C-338/85

2. Before examining the substance of this case it is necessary to consider a preliminary 4. Although the Court has already had procedural point. As the Court is aware, the cause on numerous occasions to consider Commission, in its written observations, the interpretation of Article 177 itself, as far initially expressed serious doubts regarding as I am aware it has not yet considered the the admissibility of the reference and the particular matter raised in this case. The Court considered it necessary to put certain wording of that provision and its spirit questions to the Italian Government clearly contemplate a reply being given to regarding certain aspects of the interlo- questions of interpretation and validity of cutory procedure in cases of urgency under Community law put by a national court or Article 700 of the Italian Code of Civil tribunal where the Court's reply is intended Procedure, under which the Pretore made to assist that court or tribunal in itself giving the reference to the Court. At the same time a ruling in a dispute. In the instant case the both the Italian Government and the decision making the reference is an order plaintiff in the main proceedings were asked for interim measures made by the Pretore ex to give their views on the crux of the parte; he made the reference to the Court of matter, namely the jurisdiction of the Court Justice on the express application of Pardini, to reply under Article 177 of the EEC whose application in this respect was based Treaty to questions put to it by a national on the need to provide the court hearing the court or tribunal where the latter considers merits — which is not the Pretore hearing

6. However, the irregularity of the national the Court held as follows: procedure cannot have any effect upon the bringing of the matter before the Court of 'It follows from these factors that a rule of Justice. The Court held in Reina1 that it is national law whereby a court is bound on not for the Court of Justice to consider points of law by the rulings of a superior whether the decision making the reference court cannot deprive the inferior courts of to it was taken in accordance with the rules their power to refer to the Court questions of national law governing the organization of interpretation of Community law of the courts and their procedure. involving such rulings'.

In other words, a national court or tribunal 7. Of greater significance is the following cannot be deprived of the right to bring a point. By necessity it is only the court called matter before the Court of Justice by a upon to resolve the dispute which may make decision of a higher court or tribunal a reference to the Court of Justice. That reversing or setting aside the decision to requirement follows in the first place from refer the matter. the very wording of Article 177. In the case of courts or tribunals against whose 8. The complement to the autonomy of decisions there is a judicial remedy under national courts and tribunals is that no such national law, it is expressly provided that court or tribunal may be forced to accept a

1 — Judgment of 14 January 1982 in Case 65/81 Reina v 2 — Judgment of 16 January 1974 in Case 166/73 Landeskreditbank Baden-Württemberg [1982] ECR 33, in Rheinmühlen-Düsteldorf v Einfuhr- und Vorratsstelle fiir particular at pp. 42 and 43. Getreide und Futtermittel [\97A] ECR 33, at pp. 38 and 39.

reply to a preliminary question which it has between courts are a national court or not itself formulated. tribunal seised of a specific dispute and the Court of Justice which is asked, in the 9. There is no doubt that a reference for a context of that dispute, to provide it with preliminary ruling assumes that the the elements of Community law needed to judgment of the Court of Justice will be resolve the dispute, even though, by virtue taken into account in the first place by the of the authoritative nature or the Court's court or tribunal making the reference itself. judgments, the preliminary ruling will have It is that notion which led the Court to repercussions outside the case in relation to state, for example in the Irish Creamery which it was given. case, 3 in response to the argument that the 11. It is certainly implicit in the authori- admissibility of a reference for a preliminary tative nature of preliminary rulings that ruling could be challenged on the basis that courts or tribunals with appellate juris- it was premature, that since the court or diction are bound by preliminary rulings tribunal making the reference 'will have to given at the behest or a first instance court take responsibility for giving judgment in or tribunal.

Moreover, the Court has preliminary ruling 'so as to enable it to give held that a national court or tribunal may judgment. 6 The Court alluded to that bring a matter before the Court of Justice a case-law in its recent judgment in Pretore di second time. In addition, as regards the Salò,7 in which it referred, as it did, geographical scope of the authority of moreover, in its order of 5 March 1986 in preliminary rulings, the Court has never Wünsche,8 to 'the national court to which directly clarified the position of national such a judgment [preliminary ruling] is courts or tribunals seised of a matter which addressed'. has given rise to such a ruling at first

That is confirmed by the Government of Ireland and Others [1981] ECR 735. Court's judgment in Benedetti,'1 where it 4 — Judgment of 14 February 1980 in Case 53/79 Office stated that national des pensions pour travailleurs salariés v Damiani [1980] ECR 273. 'the purpose of a preliminary ruling is to 5 — Judgment of 28 June 1984 in Case 180/83 Moser v Land decide a question of law . . . '. Baden-Württemberg [1984] ECR 2539. 6 — Damiani, cited above, at p. 282, and Moser, cited above, at The same approach appears in Denkavit p. 2545; see also the Court's judgment of 14 February 1984 Italiana,10 where the Court held as follows: in Case 278/82 Rem-Handelsgesellschaft Nord mbH and Rewe-Markt Herbert Kureit v Hauptzollämter Flensburg, Itzehoe and Lübeck- West [ 1984] ECR 721. 9 — Judgment of 3 February 1977 in Case 52/76 Benedetti v 7 — Judgment of 11 June 1987 in Case 14/86 Pretore di Salò v Munari[\W7] ECR 163, at p. 183. Persons unknown [1987] ECR 2545. 10 — Judgment of 27 March 1980 in Case 61/79 Amminis- 8 — Case 69/85 Wünsche Handelsgesellschaft v Federal Republic trazione delle Finanze dello Stato v Denkavit Italiana [1980] ojGermany [1986] ECR 947. ECR 1205, at p. 1223.

'The interpretation which, in the exercise of 'In order that the Court of Justice may the jurisdiction conferred upon it by Article perform its task in accordance with the 177, the Court of Justice gives to a rule of Treaty it is essential for national courts to Community law clarifies and defines where explain, when the reasons do not emerge necessary the meaning and scope of that beyond any doubt from the file, why they rule as it must be or ought to have been consider that a reply to their questions is understood and applied from the time of its necessary to enable them to give judgment.' coming into force.'

Similarly, in matter before the Court. That conclusion was Haug-Adrion, the Court was able, by both confirmed and refined in the Court's examining the documents in the case, to judgment in Cilfit.i} establish the subject-matter of the preliminary question even though that 13. There remains the question of the question was couched in very general and statement of the reasons for the order for very imprecise terms. The provision of reference. The Court held, apparently for reasons is certainly important, as is shown, the first time, in Foglia v Novello1* that: for example, by the Court's judgment in Tissier,l8 where it was able to extract the 11 — Judgment of 13 May 1981 in Case 66/80 International Chemical Corporation v Amministrazione delle Finanze delio S t a t o [1981] ECR 1191. 15 — Judgment of 1 April 1982 in Joined Cases 141 to 143/81 12 — Judgment of 27 March 1963 in Joined Cases 28, 29 and Holdijk [1982] ECR 1299. 30/62 Da Costa en Schaake v Nederlandse Belastingadminis 16 — Judgment of 13 December 1984 in Case 251/83 Haug- tratie [1963] ECR 31. Adrionw Frankfurter Vfm'cAen<n,5J-/IG[1984] ECR 4277. 13 — Judgment of 6 October 1982 in Case 283/81 Cilfit v Ministry 17 — Judgment of 12 June 1986 in Joined Cases 98, 162 and of Health [ 1982] ECR 3415. 258/85 Bertini v Regione ¿ozio [1986] ECR 1885. M — Judgment of 16 December 1981 in Case 244/80 Foglia v 18 — Judgment of 20 March 1986 in Case 35/85 Procureur de la Novello [1981] ECR 3045, at p. 3062. Republiquei 7m¡rr[1986] ECR 1207.

questions requiring a preliminary ruling A — Retroactivity above all from the reasoning of the judgment making the reference. 17. The question of retroactivity, which is the essential issue of the first two questions 15. T h e order made by the Pretore, Lucca, put by the Pretore, arises in relation to does not set out any grounds, and one the interpretation of Article 7 (1) of could even be inclined to take the view that Commission Regulation N o 1160/82 of 14 it was decided to make a reference to the May 1982 providing for the advance fixing Court on the ground put forward by the of monetary compensatory amounts. ' 9 That plaintiff in the main proceedings, that is to provision states as follows: say to enable the court hearing the merits of the case to resolve the issue which might come before it. If that were undeniably and exclusively the case I would not hesitate to 'The monetary compensatory amounts fixed propose to the Court that it decline juris- in advance shall be adjusted if a new

Justice. However unlikely it may be, it is that possibility — and that alone — which persuades me to propose to the Court that it 18. The reason the Court has been asked to accept jurisdiction. Nevertheless, I think it is interpret that provision is that the Council, essential that the Court should use this by Regulation No 1223/83 of 20 May 1983 opportunity to state clearly that a court on the exchange rates to be applied in agri- cannot seek a preliminary ruling from the culture, 21 fixed a new parity between the Court of Justice on behalf of another court. Italian lira and the green currency and, on the same day, the Commission adopted two regulations for its implementation, namely Regulations Nos 1244/83 n and 1245/83, 23 II — Substance which had a dual effect with regard to the case before the Court:

PARDINI v MINISTERO DEL COMMERCIO CON L'ESTERO

OPINION OF MR DARMON — CASE 338/85

23. I am tempted to say, in accordance with Regulation No 1160/82 can refer only to the most widely accepted principle, that a the time at which the Council takes its regulation cannot produce any legal effects decision. That view is explained by the fact prior to its entry into force. Such a that once a decision has been taken to alter conclusion is dictated by considerations the representative rates traders can no of legal certainty, and non-retroactivity longer allege that they had no notice that appears to be a fundamental principle, but monetary compensatory amounts were in economic affairs legal principles are about to be reduced. subject to exceptions, as the Court has

24. It appears to me that according to announcement of the imminent adoption of Anicie 7 (!) of Regulation No 11Ó0/82 new representative rates may justify the monetary compensatory amounts fixed in adjustment, from that date, of monetary advance are to be adjusted only when new compensatory amounts fixed in advance, representative rates take effect. In this case, that is to say before the formal adoption of in accordance with Article 8 of Regulation the decision. No 1223/83 and with Annex VII thereto, which so provide in express terms, the new rates are operative from 23 May 1983. Although those provisions are relatively 27. The wording of the provision does not clear, their meaning is nevertheless open to favour such a reading, and it is therefore the

PARDINI v MINISTERO DEL COMMERCIO CON L'ESTERO

However, that regu lation relates solely to the right to cancel certain documents and in any event is 30. However, although that seems to me to subsequent to the regulation which the be the reply in the light of the provisions in Court is called upon to interpret in the question, could there be a valid reason, an instant case. It is therefore of no relevance Overriding matter of public interest', to to this case. Nevertheless, if it was sought to quote the expression used by the Court in draw any lessons from that regulation, such its judgment in CNTA,2* for giving some lessons would in my view go against the other interpretation to those provisions?

28. The position in the case before the of a regulation having retroactive effect. 2 9 Court is therefore that it appears to follow However, the Court has emphasized that a from the relevant provisions, first of all, that provision of a regulation may have retro the decision concerning the alteration of the active effect only 'exceptionally . . . where representative rates for green currencies the purpose to be achieved so demands and must be made before the lodging of an where the legitimate expectations of those application for advance fixing and, concerned are duly respected.' 3 0 D o the secondly, that monetary compensatory circumstances of the Pardini case justify amounts fixed in advance cannot be retroactivity and, if so, to which date? adjusted until after those new rates have become operative. In the instant case the Commission maintains that the announcement of an imminent decision is 32. Despite the fact that there is n o equivalent to the adoption of the decision reference to such considerations in the itself and that consequently the adjustment preamble to the Commission regulation, the of monetary compensatory amounts fixed in Commission states that its objective was t o advance — provided for, let us recall, on the prevent speculation. In that regard it should entry into force of the new rates — may be made retroactive to the date of that 28 — Judgment of 14 May 1975 in Case 74/74 Comptoir national technique agricole v Commission [1975] ECR 533.

OPINION OF MR D A R M O N — C A S E 338/85

monetary compensatory amounts and the that the protection of legitimate expec- levy or refund, which is not to exceed six tations, as a legal principle, has been months, and the fact that the certificate evolved in particular in German law, where relating to the advance fixing of monetary Vertrauensschutz means that 'certain expec- compensatory amounts is limited to the tations which a natural or legal person, as a territory of the Member State in which the result of his consistent conduct, arouses on person concerned states that he wishes to the part of a person with whom he has legal carry out the import or export transaction. relations or on the part of any persons with In the present case the Commission a legal interest in the matter produce legal

35. To return to the instant case, the Commission maintains that it was from the 33. However, since it cannot be said that moment that a change in the conversion any decision was lawfully adopted before 20 rates for green currencies was M a y 1983, the date on which Italy communicated to the press that traders withdrew its reservations and the date could no longer properly rely on the referred to in the regulation itself, I take the concept of legitimate expectations in order view that, in the light of Article 7 (1) to justify the continued application of of Regulation N o 1160/82, monetary monetary compensatory amounts fixed compensatory amounts fixed in advance before the entry into force of new represen- may be discontinued at the earliest only tative rates but after that communication. with effect from the date on which the regulation was published, namely 21 May 31 — Jörg P. Müller, Vertrauensschutz im Völkerrecht, 1971 Cologne and Berlin, quoted by P. Tavernier, 'Le juge

PARDINI v MINISTERO DEL COMMERCIO C O N L'ESTERO

36. The Commission therefore considers that a press release nullifies legitimate expectations. Its attitude seems to suggest 39. More generally, the Court stated in that retroactivity may be the rule once the Union Malt that 'the holder of an export obstacle of legitimate expectations is licence fixing the refund in advance has an overcome. Such a view puts the principles of established right to receive the refund fixed the protection of legitimate expectations and in advance when the export is carried out'. 3 8 non-retroactivity on an equal footing. It Logically, that principle applies to all cases must be rejected categorically: non-retroac- of advance fixing. tivity is the general rule and retroactivity an exception which must never prejudice 35 — Sec, for example, judgment of 10 December 1975 in Joined legitimate expectations or a fortiori vested Cases 95 to 98/74, 15 and 100/75, Union nationale des coopératives agricoles de céréales v Commission and Council rights. [1975] ECR 1615. 36 — Judgment of 14 May 1975 in Case 74/74 [1975] ECR 533 at p. 539. 37. In truth, it seems to me that as regards 37 — Judgment of 8 June 1977 in Case 97/76 Merkur v amounts fixed in advance it is proper to Commission [1977] ECR 1063. 38 — Judgment of 26 January 1978 in Joined Cases 44 to 51/77 Groupement d'intérêt économique 'Union Malt' v 34 — Official Journal 1983, C 32, p. 73. Commission [1978] ECR 57, at p. 80.

OPINION OF MR DARMON — CASE 338/85

It is surprising that the Commission permitted advance fixing even though it envisaged the adjustment, with retroactive effect, of compensatory amounts fixed in advance; the Court was informed at 'a fundamental principle in the Community the hearing that that was its usual practice. legal order requires that a measure adopted Advance fixing cannot be made wholly by the public authorities shall not be illusory. It was provided for in order to applicable to those concerned before they protect traders against monetary fluctu- have the opportunity to make themselves ations, but if the Commission's line of acquainted with it'. 43 reasoning were upheld it would place traders in a cleft stick: either the intended transaction must be carried out on less favourable terms, or even at a loss, or the security lodged in order to ensure that the

41. Although 'the nature of the system' and nuance of monetary compensatory amounts 'the needs of the machinery', to which the under the Commission's regulations in force Court has referred in a different context but from 23 May could affect only amounts with reference nevertheless to monetary fixed in advance between 21 and 23 May. compensatory amounts, 4 0 may justify the That conclusion and the discussion which entry into force of a Community measure precedes it lead me to give an affirmative with effect from a date prior to its publi- reply to the first question put by the cation in exceptional cases where the *' — Case 98/78, cited above; judgment of 25 January 1979 in Case 99/78 Decker v HauptzoUamt Undau [1979] ECR 39 — Opinion delivered in Case 7/76 IRCA v Amministrazione delle Finanze dello Slato [1976] ECR 1213, at p. 1239. 42 — Cited above, at pp. 86 and 111 respectively. 40 — Judgment of 7 July 1976 in Case 7/76, cited above. 43 — Ibid, at pp. 84 and 109 respectively.

Pretore, Lucca, which renders superfluous a which are calculated and expressed in reply to the second question. national currency. In addition, Article 4 (1) relates solely to 'an alteration of the relationship between the parity of the currency of a Member State and the value B — CancelUtion of the unit of account' (now the ecu) and not between the green currency and the actual currency. 43. The difficulties associated with retroac- tivity become all the greater when attention is turned to the two final questions put by the Pretore relating, in substance, to the 47. Article 4 (1) of Council Regulation No right to cancel import licences fixed in 1223/83, which concerns, it will be recalled, advance. the exchange rates to be applied in agri- culture, provides that the provisions of Regulation No 1134/68 are to apply to the matters which it governs. Article 4 (2) 44. In essence the Pretore seeks an interpre- provides that Article 4 (1) of Regulation N o tation of a number of provisions contained 1134/68 'shall apply only if the application in various Council and Commission regu- of the new representative rates is disadvant- lations in order to ascertain whether the ageous to the party concerned'. An identical holder of an import licence fixing both the provision is to be found in Article 4 of levies and the compensatory amounts may Council Regulation 878/77 on the exchange apply for their cancellation in certain rates to be applied in agriculture, 44 which circumstances. was repealed by Regulation No 1223/83. Provision for the application, in certain circumstances, of the final subparagraph of 45. In order to answer that question it is Article 4 (1) of Regulation N o 1134/68 is necessary to examine the provisions in also made in Article 2 of Council Regu- question. The first relevant provision is the lation 1054/78 laying down detailed rules final subparagraph of Article 4 (1) of Regu- for the application of Regulation 878/77. 4 5 lation N o 1134/68 of the Council, which It is since the entry into force of Regulation provides that N o 1054/78, which lays down the conditions upon which cancellation of advance fixing may be requested, that the question of the cancellation of 'any person who has obtained advance compensatory amounts fixed in advance fixing of such amounts for a specific trans- arises because, as I have already stated, it is action may, by written application which only since Regulation N o 243/78 of 1 must reach the competent authority within February 1978 that monetary compensatory 30 days of the entry into force of the amounts may be fixed in advance. measures fixing the altered amounts, obtain cancellation of the advance fixing and of the relevant document or certificate.' 48. In Regulation N o 1244/83, adopted pursuant to Council Regulation No 46. The Commission maintains that that 1223/83, the Commission restricted the provision applies only to amounts fixed in ecus and expressed in national currency and 44 _ Official Journal 1977, L 106, p. 27. not to monetary compensatory amounts, 45 — Official Journal 1978, L 134, p. 40.

application of the final subparagraph of maintained, and I have already expressed Article 4 (1) of Council Regulation N o my view that in that respect it would be 1134/68 — and thus the right to request the more correct from a legal point of view to cancellation of licences fixed in analyse the position in terms of a vested advance — to those issued before 17 May right on the part of the holder of an import 1983. licence with advance fixing. To deny traders the right to request cancellation of licences fixing compensatory amounts in advance on the ground that those amounts are adjusted with due regard to the legitimate expec-

In other words, expectations, which justifies, in the traders must, according to the Commission, Commission's view, the fact that the right to either go through with the transaction orig- request cancellation thereof is provided for inally envisaged by them on terms different in its regulation only in favour of those from those which existed when the licence traders who, at the time of the advance comprising advance fixing was obtained (on fixing, were entitled to expect that the levies provision of a bank guarantee), or repudiate or refunds, would be maintained at the rates the transaction and thereby forfeit the fixed in advance, that is to say in this case amount of the security. Such an inequitable the holders of licences issued before 17 May solution is not dictated either by the 1983. provisions or by the needs of the machinery. It must be possible to obtain cancellation of licences with advance fixing in respect of all amounts fixed in advance, be they levies, refunds or monetary compensatory amounts, on the conditions laid down by

is altered. Such a view raises once again the possible, according to Article 4 (2) of question of the moment from which traders Council Regulation 878/77, 'only if the may be considered not to be entitled to application of the new representative rates is expect that the rates fixed in advance will be disadvantageous to the party concerned'.

Article 7 (1) of Commission Regulation N o 1160/82 must be interpreted as meaning that compensatory amounts fixed in advance cannot be adjusted before new representative rates have come into effect and that it does not affect amounts so fixed before the date of publication in the Official Journal of the European Communities of the regulation setting the new representative rate;

The final subparagraph of Article 4 (1) of Regulation N o 1134/68 must be inter- preted as meaning that any trader who holds an import licence with advance fixing of levies and monetary compensatory amounts is entitled to have that licence, cancelled in the event of an alteration in the representative rates which is disad- vantageous to him provided that the application for advance fixing was submitted before such alteration was published in the Official Journal of the European Communities;

The final indent of Article 1 of Commission Regulation N o 1244/83 does not apply to requests for the cancellation of licences with advance fixing issued before 21 May 1983.