OPINION OF MR ADVOCATE GENERAL

REISCHL DELIVERED ON 23 SEPTEMBER 1982 ( 1 )

Mr President,

Members of the Court,

I shall take the liberty ot' dealing with Cases 108. 110 and 114/81 in the same Opinion since the problems raised by those cases are essentially the same

At issue once again is isoclucose. the liquid sweetener which is alreadv well known to the Court as a result or a series of other proceedings. Since the relevant provisions of Community law have on several occasions been rehearsed before the Court I can this time confine myself in mv introductory remarks to certain essential indications.

On 1 May 1977 the Council adopted Regulation No 1111/77 laying down common provisions for isoglucose(Official Journal 1977, L 134 p. 4). In Articles 8 and 9, in Title II, it was provided that in the 1977/78 and 1978/79 marketing years a production levy should be charged on isoglucose producers which, in the first of the two aforementioned sugar years, was not to exceed the amount of five units of account per 100 kg of dry matter. Regulation No 1111/77 was amended by Council Regulation No 1298/78 of 6 June 1978 (Official Journal 1978, L 160, p. 9) so that a production levy was also to be charged on isoglucose in respect of the sugar marketing year 1979/80 and that in respect of the marketing year 1978/79 the amount of the levy was to remain unchanged at five units of account per 100 kg of dry matter.

Isoglucose producers proceeded in several different ways against the system of levies described above. They applied to national courts which referred questions as to the validity of Regulation No 1111/77 to the Court of Justice pursuant to Article 177 of the EEC Treaty, and they applied direci to the Court of Justice seeking damages for the adoption of the aforementioned regulation. Thus, on 23 October 1978 a preliminary ruling was given in Joined Cases i:3.77 and 145/77 ( 2 ) in which 11 was held that Regulation No 1111/77 was invalid to the extent to which Articles 8 and 9 thereof imposed a production levy on isoglucose of five units of account per \ZZ kg of dry matter for the period corresponding to the sugar marketing vear 1977/78. The decisive factor in that luagment was the finding that the system o', levies offended against the general principle oi equalitv On 3 December 1979 judgment was delivered in Joined Cases 116^ and 124/77, ( 3 ) which were proceedings based on official liability. There it was held that non-contractual liability had not been incurred by the Community on the ground that, although the fixing of the isoglucose production levy at five units of account per 10C kg of dry matter was illegal, there were not errors of such gravity that it might be said that the conduct of the defendant institutions in that respect was verging on the arbitrary, since an appropriate levy was fully justified.

The Council drew the appropriate consequence from the declaration of invalidity of Regulation No 1111/77 and on 25 June 1979 adopted Regulation No 1293/79 (Official Journal 1979, L 162, p. 10) which entered into force on 1 July 1979. Article 2 thereof repealed the provisions of Title II of Regulation No 1111/77 on the system of production levies, with effect from 1 July 1977. Article 3 installed a new version of Title II of Regulation No 1111/77 adopting a quota system based on that of the organization of the market in sugar with basic quotas and maximum quotas in which the basic quotas were given for each undertaking in Annex II. Additionally provision was made for a production levy to be charged on production in excess of the basic quota but not of the maximum quota. The svstem was to apply for the period 1 July 1979 to 30 June' 1980. It was then extended to the marketing year 1980/81 bv Council Regulation No 1592/80 of 24 June 1980 (Official Journal 1980, L 160. p. 12) and the basic quotas fixed in respect of the marketing year 1979/80 e re retained.

In August and September 1979 Cases 138/79 ( 4 ) and 139/79 ( 5 ) were brought before the Court of Justice in which the system was challenged on a series of substantive legal grounds and on the ground that the system had been adopted in the absence of an opinion of the European Parliament. In the judgments in those cases delivered on 29 October 1980 it was held that the contentions founded on substantive law (breach of the rules on competition, breach of the prohibition of discrimination, and breach of the principle of proportionality could not succeed; however, the regulation was declared void on the ground that the opinion of the Parliament had not been obtained.

Thereupon the Council, having this time obtained the opinion of the European Parliament, adopted on 10 February 1981 Regulation No 387/81 (Official Journal 1981, L 44, p. 1) which repealed, with effect from 1 July 1977, Title II of Regulation No 1111/77 in the version as amended by Regulation No 1298/78. It also reintroduced for the period from 1 July 1979 to 30 June 1980 the system of quotas and levies established by Regulation No 1293/79, changing merely the basic quotas of Maizena GmbH as a result of submissions to that effect in Case 139/79 which seemed to me at the time to be well founded. Similarly, on 10 February 1981. Council Regulation No 388/81 (Official Journal 1981. L 44, p. 4) was adopted amending Regulation No 1392/80. That regulation provided that Article 9 of Regulation No 1111/77, in the version as amended bv Regulation No 387/81, was also to apply for the period 1 July 1980 to 30 June 1981 and that for that period the basic quota for each isoglucose-producing undertaking was to be that applicable during the period 1 July 1979 to 30 June 1980 pursuant to Regulation No 387/81. Regulation No 388/81 was to applv from 1 July 1980.

It should also be mentioned that two cases were brought against Regulation No 1592/80 (Cases 176/80 3 and 179/80 ( 6 )). On 2 April 1981 the first case was ordered to be removed from the Court register after the plaintiff had stated that the application had lost its purpose, following the judgment of 29 October 1980. In the second case the oral procedure took place on 8 July 1981. In my Opinion I expressed the view that in this case too there was no need to give a decision. Judgment had not yet been delivered in that case; it will presumably now be delivered in connection with the present case.

On 4, 7 and 11 May 1981 the companies G. R. Amylum NV, Roquette Frères SA, and Tunnel Refineries Limited brought applications before the Court against Regulation No 387/81 seeking:

— In Case 108/81: A declaration thai Regulation No 387/81 or at least Article 1 (3) and (4) thereof is void,

— In Case 110/81: A declaration that Regulations Nos 387/81 and 388/81 and the individual decisions contained in them are void atleast in so far as those measures concern the applicant;

— In Case 114/81: A declaration that Regulation No 387/81, or in the alternative Article 1 (3) and (4) thereof, is void.

In support of their claims the applicants contend that it was unlawful to give retroactive effect to the aforementioned regulation, furthermore it fails to respect the authority of the Parliament and the Court of Justice and lacks an adequate statement of the grounds on which it is based. In addition two of the applicants claim in their reply that the illegality of the regulation also stems from the fact that the Council, without adhering to the procedure under Article 201 of the EEC Treaty and contrary to the provisions of its decision of 21 April 1970 replacing the financial contributions of Member States by own resources of the Communities, created for itself new own revenue in the form of production levies on isoglucose.

I take the following view on those submissions which the Council, and the Commission intervening in the proceedings in its support, consider unrounded, and. as regards the submission contained in the reply, inadmissible. I shall confine myself in the first instance to an examination of Regulation No 387/81 and fmallv I shall examine Regulation No 3SS/SI which is contested only in case 110/81.

I — Breach of the prohibition of retroactivity

The applicants claim such a breach on partly differing grounds for further details of which I refer the Court to the Report for the Hearing.

1. In that connection it should first be stated that the contested Regulation No 387/81 did indeed reintroduce production quotas and production levies with retroactive effect in respect of the marketing year 1979/80, and that was genuine retroactivity and not merely “material” or sham retroactivity. Indeed it is not a question of applying legal provisions to the future consequences of preexisting situations which the applicants call “material” retroactivity. Transactions completed entirely in the past are covered, that is to say — and this is highlighted in the applicants' arguments — a production levy, having been declared void by a judgment of the Court, is reinstated for the marketing year 1979/80 after the expiry of that year.

2. The applicants, in particular Amylum NV, undertook extensive investigations into comparative law in order to demonstrate that there is a common legal principle according to which burdens and obligations on individuals may in principle not be imposed by means of retroactive laws. In my view there is no reason for examining that question in detail. In that connection I refer, inter alia, to the examination undertaken by Mr Advocate General Warner in his Opinion in Case 7/76. ( 7 ) What is important above all is the extensive Community case-law from which clear tendencies and criteria maybe gleaned. This case-law was elaborated primarily so as to resolve currency difficulties; its importance is however certainly more far-reaching than that. (a) In the first important case, Case 37/70 ( 8 ), the Federal Republic of Germany was retroactively authorized to take protective measures following a revaluation of the German mark. The measures were justified on the sole ground that, without retroactivity, the objective pursued by the measure, namely the maintenance of a given level of agricultural prices, could not have been achieved without suffering an interruption. (b) Case 7/76, ( 9 ) which I have already mentioned, concerned a regulation relating to monetary compensatory amounts which entered into force with its publication on 7 March 1973 but was applicable as from 26 February 1973, and also another regulation, published on 7 April 1973, which applied to a transaction which had been effected on 22 March 1973. Even that obviously genuine retroactivity escaped the Court's censure although it must be admitted that once again the decisive criteria did not clearly manifest themselves in that case. The Court merely pointed out that, under the system of monetary compensatory amounts, it was unavoidable that compensatory amounts should frequently be fixed after the event; since a regulation, which had previouslv applied, had expired on 26 Februarv 1973, it was correct to avoid an interruption in the svstem and another material aspect as that the sectors concerned were aware of the necessities of the svstem. (c) in Case ( 10 ) which «.is jiso mentioned in the procedure, the Coun did not bv jn\means iahe a neca'.ne approjen to retroagii» lit bu: emprusi/eij expressly and in quite general terms that Community law does not preclude all retroactivity. However, it was not apparent in that case that retroactivity to the day before publication of the measure had been intended, since the Official Journal was not issued on the date appearing on it, which was also intended to be the date of the entry into force of the measure in question, but, contran - to expectation, did not appear until a day later. (d) In the judgment in Case 98/78 ( 11 ) concepts were formulated for the first time on the question of retroactivity which now recur again and again. Once again the case involved the retroactive application of monetary compensatory amounts. In connection with the application of regulations to transactions which had been effected before publication of the regulation and thus before its entry into force, it was held in principle that that might exceptionally be permissible “where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected” (paragraph 22). In that case both tests were found to be satisfied, the first by reference to the system of monetary compensatory amounts, the second in view of the fact, that the Commission had without delav brought to the attention of the economic sectors concerned the amounts to be applied (e) The luüpment in Joined Cases 217/78 ( 12 ) 2\T.bZ' men made clear íha; tneaforementioned principle is applicable not merely in relation to monetary compensatory amounts but is also of general validity. Those cases involved a Community regulation concerning the post-clearance recovery of levies and their possible retroactive application. The Court of Justice emphasized that provisions of substantive law might apply to situations arising before their entry into force only if it was clearly stated that such an effect was desired. Referring to its judgments in Cases 98/78 ( 13 ) and 99/78, ( 14 ) the Court also pointed out that the principle of legal certainty in essence precluded the possibility of fixing the beginning of the period of validity of a measure at a date prior to its publication; however, that principle might be departed from where the purpose to be achieved so demanded and where the legitimate expectations of those concerned were duly respected. Community legislation must be foreseeable by those concerned. (f) Finally mention should be made of the judgment in Case 84/81 ( 15 ) in which the aforementioned criteria were once again applied to a measure relating to monetary compensatory amounts having a genuine retroactive effect, that is to say to a regulation published on 26 April 1980 which was to apply with effect from 1 April 1980. In this case the Court of Justice, having regard to respect for legitimate expectation, attached importance to the matters which traders ought to have assumed from the antecedents of a regulation and the purposes to be achieved thereby That case concerned a retroactive measure of the Council and, accordingly, a prior proposal and a communication emanating from the Commission might be material. The Court of Justice also expressly emphasized that, in connection with a reservation contained in the Council measure regarding individual rights, such a reservation could not have the effect of precluding the application of the Council regulation for the duration of a period before its entry into force. That reservation was merely intended to protect rights which had been definitively established by individual decisions of national authorities between 1 and 25 April 1980. (g) Thus it may be said that Community law by no means precludes retroactivity, including genuine retroactivity, and that for retroactivity to be lawful two criteria have to be satisfied: first, whether the purpose to be achieved demands such an effect — and in that connection mandatory demands of public, interest or, in the words of the Bundesverfassungsgericht (Federal Constitutional Court), imperative reasons affecting the public weal might be material — and secondly, whether the legitimate expectation of the parties concerned is respected, that is to say whether such persons ought to have expected a retroactive measure. It does not, however, appear to be of decisive importance, in the light especially of the relevant case-law of national courts, whether the retroactivity is to apply for a shorter or longer period. That aspea may thus at the most be relevant in connection with the two aforementioned criteria, in particular with that of the protection of legitimate expectation.

3. In the light of the case-law of the Court hitherto the following points may accordingly be made as regards the present cases: (a) In my view, it is not material to refer in Case 110/81 to the fan that the actions brought against Regulation No 1293/79 were admitted because thatmeasure contained individual elements, nor is the conclusion drawn from that reference to the effect that the measure intended to replace Regulation No 1293/79 with retroactive effect should be viewed in the same way. The applicant Roquette argues therefore that it is clear from Article 191 of the EEC Treaty that individual decisions take effect on their notification, and therefore it must be assumed that, on account of its individual nature, the contested measure may in no way have retroactive effect. On that point it is possible to take the view that Article 191 of the EEC Treaty merely contains a statement as to the point in time at which a legal measure comes into existence but not on the question whether individual decisions may have retroactive effect. The latter question must in principle be answered in the same way for individual measures as for legislative measures. In particular it should not be forgotten that Regulation No 1293/79 consisted only partially of individual elements but otherwise was doubtless of a legislative nature in so far as it laid down abstract criteria. Furthermore the whole regulation was declared void in the proceedings before the Court since the ground tor the declaration ot nullity was the absence of an opinion of the Parliament which in uselt' was undoubtedly necessarv onlv m connection with the legislative parts o! the repuiauon Since it was thus a question of filling tne gap left bv the declaration ot nullitv. then Regulation No 387/81. which a a? intended tor that purpose must certainly be regarded as being at least in pan legislative in nature Tne question ot the retroactiv itv of the measure mav mus be dealt with entirely according to criteria which applv in generai to legislatíve measures (b) The applicants principally take the view that upon delivery of the judgment declaring Regulation No 1293/79 void, that regulation was eliminated with retroactive effect. Under Article 176 of the EEC Trear\the relevant institutions of the Community were therefore primarily obliged to abolish the effects of that regulation retroactively by addressing appropriate demands to the national authorities responsible for implementation so as to give practical effect to what the applicants call their ngkt to repayment of the production levies paid. It is, however, difficult to share that view. (i) In principle the retroactive disappearance of a measure declared void is to a large extent nothing more than a legal fiction. In such a case it is not really possible to act in every respect as if the measure in question never existed. In my view the problem of producing, subsequent to a declaration of the nullity of a measure, alternative provisions with retroactive effect cannot in principle be dealt with in the same way as the retroactive introduction of a completely new charge which previouslv had no legal existence and in respect of which earlier conduct can no longer, or only with great difficultv, be changed. (ii) Furthermore it is not lustified simply to speak of a right to repayment following the delivery ot a ludpment declaring a svstem o! levies void Lnder Article 1 o o! tne EF. C Treat', the relevant institutions arc required to take the necessarv measures in such a case. Those do not necessarily have to consist ot a repayment The question which alsoarises here is rather whether it might appear appropriate to regularize the situation with retroactive effect. Only if that proves to be inappropriate is it proper to speak of a right to repayment. Thus the applicants cannot take the view that they are entitled a priori to claim a right to repayment and expect that crucial importance be attached to that right in assessing the permissibility of retroactivity. (iii) In that connection it also seems to me appropriate to examine in more detail a decision of the Bundesverfassungsgericht cited by the applicant Amylum because it may indeed give important information which may be of interest in the present cases. I refer to the decision printed on pages 89 et seq. of the seventh volume of the collection of decisions of the Bundesverfassungsgericht relating to the question whether a fee for a dog licence token, which had been charged for many years and in respect of which the Oberverwaliungsgericht [Higher Administrative Court) had held in 1950 that no legal basis subsisted for that demand, could be reintroduced by a law of the same year with retroactive effect to 1 April 1948. Having regard to the principle of the rule of law, the Bundesverwaltungsgericht did not consider that to be obiectionable because the charge was foreseeable and justified by obiective considerations. The fee in question as noi ot such an obviouslv unwarranted nature as to lead citizens to expci that during the period of retroactiv itv the\ere not obliged to make me payment The principle of the rule of la miv aivo give the legislature lustiticjtion tor adopting a retroactive provision ii is: tmdł that a situationhich is: ci'nsiderfvi to be governed bv sututorv provisions is. as a result of a decision of i coun. not so governed or governed Jit'terrntK Fmallv. since the State counted on receipt of the revenue in question it was proper that a legal basis of a different kind be provided. In such a case the utter limits imposed on retroactivity had not been reached because it was merely a question of clarifying a state of affairs which, through an error of law, had become unclear. (c) As regards the solution of the problem referred to the Court, a question of the first importance is clearly whether it is possible to detect an overriding public interest in the retroactivity of the contested regulation. Against that the applicants state that the objective pursued by the special system for isoglucose was always primarily to restrict the production of isoglucose. That objective had indeed been achieved by the application of Regualtion No 1293/79 because no undertaking had exceeded the production quotas and Regulation No 387/81 could contribute nothing more to that situation. The applicant Amylum, however, seeks to derive authority from the case-law of the Bundesverfassungsgericht for the proposition that on no account could considerations of a mere fiscal nature or the desire to ensure uniformity of legislation and the correction of past mistakes be material factors. I cannot agree with that point of view. (i) First, it cannot be correa, even under the case-la of the Bundesverfassungsgericht, for fiscal interests to be entirely excluded from consideration of the public interest which is material to retroactivity. (ii) Secondly, the retroactive maintenance of the production levy to the exclusion of any repayment to the applicants of sums paid is supported by the fact that partial responsibility for the production of surpluses on the sugar market is reflected in the production levy and in the demand for participation in the reduction of the losses arising from exports. In that connection, as regards the relationship between isoglucose and sugar, the Court has enunciated the principle that these two products, which are in direct competition, may not be treated differently (Case 125/77 ( 16 )), even if in the interests of agricultural producers a certain preference for sugar is justified Qoined Cases 116 and 124/77 ( 17 )) If the view of the applicants were accepted there would be a manifest disregard of the aforementioned principles. During the period covered by Regulation No 387/81 sugar production would be discriminated against. Moreover there would have been the fear of other adverse effects because, even if owing to the restriction applying at that time to the production levy on sugar in accordance with the intervention price, a retroactive increase would not have been contemplated, it would not have been inconceivable, in the drafting of a new regulation after delivery of the judgment declaring Regulation No 1293/79 void, that production levies for sugar would have been increased for the current or following marketing year, so as to prevent the resources, which as a result of the loss of the isoglucose levy were no longer available, from being taken from the general budget. (iii) It is also important that repayment of the production levies paid by the isoglucose producers might give rise to fears of a further increase in isoglucose production and an improvement of its competitive position which would threaten the objective of stabilizing the sugar market. In answer to that point the applicants may certainly not object that their production capacity is governed by the quotas fixed by the Community and no increase is to be expected so long as the quotas remain unchanged. Production for expon or in the context of inward processing was in no way restricted. Moreover, the Commission could point to the progressive development of isoglucose production since 1976 to demonstrate that its fears were not unfounded, and above all to the fact that for instance the applicant Amylum increased its capacity from 1979 to 1980 by almost 15000 tonnes and that in 1980 and 1981 the majority of producers had requested an increase in quotas on the grounds of increased capacity and projected investments. (iv) Finallv. in connection with an appraisal of the public interest the principle of fáimra must also be considered In that respect the Community institutions ere able to point to a fact which is certainly damaging to the manufacturer& chim to be exempt from lew in respect o! thr material period, namelv that isoglucose producers gained an advantage as a result of delivery of the preliminare ruling of October 1978 and the absence o', retroactivity in theregulation which was adopted following that ruling and in my view this is not rebutted by arguments, which remain unexamined, put forward in Case 116/77 ( 18 ) concerning official liability to the effect that the applicant Amylum suffered considerable damage as a result of the application of Regulation No 1111/77. In that connection it ought not to be forgotten that isoglucose always derived advantages from the organization of the market in sugar and the special system applying to isoglucose because it had the benefit of an indirect price guarantee on the basis of the intervention price applying to sugar and because a system of refunds for processed products applied. In my view all these factors give justification for recognizing that mere were overriding reasons oj public interest in the retroactivity of Regulation ;Vo 387/81. (d) The following may be said about the other condition for the validity of retroactivity laid do* n by the Court, namely respect for legitimate expectation, that is in the present cases, whether the applicants *ere actuallv entitled to expea that the production lew would be ruminated and the levies paid by them in respect or tne marKCting \ear 1979/SC w ouid be refunded i) In tha: connection it is cenaintv not s a question ut me factum! ¡ubicane wnet o! the applicants Ou: * nether there <an he sa.c, io ne a legitimate expectation "oriin o! prote", nor.. mat is. u nemer tr.e applicants, or :he basis oí al! the es"entia¡ :a".io's kr.i'un at that time, " r r r at liben. ii> azurne tr-.a: tne lesie* ssouiij t"e repa·"! :.· ihr . 7 nus, it -· ".ertame ; " . ü u . r n : u" . io the correspondence submitted to the Court which passed between the applicant Amylum and the Belgian intervention agency which shows (see applicant's letter of September 19801 that, after it had learnt of the actions brought by Roquette and Maizena, it assumed that the Court of Justice would declare Regulation No 1293/79 void for disregard of procedural requirements and also shos that it paid production levies for the vear 1979/80 only in March 19S1 and without prejudice after the entry into force of Regulation No 387/81 and after it had been threatened with massive claims for interest. (ii) So long as Regulation No 1293/79 was in force the parties concerned had to assume its legality and conduct themselves accordingly. The retroactive nullity of that regulation on the other hand merely constiutes, as I have already stated, a fiction which could not eliminate every effect and which, particularly in view of the criterion which I shall now examine, does not give justification for acting as if the aforementioned regulation had never existed. It could only be otherwise if that regulation were manifestly contrary to iazv. From the terms of the judgment declaring that regulation void, on no account can that be said in relation to the questions of substantive la. That can also hardly be said in regard to the procedural requirements applicable to the case (consultation with the Parliament), since in that respect in the light of the facts and circumstances of the case the decision of the Court could not be foreseen with absolute certainty (iii) It cannot therefore be said that, until delivers ot the judgment in October 19SC. declaring Regulation No I 103/79 void (nc applicants had a legitimate expectation of the aoolition ot ne production lew in respect of the marketing year 1979/S-, and by the same token it may also be said that tne aforementioned judgment afforded no grounds for such an expectation. For that judgment expressly rejected the arguments based on substantive law and made it clear that there was no objection to restrictive measures affecting isoglucose producers. Of particular significance is the quite unusual reference at the end of the judgment to the Council's power, following the judgment, “to take all appropriate measures”, which made it entirelv clear that retroactive measures were to be expected. (iv) Furthermore the parties concerned could not found a legitimate expectation of repayment on the conduct of the Commisiion and Council. That is certainly true in so far as the Community institutions' intention of adopting restrictive measures in respect of isoglucose production had already been known since 1977 and that intention was adhered to consistently in the ensuing years. It mav also be seen from the judgment declaring Regulation No 1293/79 void that the Commission pressed for the substantive claims to be dealt with thus making clear that, if the Court agreed, it had no intention of proposing that the levies charged should be repaid. Accordingly, soon after deliverv of the judgment, at the beginning of November 19SC. it occlared to the Management Committee tor Sugar that it intended to propose that the provisions declared void be reintroduced with retroactive effect and there is no doubt that the relevant trade circles received nonce of that intention A proposal to the same effect was published in December 1980 which, under the case-law of both the Court of Justice and and national courts may cenainK be regarded as i tactor relevant to the question of the protection of legitimate expectation, that is to say, contrary to the applicants' assertion, not merely as a formal decision of the relevant legislative body. Finally, no justified conclusions in terms of the claimed expectation may be drawn from the fact that the Council did not provide for retroactivity in respect of Regulation No 1293/79 after the declaration of nullity of Regulation No 1111/77. The determining factor in that respect is simply the difference in the situations. Whilst Regulation No 1293/79, the predecessor of Regulation No 387/81, was declared void only for infringement of procedural requirements and at the same time the criticisms based on substantive law were expressly held to be unfounded, in the proceedings which led to the declaration of nullity of Regulation No 1111/77 the contention based on substantive law as to a breach of the prohibition of discrimination was successful, namely the fact that more onerous charges were applied to isoglucose than to sugar. Although the Council at that time exercised its discretion in matters of agricultural policy by introducing, without retroactive effect, a newly formulated levy — evidently seeking to compensate in a certain way for the fact that too high a rate of isoglucose levy might for a time have had damaging consequences, and perhaps also in view of the fact that the original isoglucose levy had not actually been paid by all undertakings — that as cenainlv no reason for assuming that the Council ould proceed in the same wav in the completely different situation prevailing atter Regulation No 1293/79 had been declared void. The inescapable conclusion is therefore ciear It does not appear necessary to examine tne question which has also been raisec. as to a ho bears the onus ofpresentation and proof and after all that has been said, and in particular because in respect of the period for which retroactivity was provided the case-law of the Court clearly affirmed the appropriate measures for securing the functioning of the market in sweeteners were permissible (Joined Cases 10 and 145/77 ( 19 )) and also that reasonable isoglucose levies were justified (Joined Cases 116 and 124/77 ( 20 )), it can only be accepted that prudent and well-informed undertakings ought reasonably to have expected the retroactivity of Regulation No 387/81 and could expect no repavment of the levies paid in respect of the marketing year 1979/80. (e) In view of that situation, I take the view that it is out of the question for the contested regulation to be declared void for disregard of the prohibition of retroactivity.

II — Breach of the institutional equilibrium; disregard of the authority of Parliament

The applicants in Cases 108 and 114/81 then assen that doubt may be cast on the legality of Regulation No 387/81 on the basis of the abovementioned submission. Thev point out that it is in the procedure of consulting Parliament, to which, as the Court has held, great importance is to be attached, that the supervisory powers of the Parliament mentioned in Article 137 of the EEC Treaty find expression. By their very nature those powers must be exercised before the measure on which the Parliament has to give its opinion takes effect. In any event those supervisory powers would practically be rendered nugatory if, after a measure has been declared void for failure to consult the Parliament, the same measure could be adopted retroactively. In that case the Council could ride roughshod over Parliament's right to play its part because the matter could be remedied later.

I consider this criticism also to be unfounded — and the question may remain open whether, as the Commission asserts, it is only of a secondary nature in relation to the first submission and loses its legal foundation forthwith upon the latter's not being accepted. It is evident beyond doubt that the procedure for consultation with the Parliament provided for in the Treatv is intended to ensure that the opinion of the Parliament may have a bearing on the content of the provisions in respect of which an opinion is required. That is however still possible even in the case of a subsequent consultation. The Parliament can then express its opinion on the question of retroactivity and the Community legislature may thereby be restrained from providing for retroactivity. That, however, did not happen in the present case, since in the Parliament's resolution dated 9 February 1981 (Official Journal 1981, C 50, p. 14) annexed to the report of the Committee on Agriculture dated 13 January 1981 (Document 1-792/80, p. 10) the retroactivity was expressly affirmed. The Parliament may take such an opportunity to express also its opinion on the formulation of the content of the regulation in question with the possible consequence that the new retroactive rules need not necessarily agree with those declared void by the Court of Justice.

In any event it seems to me that fears are misplaced that, if retroactive regulations are permitted in a case such as the present, there is a danger that the Council, in future, will irresponsibly disregard its duty of consultation. At the same time it must not be forgotten that that has happened only once in a particular situation in which, in order to avoid discrimination, a new set of provisions had to be adopted quickly and in which the Parliament did not deal with the matter with particular expedition. The status of the Council as the actual legislature must also be taken into account; this ensures that the rules of the Treaty are paid the utmost respect and in appropriate cases other organs such as the Commission may also perform that function. Finally, retroactivity may not lightly be provided for, so that the Council may not always assume that consultation with the Parliament may take place subsequently with the result that the legal position will remain the same as the one which the Council wished to bring about in the first place without the participation of the Parliament.

III — Breach of the institutional equilibrium; disregard of the authority of the Court of Justice

The applicants in Cases ICS and II /81 are also of the opinion that the contested regulation is open to criticism on the ground that the authority ol the Court as disregarded In their vie the Court of justice, where it declares a regulation void, is to define us temporal consequences pursuant to Article |.*4 ot the EEC Treaty. If the Court does not order that certain effects are to remain in force — as proposed bv the Commission and myself in the case of Regulation No 1293/79 — then that necessarily means that retroactive nullity was intended. Therefore it is not permissible to restore the situation as if the judgment of nullityhad not been delivered. Otherwise, in so far as procedural deficiencies are involved, parties would be deterred from bringing proceedings and would thus virtually be deprived of a pan of their legal protection; moreover the legislature might be induced to ignore procedural requirements of the kind in question here because their observance could not be enforced by Parliament even by means of legal action.

I do not find those arguments convincing either.

First, it is difficult to support the view that the contents of the judgments in Cases 138/79 ( 21 )and 139/79 ( 22 ) sought to prohibit retroactive measures or to lay down that production levies should be paid back. There are in fact indications to the contrary. One might point to the fact — already mentioned — that the Court also examined the substantive claims and considered that they should be rejected. In any event that is what mav be understood by the quite unusual reference to “appropriate” measures which clearly, since that adjective is not to be found in Article 176 of the EEC Treatv, cannot mean consultation with the Parliament, which is in any event mandatory Also in support of that view is previous case-lauhhich u would be difficult to reconcile the possibility that the Court might have wished tobring about a discriminator)' situation to the detriment of sugar producers which would have been the result if the production levies had been paid back.

In particular it cannot be said that, by making no order under the second paragraph of Article 174, the Court wished to preclude subsequent provisions from having retroactive effect. That fact may indeed be explained in another way. It may be that it was a significant factor in the proceedings relating to Cases 138/79 ( 23 ) and 139/79 ( 24 ) that the measure under review was not a regulation pure and simple but also contained elements of individual decisions. In particular it is entirely conceivable that use was not made of the second paragraph of Article 174 out of respect for the Parliament because there was no wish to produce a fait accompli by maintaining in force Regulation No 1293/79. That regulation was of course declared void merely for failure to consult the Parliament; the way was to be left open for that failure to be remedied and it would not have been altogether appropriate if, at the same time, an order had been made that the regulation, which came into existence without the Parliament's being consulted, was nevertheless to retain its effects. Moreover, it should not be overlooked that, following the declaration that Regulation No 1293/79 was void, the problem of retroactive reinstatement arose and that the “public interest” which plays an important pan in thai respect was to be reserved tor appraisal bv the legislative bodies (Council and Parliament).

Moreover, as regards tears that private panics might in tru: w av be deterred from bringing proceedings on the ground of procedural defects and Community institutions might be tempted to disregard procedural requirements, it should not be forgotten that possibilities exist elsewhere, for example with the Commission, on initiating judicial review; in particular it ought not to be forgotten that where a measure is declared void for procedural errors its retroactive reinstatement is by no means the automatic result. Whether retroactivity is to be permitted depends on each particular case and must be examined according to strict criteria.

IV — Inadequate statement of grounds

Furthermore, all the applicants see a ground for a declaration of nullity in the tact that Regulation No 387/81 contains no particular statement of grounds for its retroactivity. In addition the applicant, Tunnel Refineries Limited, raises the objection of a lack of a statement of grounds against Regulation No 387/81 in general. As regards the first point, the applicants stressed that the scope of Regulation No 387/81 is essentially its retroactivity, since its content corresponds to that of Regulation No 1293/79. In that connection it is certainly not sufficient to state that the regulation is substantially compatible wuh Community law. Apan from the tact that the Coun made no such finding, but merely rejected the claims made at that time, such a statement is sufficient merely to justify réintroduction ot the regulation but not its retroactivity. On the second point the applicant. Tunnel Refineries, takes the view, which hoever is evidently not shared by the applicant in Case 1CS/81, that equally detailed reasoning as in the case of Regulation No 1293/79 was appropriate; that reasoning cannot however bereplaced by a reference to that regulation since that regulation has been declared void.

1. In my view, the arguments of the applicants on the first of the two points stated cannot be accepted either. In fact in the preamble to Regulation No 387/81 a sentence on retroactivity is to be found and it cannot therefore be said that there is a total lack of reasoning. That is the reference to the fact that in the proceedings relating to Regulation No 1293/79 all substantive claims were rejected which, in the Council's view, amounts to a finding that that regulation is substantively in conformity with Communitv law. For that reason the Council declared in the last sentence of the preamble to Regulation No 387/81 that it was “appropriate” to reinstate the svstem of quotas retroactively. In that connection u mus; noi be forgotten — as far as the procedural requirements for a - statement of reasons are concernée — that the legislature only has to state us point of view; on the other hand it does not miner in thai connection nemer thai reasoning is sufficient trom the point o: we ot substantize law although in the case ot retroactive measures considerations ol mr public interesi and ihr protection et legitimate expectation must be included Moreover, the Council maintained uh some justification in inj: context thai tne aoovr-mentioned tmumc should be seen m ide light oi us politicai intention to adopt restrictive measure in respect ot isoglucose which had heen kno n since 197 and thai thereiore it was possible to infer that retroactive provisions were necessary.

2. Nor can it be said, in mv view, that there was a lack of a statement of grounds in the sense suggested by Tunnel Refineries. The Council rightly relied upon the relevant case-law to the effect that such statements may be shorter for regulations than for individual decisions and if a regulation forms pan of a wider set of provisions the reasoning must be adjudged in the light of that set of provisions (see for instance Case 125/77 ( 25 )and 230/78 ( 26 )). In that connection no doubt the recitals in the preamble to Regulation No 1111/77 are material in which it was stated that isoglucose is a direct substitute for liquid sugar, enjoys economic advantages as a result ot production constraints on sugar, that because of a sugar surplus it is necessary to export quantities of sugar and therefore there should be provision for a production levy on isoglucose to supplement provisions already applying to sugar and to contribute to expon costs. In thai connection, the reasons given for the svstem of quotas and levies laid down by Regulation No 1293/79 mav also sene as a tacit reference; for, although that regulation was also declared void, u did not thereby become totally nonexistent but remained entirely intact ir. lhe Official Journal as a source of mtormation

V — Infringement of Article 201 of the EEC Treaty and Article 2 of Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources

A further section of this Opinion must be given over to consideration of a further submission which the applicants in Cases 198 and 110/81 put forward only in their replies. They claimed that by introducing a levy on isoglucose the Council sought to create own resources within the meaning of its Decision of 21 April 1970 (Official Journal, English Special Edition 1970 (I), p. 224). However, since Article 2 (b) is not material, only the items specified in Article 2 (a) might be regarded as own resources, namely:

“Levies, premiums, additional or compensatory amounts, additional amounts or factors and other duties established or to be established by the institutions of the Communities in respect of trade with nonmember countries within the framework of the common agricultural policy, and also contributions and other duties provided for within the framework of the organization of the markets in sugar (hereinafter called ‘agricultural levies’);”.

Since, however, the isoglucose levy is not provided for in the context of the common organization of the markets in sugar, in that respect the second paragraph of Article 2 of the Council Decision and thus the procedure laid down in Article 2ZÌ of the EEC Treaty ought to have been observed The Council ought therefore to have recommendeo appropriate provisions to the Member States tor adoption in accordance with their respective constitutional requirements. In particular the applicants pointed in that connection to the fact that the isoglucose levy was not in existence when the Decision of 21 April 1970 came into being. The only comparable product at that time was glucose, from which isoglucose is obtained, but that product clearly did not come within the organization of the markets in sugar, which in practice only applied to saccharose, as Article 1 of Regulation No 1009/67 (Official Journal, English Special Edition 1967, p. 304) makes clear. It came instead within the scope of the organization of the markets in cereals, as is apparent from Article 1 of Regulation No 120/67 (Official Journal, English Special Edition 1967, p. 33) and from Regulations Nos 1862/76 (Official Journal 1976, L 206, p. 1) and 2158/76 (Official Journal 1976, L 241, p. 21), concerning the grant of production refunds. Finally, on the establishment by Regulation No 1111/77 of an organization of the market for isoglucose, it was at the same time made clear bv Regulation No 1110/77 (Official'journal 1977, L 134, p. 1) that isoglucose does not fall within the organization of the markets in sugar.

1. A number of questions as to admissibility arise in connection with this argument. (a) The first question arises in view of the fact that this submission was not made in the applications and Article 42 (2) of the Rules of Procedure of the Coun of Justice obviously does not apply since the fresh submission in suppon of the application is not based on matters of law or of fact which came to light only in the course of the written procedure. The applicants seek to overcome that obstacle by pointing out that the submission put forward bv them subsequently comes, as do submissions as to lack of jurisdiction, infringement of essential procedural requirements and infringement of the Treaty under the head of public poliev. Since, however. according to the case-law of the Court, issues of that kind may be dealt with by the Court of its own motion it must also be possible to raise them only at a later stage of the proceedings. It appears to me very doubtful whether the applicants' argument on this point may be accepted. Whilst it is true that on many occasions the Court has examined issues of its own motion as for example an inadequate statement of the grounds for a measure (Case 18/57 ( 27 )) or the holding of requisite consultations (Case 6/54 ( 28 )) or the legality of a general decision upon which the contested measure is based (Case 14/59 ( 29 )) or questions of jurisdiction (Case 19/58 ( 30 )). Furthermore there are indications to be found in the judgment of the Court in Case 57/71 ( 31 ) to the effect that such an examination may be appropriate in cases where issues are raised which come under the head of public policy, that is to say where important questions and serious breaches of the law are involved. As far as the arguments put forward by the applicants in their replies are concerned, it should not be overlooked that similar arguments were also raised in Case 103/77 ( 32 ) \In my Opinion on that occasion I dealt with those arguments and came to a conclusion which was unfavourable to the applicants. The Court, however, did not examine that question either in that case or in the cases relating to Regulation No 1293/79 in which it was clearly at pains to clarify as many problems of substantive law as possible so that the Community institutions might be given clear guidance as to their future conduct. In fact, therefore, it may be assumed that the arguments in point are not of such importance as to justify an examination by the Court ex proprio motu; one might even consider it appropriate to conclude that the wellfoundedness of criticism of that kind was thus tacitly denied by the Court. (b) It should also be recognized that objections as to the admissibility of the submission at present under discussion may also be raised from two other points of view. (i) The applicants have made no submission as to the justification of the production levy as a means of organizing the markets in the context of the common agricultural polio', which would moreover be scarcely conceivable in view of a line of decisions of the Court, in which it has been repeatedly 14C80stressed that restrictive measures in respect of isoglucose are permissible. Their criticism relates solely to the budgetary treatment of the revenueresulting from the levies, that is to say, its allocation to the Communia budget. In that connection the Council argued with good reason that that submission could not serve the interests of the applicants, for even if their criticism were justified that would not lead to an exemption from the levies but only to an allocation of the revenue resulting from the levies to the budgets of the Member States. In that light the view may be taken that the applicants do not have an interest in making that submission on the basis that an interest must be shown not merely in bringing the action as such but also in making individual submissions. (ii) Since the applications — in so far as material in this respect — are directed merely against Regulation No 387/81 it is also significant that it is nowhere stated in that regulation that the levies are to be regarded as the Community's own revenue. That that is the position is, however, made clear in principle bv Regulation No 111C/77, Article 4 of which governs the use of the production levy. Accordingly, it was also stated in the ninth recital of the preamble to Regulation No 1111/77 that the isoglucose levy is analogous to the levy provided for in Article 27 of Regulation No 333C/74 (Official Journal 1974, L 339. p. I) and. consequently, constitutes own resources of tne Communitiesunni the meaning of Article 2 of the Council Decision ot 21 April I97C. Thus the view ma\be tauen thai the submission reiatmg to Article 2-1 of the EEC Treat\does not directK relate to lhe measure artieri n now being contested Out concerns mereiv the budgetari treatment of a measure for the organization of tne market tkhich was decided upon elsewnere. namely in the budget uselt

2. If one disregards the objections as to admissibility which have been indicated — as to the last-mentioned point perhaps on the ground that Regulation No 387/81 tacitly reveals that the production levy may be regarded in that way because the objective pursued by it mav only be achieved if the Community is able to have at its disposal the revenue arising from it — a consideration of the substance of the new argument, however, shows that it too, cannot assist towards the success of the applications. I have already tried to give my reasons for that in my Opinion in Case 103/77 ( 33 ) and, even after the arguments submitted in the present cases, I see no reason for changing my view. In my opinion the applicants are placing a much too narrow construction on the phrase in Article 2 of the Council Decision of 21 April 1970 which mentions “levies ... provided for within the framework of the organization of the markets in sugar”, when they assen that it may onlv relate to levies charged on sugar itself in 1970 in accordance with the market organization existing at that time. If that had been the intention it would no doubt have been clearly stated and there would not have been used, as in fact was the case, the plural “levies”, the vague formulation “within the framework of the organization of the markets in sugar” as well as the temporal expression “provided for”, which is clearly distinct from the expression “established” which is to be found earlier in the paragraph. Of greater significance to me is the argument to the effect that the phrase which I have quoted shouldbe interpreted in the light of the principle, expressed in the formulation “established or to be established”, laid down in the first pan of Article 2 (a) in respect of levies within the framework of the common agricultural poliev. Only this makes possible a meaningful and dynamic interpretation which is capable of covering unforeseen developments and of avoiding manifestly absurd results which at the time were cenainly not intended, such as the consequence, demonstrated by the Council on the basis of the applicants' argument, that whenever a substitute product appears a diminution of own resources would take place. The phrase “levies ... provided for within the framework of the organization of the markets in sugar” should therefore be understood as including levies on products which are by their nature very closely linked with the organization of the markets in sugar and which constitute mechanisms needed to enable the objectives of that organization of the markets to be attained. It cannot make any difference therefore that the sweetener isoglucose, after it had first been produced in appreciable quantities, was initially based on the organization of the markets in cereals for the purposes of production refunds and that a special market organization was later created for it, a manifest feature of which was that it was not intended to have anv importance of its own but was to be understood in the light or the organization of the markets in sugar to wmch express reference was made In anv e\rnt isoglucose, as the most important knon sugar substitute, belongs bv its nature to the sugar vector and. a ( 34 ) rui brer. recognized b\tne Court, is urpenoen: on mat sector For those reasons and also because tre Coun has not oni\emphasized the iio*e link between the markets tor iwcu-o'- and sugar (Cases 103/77 ( 34 ) and 138/79 ( 35 )) but has also held it to be permissible for regard to be had to the interaction between products from different market organizations (Case 125/773 ( 36 )) and for the Council to take measures to ensure the functioning of the market in sweeteners (Joined Cases 103 and 145/77 ( 34 )), there can be no objection to the Council's having placed the isoglucose lew on the same footing as the corresponding levy on sugar and thus having regarded the revenue arising from the lev)' as own resources within the meaning of the Decision of 21 April 1970.

VI — The application for a declaration that Regulation No 388/81 is void

It only remains therefore to say a few words about the application, made solely in Case 110/81, for a declaration that Regulation No 388/81 is void.

That regulation — as I explained at the outset — was adopted so as to amend Regulation No 1592/8C. The latter regulation, which has not yet been declared void and dearly came into existence after the Parliament had been consulted, originalu referred to Article 9 of Regulation No llll.~~ tor the period from I July losZ to }Z lune 19SI and provided that tor that period the basic quota for each isogiucove-producing undenaking should be that applicable during the period from 1 July 1979 to 30 June 1980; in so doing it referred to Regulation No 1293/79 which was subsequently declared void by the Court. Regulation No 388/81 also provided that Article 9 of Regulation No 1111/77, in the version as amended by Regulation No 387/81, was to apply during the period 1 July 1980 to 30 June 1981 and that for that period the basic quota of each isoglucose-producing undertaking was to be that applicable during the period from 1 July 1979 to 30 June 1980 pursuant to Regulation No 387/81. It is clear that, as may be inferred from the abovementioned repon of the European Parliament's Committee on Agriculture this was done in view of the fact that Regulation No 1592/80 originally referred to Regulation No 1293/79 and thus in order to avoid any doubts as to legality.

The applicant Roquette did not make any submissions of its own in regard to Regulation No 388/81. It may therefore be assumed that it takes the view that if Regulation No 387/81 were declared void Regulation No 388/81 would fall with it because it refers to the firstmentioned regulation and its validity therefore depends on that regulation. Since, however, it has been shown that there is no reason for declaring Regulation No 387/81 void it also manifestly follows that the application for a declaration that Regulation No 388/81 is void must be dismissed.

VII —

In the result I can therefore only propose that the actions brought by the undertakings Amylum, Roquette and Tunnel Refineries be dismissed as unfounded and that each applicant be ordered to pay the costs of the proceedings brought by it.

( 1 ) Translated to the German

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( 4 ) Judgment of the Court of 29 October 1980 in Case 138/74 Sa Roquette Frères v Council [1980] ECR 333

( 5 ) Judgment of 29 October 1980 in case 139/74 Maizena GmbH v Council [1980] ECR 3393

( 6 ) Case 176/80 SA Roquett Frères v Council Judgment not π tìrmrre

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( 13 ) of 25 januray 1979 in Case 98/78.......

( 14 ) of the court of 23 januray 1979 in Case .........

( 15 ) of the court of 19 May 1982 in casse 94/81 ...........

( 16 ) of 2 Octobre 1979 in Case 125.....

( 17 ) of the Court of 5 December 1979 in...

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( 19 ) The Court of 25 Octobre 1979.............

( 20 ) THE Court of 5 December 1979.........

( 21 ) of the Court 29 Octobre 19...

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( 25 ) in Case 125.....

( 26 ) in Case 237

( 27 ) .......Case 14/57.........

( 28 ) .......1955 in case ...

( 29 ) ........1959 in Case 14/59

( 30 ) ....1968 in case 1958....

( 31 ) ...........1962 in Case 19/58.......

( 32 ) ....of the court of 25 Octobre 1975 in...

( 33 ) Judgement of the Court of 25 Octobre 1978 in journed Cases........

( 34 ) ...........

( 35 ) ..........29 Octobre 2696

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