SpA Fragd v Amministrazione delle finanze dello Stato.
Date: 1985-05-22
3 THE PLAINTIFF , RELYING ON THE JUDGMENT OF THE COURT OF 15 OCTOBER 1980 IN CASE 145/79 ( ROQUETTE FRERES V FRENCH CUSTOMS ADMINISTRATION ( 1980 ) ECR 2917 ) AND SECONDLY ON THE ALLEGED ILLEGALITY OF THOSE CRITERIA IN SO FAR AS THEY WERE ESTABLISHED WITH REFERENCE TO THE INTERVENTION PRICE WITHOUT TAKING INTO ACCOUNT THE PRODUCTION REFUND ON MAIZE STARCH , INSTITUTED PROCEEDINGS BEFORE THE NATIONAL COURT ON 13 MAY 1982 AGAINST THE AMMINISTRAZIONE DELLE FINANZE DELLO STATO FOR THE REIMBURSEMENT OF PART OF THE MONETARY COMPENSATORY AMOUNTS WHICH IT HAD LEVIED .
5 THE NATIONAL COURT POINTS OUT THAT THE ISSUE WHICH ARISES CONCERNS THE DIRECT APPLICATION OF THE RULES LAID DOWN BY REGULATION NO 1541/80 IN WHICH THE BASES FOR DETERMINING THE MONETARY COMPENSATORY AMOUNTS ARE IN REALITY SUCH AS TO MAKE THE PLAINTIFF ' S OBSERVATIONS TO THE EFFECT THAT THE PROVISIONS ARE INVALID ON THE GROUND OF INFRINGEMENT OF COMMUNITY RULES APPEAR TO BE NOT WHOLLY WITHOUT FOUNDATION . THE NATIONAL COURT THEREFORE CONSIDERED IT NECESSARY TO STAY THE PROCEEDINGS AND TO REFER THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
' IS COMMISSION REGULATION ( EEC ) NO 1541/80 OF 19 JUNE 1980 VALID IN SO FAR AS IT FIXES THE MONETARY COMPENSATORY AMOUNTS FOR THE EXPORTED PRODUCTS IN QUESTION ( POWDERED GLUCOSE OR DEXTROSE CLASSIFIED UNDER COMMON CUSTOMS TARIFF SUBHEADING 17.02 B II ( A )) AT LIT 29 612 PER TONNE IF , FOR THE PURPOSES OF THAT CALCULATION , REFERENCE IS MADE TO THE INTERVENTION PRICE OF MAIZE WITHOUT TAKING INTO ACCOUNT THE PRODUCTION REFUND ON MAIZE STARCH IN ACCORDANCE WITH A CRITERION WHICH THE COURT HAS ALREADY DECLARED INVALID IN ITS JUDGMENT OF 15 OCTOBER 1980 IN CASE 145/79?
'
7 AS REGARDS THE QUESTION OF THE LIMITS AND CONSEQUENCES OF THE DECLARATION OF INVALIDITY , THE PLAINTIFF CHALLENGES PARAGRAPH 3 OF THE OPERATIVE PART OF THE AFORESAID JUDGMENT AND CONTENDS THAT IN PRINCIPLE THE COURT ' S TASK IS OVER ONCE IT DECLARES A REGULATION INVALID AND THAT , IN THE CONTEXT OF PROCEEDINGS FOR A PRELIMINARY RULING , ONLY THE NATIONAL COURT HAS JURISDICTION TO GIVE JUDGMENT ON THE SUBSTANCE OF THE CASE AND TO DETERMINE WHETHER ANY MONETARY COMPENSATORY AMOUNTS MUST BE REIMBURSED . COUNCIL REGULATION ( EEC ) NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL 1979 , L 175 , P . 1 ), WHICH ENTERED INTO FORCE ON 1 JULY 1980 , PROVIDES IN ARTICLE 2 , IN CONJUNCTION WITH ARTICLE 14 , FOR THE REPAYMENT OF EXPORT DUTIES UPON PROOF THAT THE AMOUNT OF SUCH DUTIES EXCEEDS THE AMOUNT LAWFULLY PAYABLE . FINALLY , THE PLAINTIFF MAINTAINS THAT THE PRINCIPLE THAT SUMS IMPROPERLY LEVIED MUST BE REPAID , WHICH IS AT ISSUE IN THIS CASE , IS ONE OF THE FUNDAMENTAL PRINCIPLES UNDERLYING RELATIONSHIPS GOVERNED BY PRIVATE LAW IN THE ITALIAN LEGAL SYSTEM AS IN ALL THE MEMBER STATES '  LEGAL SYSTEMS ON WHICH COMMUNITY LAW MUST BE BASED .
8 THE COMMISSION POINTS OUT THAT THE QUESTION SUBMITTED SHOULD REALLY CONCERN COMMISSION REGULATION ( EEC ) NO 2140/79 OF 28 SEPTEMBER 1979 ( OFFICIAL JOURNAL 1979 , L 247 , P . 1 ) OF WHICH REGULATION NO 1541/80 IS MERELY AN AMENDED VERSION . REGULATION NO 2140/79 WHICH , ACCORDING TO THE COMMISSION , IS IN FACT AN AMENDMENT OF REGULATION NO 652/76 , WAS IN ITS TURN AMENDED BY COMMISSION REGULATION ( EEC ) NO 3013/80 OF 21 NOVEMBER 1980 AMENDING REGULATION ( EEC ) NO 2140/79 AS REGARDS CERTAIN MONETARY COMPENSATORY AMOUNTS , AND BY REGULATION ( EEC ) NO 2803/80 AS REGARDS CERTAIN EXPORT REFUNDS IN THE CEREALS SECTOR ( OFFICIAL JOURNAL 1980 , L 312 , P . 12 ). IN ADOPTING REGULATION NO 2140/79 , THE COMMISSION DREW THE CONSEQUENCES OF THE COURT ' S JUDGMENT OF 15 OCTOBER 1980 AND THUS IMPLICITLY ACKNOWLEDGED THE INVALIDITY OF THE RULE RELATING TO THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO THE PRODUCT CONCERNED LAID DOWN IN REGULATION NO 2140/79 . THE COMMISSION ALSO CONSIDERS THAT , SINCE DEXTROSE IS ONE OF THE PRODUCTS REFERRED TO AS ' MAIZE STARCH '  AND ' PRODUCTS OBTAINED BY THE PROCESSING OF . . . MAIZE '  IN PARAGRAPH 1 OF THE OPERATIVE PART OF THE JUDGMENT IN THE ROQUETTE FRERES CASE , AND HAVING REGARD TO PARAGRAPH 2 THEREOF , REGULATION NO 2140/79 HAS ALREADY BEEN IMPLICITLY DECLARED INVALID BY THAT JUDGMENT .
11 IT MUST BE RECALLED IN THIS REGARD THAT , IN ITS JUDGMENT OF 15 OCTOBER 1980 , THE COURT HELD IN PARAGRAPH 1 OF THE OPERATIVE PART THAT REGULATION NO 652/76 WAS INVALID :
' IN SO FAR AS IT FIXES THE COMPENSATORY AMOUNTS APPLICABLE TO MAIZE STARCH ON A BASIS OTHER THAN THAT OF THE INTERVENTION PRICE OF MAIZE AFTER DEDUCTION OF THE PRODUCTION REFUND ON STARCH ;

. . .

IN SO FAR AS IT FIXES THE COMPENSATORY AMOUNTS APPLICABLE TO ALL THE DIFFERENT PRODUCTS OBTAINED BY THE PROCESSING OF A GIVEN QUANTITY OF THE SAME BASIC PRODUCT , SUCH AS MAIZE OR WHEAT , IN A SPECIFIED MANUFACTURING PROCESS AT A FIGURE APPRECIABLY HIGHER THAN THE COMPENSATORY AMOUNT FIXED FOR THAT GIVEN QUANTITY OF THE BASIC PRODUCT . . . ' .

IN PARAGRAPH 2 OF THE OPERATIVE PART , THE COURT HELD THAT :
' THE FACT THAT THAT REGULATION IS INVALID RENDERS INVALID THE PROVISIONS OF THE SUBSEQUENT REGULATIONS OF THE COMMISSION , THE PURPOSE OF WHICH IS TO ALTER THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO THE PRODUCTS REFERRED TO IN THE FOREGOING PARAGRAPH . '
12 AS REGARDS THE FIXING OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO THE PRODUCTS CONCERNED , IT IS CLEAR AND UNDISPUTED THAT THE GROUNDS ON WHICH THE REGULATION IN QUESTION WAS DECLARED INVALID IN THE JUDGMENT IN ROQUETTES FRERES ALSO APPLY TO THE PROVISIONS AT ISSUE IN THIS CASE .
13 REGULATION NO 2140/79 , AS AMENDED BY REGULATION NO 1541/80 , REFERS TO REGULATION NO 652/76 AND , AS THE COMMISSION RIGHTLY POINTS OUT , ALTERS IT IN THE SENSE REQUIRED BY THE OPERATIVE PART OF THE AFORESAID JUDGMENT . IT MUST THEREFORE BE REGARDED AS HAVING BEEN IMPLICITLY DECLARED INVALID BY THAT JUDGMENT .
14 IT IS THEREFORE SUFFICIENT TO STATE THAT , AS FAR AS CONCERNS THE FIXING OF MONETARY COMPENSATORY AMOUNTS APPLICABLE TO THE PRODUCT FALLING UNDER SUBHEADING 17.02 B II ( A ), COMMISSION REGULATION NO 2140/79 OF 28 SEPTEMBER 1979 , AS AMENDED BY COMMISSION REGULATION NO 1541/80 OF 19 JUNE 1980 , IS INVALID ON THE GROUNDS ALREADY STATED BY THE COURT IN ITS JUDGMENT OF 15 OCTOBER 1980 .
15 ALTHOUGH THE QUESTION SUBMITTED IS CONCERNED ONLY WITH WHETHER THE REGULATION IN QUESTION IS INVALID , IT IS APPROPRIATE TO INDICATE THE LIMITS AND CONSEQUENCES OF ITS INVALIDITY , AS THE COURT POINTED OUT IN ITS AFORESAID JUDGMENT OF 15 OCTOBER 1980 , IN ORDER TO ENABLE THE NATIONAL COURT TO RESOLVE THE ISSUE BEFORE IT .
16 IN THAT CONNECTION IT SHOULD BE RECALLED THAT IN PARAGRAPH 3 OF THE OPERATIVE PART OF ITS JUDGMENT OF 15 OCTOBER 1980 , THE COURT HELD , FOR THE REASONS STATED IN PARAGRAPHS 51 AND 52 OF THAT DECISION , THAT :
' THE FACT THAT THE ABOVE-MENTIONED PROVISIONS ARE INVALID DOES NOT ENABLE THE CHARGING OR PAYMENT OF MONETARY COMPENSATORY AMOUNTS BY THE NATIONAL AUTHORITIES ON THE BASIS OF THOSE PROVISIONS TO BE CHALLENGED AS REGARDS THE PERIOD PRIOR TO THE DATE OF THIS JUDGMENT . '
17 IT SHOULD BE ADDED THAT THE QUESTION OF THE LIMITS AND CONSEQUENCES OF A DECLARATION THAT , AS A RESULT OF THE JUDGMENT OF 15 OCTOBER 1980 , REGULATIONS ALTERING MONETARY COMPENSATORY AMOUNTS ARE INVALID WAS THE SUBJECT OF THE COURT ' S JUDGMENT OF 27 FEBRUARY 1985 IN CASE 112/83 ( SOCIETE DES PRODUITS DE MAIS V DIRECTEUR GENERAL DES DOUANES ET DROITS INDIRECTS ( 1985 ) ECR 732 ). IN PARAGRAPH 17 OF THAT JUDGMENT THE COURT EMPHASIZED THAT ITS ' POWER TO IMPOSE TEMPORAL LIMITS ON THE EFFECTS OF A DECLARATION THAT A LEGISLATIVE ACT IS INVALID , IN THE CONTEXT OF PRELIMINARY RULINGS UNDER INDENT ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 , IS JUSTIFIED BY THE INTERPRETATION OF ARTICLE 174 OF THE TREATY HAVING REGARD TO THE NECESSARY CONSISTENCY BETWEEN THE PRELIMINARY RULING PROCEDURE AND THE ACTION FOR ANNULMENT PROVIDED FOR IN ARTICLES 173 , 174 AND 176 OF THE TREATY , WHICH ARE TWO MECHANISMS PROVIDED BY THE TREATY FOR REVIEWING THE LEGALITY OF ACTS OF THE COMMUNITY INSTITUTIONS . THE POSSIBILITY OF IMPOSING TEMPORAL LIMITS ON THE EFFECTS OF THE INVALIDITY OF A COMMUNITY REGULATION , WHETHER UNDER ARTICLE 173 OR ARTICLE 177 , IS A POWER CONFERRED ON THE COURT BY THE TREATY IN THE INTEREST OF THE UNIFORM APPLICATION OF COMMUNITY LAW THROUGHOUT THE COMMUNITY . IN THE PARTICULAR CASE OF THE JUDGMENT OF 15 OCTOBER 1980 , REFERRED TO BY THE TRIBUNAL , THE USE OF THE POSSIBILITY PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 174 WAS BASED ON REASONS OF LEGAL CERTAINTY . . . ' .
18 IN THAT CONNECTION THE COURT ALSO STATED IN PARAGRAPH 18 OF ITS JUDGMENT OF 27 FEBRUARY 1985 THAT ' WHERE IT IS JUSTIFIED BY OVERRIDING CONSIDERATIONS THE SECOND PARAGRAPH OF ARTICLE 174 GIVES THE COURT DISCRETION TO DECIDE , IN EACH PARTICULAR CASE , WHICH SPECIFIC EFFECTS OF A REGULATION WHICH HAS BEEN DECLARED VOID MUST BE MAINTAINED . IT IS THEREFORE FOR THE COURT , WHERE IT MAKES USE OF THE POSSIBILITY OF LIMITING THE EFFECT ON PAST EVENTS OF A DECLARATION IN PROCEEDINGS UNDER ARTICLE 177 THAT A MEASURE IS VOID , TO DECIDE WHETHER AN EXCEPTION TO THAT TEMPORAL LIMITATION OF THE EFFECT OF ITS JUDGMENT MAY BE MADE IN FAVOUR OF THE PARTY WHICH BROUGHT THE ACTION BEFORE THE NATIONAL COURT OR OF ANY OTHER TRADER WHO TOOK SIMILAR STEPS BEFORE THE DECLARATION OF INVALIDITY OR WHETHER , CONVERSELY , A DECLARATION OF INVALIDITY APPLICABLE ONLY TO THE FUTURE CONSTITUTES AN ADEQUATE REMEDY EVEN FOR TRADERS WHO TOOK ACTION AT THE APPROPRIATE TIME WITH A VIEW TO PROTECTING THEIR RIGHTS ' .
19 THAT QUESTION , WHICH WAS CONSIDERED IN THE JUDGMENT OF 27 FEBRUARY 1985 AND WHICH CONCERNS THE DETERMINATION OF THE SCOPE OF THE JUDGMENT OF 15 OCTOBER 1980 , IS HOWEVER IRRELEVANT FOR THE PURPOSES OF THIS CASE WHICH WAS BROUGHT BEFORE THE NATIONAL COURT ON 13 MAY 1982 , THAT IS TO SAY AFTER THE IMPLIED DECLARATION TO THE EFFECT THAT THE PROVISIONS REFERRED TO IN THE QUESTION SUBMITTED FOR A PRELIMINARY RULING WERE INVALID .
20 THE ANSWER TO THE QUESTION SUBMITTED BY THE NATIONAL COURT MUST THEREFORE BE THAT , AS THE COURT HAS ALREADY RULED IN ITS JUDGMENT OF 15 OCTOBER 1980 IN CASE 145/79 , THE PROVISIONS OF COMMISSION REGULATION NO 2140/79 , AS AMENDED BY COMMISSION REGULATION NO 1541/80 , ARE INVALID IN SO FAR AS THEY FIX THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO EXPORTS OF POWDERED GLUCOSE FALLING UNDER SUBHEADING NO 17.02 B II ( A ) OF THE COMMON CUSTOMS TARIFF . THE FACT THAT THE PROVISIONS OF COMMISSION REGULATION NO 2140/79 , AS AMENDED BY COMMISSION REGULATION NO 1541/80 , HAVE BEEN DECLARED INVALID PROVIDES NO GROUND FOR CALLING IN QUESTION THE LEVYING OR PAYMENT OF MONETARY COMPENSATORY AMOUNTS BY THE NATIONAL AUTHORITIES ON THE BASIS OF THOSE PROVISIONS IN RESPECT OF THE PERIOD PRECEDING 15 OCTOBER 1980 , THE DATE ON WHICH THE JUDGMENT DECLARING SUCH PROVISIONS INVALID WAS DELIVERED .