2.

The second question which arises upon the first question being answered in this way, is whether Regulation No 1048/71, insofar as it is to be applied to situations as yet developing, offends against the general legal principles of legal certainty and protection of confidence, which to this extent might affect its validity. That as we know — and I have already hinted at it in outlining the national proceedings — was the plaintiffs' opinion. In this connection they do admittedly concede that we are not dealing with real retrospective effect, i.e. the burdensome effect upon completed state of affairs which, if at all, is only permissible within narrow confines and in rare exceptional cases. They do however take the view that we are dealing with a ‘material or quasi retrospective effect’ (eine naturelle oder unechte Rückwirkung, see e.g. Breifelds Rechtswörterbuch, 2. Auflage, ‘Rückwirkung von Gesetzen’ pp. 904/905) since Regulation No 1048/71 has effect upon situations as yet developing and resulted in invalidating legal positions that had previously been acquired. This being only permissible when Community interests rendered such a solution indispensable and since in the case at presenet before us this justification was lacking, one was left with the conclusion that the validity of Regulation No 1048/71 might be open to doubt. In relation to the second range of problems in the national proceedings that have thus been mapped out, one must first of all emphasize that Community law does not provide a clear answer. One can however say that the principles adduced in this connection by the plaintiffs, i.e. the principles of legal certainty and protection of confidence, have already been recognized in Community Law in another context and have become the object of national case law (cf. Cases 42 and 49/59 (Rec. 1961 p. 109), 14/60 (Rec. 1961 p. 345), 14/61 (Rec. 1962 p. 511), 13/61 (Rec. 1962 p. 97), 17 and 20/61 (Rec. 1962 p. 653), 111/63 (Rec. 1965 p. 893), 2/70 (Rec. 1970 p. 97), 12/71 (Rec. 1971 p. 743)). It therefore seems reasonable in connection with the present examination first to proceed from the principles of German law adduced by the plaintiffs. This is all the more justifiable since, I think I am right in saying, similar concepts can also be found in French and Belgian case law. According to those decided cases it is crucial that there should be a reference to a material or quasi-retrospective effect, not merely a permissible retrospective effect on the immediate application of new provisions upon as yet incompleted situations facts developing and legal relationships, when it is a case of loss of legal positions (cf. the decision of the Bundesverfassungsgericht (Federal Constitutional Court) of 22 June 1971, ‘Die öffentliche Verwaltung’ 1971, p. 604). Under French and Belgian law there is a proviso that there must be no infringement upon well-established rights (cf. the judgments of the French Cour de Cassation of 20 February 1917 and of the Cour d'Appel de Bruxelles of 23 October 1940). It therefore falls to examine whether in the event of an alteration of Article 12 of Regulation No 766/68 and its applicability to export licences as yet not fully used, i.e. upon a correction of the provision which in the event of a change in the intervention prices compulsorily provided for an adjustment of the refunds, into a discretionary provision, one can speak of such an encroachment, even if the concession took place before the changed intervention price came into force and became applicable. The Commission, as we know gave a negative answer and, let me say this here and now, we shall probably have to agree to their appraisal of the situation. In this connection we can right from the start leave out of consideration the fact, that following national administrative practice or perhaps national administrative provisions, a reference to Article 12 of Regulation No 766/68 was included in the export licence. This reference is in fact of no significance, not only because Community law did not provide for it but also because in the interests of a useful clarification, it had the specific function of pointing to a possible reduction of the amount of the refund. The only really crucial fact is that the abovementioned Article 12 in its old version, upon the issue of the licence and for a considerable period thereafter, provided only a conditional right, only a prospect of an increase in the amount of the refund, but did not provide any kind of certainty in this respect. Even when an increase in intervention price was being seriously discussed, it could not provide certainty of a further improvement in the situation of the exporters concerned, since after all they too had to expect Article 37 (2) of Regulation No 1009 to apply, i.e. the provision under which, upon changes in the price level and for the purpose of avoiding disturbances on the transition from one accounting year in the sugar section to another, the necessary provisions can be promulgated by administration process e.g. by the raising of a levy on old stock which had been acquired at a lower price. At the earliest, one could therefore speak of an actual right to an increase in the amount of the refund at the point of time when the rise in the intervention price came into force, that is, as from 16 June 1971. Before that point of time and accordingly also at the moment when Regulation No 1048/71, came into force, a change of the provision concerning the rectification of the refund could have taken place without this constituting an infringement of rights previously acquired by holders of licences issued at an earlier date. Likewise one cannot object on the grounds that the Commission itself concedes the preliminary laying down of the amount of the refund amounted to the grant of a legal position which even though conditional upon exports taking place, could not be interfered with by changes in the law. This state of affairs cannot really be regarded as on all fours with the one at present before the Court, for the simple reason that as regards exports — the condition precedent for the granting of a refund — there exists, due to the well known obligation secured by a deposit, a very much higher degree of security than in respect of the rise in the intervention price, the factor which is relevant in the national proceedings; there the payment depended on a political decision and therefore had to be regarded as uncertain at the time of granting the licence. Although, therefore proceeding from the principles of some national legal systems, one cannot in the alteration of Article 12 of Regulation No 766/68 and its direct application before the coming into effect of the rise in the intervention prices applicable for the economic year 1971/1972 to existing licences as yet not fully utilized, discern a diminution of a legal position or an infringement of existing acquired rights; there yet exists no reason based on this precedent, for applying principles and restrictions which operate under some national legal systems, in respect of genuine cases of material retrospective effects e.g. the case where the admissibility of direct applicability of changed legal norms is dependant upon proof of a compelling Community interest. I repeat, in principle there is no cause for criticism in the fact that Regulation No 1048/71 is directly applicable even in relation to existing legal relationships. This does not however completely conclude the examination of the second question. One ought rather to consider imposing on our conclusions some limitations to which the plaintiffs in the course of the oral proceedings drew attention and which the Commission — if I understand them correctly — did not consider entirely unjustified. They are based on the principle of protection of confidence in the individual case, the recognition of an acquired position of confidence i.e. upon the argument according to which under our case law it may in relation to the principles of legal certainty and protection of confidence be assumed, that they have taken their place in Community law. What it amounts to might be explained as follows. One must proceed from the assumption that the issue of a licence creates the basis of a legal situation in public law that for delaing with this and for its evolution a certain legal framework was essential within one could find Article 12 of Regulation No 776/68 in its old form. Now it is possible that some people affected thereby made arrangements, such as commercial contracts, taking account of these provisions and trusting in their continuing in force. If then one cannot go back on such arrangements in time, then a subsequent alteration of the legal position upon which one had relied might result in damage. This in itself is not however sufficient; in such circumstances, just as in the case of a ‘quasi retrospective’ effect it requires a weighing up of respective interests and an interference with a position of confidence entitled to production can only be sanctioned if public interests predominate (cf. the decision of the Bundesverfassungsgericht of 23. 3.1971 (Die öffentliche Verwaltung 71, p. 605)). In the present case this may not be so. It would appear that exporters (admittedly this is not relevant in the case of intervention sugar) have for years on the purchase of sugar accepted clauses in contracts of sale — perhaps they were obliged to accept such clauses — pursuant to which changes in price can take place in the cases of delivery after 30 June 1971, if official sugar prices in respect of the financial year then commencing should change. Such agreements could be arrived at without any risk since the existence of Article 12 of Regulation No 766/68 in its original version automatically provided for increased refund in the event of rises in price. At any rate this applied to a period during which the change in Article 12 was not yet the subject of discussion and was not yet known in commercial circles, (a state of affairs which from the statements of the Commission could only apply to the period prior to March and April 1971). The subsequent alteration of Article 12 and its application to existing licences could in such a case lead to damage to a position of confidence; in the final resort this forces us to face the question whether in weighing up the relation interests such damage is to be treated as less important than the Community interests that are involved. That can hardly be the case. If I see it correctly, the Community is solely concerned with avoiding a rise in the refund, i.e. with certain financial considerations. Besides, after what we have heard the sums are likely to be comparatively modest. Finally, we must also consider that the Community has renounced applying Article 37 of Regulation No 1009, i.e. to levy charges on the disposal of old stock within the Community. This surely justifies us in seeing here a certain discrimination against exporters, it also entitles us to assume that the financial effects of the price rises are likely to be modest from a Community point of view. Considerations of protection of confidence would therefore in individual cases exclude the application of the changed law affected by Regulation No 1048/71 to previously issued export licences, even when the validity of such a change of law cannot be questioned on principles of material retrospective effect. In my view that is the way to answer the second question and thus to make it clear to the national court that in the final resort the answer to the delicate problems which it has submitted depends upon an appraisal of the individual circumstances. After all this, little more will have to be said on the third question submitted by the Hessisches Finanzgericht. That question apparently arises from the assumption that Article 12 of Regulation No 766/68 in its original version is to be applied in cases in which licences had been issued before the change of this Regulation. In respect of this case the Finanzgericht desires to know whether an adjustment of the refund requires a prior decision on the part of the Commission. The plaintiffs in the national proceedings and the Commission agreed that this question can be answered in the negative. Relevant is the fact that we are dealing not with an assessment of the refund, which is the prorogative of the Community organizations, but solely with a correction. Furthermore, it is important that we are dealing with an obligatory adjustment of the refund based upon a certain test i.e. the application of an obligatory provision contained in a Community Regulation, in respect of which the formalities have been precisely laid down. In fact there is no reason to reserve measures of this kind to Community bodies. As simple arithmetical operations they clearly fall within the sphere of competence of the national executive organs.