Opinion of Mr Advocate General Darmon delivered on 14 June 1988. - Remo Padovani and the successors of Otello Mantovani v Amministrazione delle finanze dello stato. - Reference for a preliminary ruling: Tribunale civile e penale di Venezia - Italy. - Post-clearance recovery of additional agricultural levies not previously charged - Applicability of the principle of the protection of legitimate expectations. - Case 210/87.



European Court reports 1988 Page 06177



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . With regard to agricultural levies Article 15 ( 1 ) of Regulation No 120/67/EEC of the Council of 13 June 1967 ( 1 ) on the common organization of the markets in cereals provides that : "The levy to be charged shall be that applicable on the date of importation ".

2 . The "day of importation" referred to in that provision was interpreted in the judgment of 15 June 1976 in the Frecassetti case as being "the day on which the import declaration for the goods is accepted by the customs authorities ." ( 2 )

3 . That interpretation overturned an established practice of the Italian authorities of applying, as in customs duties matters, the most favourable rate of levy so long as the goods had not been made available to the importer and providing that the latter requested it . Since the judgment highlighted the insufficiency from the point of view of Community law of agricultural levies charged in accordance with that practice, the Italian authorities took steps to recover additional amounts in relation to past imports .

4 . When similar cases came before it, the tribunale civile e penale, Venice, by order of 19 March 1987, requested a preliminary ruling on questions which amount in essence to asking whether there is a principle of legitimate expectation in Community law to prevent the recovery of additional amounts in relation to levies charged prior to a preliminary ruling if the traders concerned believed in good faith that, in view of the practice of the national authorities subsequently held unlawful by that judgment, they were entitled to have the levy calculated at the most favourable rate .

5 . Those questions in fact constitute the latest episode in a long legal battle before the courts in which Italian cereal importers who enjoyed the most favourable rate are engaged in resisting the recovery of the additional amounts which the judgment in the Frecassetti case seems to justify . In order clearly to appreciate the ramifications of the decision which the Court will give, it seems to me important to recall the stages of the legal argument which has been taking place before the Court pursuant to a series of references made over the past 10 years .

6 . An initial argument calculated to frustrate an action for recovery was that the interpretation set out in the Frecassetti judgment could have effect only in the future, that is to say for imports subsequent to the publication of the judgment and therefore did not call into question the lawfulness of levies on previous imports .

7 . The Court rejected that argument as to the temporal application of its preliminary rulings when it stated in its judgment of 27 March 1980 in Salumi ( No 1 ) that the interpretation given by the Court to a rule of Community law

"clarifies and defines ... 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",

and that it followed

"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 ". ( 3 )

It may be seen that the standpoint taken by the Court afforded the claim for the additional amounts at issue the basis in Community law which the arguments of the traders concerned had sought to deny .

8 . In the same judgment the Court defined the circumstances in which the national legislature could adjust or restrict the effects of a Community provision interpreted pursuant to Article 177 such as those the Court had just described .

9 . The Court had to answer a question arising from the promulgation in the Italian legal system of a decree of the President of the Republic of 22 September 1978 which excluded the application of the most favourable rate to agricultural levies but stated that that provision would enter into force on 11 September 1976, the date on which the judgment in the Frecassetti case was published in the Official Journal of the European Communities . That measure, which was apparently intended to avoid in advance the consequences of the Court' s position, which was foreseeable with regard to the effect of interpretations given in a preliminary ruling, confirmed in national law the interpretation of the Community rules given by the judgment in the Frecassetti case, but only from its publication and thus did not call into question previous levies calculated on the basis of the most favourable rate .

10 . On that point the Court held that :

"A special system of national rules relating to the collection of Community charges and dues which restricts the powers granted to the national authority to ensure the collection of those charges as compared with the powers granted to the same authority in regard to national charges or dues of the same kind is ... not in accordance with Community law ". ( 4 )

11 . That interpretation was to lead the Italian courts, in cases relating to additional amounts of levies, to disregard the aforesaid presidential decree of 22 September 1978, which restricted the authorities' powers of subsequent recovery solely in regard to Community agricultural levies .

12 . Faced with the impossibility of relying on a limitation of the effects of the judgment in the Frecassetti case to be found either in the judgment itself or in a national provision, the traders concerned then attempted to find support in the provisions of Council Regulation No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties . ( 5 )

13 . That regulation substituted for the legal situation described in the judgment in Salumi ( No 1 ), in which reference was made to the national legislature for the determination of rules of procedure and substance relating to the recovery of agricultural levies, a new legal method for determining at the Community level some of those rules in a context wider than that relating to levies only . With regard to the questions which now concern us, it is to be observed that the regulation restricts in particular cases the power of post-clearance recovery of import or export duties . Thus no action may be initiated after the expiry of a period of three years or where the original amount was calculated on the basis of information which was provided by the competent authorities themselves and which binds them . The competent authorities may not recover post-clearance where the original failure to charge the full levy was due to their own mistake which was not apparent to the taxpayer acting in good faith .

14 . In view of the circumstances in which the insufficient levies had been charged in Italy, traders had an obvious interest in being able to rely on the Community provisions which I have just summarized . However, that was possible only if the regulation in question was retroactive .

15 . When questions on that point were raised by the Corte Suprema di Cassazione, the Court of Justice, in its judgment of 12 November 1981 in Salumi ( No 2 ), ( 6 ) referred to the established principles of case-law relating to the temporal application of Community measures and rejected that possibility . Since the regulation contained no transitional provisions "generally recognized principles of interpretation" ( 7 ) led the Court to take the view that

"the provisions of the regulation may not be accorded retroactive effect unless sufficient clear indications lead to such a conclusion",

and that in that case

"far from indicating any retroactive effect, both the wording and the general scheme of the regulation lead to the conclusion that the regulation provides only for the future ". ( 8 )

Accordingly, the Court ruled that the regulation

"... does not apply to payments of import or export duties made before 1 July 1980 ". ( 9 )

16 . Since the Community rules on post-clearance recovery were not retroactive, they could not govern levies charged prior to the judgment in Frecassetti, which therefore remained subject to the legal rules described in the judgment in Salumi ( No 1 ), that is to say the procedural and substantive rules provided for by the national legislation . Faced with that situation, the traders concerned claimed before the Venice court that the national law was subject to observance of the "principle of certainty and protection of legitimate expectations" ( 10 ) that was enshrined in Community law and was of general scope going beyond the specific provisions of Regulation No 1597/79 and that that principle prevented recovery . In order to determine the validity of that argument, the tribunale civile e penale has referred two questions to this Court for a preliminary ruling .

17 . The search for principles in Community law which prevent actions for the post-clearance recovery of agricultural levies is prompted by the fact that in Italian domestic law no such principles are applied . The only protection which it affords traders who have not been charged a sufficient levy is a five-year limitation period . Within that period the trader' s good faith is not specifically protected . It is true that the decree of the President of the Republic of 22 September 1978 represented an attempt to protect the interests of traders who had been insufficiently taxed before the judgment in the Frecassetti case, but it has been seen that it did not satisfy the requirements of Community law and therefore came to nothing .

18 . The questions from the national court are therefore essentially as follows : does Community law prevent post-clearance recovery from traders who have acted in good faith but who were the subject of the administration' s wrong practice, when the mode of recovery depends on national law which in such a case does not protect the traders owing the levies?

19 . The principle of the protection of legitimate expectations, which is connected with the more general principle of legal certainty, undoubtedly forms "part of the Community legal order", as was expressly stated in the judgment of 3 May 1978 in the Toepfer case . ( 11 ) The desire to achieve a balance between the requirements of law and considerations of equity is apparent in the decisions of the Court, subject to various qualifications . If regard is had to the specific way in which that desire is expressed in the principle of the protection of legitimate expectations, it may be observed that it was first applied in cases calling in question in particular the legislative action of the Community institutions themselves . For instance, the Court has recognized that the absence in Community legislation of transitional measures to protect the legitimate expectations of traders may in certain circumstances render the Community liable ( 12 ) and even involve the invalidity of that legislation ( 13 ) unless there is some overriding public interest .

20 . However, in the case now before the Court, it is not so much the effect of the principle of legitimate expectations in the Community system which has to be examined as its relationship to national law . It is in that area that the questions which have been put to the Court lie . The traders, the plaintiffs in the main proceedings, have cited in particular the judgment of 5 March 1980 in the Ferwerda case ( 14 ) in support of their argument that the principle of the protection of legitimate expectations prevents post-clearance recovery of Community levies although it is carried out according to modes defined by national law, which provides no such protection . The Ferwerda case concerned preliminary questions arising from disputes relating to export refunds wrongly granted and paid following the wrong application of a Community regulation, that is to say a situation presenting some analogy to the present case . The point about that judgment on which the plaintiffs in the main proceedings rely is that the Court found that

"an application of a principle of legal certainty based on national law, whereby financial benefits wrongly conferred on a trader may not be recovered if the error committed was not due to incorrect information supplied by the recipient or if, despite the fact that if the information was incorrect though supplied in good faith, the error could easily have been avoided, does not in the present state of Community law conflict with a general principle thereof ." ( 15 )

Nor, in the present case does it conflict with a special Community provision applicable to the matter precisely in question . ( 16 ) The Court was led by similar considerations in the judgment of 21 September 1983 in the case of Deutsche Milchkontor GmbH and Others v Federal Republic of Germany . ( 17 ) That time it was a question of wrongly-paid aids for skimmed-milk powder and the Court held that

"the principles of the protection of legitimate expectation and assurance of legal certainty are part of the legal order of the Community"

and that

"the fact that national legislation provides for the same principles tobe observed in a matter such as the recovery of unduly paid Community aids cannot, therefore, be considered contrary to that same legal order ". ( 18 )

21 . Is that case-law sufficient to substantiate the argument put forward by the traders concerned? I do not think so . Apart from certain resemblances between the legal situations contemplated in the two judgments and the situation now before the Court, I do not think that the solutions adopted can be simply transposed .

22 . It is true that in each case it is a question of the recovery either of wrongly-paid Community aids or of insufficient Community levies in pursuance of rules laid down by national law . However, it is clear that the judgments of the Court are concerned with the question whether Community law prevents national law from applying principles of legal certainty and legitimate expectations so as to prevent recovery from traders who have acted in good faith . The question now before the Court is whether Community law requires the authorities of Member States responsible for collecting agricultural levies according to rules laid down by national law which contains no principle of the protection of legitimate expectations to refrain from post-clearance recovery from traders who have acted in good faith .

23 . In the case-law it is stated that in certain circumstances Community law does not prevent the protection of legal certainty and legitimate expectations by national law, which applies in the particular case . I do not think that it may be directly inferred that Community law protects legal certainty and legitimate expectations if the national law which applies in the case gives no such protection .

24 . In its decisions the Court has considered the problem of possible Community restrictions on the equitable principles contained in national law . It is not possible to argue that the principles which they contain are de plano valid to resolve the problem of the effect of the principles of equity contained in Community law with regard to national laws which do not contain such principles .

25 . The distinctive nature of those problems has also been pointed out by Mr Advocate General VerLoren van Themaat in his opinion in the Deutsche Milchkontor case . ( 19 ) After setting out the principles stated in the aforementioned judgment in the Ferwerda case he observed :

"I have not come across any decisions dealing with the question whether an unreasonably strict approach to recovery by a Member State may fall foul not only of general principles of national law but also of general principles of Community law",

that question being one which

"might arise only if the general principles of the national law in question do not afford sufficient legal protection ". ( 20 )

26 . That quotation clearly reveals the special nature of the problem which is put to the Court . The question, in essence, is whether, as in a situation where national law may collide with conflicting provisions, having direct effect, of a directive, the national rules under which agricultural levies are recovered may, in so far as they do not protect the legitimate expectation of traders, collide with a principle of Community law enshrining such protection .

27 . It is clear that the aforementioned case-law of the Court does not resolve that problem and it is not sufficient therefore to transpose it in order to resolve the problem within the context of the present case . The Court must therefore consider the question afresh .

28 . At this stage of my consideration of the questions submitted by the Venice court I must clarify the position attributed at the hearing to Mrs Advocate General Rozès and Mr Advocate General Reischl . It does not seem to me to be quite in accordance with the true position to assimilate the view expressed by those Advocates General in opinions given in certain cases to the argument of the traders concerned . After raising the question whether

"the subsequent charge ... may not be barred by the principle of the protection of legitimate expectation, which is known to the legal systems of all the Member States",

Mr Advocate General Reischl replied in his opinion in Salumi ( No 1 ) that if the additional charge is not already barred by other conditions for, or time-limits on, the making of the claim,

"the national courts must be able to resort to the principle of the protection of legitimate expectation if the charge to the lower duty was based, for example, on information issued by the appropriate authority ... or on error on the part of the appropriate authorities which would not be apparent to an individual acting in good faith ". ( 21 )

That quotation clearly shows that, in Mr Advocate General Reischl' s view, the charging of an additional levy may conflict with the principle of legitimate expectations enshrined in national law . He thus outlined the reasoning which was to be put forward in the judgments in the Ferwerda and Deutsche Milchkontor cases . On the other hand, there is no question of an obstacle to the charging of an addditional levy resulting from the protection of legitimate expectations afforded by Community law . In her opinion in Salumi ( No 2 ) Mrs Advocate General Rozès observed, in relation to the assessment of the situations at issue, which were not affected by Regulation No 1697/79 because they were prior to its entry into force, that

"there is nothing to prevent the national courts from following the principles on which Regulation No 1697/79 ... is based, in so far as their application to the proceedings before them does not render the post-clearance recovery of Community levies impossible in practice or less effective than the collection of national taxes and charges of the same kind ". ( 22 )

That view differs from the previous view in that the obstacles to the charging of an additional levy to which national courts might refer arise from principles of Community law, those which "underlie" a Community regulation not directly applicable to the situations at issue . There is, however, an important difference between the power, which, in the Advocate General' s view, is left to national courts to resist the charging of an additional levy by referring to those principles and the obligation to resist such an additional levy which, according to the traders, arises from the principle of the protection of legitimate expectations enshrined in Community law .

29 . With that clarification made, it is now necessary to consider an argument put forward by the Commission to the effect that the situation of traders who have been subject to a wrong application of Community law as a result of a mistaken interpretation by the national authorities can never be protected in Community law by legitimate expectations . The argument is based on the judgment of 15 December 1982 in the case of Hauptzollamt Krefeld v Maïzena GmbH ( 23 ) in relation to production refunds for starch made from maize .

30 . Where a trader alleged that there was a breach of the principle of legitimate expectation by reason of the fact that a Member State had suddenly departed from its practice regarding the application of Community rules which it had followed for several years and which had not been challenged by the Commission, the Court held that

"the practice of a Member State which does not conform to Community rules may never give rise to legal situations protected by Community law and this is so even where the Commission has failed to take the necessary action to ensure that the State in question correctly applies the Community rules ". ( 24 )

31 . That statement of principle gives cause for reflection in so far as the situation before the Court today concerns precisely such a mistaken practice by a Member State in relation to Community levies which has not been challenged by the Commission .

32 . However, I am not proposing that the Court should confine itself to its dicta in the Maïzena judgment to reject ab initio the possibility of applying the Community principle of the protection of legitimate expectations . It seems to me that the scope of that judgment must be determined by taking account of the case-law by which the Court has defined the existence in Community law of the principles of legal certainty and legitimate expectations . Since they are principles which, by definition, are intended, for the sake of a balance between equity and the rigour of the law, to protect unlawful situations from a strict application of the law, one may hesitate to give the Maïzena judgment an interpretation which would rob them of a large part of their effect .

33 . It is true that it would be possible on the basis of a comparision between the judgments in Ferwerda and Deutsche Milchkontor on the one hand and the judgment in Maïzena on the other to take the view that the case-law of the Court reserves different roles to national principles and Community principles concerning the protection of legal certainty and legitimate expectations . The Community principles would apply for the benefit of traders where the action of Community institutions is at issue but not where it is a matter of the implementation by the Member States of Community rules . In the latter case, traders would therefore not be able to rely on Community law but would have the opportunity of relying on the protection of legal certainty and legitimate expectations under national law, subject to the observance of certain conditions .

34 . That analysis, as is apparent, would lead to the rejection of the argument put forward by the traders who are the plaintiffs in the main proceedings . I think, however, that it would be open to challenge to rely on considerations basically drawn from only the judgment in Maïzena for such a clear distinction as that which I have described . It must also be observed that the statement of principle in that judgment must already be qualified by reason of the existence in Regulation No 1697/79 of rules of Community law which are intended precisely to protect legal situations, some of which, by definition, are the result of an incorrect application of the law by the competent authorities . That qualifies the statement that a situation that is irregular under Community law may never be protected by any of its rules .

35 . That is why it seems to me that the argument based on the judgment in Maïzena does not rest on a sufficiently certain legal analysis to conclude the discussion for which the questions put by the Venice court call and which must therefore be carried further .

36 . There is no lack of reasons for taking the view that it is desirable to have regard to the principles of equity in considering the present case .

37 . We know that the practice of the Italian administration of granting the most favourable rate, which existed moreover in other Member States and was based on an assimilation with the rules applicable to customs duties, had never been the subject, before the Frecassetti case, of any notable sign of disapproval from the Commission . On the contrary, when preparing a directive, the Community institutions seemed to manifest the intention of enshrining in the Community rules the practice of granting the most favourable rate in relation to agricultural levies . In that respect the traders concerned referred to several proposals for a directive, published before the judgment in Frecassetti, which would have made the practice into a rule .

38 . If reference is made to the view expressed by Mr Advocate General Reischl in his opinion in the Amylum case ( 25 ) to the effect that where a proposal is published then

"under the case-law of both the Court of Justice and the national courts (( it )) may certainly be regarded as a factor relevant to the question of the protection of legitimate expectation" ( 26 )

it is not possible to escape the conclusion that traders who have enjoyed the most favourable rate might legitimately expect that the levies which they had been charged were valid .

39 . Moreover, I find it difficult to believe that the judgment of 15 December 1971 in the Schleswig-Holsteinische Hauptgenossenschaft case, ( 27 ) which, like the subsequent judgment in the Frecassetti case, related to the interpretation of Article 15 ( 1 ) of Regulation No 120/67 of the Council, was of such a nature as to reveal the wrongful nature of the practice at issue and consequently to destroy confidence in its validity .

40 . In that judgment the Court defined the "day of importation" in relation to a specific class of goods differently from the definition it was to give in 1976 in relation to a more general class . Subject to its specific nature, the first definition could appear to be less incompatible with the practice of granting the most favourable rate than the second . Without going so far as to say that it encouraged traders in their expectation, it cannot be said to have discouraged them from entertaining it either .

41 . Those first observations therefore lead to the view that before the judgment in Frecassetti the confidence of traders in the validity of levies charged at the most favourable rate was plausible . That cannot be irrelevant to the question of equity .

42 . Equity may also be mindful of one aspect of the traders' situation which is stressed in the case-law .

43 . That case-law, as expressed in the Ferwerda and Deutsche Milchkontor cases, requires a reconciliation between the principle that in the absence of common procedural rules, the national authorities, when implementing the agricultural policy, should act in accordance with the procedural and substantive rules of their own national law and

"the need to apply Community law uniformly so as to avoid unequal treatment of producers and traders ". ( 28 )

In the judgment in Ferwerda the Court stated that uniform application

"implies that there must be no discrimination in respect of the procedural and substantive conditions on which, on the one hand, traders may challenge Community charges imposed upon them by demanding a refund where payment was wrongly made or claiming the financial benefit of a Community nature to which they are entitled, and on which, on the other, the authorities of the Member States, acting on behalf of the Community, may collect the said charges and, if necessary, recover financial benefits which were wrongly granted ". ( 29 )

44 . The main proceedings clearly show the differences resulting from the application to post-clearance recovery of agricultural levies of national law according to whether or not it protects legitimate expectations .

45 . In the case of unduly paid Community aids for powdered milk, the Court has indeed held that, although reference to national law may mean that

"the conditions for the recovery ... may vary to some extent from one Member State to another",

such differences were

"in the present state of development of Community law ... inevitable ". ( 30 )

46 . Moreover, the Court clearly indicated the ways of removing differences of treatment when it observed that

"if disparities in the legislation of Member States proved to be such as to compromise the equal treatment of producers and traders in different Member States or distort or impair the functioning of the common market, it would be for the competent Community institutions to adopt the provisions needed to remedy such disparities ". ( 31 )

47 . In the matter of the post-clearance recovery of import and export duties, the competent Community institution, namely the Council, set about remedying the disparities by adopting Regulation No 1697/79 . We know, however, that that regulation does not apply to levies charged prior to its entry into force . The disparities which precisely created the need for Community rules were not dealt with by them, for they applied only to the future . The required reconciliation between reference to national law and equality of treatment of Community traders, forcefully expressed in the judgments of the Court, has thus not been implemented in certain cases in regard to lawfulness . That, too, cannot be a matter of indifference from the point of view of equity .

48 . It remains to be seen whether equity may prevail in the present case and lead to a ruling upholding the claims of the plaintiffs in the main proceedings . I do not think that it can for the reasons which I shall now explain .

49 . The case-law of the Court has shown the limits of the preliminary ruling procedure in remedying the absence of Community rules removing the inequalities of treatment in the recovery of Community resources . In its judgments in Ferwerda and Salumi ( No 1 ) the Court stated that "the necessarily technical and detailed nature of ... provisions" such as those introduced for the post-clearance recovery of import and export duties by Regulation No 1697/79

"means that a judicial interpretation can provide only a partial remedy ." ( 32 )

50 . That finding seems to me to be illustrated by a comparison of the laws of the Member States on the question of the post-clearance recovery of taxes charged at an insufficient rate . It reveals that the periods for remedying an insufficient payment of a customs debt or one treated as such vary considerably from one State to another since the "scale" extends from one to 10 years; six Member States, including Italy, of the 10 considered have a period of at least five years . It is to be observed that the protection of legitimate expectations is unknown in the United Kingdom, Ireland, Spain, Portugal and Italy; Belgium compensates for the absence of such protection by making the revenue or customs authorities liable if the error of calculation was due to their fault .

51 . In view of that variation in national laws, the statement of a Community principle preventing agricultural levies from being amended at the end of a uniform period or even within that period where the taypayer has acted in good faith can scarcely appear to be based on "principles common to the laws of the Member States" or even to "principles generally recognized" by such laws, which are concepts which the Court has previously been able to apply . ( 33 )

52 . In the face of such difficulty, could it possibly be argued that the substance of the principle is apparent from Regulation No 1697/79, which would be regarded as one of its expressions, while the content of the principle would be based on certain of the formal provisions of that regulation? If so, it would be necessary to determine the point in time, which would necessarily be prior to the entry into force of the regulation, from which the principle would have had the force of law and accordingly to recognize that the effects of the rules which the Court, in the formal context of that regulation, had refused to recognize as being retroactive, did go back in time . ( 34 )

53 . I must confess that neither of the two approaches which I have just outlined appears essential from the point of view of the construction of the Community legal system, especially since the statement by the Court of a principle applicable necessarily only to Community levies in the wide sense would give rise to disparities between the procedures for post-clearance recovery conducted by the authorities of certain Member States . The authorities would be required to observe legitimate expectations in the case of Community levies and would continue to be able to disregard them in the case of national levies . It does not seem to me desirable that the decisions of this Court should produce such consequences in the legal and administrative affairs of the Member States, especially with regard to past transactions . Community regulations may produce comparable consequences, in principle, however, only for the future, but the conditions in which they are drawn up are more suited to the reconciliation of interests like those I have just referred to than interpretative rulings which, since they apply to the past, involve effects which are difficult to ascertain, as is shown by the judgment in Frecassetti .

54 . In the result, it seems that to go beyond the philosophy expressed in the judgments in Ferwerda, Salumi ( No 1 ) and Deutsche Milchkontor, as the traders concerned have suggested, is perilous . In that line of cases, after laying down the principle that in the absence of Community rules for the recovery of amounts which have not been fully paid or of aid which has been wrongly paid, reference must be made to national law, the Court indicated the two limits to which application of that right is subject : it must not affect the scope and effectiveness of Community law and must not be discriminatory in relation to procedures for settling purely national cases of the same kind . Thus, while the Court had just made reference, as I have previously mentioned, to the inequality of treatment resulting from disparities between national laws and in each of the cases the need for protecting legitimate expectations had been pleaded before the Court, it did not add to the two aforementioned limits a third limit based on that need . The reasons for not doing so have still not disappeared and therefore I do not think that the Court' s attitude should change .

55 . It is indeed quite regrettable that the plaintiffs in the main proceedings are in a situation which is all the more inequitable in so far as the authorities of the other Member States who before the judgment in Frecassetti charged the most favourable rate have not subsequently undertaken post-clearance recovery . There were, however, well-identified legal procedures for remedying that situation . Only they were not used .

56 . With regard to the effect of interpretative rulings by the Court, it was stated in the judgment in Samuli ( No 1 ) that as an exception the Court might

"in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships", ( 35 )

such a restriction may, however, be allowed only

"in the actual judgment ruling on the interpretation sought ". ( 36 )

57 . It is clear from the very terms of the judgment in Frecassetti, which stipulates no limitation on the effects of the interpretation given, that in that case it did not appear to the Court that the principle of legal certainty justified any such modification . In that case, it does not seem that the Court' s attention was specifically drawn to a risk of serious confusion consequent upon the interpretation which was ultimately adopted .

58 . Moreover, with regard to the temporal application of the Community rules, the Court recognized in its judgment in Amylum that

"although in general the principle of legal certainty ... precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected ". ( 37 )

As was observed in the judgment in Salumi ( No 2 ), Regulation No 1697/79 is not retroactive . That therefore means that the Community legislature did not consider that the situation of traders who had been charged levies before that regulation was adopted justified an exceptional retroactive scope being given to it .

59 . Thus, the protection of legal certainty and legitimate expectations pleaded by the traders concerned was not assured by one of the legal procedures which, according to the case-law of the Court, were conceivable in that respect . That does not seem to me to justify today recourse to a legal process which is much less certain .

60 . I do not know whether, in the face of such inequitable situations revealed by the present case, a solution may be found by the adoption of a practice on the initiative of the competent Community institutions . If there is any such possibility, it would be desirable that it should be used .

61 . However, as far as Community law is concerned, in view of the aforementioned observations I do not consider it possible to give it a meaning which it does not have . Like Boulouis, I think that it cannot, through excessive flexibility, guarantee the authorities responsible for implementing Community rules against the consequences, in particular the pecuniary consequences, of the unlawful use of their powers . That is "to confuse law with responsibility ". ( 38 )

62 . That is why in my opinion the Court should rule that :

"The principles of the protection of legal certainty and legitimate expectations enshrined in Community law and applied in particular in relation to agricultural levies by Council Regulation No 1697/79 of 24 July 1979 do not prevent the authorities of a Member State, with regard to levies paid before the entry into force of that regulation and consequently recovered according to the provisions of the national laws, from pursuing, in accordance with their own national law, full recovery from traders who, by reason of an incorrect administrative interpretation of the Community rules on payment, originally benefited in good faith from an insufficient calculation of the amount they were liable to pay ."

(+) Translated from the French .

( 1 ) OJ, English Special Edition 1967, p . 33 .

( 2 ) Case 113/75 Frecassetti v Amministrazione dello finanze dello Stato (( 1976 )) ECR 983, at p . 993, paragraph 7 .

( 3 ) Joined Cases 66, 127 and 128/79 Amministrazione delle finanze dello Stato v Srl Meridionale Industria Salumi (( 1980 )) ECR 1237, at p . 1260, paragraph 9 .

( 4 ) Ibid ., at p . 1264, paragraph 21 .

( 5 ) OJ L 197, 3.8.1979, p . 1 .

( 6 ) Joined Cases 212 to 217/80 Amministrazione delle finanze dello Stato v Srl Meridionale Industria Salumi and Others (( 1981 )) ECR 2735 .

( 7 ) Paragraph 8 .

( 8 ) Paragraph 12 .

( 9 ) Paragraph 16 .

( 10 ) Fifth paragraph of the request for a preliminary ruling from the tribunale civile e penale, Venice .

( 11 ) Case 112/77 (( 1978 )) ECR 1019 .

( 12 ) Judgment of 14 May 1975 in Case 74/74 Comptoir nationale technique agricole v Commission (( 1975 )) ECR 533 .

( 13 ) Case 112/77, cited above, and judgment of 16 May 1979 in Case 84/78 Tomadini v Amministrazione dello finanze dello Stato (( 1979 )) ECR 1801 .

( 14 ) Case 265/78 H . Ferwerda BV v Produktschap voor Vee en Vlees (( 1980 )) ECR 617 .

( 15 ) Paragraph 17 .

( 16 ) Paragraphs 14, 18 and 21 .

( 17 ) Joined Cases 205 to 215/82 (( 1983 )) ECR 2633 .

( 18 ) Paragraph 30 .

( 19 ) Joined Cases 205 to 215/82 (( 1983 )) ECR 2674 .

( 20 ) P . 2675 .

( 21 ) Joined Cases 66, 127 and 128/79, cited above, pp . 1272 and 1273 .

( 22 ) Joined Cases 212 to 217/80, cited above, p . 2757 .

( 23 ) Case 5/82 (( 1982 )) ECR 4601 .

( 24 ) Paragraph 22 .

( 25 ) Jufgment of 30 September 1982 in Case 108/81 Amylum v Council (( 1982 )) ECR 3107 .

( 26 ) P . 3149 .

( 27 ) Case 35/71 Schleswig-Holsteinische landwirtschaftliche Hauptgenossenschaft GmbH v Hauptzollamt Itzehoe (( 1971 )) ECR 1083 .

( 28 ) Joined Cases 205 to 215/82 (( 1983 )) ECR 2665, paragraph 17 .

( 29 ) Case 265/78 (( 1980 )) ECR 628, paragraph 8 .

( 30 ) Joined Cases 205 to 215/82 (( 1983 )) ECR 2666, paragraph 21 .

( 31 ) Paragraph 24 .

( 32 ) Case 265/78 (( 1980 )) ECR 628, paragraph 9 and Joined Cases 66, 127 and 128/79 (( 1980 )) ECR 1262, paragraph 16 .

( 33 ) See J . Boulouis and R . M . Chevallier : Grands arrêts de la Cour de justice des Communautés européennes, Dalloz, Fourth Edition, 1987, Vol . 1, Nos 15 and 16 .

( 34 ) Joined Cases 212 to 217/80, cited above .

( 35 ) Joined Cases 66, 127 and 128/79, (( 1980 )) ECR 1261, paragraph 10 .

( 36 ) Paragraph 11 .

( 37 ) Case 108/81 (( 1982 )) ECR 3130, paragraph 4 .

( 38 ) "Quelques observations à propos de la sécurité juridique" in "Du droit international au droit de l' intégration", Liber Amicorum Pierre Pescatore, Nomos Verlagsgesellschaft, Baden-Baden, 1987, pp . 57 and 58 .