1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 11 MAY 1981 TUNNEL REFINERIES LTD , A COMPANY INCORPORATED UNDER ENGLISH LAW , BROUGHT AN ACTION BEFORE THE COURT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COUNCIL REGULATION ( EEC ) NO 387/81 OF 10 FEBRUARY 1981 ( OFFICIAL JOURNAL 1981 , L 44 , P . 1 ) AMENDING COUNCIL REGULATION ( EEC ) NO 1111/77 OF 17 MAY 1977 LAYING DOWN COMMON PROVISIONS FOR ISOGLUCOSE ( OFFICIAL JOURNAL 1977 , L 134 , P . 4 ) IS VOID AND , IN THE ALTERNATIVE , FOR A DECLARATION THAT ARTICLE 1 ( 3 ) AND ( 4 ) OF THAT REGULATION , WHICH REINSTATES IN RESPECT OF THE SAME PERIOD , THAT IS TO SAY WITH RETROACTIVE EFFECT , THE SYSTEM OF QUOTAS LAID DOWN BY REGULATION NO 1293/79 IN RESPECT OF THE PERIOD RUNNING FROM 1 JULY 1979 TO 30 JUNE 1980 , IS VOID .
2 COUNCIL REGULATION NO 1293/79 OF 25 JUNE 1979 , WHICH AMENDED THE AFOREMENTIONED REGULATION NO 1111/77 IN PARTICULAR BY INSERTING IN IT A NEW ARTICLE 9 , WAS IN FACT DECLARED VOID BY JUDGMENTS OF THE COURT OF 29 OCTOBER 1980 IN CASE 138/79 SA ROQUETTE FRERES V COUNCIL OF THE EUROPEAN COMMUNITIES ( 1980 ) ECR 3333 AND IN CASE 139/79 MAIZENA GMBH V COUNCIL OF THE EUROPEAN COMMUNITIES ( 1980 ) ECR 3393 BECAUSE IT WAS ADOPTED IN THE ABSENCE OF THE OPINION OF THE PARLIAMENT , REQUIRED BY ARTICLE 43 OF THE TREATY .
3 IN SUPPORT OF ITS ACTION THE APPLICANT CLAIMS IN ITS APPLICATION FIRST THAT THE CONTESTED REGULATION OFFENDS AGAINST THE PRINCIPLE THAT COMMUNITY MEASURES SHOULD NOT HAVE RETROACTIVE EFFECT AND SECONDLY THAT THE STATEMENT OF THE REASONS UPON WHICH THE MEASURE WAS BASED IS INSUFFICIENT . I - FIRST SUBMISSION : BREACH OF THE PRINCIPLE THAT COMMUNITY MEASURES MAY NOT HAVE RETROACTIVE EFFECT
4 AS THE COURT HAS ALREADY HELD , IN PARTICULAR IN ITS JUDGMENTS OF 25 JANUARY 1979 IN CASE 98/78 RACKE ( 1979 ) ECR 69 AND CASE 99/78 DECKER ( 1979 ) ECR 101 , ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY , AS THE APPLICANT STATES , PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .
5 AS REGARDS THE FIRST OF THOSE TWO CONDITIONS IT IS WELL TO CALL TO MIND CERTAIN MATTERS OF FACT OR LAW WHICH ARE MOREOVER WELL KNOWN TO THE PARTIES . DURING THE PERIOD OF APPLICATION OF THE CONTESTED REGULATION SUGAR PRODUCERS WERE , IN PARTICULAR , SUBJECT TO QUOTAS AND PRODUCTION LEVIES . ISOGLUCOSE IS A PRODUCT WHICH MAY BE SUBSTITUTED FOR SUGAR AND IS IN DIRECT COMPETITION WITH IT . ANY COMMUNITY DECISION CONCERNING ONE OF THESE PRODUCTS NECESSARILY HAS REPERCUSSIONS ON THE OTHER . HAVING REGARD TO THAT SITUATION , ALTHOUGH BY JUDGMENTS OF 29 OCTOBER 1980 THE COURT DECLARED REGULATION NO 1293/79 VOID FOR INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT , NAMELY THE ABSENCE OF THE PARLIAMENT ' S OPINION , THE COURT NEVERTHELESS CONSIDERED THAT IT WAS A MATTER FOR THE COUNCIL , IN VIEW OF THE FACT THAT ISOGLUCOSE PRODUCTION WAS CONTRIBUTING TO AN INCREASE IN SUGAR SURPLUSES AND THAT IT WAS OPEN TO IT TO IMPOSE RESTRICTIVE MEASURES ON THAT PRODUCTION , TO TAKE SUCH MEASURES IN THE CONTEXT OF THE AGRICULTURAL POLICY AS IT JUDGED TO BE USEFUL , REGARD BEING HAD TO THE SIMILARITY AND INTERDEPENDENCE OF THE TWO MARKETS AND THE SPECIFIC NATURE OF THE ISOGLUCOSE MARKET .
6 IF , FOLLOWING THE DECLARATION OF THE NULLITY OF REGULATION NO 1293/79 , THE COUNCIL HAD ADOPTED NO MEASURE RESTRICTIVE OF ISOGLUCOSE PRODUCTION - IN THE PRESENT CASE THE REINSTATEMENT WITH EFFECT FROM 1 JULY 1979 OF THE QUOTAS ALLOCATED AND THE LEVIES IMPOSED ON THE PRODUCERS - THE OBJECTIVE WHICH IT WAS PURSUING , NAMELY THE STABILIZATION , IN THE GENERAL INTEREST , OF THE SUGAR MARKET , COULD NOT HAVE BEEN ACHIEVED OR COULD ONLY HAVE BEEN ACHIEVED TO THE DETRIMENT OF SUGAR PRODUCERS , WHO ALONE WOULD HAVE HAD TO FINANCE THE COSTS OF COMMUNITY SURPLUSES , OR EVEN TO THE DETRIMENT OF THE COMMUNITY AS A WHOLE , WHILST ISOGLUCOSE PRODUCERS WHOSE PRODUCTION COMPETED WITH THAT OF SUGAR UNDERTAKINGS WOULD HAVE ESCAPED ALL RESTRAINTS .
7 IN THAT SITUATION THE COUNCIL WAS LAWFULLY ENTITLED TO CONSIDER THAT THE OBJECTIVE TO BE ACHIEVED IN THE GENERAL INTEREST , NAMELY THE STABILIZATION OF THE COMMUNITY MARKET IN SWEETENERS WITHOUT ARBITRARY DISCRIMINATION BETWEEN TRADERS , REQUIRED THE CONTESTED PROVISIONS TO BE RETROACTIVE IN NATURE AND THUS THE FIRST OF THE CONDITIONS WHICH THE COURT LAYS DOWN FOR THE APPLICABILITY RATIONE TEMPORIS OF A COMMUNITY MEASURE TO A DATE PRIOR TO THE DATE OF ITS PUBLICATION MAY BE REGARDED AS SATISFIED .
8 TO ASCERTAIN WHETHER THE SECOND OF THE CONDITIONS SET OUT ABOVE IS ALSO SATISFIED IT IS NECESSARY TO INQUIRE WHETHER THE ACTION OF THE COUNCIL IN PUBLISHING ON 17 FEBRUARY 1981 REGULATION NO 387/81 HAS FRUSTRATED A LEGITIMATE EXPECTATION ON THE PART OF THE APPLICANTS TO THE EFFECT THAT THE PRODUCTION OF ISOGLUCOSE WOULD NOT BE REGULATED DURING THE PERIOD FROM 1 JULY 1979 TO 30 JUNE 1980 , THE PERIOD TO WHICH THAT REGULATION MAKES APPLICABLE ARTICLE 9 RELATING TO QUOTAS AND PRODUCTION LEVIES ON ISOGLUCOSE WHICH IT INSERTED IN REGULATION NO 1111/77 .
9 IT SHOULD FIRST BE POINTED OUT THAT THE CONTESTED PROVISIONS OF REGULATION NO 387/81 DO NOT INCLUDE ANY NEW MEASURES AND MERELY REPRODUCE THE PROVISIONS OF COUNCIL REGULATION NO 1293/79 DECLARED VOID BY THE COURT ON 29 OCTOBER 1980 .
10 IN VIEW OF THE FACT THAT COUNCIL REGULATION NO 1293/79 OF 25 JUNE 1979 RETAINED ITS FULL EFFECT WITHIN THE COMMUNITY LEGAL ORDER UNTIL IT WAS DECLARED VOID , SO THAT THE NATIONAL AUTHORITIES RESPONSIBLE FOR ITS IMPLEMENTATION WERE REQUIRED TO SUBJECT THE PRODUCTION OF ISOGLUCOSE TO THE RESTRICTIVE SYSTEM WHICH IT LAID DOWN , SUCH A LEGITIMATE EXPECTATION COULD ONLY BE FOUNDED ON THE UNFORESEEABILITY OF THE REINSTATEMENT WITH RETROACTIVE EFFECT OF THE MEASURES CONTAINED IN REGULATION NO 1293/79 DECLARED VOID BY THE COURT .
11 IN THE PRESENT CASE THE APPLICANT CANNOT CLAIM ANY LEGITIMATE EXPECTATION WORTHY OF PROTECTION , A CONCEPT MOREOVER WHICH IT WRONGLY STATES IN ITS REPLY HAS NO BEARING ON WHETHER THE RETROACTIVE EFFECT OF A LEGISLATIVE MEASURE IS JUSTIFIED .
12 IN THE FIRST PLACE THE TRADERS CONCERNED BY THE RULES IN QUESTION ARE LIMITED IN NUMBER AND ARE REASONABLY WELL AWARE OF THE INTERDEPENDENCE OF THE MARKETS IN LIQUID SUGAR AND ISOGLUCOSE , OF THE SITUATION OF THE COMMUNITY MARKET IN SWEETENERS AND THEREFORE OF THE CONSEQUENCES WHICH , FOLLOWING THE DECLARATION THAT REGULATION NO 1293/79 WAS VOID , THE IMPOSITION ON THE PRODUCTION OF SUGAR IN RESPECT OF THE PERIOD FROM 1 JULY 1979 TO 30 JUNE 1980 OF STABILITZATION MEASURES FROM WHICH THE PRODUCTION OF ISOGLUCOSE WOULD HAVE BEEN ENTIRELY EXEMPT MIGHT HAVE HAD .
13 SECONDLY BY ADOPTING SUCCESSIVELY REGULATIONS NOS 1111/77 , 1293/79 AND 1592/80 , THE LATTER REGULATION EXTENDING THE EFFECTS OF THE PREVIOUS ONE IN RESPECT OF THE PERIOD FROM 1 JULY 1980 TO 30 JUNE 1981 THE COUNCIL HAD CLEARLY MANIFESTED ITS INTENTION OF REGULATING THE PRODUCTION OF ALL SWEETENERS IN THE COMMUNITY AND TO THAT END OF SUBJECTING THE PRODUCTION OF ISOGLUCOSE TO A RESTRICTIVE SYSTEM BASED ON A SYSTEM OF QUOTAS AND PRODUCTION LEVIES .
14 THIRDLY IT COULD NOT HAVE ESCAPED THE NOTICE OF THE APPLICANT THAT IN BOTH JUDGMENTS OF THE COURT OF 29 OCTOBER 1980 WHICH DECLARED VOID REGULATION NO 1293/79 ( WHICH ALSO FIXED ITS OWN PRODUCTION QUOTA ), THE COURT REJECTED THE GROUNDS ON WHICH THE APPLICANT COMPANIES ROQUETTE AND MAIZENA WERE CONTESTING THE SUBSTANTIVE VALIDITY OF THAT REGULATION AND WAS AT PAINS , AT THE SAME TIME AS PRONOUNCING IT VOID FOR FAILURE TO OBTAIN THE PARLIAMENT ' S OPINION , TO STATE THAT SUCH NULLITY WAS WITHOUT PREJUDICE TO ' ' THE COUNCIL ' S POWER FOLLOWING THE PRESENT JUDGMENT TO TAKE ALL APPROPRIATE MEASURES PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY ' ' .
15 FINALLY , FROM THE PUBLICATION OF THE COMMISSION ' S PROPOSAL IN THE OFFICIAL JOURNAL OF 20 DECEMBER 1980 ( C 334 , P . 2 ) THE APPLICANT KNEW THAT THE COMMISSION HAD , AS EARLY AS 3 DECEMBER 1980 , SUBMITTED TO THE COUNCIL A PROPOSAL FOR A REGULATION AMENDING , IN PARTICULAR , REGULATION NO 1111/77 , IN ORDER TO REINSTATE , FOR THE PERIOD FROM 1 JULY 1979 TO 30 JUNE 1980 , THE SYSTEM OF QUOTAS AND LEVIES IN THE FORM IN WHICH THAT SYSTEM HAD BEEN LAID DOWN BY REGULATION NO 1293/79 AND IN WHICH IT WAS TO BE REINSTATED BY THE CONTESTED PROVISIONS OF REGULATION NO 387/81 .
16 IN CONTESTING THE RETROACTIVITY OF THOSE PROVISIONS THE APPLICANT MAKES TWO FURTHER ALLEGATIONS : DEFIANCE OF THE JUDGMENTS OF THE COURT OF JUSTICE DELIVERED ON 29 OCTOBER 1980 AND DISREGARD OF THE REQUIREMENT OF CONSULTATION WITH THE EUROPEAN PARLIAMENT .
17 AS TO THE FIRST POINT , WHILST THE COUNCIL , UNDER THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY , WAS REQUIRED TO TAKE THE MEASURES NECESSARY TO COMPLY WITH THE JUDGMENTS OF THE COURT OF JUSTICE AND WHILST THOSE MEASURES , AS THE JUDGMENTS OF THE COURT OF 29 OCTOBER 1980 EMPHASIZE , WERE TO BE ' ' APPROPRIATE ' ' , FOR THE PURPOSE OF COMPLYING WITH THE JUDGMENTS OF THE COURT ARTICLE 176 DID NOT FORBID THE COUNCIL TO ADOPT PROVISIONS THE RETROACTIVE NATURE OF WHICH , AS HAS ALREADY BEEN POINTED OUT , ENABLED IT TO PREVENT THE MARKET IN SWEETENERS FROM BEING DISTURBED AND A DISCRIMINATORY SITUATION BEING BROUGHT ABOUT IN FAVOUR OF ISOGLUCOSE PRODUCERS AND TO THE DETRIMENT OF SUGAR PRODUCERS . IN THAT RESPECT , THE FACT THAT THE COURT DID NOT CONSIDER IT NECESSARY , IN ITS JUDGMENTS OF 29 OCTOBER 1980 , TO USE THE POWER GIVEN TO IT BY THE SECOND PARAGRAPH OF ARTICLE 174 OF THE TREATY TO LIMIT THE EFFECTS OF A PRONOUNCEMENT THAT A REGULATION IS VOID , HAS NO BEARING ON THE EXTENT OF THE POWERS AVAILABLE TO THE COUNCIL IN APPLICATION OF THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY .
18 AS TO THE SECOND POINT IT IS NOT DISPUTED THAT THE PARLIAMENT WAS CONSULTED BY THE COMMISSION AND GAVE ITS OPINION ON THE PROVISIONS OF REGULATION NO 387/81 . THEREFORE , THE ARGUMENTS OF THE APPLICANT COMPANY MUST BE REJECTED . FIRST , THE FACT THAT THE PARLIAMENT GAVE ITS OPINION , WHICH MOREOVER WAS FAVOURABLE , ONLY ON 9 FEBRUARY 1981 , THAT IS TO SAY THE DAY BEFORE THE REGULATION IN QUESTION WAS ADOPTED , DOES NOT , CONTRARY TO THE DOUBT EXPRESSED BY THE APPLICANT , AFFECT THE LEGALITY OF THE CONSULTATION . SECONDLY , THE FACT , NOTED BY THE COURT IN ITS JUDGMENTS OF 29 OCTOBER 1980 , THAT THE PARLIAMENT HAD NOT GIVEN THE OPINION WHICH , PURSUANT TO ARTICLE 43 OF THE TREATY , IT WAS REQUIRED TO GIVE ON THE PROVISIONS OF REGULATION NO 1293/79 IN NO WAY PROHIBITED IT FROM BEING CONSULTED ON THE PROVISIONS OF THE CONTESTED REGULATION NO 387/81 , BUT ON THE CONTRARY ARTICLE 43 REQUIRED SUCH CONSULTATION . THE APPLICANT ' S ARGUMENT AMOUNTS , IN FACT , TO MAINTAINING THAT PROPOSALS FOR THE RETROACTIVE REINSTATEMENT OF PROVISIONS ON WHICH ORIGINALLY THE PARLIAMENT WAS NOT PROPERLY CONSULTED MAY NEVER BE REFERRED TO IT . THAT ARGUMENT WOULD PROHIBIT THE RETROACTIVE REINSTATEMENT OF MEASURES ADOPTED IN BREACH OF COMMUNITY LAW WITHOUT THE OPINION OF THE PARLIAMENT , EVEN WHERE SUCH REINSTATEMENT ACCORDS WITH THE PUBLIC INTEREST AND WHERE THE LEGITIMATE EXPECTATIONS OF THE TRADERS CONCERNED HAVE NOT BEEN FRUSTRATED , AND WOULD THUS INVEST CONSULTATION WITH THE PARLIAMENT , HOWEVER IMPORTANT IT MAY BE , WITH CONSEQUENCES WHICH ARE NOT PROVIDED FOR BY ANY PROVISION OF COMMUNITY LAW AND WOULD RESTRICT WITHOUT JUSTIFICATION THE POWERS OF THE PARLIAMENT ITSELF AS WELL AS THOSE OF THE INSTITUTIONS WHICH ARE REQUIRED TO SEEK ITS OPINION . II - SECOND SUBMISSION : BREACH OF THE DUTY TO STATE THE REASONS UPON WHICH A MEASURE IS BASED
19 THE APPLICANT CLAIMS THAT THE COUNCIL HAS GIVEN INADEQUATE AND INAPPROPRIATE REASONS FOR THE ADOPTION OF REGULATION NO 387/81 BOTH AS TO THE ACTUAL PRINCIPLE OF THE MEASURES ADOPTED RELATING TO QUOTAS AND AS TO THE JUSTIFICATION FOR GIVING RETROACTIVE EFFECT TO THOSE PROVISIONS . THEREFORE , THE APPLICANT CONSIDERS THAT THE COUNCIL HAS INFRINGED THE PROVISIONS OF ARTICLE 190 OF THE TREATY .
20 ACCORDING TO THE CASE-LAW OF THE COURT THE STATEMENT OF THE REASONS ON WHICH A MEASURE IS BASED , WHICH IS REQUIRED BY ARTICLE 190 OF THE TREATY , MUST BE ADAPTED TO THE NATURE OF THE MEASURE IN QUESTION . THEY MUST ENABLE THE REASONING OF THE COMMUNITY INSTITUTION RESPONSIBLE FOR THE MEASURE TO EMERGE CLEARLY AND UNEQUIVOCALLY SO AS TO ENABLE THOSE CONCERNED TO RECOGNIZE THE REASONS FOR THE MEASURE ADOPTED AND THE COURT TO EXERCISE ITS POWER OF REVIEW .
21 THE STATEMENT OF THE REASONS ON WHICH COUNCIL REGULATION NO 387/81 IS BASED STATES FIRST THAT ' ' COUNCIL REGULATION ( EEC ) NO 1111/77 OF 17 MAY 1977 LAYING DOWN COMMON PROVISIONS FOR ISOGLUCOSE , IN THE VERSION ESTABLISHED BY REGULATION ( EEC ) NO 1293/79 , PROVIDED FOR THE APPLICATION OF A SYSTEM OF PRODUCTION QUOTAS FOR THE PERIOD FROM 1 JULY 1979 TO 30 JUNE 1980 ' ' AND , SECONDLY THAT ' ' IN CASES NO 138/79 AND NO 139/79 THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , ON 29 OCTOBER 1980 , ANNULLED REGULATION ( EEC ) NO 1293/79 , WHICH AMENDED REGULATION ( EEC ) NO 1111/77 , ON THE GROUNDS OF AN INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT ; . . . IN REJECTING ALL THE ALLEGED COMPLAINTS OF BREACH OF THE PRINCIPLES OF THE LAW OF COMPETITION , OF PROPORTIONALITY AND OF NON-DISCRIMINATION MADE AGAINST THE SYSTEM OF PRODUCTION QUOTAS INTRODUCED BY REGULATION ( EEC ) NO 1293/79 , THE COURT AFFIRMED THAT THE LATTER REGULATION WAS SUBSTANTIVELY IN CONFORMITY WITH COMMUNITY LAW ; . . . IT IS THEREFORE APPROPRIATE TO REINSTATE INTER ALIA THE SYSTEM OF QUOTAS CONCERNED RETROACTIVELY ' ' .
22 LACONIC AS THESE REASONS MAY BE , THEY SATISFY THE REQUIREMENT LAID DOWN BY ARTICLE 190 OF THE TREATY . IN FACT , BY REFERRING TO THE SYSTEM OF PRODUCTION QUOTAS , WHICH MOREOVER WAS WELL KNOWN TO THOSE CONCERNED , THE PROVISIONS OF THE PREAMBLE TO THE CONTESTED REGULATION SET FORTH IN ESSENCE THE OBJECTIVE PURSUED BY THE INSTITUTION RESPONSIBLE FOR THE CONTESTED MEASURE , NAMELY TO ENSURE CONTINUITY IN TIME OF THE SYSTEM RESTRICTING ISOGLUCOSE PRODUCTION - A SYSTEM IN RESPECT OF WHICH THE COURT , IN ITS JUDGMENTS IN CASES 138 AND 139/79 OF OCTOBER 1980 , REJECTED THE SUBSTANTIVE CRITICISMS MADE AGAINST IT BY THE APPLICANT UNDERTAKINGS - IN ORDER TO ENSURE AN EQUAL DIVISION OF BURDENS ON THE PRODUCTION OF ISOGLUCOSE AND THAT OF LIQUID SUGAR WHICH ARE IN DIRECT COMPETITION ON THE MARKET IN SWEETENERS .
23 THE SUBMISION AS TO BREACH OF THE REQUIREMENT TO STATE THE REASONS ON WHICH THE MEASURE WAS BASED MUST THEREFORE BE REJECTED AS UNFOUNDED .