C-114/81

JUDGMENT OF 30. 9. 1982 — CASE 114/81

In Case 114/81

TUNNEL REFINERIES LIMITED, a company incorporated under English law, having its registered office at Thames Bank House, Greenwich, London SE 10 OPA, represented by Francis Jacobs of the Middle Temple, barrister, instructed by Graham Child, solicitor, of Messrs Slaughter & May, 35 Basinghall Street, London EC2V 5DB, with an address for service in Luxembourg at the Chambers of Messrs Elvinger & Hoss, 15 Còte d'Eich, applicant, v

COUNCIL OF THE EUROPEAN COMMUNITIES, represented by Daniel Vignes, Director of the Legal Department of the Council of the European Communities, assisted by Arthur Bräutigam, administrator in that department, with an address for service in Luxembourg at the office of H. J. Pabbruwe, Director of Legal Affairs at the European Investment Bank, 100, Boulevard Konrad-Adenauer, defendant, and

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, R. Wainwright, assisted by F. Lamoureux, a member of its Legal Department, with an address for service in Luxembourg at the office of O. Montalto, a member of its Legal Department, Jean Monnet Building, Kirchberg, intervener,

APPLICATION for a declaration that Council Regulation (EEC) No 387/81 of 1C February 1981 (Official Journal L 44, p. 1) amending Council Regulation (EEC) No 1111/77 of 17 May 1977 laying down common provisions for isoglucose (Official Journal L 134, p. 4) is void,

Facts and Issues

T h e facts of the case, the course of the proper functioning of the market in procedure and the conclusions, sub- sweeteners. missions and arguments of the parties may be summarized as follows:

2. Following that judgment, on 25 June 1979 the Council adopted, on the basis of a proposal for a regulation drawn up I — Facts and written p r o c e d u r e bv the Commission, Regulation No 1293/79 (Official Journal L 162, p. 10, with corrigendum in Official Journal L 176. p. 37) amending Regulation N o 1111/77. That regulation entered into A — Background to the dispute force, pursuant to Article 5 thereof, on 1 July 1979.

JUDGMENT OF 30. 9. 1982 — CASE 114/81

regulation whereby after Article 7 of Article 4 of the regulation provides that Regulation N o 1111/77, is inserted Title Annex II hereunder shall be added to II entitled "Quota arrangements". Regulation No 1111/77:

"ANNEX II BÍJIC que:; in tonnes Undertaking Address of registered oir'ice exrreisec 2i jrv rr.¿:ter

Maizena GmbH 2030 Hamburg 1, Postfach 1003 28 000 Amvlum SA 49. Rue de l'Iniendani, 1020 Bruxelles 56 667 SA Roquettes Frères 17, Boulevard Vauban, 590OO Lille 15 887 SPAD 15063 Cassano Spinola, Alessandria, Casella Postale l ' 5 863 Fabbriche Riunite Amido Piazza Erculea 9, Glucosio Destrina SpA Milano 10 706 Tunnel Refineries Ltd Thames Bank House, Greenwich. London SE 10 OPA 21696"

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7. A similar action was brought on to withdraw its action in Case 176/80 5 August 1980 against those provisions and ordered the case to be removed from by Maizena, a company incorporated the Court Register. under German law.

11. Case 179/80 is, however, still 8. Those cases were registered at the pending before the Coun. Court under Nos 179/80, Roquette v Council and 176/80 for Maizena v Council. B — Procedure

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7. On hearing the repon of the Judge- 5. In its rejoinder the Council of the Rapporteur and the views of the European Communities maintains the Advocate General the Court decided to conclusions which it presented in its open the oral procedure without any defence. preparatory inquiry.

6. In its answer to the intervention of 8. By an order of 24 March 1982 the the Commission the applicant maintains Court, having heard the views of the its conclusions. Advocate General, decided, pursuant to Article 95 (1) and (2) of the Rules of Procedure, to assign the case to the Second Chamber. Ill — Submissions and argu- ments of the parties

II — C o n c l u s i o n s of the parties First submission: breach of the general principle that legisUtion may not be retro- active 1. By an originating application Tunnel Refineries Ltd claimed that the Court 1. Tunnel Refineries Limited states that should: the case-law of the Court clearly demonstrates that retrospective legis- (a) annul Regulation No 387/81; lation is in principle not permissible in' Community law, and that, even on (b) in the alternative, annul Article 1 (3) grounds of necessity, it may be and (4) of Regulation No 387/81; recognized only with ver>· limited effect.

involved merely a very limited retroactive requiring protection, the applicant effect of a few days, frequently made submits that that thesis is based on a necessary by the very nature of the fundamental misconception in the sense factors in question (monetary measures) that the concept of legitimate expectation and concerning cases not at all has no place in the present case. The comparable to the present case where the principle of the protection of legitimate retroactive effect relates to several years. expectation operates as a brake imposed by the Court on the freedom of action of the legislature in order to protect the individual against the future conse­ quences of legislation which, if applied In conclusion on that point the applicant immediately to transactions entered into relies on the judgments of the Court in Joined Cases 42 and 49/59 SNUPATv previously, would have the effect of High Authority [1961] ECR 53, Case disturbing the expectation that the legal 88/76 Exportations des Sucres v regime existing previously would not be Commission [1977] ECR 709 and Case altered abruptly. The applicant is 98/78 Račke [1979] ECR 69 to therefore of the opinion that the demonstrate that the Court has laid principle of the protection of legitimate down a principle prohibiting retroactivity expectation is merely an application of in Community law where the retro­ the general principle of law that activity envisaged runs counter to the legislation may only govern the future principles of legal certainty and legality. consequences of transactions already In the applicant's view this is just such a entered into. The very concept of case where the Council seeks to re-enact legitimate expectation is thus at odds with retroactive effect a measure which with the concept of retroactivity. has been declared illegal by the Court.

and 139/79, it had not merely a argument against a declaration that an legitimate expectation, but a right to unlawful regime is void. In that respect the reimbursement of the levies paid the Commission's argument that pursuant to that unlawful regulation and reimbursement of the levy is dependent that for the same reason it had no reason on the condition that the claimant has to suppose that the system of levies suffered damage is irrelevant. The declared unlawful by the Court would be applicant asserts that Community law, as re-imposed on it retroactively. elucidated by the case-law of the Court, relies for the determination of such matters on the laws of the Member States. Only the laws of Italy and Denmark lay down a condition similar to As to the argument regarding necessity that put forward by the Commission. arising out of overriding considerations Under English law and in other legal of public interest the applicant maintains systems too, the principle of unjust that it is unfounded. In fact the retro­ enrichment lays down that a person who active effect given to Regulation N o has obtained a benefit from another, not 387/81 is merely intended, according to intended as a gift and not legally jus­ the applicant, to make the isoglucose tifiable, must make restitution to the levy payable in respect of the marketing other party. In the present case the year 1979/80. Since the levy was applicant considers that it is not the annulled by the Court in Cases 138 and manufacturers but the Community which 139/79, that regulation thus has the has unjustly enriched itself by with­ effect of re-imposing the levy. That no holding the revenue arising from a levy longer has any purpose since the paid pursuant to a regulation declared objective pursued by the imposition of invalid. that lew, namely to restrict isoglucose production, has clearly been achieved. If it had not been achieved the applicant further sutes that to impose the levy retroactivei v would not have any effect Finally, the applicant disputes that the on the volume of production already discrimination, which it is alleged sugar achieved. producers would suffer if the contested levy were to be reimbursed, is of such a nature as to justify the retroactive imposition of the isoglucose production levy. The Community is first and foremost required to respect the principle The applicant then seu out to refute of legality and mav not maintain in force another argument advanced bv the an unlawful regulation on the ground Council and me Commission to the that not to do so would entail a further effect tha; tne romriurvement or the levs illegality. aouid atiorű isogiuvove producers an unexpecteű anj undue Imančiai advantage On trut point it stairs that tnr onlv txnrtit »nich itogiucose producen »Ί! retrive as a rrs„:t oł the For those reasons the applicant declaration that Regulation No '"•*'> I is concludes on that point that the Council void, lust a» p'rviou«'» •" trsr cave o* has not succeeded in satisfactorily Regulation No l."*> ""v »ill r»e that ot snowing that the retroactive effect given no longer bring \ut>ircted to an unlawful to Regulation No 387/81 is justified by regime Tha' hrrrtu ma» noi. ho» ever, the need to protect an overriding public according to the appuvan·. Tónimmé an interest.

(c) Furthermore, the retroactive effect by giving it retroactive effect, the sought by the Council is in fact contrary Council has thus sought "to obviate the to Community law in two ways effects" of the nulliry of Regulation N o inasmuch as it is in defiance of the 1293/79. Such a procedure, apart from judgment of the Court of Justice and in the fact that it overlooks the mandatory disregard of the requirement of consul- nature of the requirement of prior tation with the European Parliament consultation with the European Par- provided for by the Treaty. liament, deprives those affected by the retroactive measure of a ground of action for challenging it, namely an action based on an actual infringement of an essential procedural requirement. In Cases 138 and 139/79 the Court That consequence is all the more serious deliberately refrained from availing itself since the European Parliament has no of the possibility of limiting under the right of action under Article 173 of the second paragraph of Article 174 of the Treaty and thus there is no wav in which Treaty the temporal effects of Regu- the requirement of consultation may be lation' N o 1 2 9 3 / 7 9 , which it had enforced by the Court. If that were so it declared void, although the Commission follows that the Community legislature in its intervention and the Advocate could with impunity ignore procedural General in his opinion urged the Court requirements applying to its measures. so to do. It must be concluded that the Court intended that Regulation No 1293/79 should be declared void ab initio. In the present case it certainly cannot be denied that Parliament was formally consulted. However, by giving Regu- lation N o 3S7/81 retroactive effect the In that connection the applicant finds Council "sought to overcome its failure that the Council is drawing a distinction properly to consult the Parliament when between the effects of nullity on pro- Regulation N o 1293/79 was adopted" cedural grounds and those of nulliry on and thus did not observe the requirement substantive grounds. The applicant takes of consultation. If it is to be effective and the view that there is nothing in Anicie consistent with the democratic process, 173 of the EEC Treatv to support the consultation must take place before the drawing of such a distinction or ot the entrs into lorce of the legislation on conclusion that the effects of nullitv wmch the Parliament is required to give depend on the ground on which nullitv its opinion. I.' the conferring of retro- was pronounced. The ground on which a active effect in the present case were measure is declared void is legahv held to be la» tul, then the requirement irrelevant and u cannot be asserted that o· cor.suitatior. »ouid be reduced to an an annulment for infringement ot a pro- rrr.p:-. tormants and » o u l d allow the cedural requirement permits the author ».'.«'jr.^ii to disregard that procedure Je ot the annulled measure to re-adopt 'j,.'(· ! not Jr / U T retroactively the measures touno soiJ

clearly demonstrates, in particular in its thus only be conceivable if the Court had judgment in Case 98/78 Racke [1979] condemned that policy in principle. The ECR 69 at paragraph 20 that retroactive judgment declaring Regulation No Community measures are by no means 1111/77 to be void was restricted to excluded as a matter of principle. condemning the method of calculating However, the Court has sought to make the isoglucose production levy and not retroactive Community measures subject the principle of the lesy.

void and in the light of the consistent In the Council's view, the contested approach of the Community institutions measures are of a "mixed" nature in this matter. inasmuch as they contain legislative provisions of general application, such as In fact, isoglucose producers had known the laying down of abstract criteria for since 17 Mav 1977. the date of min- organizing production and allocating imo force of Regulation No 1111/77, of quotas, and provisions which may be ihr Communits's intention to adopt considered to be individual decisions restrictive measure» »i:h repard to the such as provisions allocating production production o?' i«op!urose That iniention quotas to each manufacturer in the has since then hrrn leads contirmcd b\ Community. lecislatise actis¡ts u ; Reputations Nos

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terms of Article 174 of the EEC Treaty In the Council's view, the obligations that that possibility is confined merely to resulting from a judgment that a measure purely legislative measures. The Court is void are to be construed' in was thus not able to apply that provision conjunction with the ground upon which to declare its consent to the maintenance the nullity was pronounced. In the in force of Regulation No 1293/79. present case the Council's dury was, in However, the rejection by the Court of the actual terms of the judgment all the substantive allegations made by declaring Regulation No 1293/79 'void, the applicants in Cases 138 and 139/80 is to observe the Parliament's right to be sufficient to support the Council's view consulted in the matter. The latter, by its that its action was not in itself resolution of 9 February 1981, gave a reprehensible and that the charging of favourable opinion on the Commission's levies was lawful in principle as from the proposal of 20 December 1980. The fact marketing year 1979/80. In that that that opinion was given on the dav connection it should be recalled that the before the adoption by the Council of Court held, in its judgment in Case Regulations Nos 387 and 388/81 of 10 101/78 Granaria [1979] ECR 623 that February 1981 is not, as the applicant regulations are to be applied as long as asserts, of such a nature as to call in the Court of Justice has not taken a question the validity of that consultation. decision with regard either to their In fact, the rapid means of communi- legality (Article 173 of the Treaty) or cation existing between Community their validity (Article 177 of the Treaty). institutions enabled the Council to take Thus Regulations Nos 1293/79 and full account of the Parliament's opinion 1592/80 were to be given full effect particularly since that opinion did not including as regards the charging of the seek to amend the existing draft of the levy until the delivery in October 1980 of regulation. the judgment declaring them to be invalid.

For all those reasons the Council If the retroactive effect of the regulations considers that it has not defied the in question were to be adjudged authority of the Court or the powers of unlawful the Council argues that not the Parliament. In that connection the only would the legality of the levies Council seeks to emphasize the already charged be nullified but that exceptional circumstances in which illegality would affect the whole system Regulation N o 1293/79 was adopted. for regulating the production of Owing to the urgency brought about as isoglucose. Such a solution would have much by the necessity to comply with the the effect of requiring the Community to judgment of the Court declaring Regu- reimburse the levies charged which lation N o 1111 ¡77 to be void as by the would result in affording isoglucose factual situation thus brought about producers an unexpected and undue which meant that sugar producers were financial advantage which would subjected to a system of levies whilst discriminate against competing sugar isoglucose producers thus were exempted producers and would enable isoglucose from such a system, the Council was producers unilaterally to strengthen their compelled, having regard to the delay, competive position. The result would be which was also exceptional, occasioned in the end contrary to the requirements by the Parliament in giving its opinion, of the common agricultural policy and in to adopt Regulation N o 1293/79 in the particular to Article 39 of the Treaty absence of that opinion. The Council, which, as the Court has emphasized, however, observes that its dignity as the imposes limits on the freedom of action Community legislature, its desire to of institutions with regard to restrictive respect the Treaties and also the measures concerning the sugar industry. Commission's power, as guardian of those Treaties, to ensure compliance with the laa are all of such a nature as to ensure the proper functioning of the legislative machinerv of the Communi· (c) Lastly, the Council seeks to refute tifi The Council adds, moreover, that the argument that the fiscal or parafiscal tne circumstances in which Regulations nature of the isoglucosc production levy Nos 5>ľ and .>SS/>I were adopted and militates against the giving of retroactive the procedure initiated tor the adoption effect to the contested provisions. The ot' proposals required to supersede those Council states that, although the levy in rrcuunom bar »itness to the Council's question may be equated to a charge, respect lur Parliament's right to be that charge pursues no fiscal objective in ion suited the sense that it was not created for the purpose of guaranteeing revenue for the Community but to restrict, in the general interest, the development of isoglucose (bi Secondly, the Council seeks to production. In that connection the Ocmonstrate that mere is ' a general Council points out that the revenue from

the levy in question is not uniform but moreover necessary in a legal system depends upon the relationship of the which is called upon to reconcile the value on the world market of sugar to its general interest with private interests value within the Community. In order to when regulations principally governing finance losses incurred in the exporting economic relationships are implemented. of sugar (export refunds) arising from surplus production in the Community of sugar or of isoglucose, the levy is In the Commission's opinion it is wrong to take the view that the Court only charged only if the production quotas sought, in its case-law, to refer to are exceeded owing to the activity of the "limited" retroactive effect and not t o manufacturers. For that reason the fact "true" retroactivity. In particular the that production was indeed restricted opinion of Mr Advocate General Reischl during the marketing years 1979 and in the Racke case emphasized that the 1980 owing to the application of Regu- Court in that case had to adjudicate lations N o s 1 2 9 3 / 7 9 and 1 5 9 2 / 8 0 until upon a case of "true" retroactivity. At October 198C is immaterial. In fact a paragraph 20 of its decision in the case reimbursement of the levy, apan from the Court clearly confirmed the legality the fact that it would unilaterally alter of retroactivity under Community law the competitive situation of isoglucose and defined its limits. producers, would have the effect of destroying the system whereby pro- duction of isoglucose was restricted in fb) T h e Commission considers that the the marketing years 1979 to 1980. Council's legislative activity has not in the present case disregarded the conditions imposed by the Court on the 3. T h e Commission of the European retroactivity of Community measures. Communities, intervening in support of the Council's conclusions, points out (i) First, there was no interference with that: the legitimate expectation of the parties concerned since they cannot satis- factorily show the existence of an (a) the case-law of the Court and the established right or a legitimate laws of the Member States admit of expectation of reimbursement of the true exceptions to the principle that levies paid or that the retroactive legislation should not be retroactive, measure in question was unforeseeable. and

applications based on illegality, namely take any "appropriate measures" to external legality and internal legality. regulate the production of isoglucose. The cause of action relating to internal legality was definitively adjudicated upon by the Court when it examined the sub- The Commission observes that the legal stantive allegations made in Cases 138 significance of the judgments of 29 and 139/79. October 1980 was confined, according to the very terms of the declaration of nullity, to the fact that the Council had a duty formally to consult the Parliament The declaration by the Court that Regu- before adopting measures which »-ere lation No 1293/79 was invalid in law otherwise in conformity with Community cannot therefore be equated to a law. On the other hand, the question declaration that the contested measure whether or not the provisions concerning was void ab initio. Following the isoglucose should be given retroactive consistent case-law of the Court, as illus- effect fell, in the Commission's view, trated by the judgment in Case 101/78 within the scope of the appraisal of the Granaria [1979] ECR 623, that measure general interest made by the Council was effective until the date of the subject to review by the Court.

Court. For the same reason producers measures" might in the Commission's may not derive from the declaration that view, be interpreted as meaning that the Regulation No 1293/79 was void a measures contained in the regulation, legitimate expectation to the reimburse- which had been declared void on ment of the levy paid. In any event, even grounds of external illegality, might be if that expectation did exist the reinstated with retroactive effect. consistent approach of the Community institutions invalidated any such hope and was sufficient to deprive it of any legal significance. (ii) Secondly, the Commission con- siders that an overriding general interest justified the giving of retroactive effect

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that that objective of general interest, Secondly, the Commission points out given the close link by means of which that the abolition ab initio of the lew, liquid sugar and isoglucose may be sub- apan from the fact that it would bring stituted for each other, may be achieved about an unjustified enrichment of a only by the combination of provisions category of producers thus permitting relating to sugar and those governing them to increase their productive isoglucose. For that reason it is not capacity, would free them from all possible to declare void ab initio the financial responsibility for the disposal of provisions relating to isoglucose without the surplus stemming from the increase damaging the whole machinery designed in their productive capacity and would to stabilize the sugar market wiihin the thus seriously threaten the proper Community. functioning of the sugar markets.

Moreover, the reimbursement of the levies already paid under Regulation No The Commission thus considers that the 1293/79 would have the effect of Council was justified in taking the view breaching the principle of equal treat- that an overriding public interest ment as between isoglucose producers required, by itself, that retroactive effect and sugar producers and, in the end, be given to the provisions in question. would threaten the stability of the market.

JUDGMENT OF 30. 9. 1982 — CASE 114/81

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appropriate to reinstate . . . the system of IV — O r a l p r o c e d u r e quotas concerned retroactively". The Council therefore considers that a At the sitting on 1 July 1982 oral "reasonably attentive reader" and in that argument and observations were respect it asserts that the applicant is submitted by the following: F. Jacobs of "much more than" a "reasonably the Middle Temple, barrister, instructed attentive" reader having taken part "in by Graham Child, solicitor, of Messrs the previous isoglucose battles" was Slaughter & May, London, for Tunnel easily able to undersund the reasons for Refineries Ltd, D. Vignes, Director of the Council's action and its decision to the Legal Department, assisted by A. give retroactive effect to the regulation. Bräutigam, administrator in the said department, for the Council of the 3. The Commission of the European European Communities and R. Wain- Communities considers that the claim wright, Legal Adviser, assisted by F. relating to a breach of the duty to give Lamourcux, a member of the Legal the reasons on which a measure is based Department, for the Commission of the "does not stand up to a simple reading European Communities. of the recitals of Regulation No 387/81" and states that it entirely supports the The Advocate General delivered his Council's arguments refuting that opinion at the sitting on 23 September allegation. 1982.

Decision

1 By application lodged at the C o u r t Registry on 11 M a y 1981 T u n n e l Refineries Ltd, a company incorporated u n d e r English law, b r o u g h t an action before the C o u r t under the second paragraph of Anicie 173 of the E E C T r e a t y tor a declaration that Council Regulation ( E E C ) N o 387/81 of 10 February 1981 (Official Journal 1981, L 44, p. 1) amending Council Regulation ( E E C ) N o 1111/77 of 17 M a y 1977 laying d o w n c o m m o n 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 N o 1293/79 in respect of the period running from 1 July 1979 to 30 June 1980, is void.

i 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 mav be substituted for sugar and is in direct competition with it. Any Communitv decision concerning one of these products necessarily has reper- cussions on the other. Having regard to that situation, although by judgments of 29 October 19$: ine Court declared Regulation No 1293/79 void tor infringement of an essential procedural requirement, namely the absence of the Parliament's opinion, the Court nevertheless considered that it was a matter tor 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 poliev as it judged to be useful, regard being had to the similarm and interdependence of the two markets and the specific nature of the isoglucose m'arkei

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6 If, following the declaration of the nullity of Regulation N o 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.

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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.

n 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.

1 3 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 3C 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 svstem based on a system of quota.· and production levies.

Thirdlv it could not have escaped the notice of the applicant that in both ludprrients oí t r r Cour*, of 2" October ]?Š2 which declared void Regulation N ľ 12^3'."* (»h.cH jlui fixed us o a n production quota), the Court rejected trie prounds or »nicn :nr jrT>n.ant companies Roquette and Maizena were lontestmp tnr Ņurdamu r vai.J¡;\ ot' ina: regulation and was at pains, at the same time as p'i>nouncinc it void tor failure to obtain the Parliament's opinion, to łtaie mat such nullitv » n without prejudice to "the Council's power folio» mc the present ludgment to take all appropriate measures pursuant to the ťr\: paraprann or Anicie 176 of the Treaty".

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 "appro- priate", 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 discriminator)· situation being brought about in favour of isoglucose producers and to the detriment of sugar producers. In that respect, the tact that the Court did not consider it necessary, in its judgments of 29 October 1983. to use the power given to it by the second paragraph ot Anicie 174 of the Treats 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 oi the first paragraph of Article 176 of the Treaty.

M As to the second point u is not disputed tha: the Parliament vus consulted b\ the Commission and gave its opinion or. :nc proMiuin·· i>: Recitation No 387/81 Therefore, the arguments o' '.re arrvi.'ar.: k .·>-:-. na must be reiecied. First, the fact that tne Parliamrr.: pave ¡:* opin.or. »meri moreover was favourable, only on V Feoruarv i V> I. mat is u- sa-, tne oas before the regulation in question was adopted, űors not. contran to the doubt expressed bv the applicant, affect the ircant-v of tnr consultation secondly, the fact, noted by the Court in its luűirments .> Ottener \q*Z. that the

r. According to the case-law of the Court the statement of the reasons on which a m e a s u r c 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 tor the measure adopted and the Court to exercise its power of review

:i 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 bv Regulation (EEC) N o 1293/79, provided for the application of a system of production quotas for the period from 1 July 1979 to 30 June

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1980" and, secondly that "in Cases No 138/79 and No 139/79 the C o u n of Justice of the European Communities, on 29 October 1980, annulled Regu- lation (EEC) N o 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) N o 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".

THE COURT (Second Chamber)

hereby:

1. Dismisses as unfounded the application for a declaration that Council Regulation No 387/81 is void;

2. Orders the applicant to pay the costs including those of the intervener.

Due Chloros Grévisse

Delivered in open court in Luxembourg on 30 September 1982.