CELEX: 61984CC0033
Language: en
Date: 1985-02-28
Title: Opinion of Mr Advocate General Lenz delivered on 28 February 1985. # SpA Fragd v Amministrazione delle finanze dello Stato. # Reference for a preliminary ruling: Tribunale civile di Venezia - Italy. # Monetary compensatory amounts on maize products - Validity of a regulation. # Case 33/84.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 28 February 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      A.
      The first case on which I am to speak today is concerned with the validity of a Community regulation fixing inter alia the monetary compensatory amount for powdered glucose (dextrose) which is obtained from maize and falls under heading No 17.02 B II (a) of the Common Customs Tariff.
      In the order for reference the national court refers to Regulation (EEC) No 1541/80 of 19 June 1980 (Official Journal 1980, L 156, pp. 1, 2, 5 and 6). However, the Commission has shown — and the plaintiff in the main proceedings has endorsed this view — that it is more appropriate to refer to Regulation (EEC) No 2140/79 (Official Journal 1979, L 247, p. 1) in which the ‘Italia’ column set out in Annex I thereto was replaced, as is clear from Article 1 of Regulation No 1541/80, by the corresponding column appearing in Annex I to the latter regulation.
      The said regulation was applied at a time when the plaintiff, an undertaking engaged in the processing of agricultural products, exported to the Federal Republic of Germany between 7 and 11 July 1980 in intra-Community trade the product referred to earlier. In that connection, since Italy is a country with a weak currency, monetary compensatory amounts were to be paid by the exporter.
      The plaintiff takes the view that the monetary compensatory amount was approximately 14% higher than it should have been since the regulation in question fixed the monetary compensatory amounts for products processed from maize on the basis of the intervention price for maize, without taking into account the production refund which is granted on maize starch and which leads to a reduction in the price of the raw material. That practice was held to be incorrect by the Court in connection with an earlier regulation (No 652/76) in its judgment of 15 October 1980 in Case 145/79, (
            1
         ) with which the plaintiff is evidently familiar.
      The plaintiff therefore brought an action before the Tribunale di Venezia (District Court, Venice) for the recovery of the monetary compensatory amounts levied in excess in breach of Regulation (EEC) No 974/71. The national court considered that the plaintiff's contentions were not without foundation. Accordingly, by order of 24 November 1983, it stayed the proceedings and referred to the Court of Justice pursuant to Article 177 of the EEC Treaty the following question for a preliminary ruling:
      ‘Is that part of Commission Regulation (EEC) No 1541/80 of 19 June 1980 which fixes monetary compensatory amounts for the exported products in question (powdered glucose or dextrose, falling under Common Customs Tariff heading No 17.02 B II (a)) at LIT 29612 per tonne valid, given that, in calculating those monetary compensatory amounts, reference was made to the intervention price of maize without taking into account the production refund on maize starch, in accordance with the criterion which has already been severely criticized by the Court in its judgment of 15 October 1980 in Case 145/79?’
      B. Opinion
      
               1.
            
            
               The single question submitted by the national court clearly does not give rise to any difficulties.
               As I mentioned earlier, there is already a consistent line of decisions concerning the problem whether the calculation of monetary compensatory amounts for products processed from maize and maize starch can be based on the intervention price for maize or whether — as far as intra-Community trade is concerned — the production refund is to be deducted. Those decisions, which have never been called in question, have not been criticized by the national court either. Accordingly, it is clear that monetary compensatory amounts for processed products, which are calculated on the basis of the intervention price without deducting the production refund, are unlawful. That must also hold true for the regulation at issue here, which, as the Commission openly admits, provides for the application of the very same method of calculation.
               It may even be said that now it is scarcely necessary to establish that the regulation at issue in these proceedings is invalid since that conclusion is already apparent, at least by implication, from the judgment of the Court of 15 October 1980 in Case 145/79 (
                     2
                  ) In that regard, it is significant — even if the latter case was concerned with maize starch (and not with glucose) — that the Court criticized ík general the calculation of monetary compensatory amounts for products processed from maize (‘maize starch and ... products derived from it’ — paragraph 16 of the decision), in respect of which the production refund must be taken into account. Moreover, not only was Regulation (EEC) No 652/76, which was relevant at the time, declared invalid on the ground stated, but the Court also held in paragraph 49 of its decision that ‘the same conclusion must also apply with regard to the validity of the subsequent regulations of the Commission fixing or altering the monetary compensatory amounts applicable to the products referred to in the foregoing paragraph’. That also included Regulation No 2140/79 (as subsequently amended by Regulation No 1541/80 of 19 June 1980) which was already in force at the time when the judgment was given. The reason is that Regulation No 2140/79 replaced an earlier regulation (No 1367/79) and it is possible to discern through other regulations an unbroken link with Regulation (EEC) No 527/76 which was itself supplemented by Regulation No 652/76, referred to earlier.
               In the present case, therefore, a ruling to the effect that the regulation with which the Italian court is concerned is invalid on the basis of the judgment of the Court in Case 145/79 1 would be sufficient. However, in the interests of legal certainty and legal clarity, since at the time neither the regulation at issue here nor the product now under consideration were expressly mentioned in the operative part of the judgment, there can be no objection to an express declaration in the operative part of the judgment to the effect that Regulation No 2140/79 (as amended by Regulation No 1541/80) is to be regarded as invalid for the reasons already given.
               No further observations are called for at this stage, having regard to the operative part of the order for reference and the grounds on which it is based.
            
         
               2.
            
            
               During the proceedings, however, detailed consideration was given (and for the plaintiff, it may be said, in particular) to the question of the effects of the declaration of invalidity. Even though it was not expressly raised by the national court (evidently because, like other courts, that court wishes, in spite of the findings of the Court of Justice in Case 145/79 (
                     3
                  ) which I intend to consider in due course, to give an independent decision on the claim for recovery and hence to draw the consequences which in its view necessarily follow from the declaration of invalidity), the problem should not now simply be passed over in silence. That problem is also relevant in the light of certain questions expressly raised in Cases 39/84 (
                     4
                  ) and 46/84, (
                     5
                  ) which are now before the Court, and if express findings are made in those cases, they must of course also apply to this case.
               
                        (a)
                     
                     
                        I would remind the Court that in its judgment in Case 145/79 it held, as regards the effects of a declaration of invalidity in proceedings for a preliminary ruling, that it was correct to apply by analogy Article 174 of the EEC Treaty which provides as follows :
                        ‘In the case of a regulation, however, the Court of Justice shall, if it considers this necessary, state which of the effects of the regulation which it has declared void shall be considered as definitive.’
                        Accordingly, the Court expressly held in that case that the fact that the provisions of the regulation in question had been found invalid did not enable ‘the charging or the payment of monetary compensatory amounts by the national authorities on the basis of those provisions to be challenged as regards the period prior to the date of this judgment’ (paragraph 53 of the decision).
                        The Commission drew the appropriate consequences and altered the relevant monetary compensatory amounts (including those for the product at issue here) by Regulation (EEC) No 3013/80 of 21 November 1980 (Official Journal 1980, L 312, p. 12). The fourth recital in the preamble to the regulation states that, as a result of the judgment given on 15 October 1980, the monetary compensatory amounts calculated in conformity therewith are to be applied as from 15 October 1980 to any traders who so request.
                     
                  
                        (b)
                     
                     
                        The plaintiff disagrees. It considers that, in principle, once the Court of Justice has declared a regulation invalid, the Court's function comes to an end and that it is then for the national court to draw the consequences of that declaration. The national court must therefore decide the question of the recovery of any monetary compensatory amounts overpaid (as was emphasized in previous judgments) in accordance with national law. Under Italian law, which, according to the plaintiff, is applicable in this case, monetary compensatory amounts improperly levied must be repaid (except where recovery is barred by lapse of time or by the expiry of the period for recovery). In this case, the monetary compensatory amounts were reportedly paid in July 1980 (that is to say before the judgment in question was given). However, on 1 July 1980 Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties (Official Journal 1979, L 175, p. 1) had entered into force. In the plaintiff's view, that regulation offers a solution in Article 2 viewed in conjunction with Article 14 in circumstances such as those of this case since it provides for repayment if the amount of the duties entered in the accounts exceeds for any reason the amount lawfully payable.
                        
                        The Commission does not share that view. Instead, it contends that there is no reason to depart in any fundamental respect from the established case-law. At most, the Commission considers that a degree of flexibility is appropriate involving recognition that the declaration of invalidity has retroactive effect in relation to claims for recovery submitted before the judgment in question was given. However, the Commission considers that the effect of invalidity ex nunc should be restricted to cases which are to be regarded as concluded when the judgment was given.
                     
                  
                        (c)
                     
                     
                        Further remarks
                        
                                 (i)
                              
                              
                                 If the view is taken — as I believe it must be — that the judgment in Case 145/79 (
                                       6
                                    ) also invalidates the regulation at issue in this case and that consequently the ruling concerning the effects of the declaration of invalidity also applies to that regulation, the question arises, according to the plaintiff, whether a departure from that judgment is appropriate in the circumstances.
                                 In that regard it is impossible for instance to argue — in order to facilitate such a decision — that the proposed departure relates only to a case in which monetary compensatory amounts are merely to be reduced (namely by deducting the production refund from the price of maize). In its judgment in Case 145/79 (
                                       6
                                    ) the Court adopted a critical attitude towards Regulation No 652/76 and the regulations adopted subsequently also because the sum of the compensatory amounts applicable to all the processed products exceeded the compensatory amount fixed for the basic product (paragraph 48 of the decision). Accordingly, a new, comprehensive structure for the monetary compensatory amounts applicable to several processed products was necessary; in other words it is not only the reduction of a single item that is involved. Moreover, in order to limit the effects of the declaration of invalidity not only the factor to which I have just referred was relevant but also the finding that otherwise ‘in view of the lack of uniformity in the relevant national legislation ... considerable differences in treatment’ could arise, thereby causing further distortion in competition (paragraph 52 of the decision).
                              
                           
                                 (ii)
                              
                              
                                 In so far as the plaintiff maintains that it is inappropriate in principle to apply Article 174 of the EEC Treaty in proceedings for a preliminary ruling concerning the validity of Community regulations, I see no reason to endorse that view and to propose such a drastic departure from the established case-law. In my view, that basic question must be regarded as settled in the light of the detailed investigations carried out. I am quite confident, like Mr Advocate General Darmon in his Opinion in Case 112/83 (
                                       6
                                    ), that the provision in question is also applicable in connection with a ruling that a Community regulation is invalid, since it is clear that the same conflicts of interest can arise in that regard as in the case of proceedings for a declaration that an act is void. Furthermore, all the critical remarks made or referred to in that connection are in my view insufficient to subject the basic question to renewed scrutiny.
                              
                           
                                 (iii)
                              
                              
                                 Nor is there any reason in my view to depart from the established case-law in the light of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties, which was referred to by the plaintiff and which entered into force on 1 July 1980 (see Article 27 thereof).
                                 That regulation was already in force when the judgment in Case 145/79 (
                                       7
                                    ) was given. Nevertheless, the Court made the contested findings referred to earlier concerning the effects of a declaration of invalidity. Nowhere is it apparent, however, that the problem of retroactivity at issue here was also considered at the time in the light of the regulation to which reference has now been made.
                                 That regulation is inapplicable for other reasons. It applies in particular only to levies and other charges on exports to nonmember countries (Article 1 (2) (b)) and not to monetary compensatory amounts which are levied in intra-Community trade and which, the plaintiff seeks to recover in the main proceedings. Its field of application was extended to monetary compensatory amounts for the first time by Commission Regulation (EEC) No 1371/81 of 19 May 1981 laying down detailed rules for the administrative application of monetary compensatory amounts (Official Journal 1981, L 138, p. 1 —Article 22 (2)).
                                 Even on the assumption that Regulation No 1430/79 was applicable to monetary compensatory amounts prior to the date of the judgment, the fact remains that the requirements of Article 2, which was referred to by the plaintiff and which provides for the grant of a refund upon proof that the amount of duties entered in the accounts exceeds for any reason the amount lawfully payable, are simply not fulfilled if the Court of Justice declares a provision invalid but only with effect for the future. As regards the period prior to 15 October 1980, the date on which the judgment in question was given, it is necessary to proceed on the basis that the relevant provision was still valid. In that connection, moreover, the view that Regulation No 1430/79 restricts the application of Article 174 of the EEC Treaty cannot be endorsed, whilst it is true on the contrary that a decision of the Court based on that provision of the Treaty carries more weight than the Community secondary legislation which is embodied in that regulation.
                              
                           
                                 (iv)
                              
                              
                                 Nor is there any reason to depart from the established case-law and to recognize that the declaration of invalidity takes effect retroactively at least as regards the partial repayment of monetary compensatory amounts levied in excess from undertakings which were required to pay them on the basis of the regulation at issue in these proceedings.
                                 In that regard, the view that the problem of retroactivity has now been rendered less acute by Council Regulation (EEC) No 1697/79 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment (Official Journal 1979, L 197, p. 1), with the result that undertakings in countries with hard currencies need not fear, following the rectification of excessively high monetary compensatory amounts, the recovery of monetary compensatory amounts received in excess, cannot go unchallenged. The application of Regulation No 1697/79 was also extended to monetary compensatory amounts for the first time by Regulation No 1371/81 (Article 22 (2)). Moreover, it is highly questionable whether Article 5 of that regulation (on which the plaintiff relies) is of assistance in such cases, since it deals only with the post-clearance recovery of duties and with its inapplicability in certain cases.
                                 The decisive argument against retroactivity was, as I mentioned earlier, that owing to the absence of uniformity between the relevant national provisions retroactivity could lead to substantial differences in treatment if the recovery of amounts unduly paid by the undertakings concerned in countries with weak currencies and by the competent national authorities in countries with strong currencies were permitted. Clearly, therefore, it was not only the risk of the recovery from undertakings in countries with hard currencies of monetary compensatory amounts received in excess that was considered. It is also clear, in view of the different conditions in force in the Member States for the recovery of compensatory amounts from the competent authorities, that the risk of distortions of competition referred to earlier would not be averted if retroactivity were precluded solely for the benefit of undertakings in countries with hard currencies.
                                 Last but not least, the possibility of departing from the approach taken in the established case-law having regard to the facts of this case and the declaration that Regulation No 2140/79 is invalid cannot be taken into consideration. The reason is that even though it must be acknowledged that the Court of Justice made its findings in Case 145/79 (
                                       8
                                    ) mainly on the assumption that the case was concerned primarily with a regulation adopted in 1976, it must nevertheless be borne in mind that the judgment also expressly encompassed all regulations which might be adopted subsequently. If, however, the possibility of drawing a distinction by reference to the date on which the regulation was adopted were now to be considered, it would not only be difficult to determine where to draw the line but it would also lead to the unequal treatment of the undertakings concerned, which however the Court was most anxious to avoid, and rightly so, in the judgment referred to earlier.
                              
                           
                                 (v)
                              
                              
                                 Accordingly, the most that can be considered is a more flexible application of the established case-law in the manner advocated by the Commission. It will thus be possible to exclude from the scope of the restriction imposed on the effects of the declaration of invalidity cases in which prior to the judgment establishing invalidity legal action was taken at the appropriate time to challenge any measures adopted pursuant to the regulation declared invalid, that is to say cases not involving administrative proceedings which have been concluded and are regarded as final by the parties concerned. In such cases it may in principle be appropriate to recognize that the need to ensure that justice is done in individual cases takes precedence over considerations of legal certainty. A person who asserts his rights must therefore be allowed to succeed in his efforts and must be assisted rather than obstructed. This would constitute merely an extension of the judgment in Case 43/75 Defrenne, (
                                       9
                                    ) concerning the interpretation and direct application of Article 119 of the EEC Treaty (the principle than men and women must receive equal pay for equal work), in which exceptions to the principle that a ruling on interpretation takes effect ex mmc were held to be legitimate in relation to persons who have already instituted legal proceedings or made an equivalent claim (paragraphs 74 and 75 of the decision). These considerations tally with those relied upon by the Court in its judgment of 27 February 1985 in Case 112/83 (
                                       10
                                    ) (paragraph 18 of the decision).
                                 I must however add at once that a more flexible application of the established case-law along the lines suggested would be of no avail to the plaintiff in these proceedings. As regards the regulation with which the plaintiff is concerned, it is necessary to proceed on the basis that it was already declared invalid by the Court in its judgment of 15 October 1980‘ mentioned earlier. However, the plaintiff did not bring an action for recovery in a court of law until May 1982 (long after the judgment in question had come to the plaintiff's notice). It cannot therefore be said that the plaintiff strove before the decisive judgment was given to alter the legal position by instituting proceedings at the appropriate time. The plaintiff seeks, as it were, to benefit only from the results of litigation initiated by others, which can scarcely be regarded as an interest worthy of protection.
                              
                           
                  
                        (d)
                     
                     
                        In this case, therefore — should the Court of Justice not confine itself to the statement that Regulation No 2140/79 is invalid as a result of the judgment given in Case 145/79 (
                              11
                           ) — it may simply declare that the said regulation is to be regarded as invalid on the grounds referred to at the outset. As regards the effects of the declaration of invalidity, however, it is sufficient in this case to adhere to the findings made by the Court in its judgment in Case 145/79. ’
                     
                  
         C.
      To summarize, therefore, I propose that the answer to the question submitted by the Tribunale di Venezia should be that Regulation No 2140/79, as amended by Regulation No 1541/80, is invalid in so far as monetary compensatory amounts for powdered glucose or dextrose falling under heading No 17.02 B II (a) of the Common Customs Tariff were fixed on the basis of the intervention price for maize without deducting the production refund on maize starch.
      (
            *1
         )	Translated from the German.
      (
            1
         )	Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French Stute [1980] ECR 2917.
      (
            2
         )	of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980] ECR 2917.
      (
            3
         )	Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980] ECR 2917.
      (
            4
         )	Case 39/84 Maizena GmbH and Others v Hauptzollamt Hamburg-Jonas (not yet reported).
      (
            5
         )	Case 46/84 Nordgetreide GmbH and Co. KG v Hauptzollamt Hamburg-Jonas (not yet reported).
      (
            6
         )	Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980] ECR 2917.
      (
            7
         )	Case 112/83 Société des produits de maïs SA v Directeur général des douanes et droits indirects [1985] ECR 732.
      (
            8
         )	Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French State [1980) ECR 2917.
      (
            9
         )	Case 112/83 Société dei produits de mats SA v Directeur général des douanes et droits indirects [1985] ECR 732.
      (
            10
         )	Judgment of 17 February 1976 in Case 43/85 Defrenne v Satom [1976] ECR 455.
      (
            11
         )	Judgment of 15 October 1980 in Case 145/79 Roquette Frères v French Slate [1980] ECR 2917.