C-112/83

Administration des douanes et droits indirects [Office for Customs and Indirect Duties]

on the validity of Commission Regulation (EEC) No 652/76 of 24 March 1976 changing the monetary compensatory amounts following changes in exchange rates for the French franc,

THE COURT

composed of: Lord Mackenzie Stuart, President, G. Bosco, O. Due and C. Kakouris (Presidents of Chambers), P. Pescatore, T. Koopmans, U. Everling, K. Bahlmann and Y. Galmot, Judges,

Advocate General: M. Darmon Registrar: D. Louterman, Administrator

gives the following

The Société des produits de maïs SA, the FF 598 212.48 in respect of broken maize plaintiff in the main proceedings, imports, (heading No 10.05, now 23.02); exports, buys, processes and sells maize and various maize products. FF 1008 731.36 in respect of gluten (heading No 23.03); It exported from France to other Member States of the European Economic Com­ FF 3 443 653.01 in respect of various other munity various processed maize products, processed maize products (starch, glucose, that is to say: dextrose, 'modified' products, inter alia, subheadings 11.08 A I, 17.02 B I (a), 17.02 broken maize (heading No 10.05, now B I (b), 17.02 B II (a), 17.02 B II (b), 23.02); 17.02-23, 17.02-28.0, 17.02-28.1, 35.05 A, 29.04-77.001), gluten (heading No 23.03); together with interest thereon at the legal various other products such as starch, rate. glucose, dextrose and 'modified' products (such as starch mixed with chemical In its defence the Administration des products) (inter alia subheadings 11.08 A I, Douanes contended, on the one hand, that 17.02 B I (a), 17.02 B I (b), 17.02 B II (a), the plaintiff had not shown that the 17.02 B II (b), 17.02-23, 17.02-28.0, 17.02- compensatory amounts fixed by the regu­ 28.1, 35.05 A, 29.04-77.001). lation in question in respect of the derived products 'clearly exceeded' the amounts Monetary compensatory amounts were fixed in respect of the quantity of maize charged on those exports under Commission used in the manufacture of those derived Regulation No 562/76 of 24 March 1976 products, and, on the other hand, that the (Official Journal 1976 L 79, p. 4), as Court had decided in the aforementioned amended by subsequent regulations. judgment of 15 October 1980 that 'the fact that Regulation No 652/76 and the subs­ Since Regulation No 652/76 and the sub­ equent regulations amending it are invalid sequent regulations amending it were held does not enable the charging or payment of to be invalid by the Court of Justice in its monetary compensatory amounts by the judgment of 15 October 1980 (Case 145/79 national authorities on the basis of those Roquette [1980] ECR 2917), the Société des provisions to be challenged as regards the produits de maïs, by a document dated 30 period prior' to the date of the judgment.

The Tribunal d'instance considered that by The order making the reference was deciding in its judgment that there could be registered at the Court Registry on 16 June no reimbursement of sums charged prior to 1983. the date of the judgment, the Court largely deprived its declaration of invalidity of its In accordance with Article 20 of the relevance, that the judgment was completely Protocol on the Statute of the Court of contrary to the Court's previous case-law Justice of the EEC, written observations and' finally that it raised important questions were submitted by the Commission of the with regard to the application of Article 177 European Communities, represented by its and the second paragraph of Article 174 of Legal Adviser, F. Lamoureux, and by the

lation (EEC) No 652/76 of 24 March Nevertheless the Court requested both the 1976 fixing the monetary compensatory Commission and the plaintiff in the main amounts applicable to exports of broken proceedings to reply in writing to a number maize (tariff heading No 10.05, now of questions. No 23.02), gluten (heading No 23.03) and products falling within subheadings 11.08 A I, 17.02 B I (a), 17.02 B I (b), 2.

invalid? out that, apart from maize starch (tariff subheading 11.08 A I), the products to (3) If the reply to the first question is in the which the main proceedings relate are negative, what are the legal different from those concerned in Case consequences of such invalidity with 145/79 and that in the judgment making the regard to a request for reimbursement reference the national court referred, in the of all or part of the monetary case of some products, to general tariff compensatory amounts levied by the headings of the Common Customs Tariff national authorities on the basis of and not to specific subheadings, whereas the Commission Regulation No 652/76 of contested regulations fixed monetary

PRODUITS DE MAÏS / ADMINISTRATION DES DOUANES ET DROITS INDIRECTS

States (hereinafter referred to as 'Nimexe'); and Regulation No 3224/80 of 11 subheading 17.02-28.0 and 17.02-28.1 are December 1980 (Official Journal 1980 L Nimexe codes which correspond to sub­ 340, p. 1) as regards certain processed agri­ heading 17.02 B II (b) of the Common cultural products not covered by Annex II Customs Tariff; finally heading 29.04- to the Treaty. It emphasizes that new 77.001 is a Nimexe code corresponding to compensatory amounts were fixed in respect subheading 29.01 C III (b) 1 of the of all the products in question, except for Common Customs Tariff. those falling within subheading 23.02 A I, because it took the view that the ground on which the Court declared invalid the fixing of the compensatory amounts applicable to maize starch extended to a series of Considering in turn the products in products in respect of which the amounts question, it states that 'broken maize' and were fixed on a basis other than that of the 'gluten' both fall within subheading 23.02 A intervention price of maize after deduction I (bran of maize or rice). With regard to the of the production refund. It should 'other maize products' subheading 11.08 A I therefore be declared, in reply to the first covers maize starch, subheadings 17.02 B I question, that, with regard to the fixing of (A) I, 17.02 B I (b), 17.02 B II (a) and 17.02 the monetary compensatory amounts B II (b) glucose and glucose syrup, sub­ applicable to the products falling within heading 35.05 A dextrins and subheading subheadings 11.08 A I, 17.02 B I, 17.02 B II, 29.04 C III (b) 1 (corresponding to Nimexe 23.03 A I, 29.04 C III (b) 1 and 35.05 A, code 29.04-77.001) glucitol (sorbitol). Regulation No 652/76 is invalid for the reasons given in the judgment of 15 October 1980.

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In that respect it recalls that the Tribunal d'instance, Lille, the court a quo in Case With regard to the justification of the 145/79, objected to the limits placed by the application by analogy of the second Court of Justice upon the invalidity of paragraph of Article 174 in judgments Regulation No 652/76 and argued in its declaring legislation to be invalid, the judgment of 15 July 1981, with regard to Commission is of the opinion that such the analogous application of the second application meets a twofold need: to ensure paragraph of Article 174, that 'after it had that Community law is applied uniformly interpreted Community law for the purpose and to safeguard legal certainty. In that of replying to questions referred to it for a respect it emphasizes that it is consistent preliminary ruling and had exhausted its with the aims of Article 177 to recognize powers, the Court took the step, for 'which that preliminary rulings on the interpret­ there was no basis in law, of adding to the ation of the Treaty or the validity of acts of opinion it had thereby given a comment the institutions have general effects, or at based on a provision which was not least effects extending beyond the case in applicable to the situation under question, since Article 177 is intended to consideration. Far from amounting to a guarantee the uniform application of complementary statement which assisted it Community law by national courts. With in its task of interpretation, the step taken regard to judgments declaring a measure to

PRODUITS DE MAÏS / ADMINISTRATION DES DOUANES ET DROITS INDIRECTS

The idea that preliminary rulings extend beyond the context of the main proceedings in question involves the recognition that The Commission emphasizes that the they have effect ex tunc. That solution, general grounds of legal certainty on which adopted with regard to the effect of inter­ the second paragraph of Article 174 is based pretative judgments, has also been applied have already led the Court to hold, in its to judgments declaring a measure to be judgment of 8 April 1976 in Case 43/75 invalid. The attribution of effect ex tunc to (Defienne II [1976] ECR 455), that the declarations of invalidity, whilst it direct effect of Article 119 cannot be relied assimilates judgments declaring a measure on in order to support claims concerning to be void still closer to judgments declaring periods prior to the date of the judgment. a measure invalid, may involve serious and The Court adopted the same approach in sometimes unforeseeable consequences in the Roquette case. In the Defienne II case relation to the past by calling into question the Court emphasized that 'although the again legal relationships which have been practical consequences of any judicial settled, especially in a Member State whose decision must be carefully taken into legislation provides for lengthy limitation account, it would be impossible to go so far periods. as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which The upsetting of established legal might result, as regards the past, from such relationships as a result of a judgment a judicial decision'. declaring a measure invalid may be the exact counterpart of the effect of a judgment declaring a measure to be void and in those circumstances there is no The fact that the Treaty has not expressly reason why the court should not, if need be, provided for the possibility of restricting in limit the retroactive effect of its decision, time the effects of judgments declaring a just as it may do when it declares a measure measure invalid cannot be relied upon as a to be void. ground for concluding that in the Roquette case the Court exceeded its jurisdiction and substituted itself for the legislature. Such an analysis, quite apart from excluding the By inserting the second paragraph of Article possibility of the Court's filling a gap in the 174 in the Treaty its authors, reflecting the Treaty in accordance with the system of position which exists in most legal systems, Community law, in fact challenges the acknowledged that in exceptional cases the whole sytem of legal protection against conflict inherent in every legal system unlawful measures adopted by the between legal certainty and equity may be legislature, a system to which the resolved by protecting relationships formed mechanism of cooperation between the under the law as it previously stood, even if Court of Justice and national courts it was invalid. Article 174 therefore operates provided for by Article 177 is geared.

Finally the Commission considers that the On the basis of the foregoing observations criticism in French academic writing of the the Commission proposes that the Court application by analogy of the second should reply to the second, third and fourth paragraph of Article 174 is based, in fact, on questions in the following manner: a confusion between, on the one hand, the aims of the objection of illegality as structured in French law for the purpose of "With the exception of those cases where the ensuring strict separation of the areas of provisions of Regulation No 652/76 which jurisdiction of the various hierarchies of have been declared invalid were challenged courts and, on the other hand, the aims of before the national authorities or courts Article 177 which envisages, not the within the prescribed periods and before the separation of areas of jurisdiction, but date of delivery of the judgment in Case cooperation in order to ensure that 145/79, the invalidity of the provisions Community law is applied uniformly. of the regulation established in the aforementioned judgment and in this

of the Verwaltungsgerichtsordnung [code of procedure before the administrative courts], The Société des produits de maïs, the plaintiff whereby an application by analogy of the in the main proceedings, considers that the second paragraph of Article 174 must first two questions referred to the Court call protect the special position of those who for little comment, since the Court, in its have challenged the legality of the judgment of 15 October 1980, declared that invalidated regulation prior to the date of Regulation No 652/76 and the subsequent the judgment declaring it invalid, is regulations were invalid: justified, in the Commission's opinion, by

174 may be taken into account. Such is the given quantity of the same basic product, case where the restriction in time of the such as maize, in a specified manufacturing effects of a judgment does not impose any process at a figure appreciably higher than real burden on the persons concerned or the compensatory amount fixed for that where the court states, as it did in its given quantity of the basic product. judgments of 15 October 1980, that the recovery of sums paid but not owed 'would be capable of causing considerable According to the plaintiff in the main differences in treatment, thereby causing proceedings the solution arrived at in that further distortions in competition'. judgment also applies to the products

referred to by it in its application for the amount charged on the basic product which reimbursement of monies paid but not has been utilized. owing. Consequently, it considers that the answer to be given to the national court should In that respect it notes first that the confirm the invalidity of Regulation No products obtained by processing maize are 652/76 as declared in the judgment of 15 virtually standard products, the manufacture October 1980 whilst stating that the said of which requires a quantity of maize which regulation, and the subsequent regulations is virtually the same from one manufacturer amending it, are also invalid: to another, which explains why the

With regard to the last two questions the of exports of maize starch and maize plaintiff in the main proceedings, like the glucose were fixed on a basis other than Commission, considers that, notwith that of the intervention price of maize after standing the third paragraph of the deduction of the production refund on operative part of the judgment in the starch and, on the other hand, that the Roquette case, it would be useful for the compensatory amounts charged in respect thorny problem of the effect in time of of its exports of dextrose and modified judgments in proceedings for a preliminary products were fixed at a figure appreciably ruling on validity to be debated before the higher than the compensatory amount fixed

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regulation. The assets of undertakings Article 177 of the Treaty. Once it has been which suffer under that situation are declared invalid in a preliminary ruling, a confiscated in a manner which is hardly regulation can be nothing else but null and compatible with Article 1 of Protocol No 1 void both as regards the parties and as to the European Convention for the regards the national court which referred Protection of Human Rights and the question to the Court of Justice for a Fundamental Freedoms.

In the context relation to limitation periods, locus standi of proceedings for a preliminary ruling, and the courts having jurisdiction. Given the however, the use of the second paragraph of existence of two strictly independent, Article 174 results in the survival of an perfectly consistent and complete systems, illegality which has lasted for several years. there should not be applied by analogy to the procedure for obtaining a preliminary ruling of invalidity the provisions applying 3. The application by analogy of the to proceedings for a declaration of nullity. second paragraph of Article 174 is open to That is made all the more clear by the fact criticism on the ground that it creates that the second paragraph of Article 174 is, serious uncertainties. Since compensatory within the system of actions for a amounts can be recovered only as from the declaration of nullity, a very exceptional date of the judgment) containing the provision which the Court may apply only declaration of invalidity, it follows that the 'if it considers this necessary' and only 'in longer the delay in giving judgment the less the case of a regulation'. Since the second the national and Community authorities will paragraph of Article 174 is an exceptional be called upon to effect reimbursement. provision, outside the scope of the ordinary There is therefore a danger that the sums law, which was introduced in order to refunded will vary according to the date on mitigate, in case of necessity, temporary which the proceedings were initiated, the difficulties which might arise from a regu length of the proceedings, the exhaustion of lation's being declared void, it must be remedies, whether or not the national court applied in a restrictive manner. That makes a reference to the Court of Justice excludes both its widespread application in and the date of such reference.

PRODUITS DE MAÏS / ADMINISTRATION DES DOUANES ET DROITS INDIRECTS

That a provision of national law is inconsistent may become a matter of serious doubt if, by with Community law, Community law takes making the second paragraph of Article 174 precedence immediately and without a general provision, a system is created limitation. There is no need to wait for an under which the effects of the invalidity will amendment of the national provision or a be produced only in respect of the period preliminary judicial decision declaring the commencing on the date of the declaration non-conformity of that provision with of invalidity. Under such a system, since the Community law and fixing the date from regulation providing for compensatory which that non-conformity is to take effect. amounts would be valid until the date of the If the second paragraph of Article 174 were judgment declaring it invalid and it would to apply to proceedings for a preliminary not be invalid retroactively, those amounts ruling, a regulation incompatible with would not, at the date of the institution of superior Community law would be invalid the proceedings before the national court, only with effect from the date of the qualify for reimbursement.

future. Such an extension would infringe the proceedings inadmissible. In the absence of principle of the immediacy of Community any matter in litigation the national court is law and would be highly objectionable (1) unable to refer to the Court of Justice a because it would discriminate between question for a preliminary ruling. As a result national law which is not in conformity any objection of invalidity and any exam with Community law and subordinate ination of the issue of invalidity in Community law which is not in conformity proceedings for a preliminary ruling would with superior Community law, (2) because it be excluded with regard to regulations would enable the Commission as guardian involving pecuniary obligations.

6. The application by analogy of the second paragraph of Article 174 would not 5. The application by analogy of the seem to be justified by the precedents second paragraph of Article 174 would concerning the application by analogy of

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Article 176 (judgments of 19 October 1977 Community. In view of that and having in Joined Cases 117/76 and 16/77 regard to the French case-law which Ruckdeschel [1977] ECR 1753 and in Joined recognizes a right of reimbursement in such Cases 124/76 and 20/77 Moulins et a case, it is not possible to exclude every Huileries de Pont-à-Mousson [1977] ECR payment, if only by way of compensation, in 1795). Neither the first paragraph of Article respect of the compensatory amounts in 176 nor the aforementioned case-law question. derogates from or is inconsistent with the principle of the immediacy of Community law. On the contrary, the application by analogy of Article 176 reinforces that Having regard to the aforementioned immediacy. Furthermore, such analogous considerations the plaintiff in the main application does not· seem capable of proceedings proposes that the Court should jeopardizing the full, complete and reply to the last two questions in the harmonious application of Article 177. following manner:

PRODUITS DE MAÏS / ADMINISTRATION DES DOUANES ET DROITS INDIRECTS

Decision

1 By judgment of 7 June 1983, which was received at the Court on 16 June 1983, the Tribunal d'instance [District Court], Paris (First Arrondissement), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty several questions on the validity of Commission Regulation (EEC) No 652/76 of 24 March 1976 changing the monetary compensatory amounts following changes in exchange rates for the French franc (Official Journal 1976 No L 79, p. 4).

2 Those questions were raised in the course of a dispute between the French customs administration and the Société des produits de maïs, a French manufacturer of processed maize products, the plaintiff in the main proceedings.

3 In paragraph 1 of the operative part of its judgment of 15 October 1980 (Case 145/79 Roquette [1980] ECR 2917), the Court, ruling on questions referred to it by the Tribunal d'instance, Lille, by judgment of 29 June 1979, declared invalid Commission Regulation No 652/76 of 24 March 1976:

'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;

4 In its own decision of 15 July 1981 on the basis of that judgment, the Tribunal d'instance, Lille, nevertheless ordered the customs authorities to refund to Roquette the sums overpaid by it since 25 March 1976 as monetary compensatory amounts on its exports. According to the Tribunal, it-was not bound by paragraph 3 of the operative part of the Court's judgment since 'after it had interpreted Community law for the purpose of replying to questions referred to it for a pre­ liminary ruling and had exhausted its' powers, the Court took the step, for which there was no basis in law, of adding to the opinion it had thereby given a comment based on a provision which was not applicable to the situation under consideration'. The Tribunal stated moreover that since the Court had no regu­ latory power with regard to the Community, its action could not modify the division of jurisdiction between itself and the national courts, and that it was for the national courts alone to draw the consequences in their domestic legal system of the Court's declaration of invalidity.

5 Relying on the above-mentioned judgment of the Court of 15 October 1980 declaring invalid Commission Regulation No 652/76 and the subsequent regu­ lations on the one hand and on the judgment of the Tribunal d'instance, Lille, of 15 July 1981 on the other, on 30 December 1981 the Société des produits de maïs brought an action before the Tribunal d'instance, Paris, against the Director General for Customs and Indirect Duties seeking the repayment of the compensatory amounts improperly levied by the French customs authorities, under Regulation No 652/76, on its exports to other Member States of a number of maize products.

(4) If it is duly established that a Community regulation is invalid and if such invalidity excludes any possibility of calling into question monetary compensatory amounts already charged under that regulation, does it also exclude, and if so, to what extent, any payment in respect of the monetary compensatory amounts in question?

The first question

8 In its first question the Tribunal asks whether the provisions of Commission Regu­ lation No 652/76 fixing the monetary compensatory amounts applicable to exports of broken maize (tariff heading No 10.05, now No 23.02), gluten (heading No 23.03) and products falling within subheadings 11.08 A I, 17.02 B I (a), 17.02. B I (b), 17.02 B II (a), 17.02 B II (b), 17.02. 23, 17.02. 28.0, 17.02. 28.1, 35.05 A, 29.04.-77.001 are valid.

9 During the proceedings it became apparent, however, that the provisions at issue in the main proceedings are those of Regulation No 652/76 which fix the compensatory amounts applicable to products falling within subheadings 23.02 A I

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(maize or rice bran), 23.03 A I (gluten), 11.08 A I (maize starch), 17.02 B I (a) (glucose and glucose syrup), 17.02 B I (b) (glucose and glucose syrup), 17.02 B II (a) (glucose and glucose syrup), 17.02 B II (b) (glucose and glucose syrup), 35.05 A (dextrin), 29.04 C III (b) 1 (glucitol or sorbitol).

13 In the procedure under Article 177 of the Treaty it is not for the Court of Justice but for the national court alone to make the findings of fact necessary for the resolution of that problem. As the case now stands, there are therefore no grounds for extending the declaration of invalidity contained in the judgment of 15 October 1980 to maize bran (subheading 23.02 A 1). If the Tribunal finds that

PRODUITS DE MAÏS / ADMINISTRATION DES DOUANES ET DROITS INDIRECTS

maize bran (broken maize) is not merely waste but constitutes a by-product of maize, it may refer a second question to the Court.

14 The answer to the first question must therefore be that the provisions of Commission Regulation No 652/76 are invalid in so far as they fix the monetary compensatory amounts applicable to exports of maize gluten (heading No 23.03) and products falling under subheadings 11.08 A I; 17.02 B I (a); 17.02 B I (b); 17.02 B II (a); 17.02 B II (b); 17.02. 23; 17.02. 28.0; 17.02. 28.1; 35.05 A; 29.04.- 77.001.

The second, third and fourth questions

15 In those questions the Tribunal essentially asks the Court to specify the limits and consequences of the invalidity of Regulation No 652/76, as laid down in the judgment of 15 October 1980, taking particular account of what was said in paragraph 3 of the operative part of that judgment.

17 Secondly, it must be emphasized that the Court's 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

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possibility provided for in the second paragraph of Article 174 was based on reasons of legal certainty more fully explained in paragraph 52 of that judgment.

18 It must be pointed out 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 which 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.

THE COURT ,

in answer to the questions referred to it by the Tribunal d'instance, Paris (First Arrondissement), by judgment of 7 June 1983, hereby rules:

(1) The provisions of Commission Regulation No 652/76 are invalid in so far as they fix the monetary compensatory amounts applicable to exports of maize gluten (heading No 23.03) and products falling under subheadings 11.08 A I; 17.02 B I (a); 17.02 B I (b); 17.02 B II (a); 17.02 B II (b); 17.02. 23; 17.02. 28.0; 17.02. 28.1; 35.05 A; 29.04.-77.001

(2) The fact that the provisions of Commission Regulation No 652/76 of 24 March 1976 have been held invalid does not make it possible to challenge the charging or payment of monetary compensatory amounts by national auth­ orities on the basis of those provisions prior to the date of the judgment declaring them invalid.

Mackenzie Stuart Bosco Due Kakouris

Pescatore Koopmans Everling Bahlmann Galmot