the abovementioned provisions are invalid does not enable the charging or payment of monetary compensatory amounts by the national authorities on the basis of those provisions to be challenged as regards the period prior to the date of this judgment.’ In that paragraph of the judgment the Court defined the consequences which should in the Court's view be given to that declaration of invalidity, limiting the scope of its decision by giving it an ex nunc effect. As a basis for that limitation the Court pointed out that: ‘Although the Treaty does not expressly lay down the consequences which flow from a declaration of invalidity within the framework of a reference to the Court for a preliminary ruling, Articles 174 and 176 contain clear rules as to the effects of the annulment of a regulation within the framework of a direct action. Thus Article 176 provides that the institution whose act has been declared void shall be required to take the necessary measures to comply with the judgment of the Court of Justice. In its judgments of 19 October 1977 in Joined Cases 117/76 and 16/77 {Albert Ruckdeschel & Co. and Hansa-Lagerhaus Stroh & Co. [1977] ECR 1753) and in Joined Cases 124/76 and 20/77 (Moulins et Huileries de Pont-à-Mousson and Providence Agricole de la Champagne, [1977] ECR 1795) the Court has already referred to that rule within the context of a reference to it for a preliminary ruling’ (paragraph 51). ‘In this case it is necessary to apply by analogy the second paragraph of Article 174 of the Treaty, whereby the Court of Justice may state which of the effects of the regulation which it has declared void shall be considered as definitive, for the same reasons of legal certainty as those which form the basis of that provision. On the one hand the invalidity of the regulation in this case might give rise to the recovery of sums paid but not owed by the undertakings concerned in countries with depreciated currencies and by the national authorities in question in countries with hard currencies which, in view of the lack of uniformity of the relevant national legislation, would be capable of causing considerable differences in treatment, thereby causing further distortion in competition. On the other hand, it is impossible to appraise the economic disadvantages resulting from the invalidity of the provisions of the regulations in question without making assessments which the Commission alone is required to make under Regulation No 974/71, having regard to other relevant factors, for example the application of the “green rate” of the production refund’ (paragraph 52). The Court's decision gave rise to academic controversy. In France it was generally criticized. The national court which had referred the matter did not consider itself bound by paragraph 3 of the operative part of the judgment. On the basis of the Court's declaration of invalidity and of its own refusal to take into account the ex nunc effect given by the Court to that declaration, it ordered the French State (Customs Administration) to repay to Roquette Frères the monetary compensatory amounts paid in application of the invalidated provisions. That judgment of 15 July 1981 was in all essential respects upheld by judgment of the Cour d'Appel, Douai, of 19 January 1983; an appeal from the latter judgment is currently pending before the Cour de Cassation.