Súdny dvor Európskej únie·27.10.1993

C-228/92

ECLI:EU:C:1993:862

Súd: Súdny dvor Európskej únie
IČS: 61992CC0228
Zdroj: eur-lex.europa.eu ↗

OPINION OF MR DARMON — CASE C-228/92

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 27 October 1993 *

Mr President, the main proceedings, once again invites the Members of the Court, Court to reconsider. For that reason it asks the plenary court to rule on the questions 5 referred by the Finanzgericht Dusseldorf.

1. The Court once again has before it, fol lowing the three judgments of 15 Octo ber 1980, Providence Agricole de la Cham- pagne, Maïseries de Beauce and Roquette 1 Frères, the Société des Produits de Maïs 2 judgment of 27 February 1985, and the 3 Fragd judgment of 22 May 1985, the diffi cult problem of the temporal effect of a find 4. It was once again the firm of Roquette ing, in the context of a reference for a which brought proceedings in that court preliminary ruling, that a Community regu against the customs authorities for repay lation is invalid. ment of excess MCAs wrongfully charged on maize derived products (starch, dextrine and soluble starch).

2. In 1980 the Court, applying the second paragraph of Article 174 of the EEC Treaty by analogy in such proceedings, held that the declaration that the regulation submitted for the Court's consideration was invalid had effect only from the date of the Court's judgment; monetary compensatory amounts 5. The defendant in the main proceedings ('MCA') wrongly paid or received prior that resisted the claim on the grounds that Com date could thus not give rise to a claim for mission Regulation (EEC) No 2719/75 of 24 repayment. October 1975 fixing the monetary compen satory amounts and certain rates for their 6 application, had been correctly applied in the instant case, and the Finanzgericht, in 3. That 'ex nunc erga omnes' effect is what the Commission, supporting the plaintiff in 4 — See the Commission's observations in the Société de Produits de Maïs case. 5 — For the text of those questions, see the Report for the Hear * Original language: French. ing (II, 1, in fine). 1 — Case 4/79 [1980] ECR 2823, Case 109/79 [1980] ECR 2883 6 — OJ 1975 L 276, p. 7; adopted under Council Regulation (EEC) No 974/71 of 12 May 1971 on certain measures of and Case 145/79 [1980] ECR 2917. conjunctural policy to be taken in agriculture following the 2 — Case 112/83 [1985] ECR 719. temporary widening of the margins offluctuationof the cur 3 — Case 33/84 [1985] ECR 1605. rencies of certain Member States (OJ 1971 L 106, p. 1).

I - 1448

ROQUETTE FRÈRES

view of Roquette's complaints relating to acknowledges that the amount claimed and that regulation, asks the Court: paid as MCA on the derived products amounts to a sum which is clearly more than the MCAs on the corresponding quantity of 8 the basic product and that the basis of cal culation of the MCAs on maize starch had not been reduced by the amounts of refunds — firstly, whether the aforesaid regulation is 9 on production. invalid in so far as it fixes the MCAs for the derived products (1) in such a way that the sum of those charges leads to a total MCA which is clearly more than that on the corresponding quantity of the basic product, and (2) in the case of 8. The regulation under consideration maize starch, without reducing the basis should therefore be declared invalid for for calculating the MCAs by the amount those reasons. of the refunds on production,

— secondly, if it is invalid, whether 9. The Commission further considers that Roquette is entitled to rely on that inval the declaration of invalidity should extend to idity in the present case, given that it 'has certain other regulations, since they are done everything legally necessary and tainted by the same irregularities with 10 possible to prevent the contested tax respect to the same products. notice from remaining in force'.

10. As the Commission stated in replying to the question put to it by the Court, the pro 6. The first question need not detain us long. visions in question are as follows: the amending Regulations No 2829/75 of 31 October 1975, No 271/76 of 6 Febru¬

8 — The MCAs on the derived products in question exceed by 7. The Commission concedes that Regula 23.27% the MCA on the basic product, maize, according to tion No 2719/75 incurs the criticisms the observations of the plaintiff in the main proceedings, p. 3. In its judgment in Case 46/84 Nordgetreide [1985] referred to by the Finanzgericht in the first ECR 3127 the Court held that the difference of 1.45% between the MCAs applicable to maize and those appli question, which were the reasons for the cable to derived products was 'a negligible one' ana did declarations of invalidity in the Court's three not affect the validity of the regulation in issue (para graphs 25, 28 and 29). The difference was about 30% in judgments of 15 October 1980. 7It expressly Cases 4/79 and 109/79 and about 12% in Case 145/79 (paragraph 34 of the Nordgetreide judgment). In those three cases it was regarded as excessive enough to justify a find ing of invalidity. 9 — Commission's observations, p. 6. 7 — Commission's observations, p. 6. 10 — Ibid., pages 15 and 16.

I - 1449

OPINION OF MR DARMON — CASE C-228/92

ary 1976, and No 512/76 of 5 March 1976, 11 13. It appears to me to be essential here to Regulation No 572/76 of 15 March 1976, begin by examining the principles governing 13 which replaced the regulation in issue, and the effects ratione temporis of judgments 14 Regulation No 618/76 of 18 March 1976, declaring a regulation invalid in the context which amended the latter regulation. All of a reference for a preliminary ruling. these regulations are earlier than those declared invalid by the Court's decisions of 15 October 1980.

14. It appears from the Court's judgment in Case 66/80 International Chemical Corpora- 11. The declaration of invalidity should be tion v Amministrazione delle finanze dello 16 extended for the same reasons as those stated Stato that such a judgment is binding on by the Court in the Roquette judgment cited any court which has to apply the invalid act, above: and has effect erga omnes:

'The fact that that regulation is invalid ren '... although [that judgment] is directly ders invalid the provisions of the subsequent addressed only to the national court which regulations of the Commission the purpose brought the matter before the Court, it is of which is to alter the monetary compensa sufficient reason for any other national court tory amounts applicable to the products to regard that act as void for the purposes of 15 referred to in the foregoing paragraph'. a judgment which it has to give'. 17

12. I come to the second question. 15. Unlike a regulation which has been annulled on the basis of Article 173 of the Treaty, which is declared null and void, the 11 — Regulation (EEC) No 2829/75 of the Commission of 31 October 1975 altering the monetary compensatory amounts regulation thus declared invalid 'does not (OJ 1975 L 284, p. 1), Commission Regulation (EEC) 18 No 217/76 of 6 February 1976 changing the monetary com disappear from the legal order' until it has pensatory amounts following changes in exchange rates for been expressly repealed by a new act. Under the Italian Lira (OJ 1976 L 34, p . 1), and Commission Reg ulation (EEC) No 512/76 of 5 March 1976 altering the Article 176 of the EEC Treaty, the institution monetary compensatory amounts (OJ 1976 L 60 p . 1). 12 — Commission Regulation (EEC) No 572/76 of 15 March 1976 fixing the monetary compensatory amounts and certain rates for their application (OJ 1976 L 68, p. 5). 13 — Article 4. 16 — [1981] ECR 1191. 14 — Commission Regulation (EEC) No 618/76 of 18 17 — Paragraph 13; the same formulation is used in paragraph 16 March 1976 altering the monetary compensatory amounts of the Société des Produits de Maïs judgment cited above. (OJ 1976 L 75, p . 1). 18 — Masclet, J. C , 'La jurisprudence "Roquette" à l'épreuve des 15 — Point 2 of the operative provisions. juridictions françaises?', RTDE, 1986, p . 161.

I - 1450

ROQUETTE FRÈRES

whose act has been declared void is required unlawful ab initio'. Mr Advocate General to take the necessary measures to put an end Capotorti gave the principal reason in his 19 to the illegality which has been found. Opinion in Case 238/78 Ireks-Arkady v 23 Council and Commission : '... a declaration of invalidity or unlawfulness with effect ex tunc does not, it is argued, provide any basis for claims for compensation on account of damage occurring previously; thus a refer 16. Whether by reason of Article 173 or by ence to the preliminary ruling in which the reason of Article 176, the act in question existence of the unlawful act was established 2 ceases to apply. 0 There is thus a close rela is of no avail to the persons interested in 24 tionship between a judgment annulling an pressing such claims'. act and a preliminary ruling declaring an act invalid.

19. However, because of the erga omnes effect of a declaration of invalidity, retroac tive effect may bring about serious conse 17. It is therefore inevitable that the follow quences in that it leads to the re-opening of ing question should be asked: must the rule established legal relationships which have that annulment has retroactive effect, stated been entered into in good faith. in the first paragraph of Article 174, and the exception in the second paragraph of that article also apply to preliminary rulings 21 declaring an act invalid? 20. The possibility of prescribing ex nunc effect when giving a preliminary ruling is thus imperative for at least two reasons. First of all, it would be paradoxical if in contrast to annulment, which is hemmed in by strict 18. Those judgments, like judgments annul conditions of admissibility ratione personae ling acts, in principle have retroactive effect: et temporis under the third paragraph of 'a regulation declared not to be valid is Article 173, the procedure for invalidity could be set in motion on the initiative of

19 — Sec paragraph 16 of the International Chemical Corpora- tion judgment cited above, and the case-law referred to there. Sec also paragraph 44 of the Providence Agricole de la 22 — R. Jolict, 'Le droit institutionnel des Communautés europ- Champagne and Matseries de Bcaiice judgments and para éennes — Le contentieux', p. 226. Sec, for example, tne graph 51 of the Roquette Frères judgment and the case-law judgment in Case 130/79 Express Dairy Foods [1980] cited there, and also mv opinion in the Société des Produits ECR 1887, Opinion of Mr Capotorti. The MCAs collected de Mats case, paragraph 5. by the national authorities on the basis of Community regu lations declared invalid must be repaid. Sec also the solu 20 — On the links between proceedings on legality and prelimi tion implicit in the judgments in Joined Cases 117/76 nary references where validity is assessed, sec Mcrtcns de and 16/77 Ruckdeschcl [1977] ECR 1753, at paragraph 13 Wilmars, J., 'Annulation et Appréciation de Validité dans le ('... the existence of several courses of action ... to make Traité CEE: Convergence ou Divergence?' (Mélanges H. good any damage sustained by those concerned ...') and Kutscher, 1981, p. 283). Sec also paragraph 17 of the Société Joined Cases 124/76 and 20/77 Moulins et Huileries de des Produits de Mais judgment. Ponl-à-Motisson [1977] ECR 1795, at paragraph 29. 21 — The Court recognizes that preliminary rulings as to inter- pretation have ex tunc effect: sec the judgments in 23 — [1979] ECR 2955. Case 43/75 Defrcnne II [1976] ECR 455, Case 61/79 Dcn- 24 — Ibid., p. 2991. See also the judgment in Joined kavit Italiana [1980] ECR 1205, at paragraphs 16 and 17, Cases 256/80, 257/80, 265/80, 267/80, 5/81 and 51/81 and Joined Cases 66/79, 127/79 and 128/79 Salumi [1980] and 282/82 Birra Wahrer v Council and Commission, at ECR 1237, at paragraphs 9 and 10. paragraph 33.

I-1451

OPINION OF MR DARMON — CASE C-228/92

any individual person, with no time-limit a regulation will still have legal effect with other than that resulting from the rules on regard to certain persons. Secondly, it resem prescription in national law, in other words, bles an estoppel; an individual will not be several years in certain cases after the coming able to rely on the finding of invalidity for 25 into force of the rule in question. Sec the period prior to the date of the judgment. ondly, rules of Community law may effect especially sensitive sectors and declaring them invalid may entail significant conse quences, including financial ones, which it is essential to be able to control. That concern 26 is apparent in the Court's Pinna judgment. 23. In the judgments of 15 October 1980, cited above, the Court held that:

21. It may be noted in passing that the European Court of Human Rights followed 27 the Defrenne II judgment in limiting the temporal effect of its Marckx judgment of 13 '... it is necessary to apply by analogy the 28 June 1979, laying down the principle of second paragraph of Article 174 of the equal treatment for legitimate and illegiti Treaty, whereby the Court of Justice may mate children in estate matters: '... the prin state which of the effects of the regulation ciple of legal certainty, which is necessarily which it has declared void shall be consid inherent in the law of the Convention as in ered as definitive, for the same reasons of Community law, dispenses the Belgian State legal certainty as those which form the basis 30 from re-opening legal acts or situations that of that provision'. antedate the delivery of the present judg 29 ment'.

24. However, in the Société de Produits de 22. Nevertheless, ex nunc effect does raise Maïs judgment the Court, no longer refer serious difficulties. Firstly, it means that ring to analogy, gave as the reason for limit Community law is divided according to ing the temporal effect of a declaration of time; although declared invalid by the Court, invalidity 'the necessary consistency between the preliminary ruling procedure and the action for annulment... which are two mech anisms provided by the Treaty for reviewing 25 — See my Opinion in the Société des Produits de Mais case, the legality of acts of Community institu paragraph 11. 31 26 — Case 41/84 Pinna [1986] ECR 1, at paragraphs 26 to 30. tions'. Only employed persons who had already brought legal proceedings or made an equivalent claim prior to the date of the judgment were able to benefit from the ex tunc effect of the finding that Article 73(2) of Regulation No 1408/71 was invalid. 30 — Paragraph 45 of the Providence Agricole de la Champagne 27 — Cited above; see references in note 21 above. and Maïseries de Beattce judgments and paragraph 52 of the 28 — Series A No 31. Roquette judgment. 29 — Ibid., paragraph 58. 31 — Paragraph 17.

I - 1452

ROQUETTE FRÈRES

25. If the principles underlying the De f renne of the invalid rule and can legitimately II and Denkavit Italiana judgments deal expect legality to be respected. As D. Simon ing with interpretation are applied to the says, 'why should the legal certainty of some field of declarations of invalidity, the Court's be more deserving than the legal certainty of 36 case-law subjects ex mmc effect to strict con others?' ditions:

(1)the existence of Overriding consider 27. How should this affect the plaintiff in ations' 33 which justify restricting the the main proceedings? temporal effects of a declaration of inval idity, such as requirements of legal cer tainty (the justification usually given is the financial repercussions of a retroactive decision); 28. While the possibility of applying the sec ond paragraph of Article 174 to preliminary rulings of invalidity is now generally accepted, at least by national courts, that is not the case with the unconditional applica (2) definition by the Court, in the judgment tion of ex nunc effect, which has the effect of declaring the invalidity, of the limitation preventing the plaintiffs in the main proceed 34 of its temporal effects. ings from benefiting from the invalidity which they have had declared. This point is behind the second question of the Finanzger icht Düsseldorf in the present proceedings.

26. The greatest care is needed when having recourse to the principle of legal certainty. It is the basis of the principle of legality, but may nevertheless sometimes conflict with that principle. As I have stated on a previous 29. The three judgments of 15 October 1980 35 upheld the ex nunc erga omnes effect of the occasion, it has two aspects. While it aims not to call into question legal relationships declaration of invalidity. which have been established in good faith, it also aims to protect the interests of economic agents who have suffered damage by reason

30. The Court considered that the finding of 32 — Cited above; sec references in note 21 above. invalidity did not in itself bring about the 33 — Paragraph 26 of the Pinna judgment. Compare para consequences which the plaintiffs in the main graph 72 of the Defrawe II judgment and paragraph 17 of the Denkavit Italiana judgment: 'it is only exceptionally proceedings wished for with respect to a

34 — See paragraphs 17 and 18 of the Société des Produits de Mais judgment. See on the point my Opinion in that case, para graph 12. Compare paragraph 18 of the Denkavit Italiana judgment, cited above, and paragraph 13 of the judgment in 36 — D. Simon, 'L'effet dans le temps des arrêts préjudiciels de la Case 309/85 Barra [1988] ECR 355. Cour de justice des Communautés européennes: enjeu ou 35 — See my Opinion in the Société des Produits de Mais casc, prétexte d'une nouvelle guerre des juges?, Mélanges Pesca- paragraph 11. tore, Baden-Baden 1987, p. 663.

I -1453

OPINION OF MR DARMON — CASE C-228/92

reduction of the amounts claimed as MCAs. the judgment and confined him to a purely In fact only the Commission, bearing in platonie satisfaction?' mind its discretionary powers, was in a posi tion to determine the MCAs applicable to the various products in question in the light 37 of the declaration of invalidity. 33. It is significant that the Court returned to the question in the Société des Produits de Maïs judgment, even though it was 'irrele 41 vant' for the particular case.

31. It does not appear that the Court thereby challenged in prinaple the right of the plaintiffs in the main proceedings not to have an invalid regulation applied to them. 34. The Court held that: The Court noted, having regard to the cir cumstances of the particular cases, in addi tion to the abovementioned technical prob lem, the risk of distortion in competition caused by the lack of uniformity of the rele 'It is ... for the Court, where it makes use of vant national legislations with regard to the the possibility of limiting the effect on past reimbursement of payments wrongfully events of a declaration in proceedings under 38 made. Article 177 that a measure is void, to decide whether an exception to that temporal limit ation of the effects 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 32. The Court's decision in Roquette has the declaration of invalidity or whether, con attracted criticism from a number of com versely, the declaration of invalidity applica 39 mentators: ble only to the future constitutes an adequate remedy even for traders who took action at the appropriate time with a view to protect 42 ing their rights'.

'... how ... could one not be shocked by it, since for the first time the Court refused altogether to allow even the plaintiff in the proceedings to benefit from the solution in 35. The Court thus (i) reaffirmed the possi bility of allowing the party which brought

37 — See paragraph 42 of the Providence Agricole de la Cham- pagne and Maïseries de Beauce judgments. 40 — G. Isaac, 'La modulation par la Cour de Justice des Com 38 — See paragraph 45 of the Providence Agricole de la Cham- munautés européennes des effets dans le temps de ses arrêts pagne and Maïseries de Beauce judgments and paragraph 52 d'invalidité', CDE, 1987, p. 444. of the Roquette judgment. 41 — See paragraph 19 of the Société des Produits de Maïs judg 39 — D. Simon, op. cit., p. 651; J. Boulouis, commenting on a ment. That company had lodged a claim for repayment judgment by the Tribunal d'Instance, Lille of 15 July 1981, after the Court's judgment of 15 October 1980 in Recueil Dalloz, 1982, J, p. 10; H. Labayle, 'La Cour de jus Case 145/79 and was thus unable in any event to benefit tice des Communautés et les effets d'une déclaration from the possibility of obtaining repayment of the sums d'invalidité', RTDE 1982, p. 484; J. C. Maselet, op. cit, paid under the invalid regulations. p. 161. 42 — Paragraph 18.

I - 1454

ROQUETTE FRÈRES

the action to benefit from the declaration of 38. The Court's case-law here follows the invalidity and (ii) made the application of ex same principles as those of its interpretative nunc erga omnes effect subject to a new con preliminary rulings which, if ex nunc effect dition, namely that it constitutes 'an ade applies, provide for a systematic exception in quate remedy', which appears unlikely to be favour of claimants who have already the case for the trader who starts the main brought legal proceedings or made an equiv 45 proceedings after wrongly paying large sums alent claim. of money.

39. This flexibility — which undoubtedly represents progress — is significant, and the 36. I cannot refrain here from quoting Pro Commission proposes that it should be fessor Everling who, commenting on the applied in the present case. aforesaid paragraph of the judgment, writes that:

40. The Court is familiar with the criticisms which have been made of ex nunc erga 'This unusual obiter dictum ... indicates that omnes effect. It is said to deprive persons the Court considered its previous position to subject to the law of the right to effective be unsatisfactory and wished to signal to the protection by the courts and more particu national courts ... that it was ready to larly to damage the useful effect of Article develop its case-law on the point further.' 43 177.

41. To give a declaration of invalidity ex 37. Since that judgment the Court has nunc erga omnes effect is said to have 'the always excluded from the ex nunc effect of a perverse effect of reducing the judicial pro declaration of invalidity the party which tection which those to whom the law applies brought the action or other traders who benefit from thanks to the preliminary ruling before the date of the judgment brought procedure, by preventing national courts legal proceedings or made an equivalent from fully protecting their rights in the event 44 claim under the applicable national law. of a violation of the Community legal sys-

43 — U. Everling, 'Der Ausschluß der Rückwirkung bei der Fest 45 — See the Defreime II judgment; the judgment in Case 24/86 stellung der Ungültigkeit von Verordnungen durch den Blaizot [1988] ECR 379, at paragraph 28; that in Case Gerichtshof der EG', Europarecht Ettergierecht C-262/88 Barber [1990] ECR I-1889, at paragraph 41; in Wirtschaftsrecht: festschrift fur Bodo Borner, 1992, p. 65. Case C-163/90 Legros [1992] ECR I-4625, at paragraph 30; 44 — See the Piima judgment cited above, at paragraph 29, and as and in Case C-109/91 Ten Oever, [1993] ECR I-4879. On the most recent authority the judgment in Joined Cases the connections between preliminary rulings of interpret C-38/90 and C-151/90 Lomas [1992] ECR I-1782, at para ation and judgments on validity, see W. Alexander, 'The graph 25, which repeats word for word the text of para Temporal Effects of Preliminary Rulings', Yearbook of graph 18 of the Société des Produits de Mais judgment. European Law 1988, vol. 8, p. 25.

I - 1455

OPINION OF MR DARMON — CASE C-228/92

tern by the institutions'. Specifically 43. This argument makes an impression. The 'undertakings which have paid compensatory preliminary ruling procedure for assessing amounts declared to have been illegally lev validity must indeed remain available as a ied are thereby deprived of their right to general rule to natural or legal persons who reimbursement in respect of payments made argue that a provision of derived Commu 49 before the date of the judgment: their sole nity law is unlawful. Such a procedure interest in bringing their case before the would be deprived of useful effect if declara Community court is to prohibit in principle tions of invalidity, in systematic fashion and 47 the levying of MCAs in future.' erga omnes, had no effect on the period before the judgment.

44. Quite apart from the paradox involved in a court laying down the criteria for law fulness and then deciding that the rule which 42. As the plaintiff in the main proceedings violates those criteria is to remain applicable stated in Société des Produits de Maïs, appli to the case, the individual's fundamental cation of ex nunc effect may have the effect rights are affected here. of depriving Article 177 of substance: 'For a [preliminary reference] to be admissible, the main proceedings must themselves be admis sible. That might be highly doubtful if, by generalizing the provisions of the second 45. The compatibility of such a solution paragraph of Article 174, a system were with the fundamental principles was exam arrived at where the effects of invalidity ined most acutely by the Italian Constitu applied only to the period after the declara tional Court in its judgment of 21 April 1989 tion of invalidity. In such a system, since the in Fragd v Amministrazione delle Finanze regulation prescribing the monetary com 50 dello Stato. pensatory amounts was valid until the date of the judgment declaring it invalid with no retroactive effect, the amounts in question would not be liable to be reimbursed on the date of commencement of the proceedings in the national court. The national court, neces 46. The Court will recall that Fragd had sarily considering matters as they are at the brought proceedings in the Tribunale di Ven date of commencing the proceedings, will ezia for reimbursement of MCAs wrongly thus have to find that the plaintiff has no paid. The Tribunale referred a question to interest in bringing proceedings for repay the Court on the legality of Commission ment of the sums paid. As he has no in Regulation (EEC) No 1541/80 of 19 51 terest, the main proceedings will be inad June 1980, under which those amounts had missible ...'. 48 been calculated.

49 — Direct actions for annulment in particular are open to them 46 — D. Simon, op. cit., p. 864. only under strict conditions. 47 — Ibid., p. 665. 50 — Rivista di diritto internazionale, 1989, p. 103. 48 — Observations submitted on behalf of Société des Produits 51 — Altering the monetary compensatory amounts (OJ 1980 de Maïs, pp. 11 and 12 of the typed version. L 156, p. 1).

I - 1456

ROQUETTE FRÈRES

47. The Court held in a judgment of 22 Article 174 in conjunction with Article 177, May 1985 that, for the reasons stated in which in the opinion of the Court of Justice the Roquette judgment of 15 October 1980, permits the use of discretion to limit the u 'the provisions of Commission Regulation temporal effect of the judgment declaring the No 2140/79, as amended by Commission invalidity even to the detriment of the trad- Regulation No 1541/80, are invalid in so far ers who raised the question by bringing the as they fix the monetary compensatory proceedings in question, would in practice amounts applicable to exports of powdered entail the denial of judicial protection of the glucose .... The fact that the provisions individual against rules of Community law of Commission Regulation No 2140/79, imposing monetary payments which have 55 as amended by Commission Regulation been declared illegal'. No 1541/80, have been declared invalid pro vides no ground for calling into question the levying or payment of monetary compensa tory amounts by the national authorities on the basis of those provisions in respect of the period preceding 15 October 1980, the date on which the judgment declaring such provi 53 sions invalid was delivered'.

49. In its judgment of 21 April 1989 the Constitutional Court stated concisely that:

48. Following that decision the national court raised the question whether Articles 1 and 2 of the Italian law ratifying the Treaty of Rome were constitutional 'in so far as, in introducing into the domestic legal system Article 177 of the Treaty as interpreted by the Court of Justice, they give that Court the power to limit the temporal effect of prelim inary rulings on the validity of rules which 'the right to protection by a court, which is require the payment of money, excluding in itself an inviolable human right, must be from the effects of the declaration of invalid included among "the highest principles of ity legal acts accomplished prior to the judg our constitutional order, in which it is ment even if they are the subject of the main closely linked with the very principle of proceedings in the course of which the refer- 54 democracy which consists in assuring to all ence for a preliminary ruling was made'. persons at all times, for all disputes whatever, According to the Tribunale di Venezia, 'the a court and a judgment"' ('l'assicurare a tutti rule of law which could be deduced from e sempre, per qualsiasi controversia, un giu 56 dice e un giudizio'),

52 — Case 33/84, [1985] ECR 1605. 53 — Paragraph 20. 54 — Judgment of the Constitutional Court, paragraph 1 of the 55 — Ibid., my emphasis. 'as to the facts' part, my emphasis. 56 — Ibid., paragraph 3.2 of the 'as to the law' part.

I - 1457

OPINION OF MR DARMON — CASE C-228/92

and concluded that: Member States and a right guaranteed by the European Court of Human Rights. The case-law of the Court of Justice has declared it to be a fundamental principle of Community law. The Court has thus con firmed the existence of the right of access to 61 a court and the right of effective protection 'In substance, the right of every person to by a court for individuals who rely on Com 62 have access to a court and a judgment for munity law. any dispute would be deprived of substance if the court which has doubts on the legality of a provision which it should apply receives from the judicial authority to which it is obliged to refer the question the answer that 63 the provision is indeed invalid, but that that 52. As we have seen, according to now invalidity has no effect in the dispute which is settled case-law, the Court already considers the subject-matter of the proceedings, and that a declaration of invalidity cannot be that that dispute must therefore be decided given ex nunc effect with regard even to the by applying a provision which has been plaintiff, unless that effect constitutes an 57 'adequate remedy' for him. acknowledged to be illegal.'

53. If the application is for reimbursement of sums paid in the past under the regulation 50. It was only because the proceedings in which has been declared invalid, ex nunc the national court had been brought after the decision of the Court of Justice on the valid ity of the regulation, and that the case before the Tribunale was not the case which had 59 — Article 19 of the German Basic Law of 23 May 1949, Art icle 24 of the Spanish constitution of 29 December 1978, given rise to the declaration that the con Article 20 of the Greek constitution of 9 June 1975, Art icle 24 of the Italian constitution of 27 December 1947 and tested regulation was invalid, that the Con Article 20 of the Portuguese constitution of 2 March 1976. stitutional Court held that the question On the right of effective access to a court in French consti 58 tutional law, see the study by T. S. Renoux, JCP, 1993, I, referred to it was inadmissible. 3675. 60 — Article 13 of the European Convention on Human Rights: 'Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...'. See also Article 6 of the Convention. 61 — See the judgments in Case 222/84 Johnston [1986] ECR 1651, at paragraphs 18 and 19; Case 222/86 Heylens [1987] ECR 4097, at paragraph 14; Case 304/89 Vlassopou- lou [1991] ECR I-2357, at paragraph 22; Case C-104/91 Agmrre Borrell and Others [1992] ECR I-3003, at para 51. The principle of the right to effective graph 15; and Case C-19/92 Kraus, [1993] ECR I-1663 , at paragraph 40. protection by a court is not only a compo 62 — The fact that the Court set great store by this principle is nent part of the constitutional law of the exemplified in its case-law on objections on the grounds of parallel remedies, which are accepted only if 'those reme dies in the domestic law effectively ensure protection for individuals aggrieved by measures of Community institu tions' (judgment in Case 20/88 Roquette [1989] ECR 1553, at paragraph 15, my emphasis. Sec also on this point my 57 — Ibid., paragraph 4.2 of the 'as to the law' part, my emphasis. Opinion in that case, paragraph 15). 58 — Paragraph 6 in fine. 63 — See paragraph 35 above.

I -1458

ROQUETTE FRÈRES

erga omnes effect cannot constitute an 'ade only to regulations subsequent to that regu quate' remedy. In such a case it in fact lation. The present proceedings, however, deprives the application of effectiveness. relate to a regulation prior to 24 March 1976 Such a result is contrary here to the principle and its invalidity should bring about that of of the right to an effective remedy of a judi other regulations which are all also prior to 66 cial nature. that date.

54. The plaintiff in the main proceedings and the Commission are united in suggesting that the Court should in the present case apply 58. Secondly, the Commission's proposal the principle of retroactive effect with would be acceptable only if the Commission respect to traders who have brought legal had itself at the time immediately drawn all proceedings or an equivalent complaint prior the lessons from the Court's judgments of 15 to the judgment. October 1980, including those relating to the provisions in issue in this case; it did not do so.

55. However, 'taking away with one hand what it gives with the other', the Commis sion proposes that the relevant date in this respect should be the date of the Roquette judgment of 15 October 1980, on the ground 59. Finally, if the Commission's proposal that the invalidity extended beyond the were followed, that would have the effect of actual regulations then in issue and that the considerably restricting the scope for apply illegality was 'well known'. 64 ing the exception to ex nunc effect. Only persons who had brought legal proceedings or an equivalent claim between 24 Octo ber 1975 and 15 October 1980 would in fact be able to rely on the finding of invalidity.

56. This argument fails to convince, for three reasons.

60. The proposal must thus be rejected. In 57. To begin with, while it is correct that the event that the Court decides to apply ex in 1980 the Court held that the invalidity nunc effect while limiting its scope, the refer extended further than the particular regula ence date would therefore have to be that of tion of 24 March 1976 at issue in that case, it the judgment to be given. was careful to state that the invalidity related

65 — Case 145/79 Roquette, point 2 of the operative provisions. 64 — Commission's observations, pp. 14 and 15. 66 — See paragraph 11 above.

I -1459

OPINION OF MR DARMON — CASE C-228/92

61. Would that be sufficient from the point ensuring legal certainty limitation periods of view of the right to an effective remedy must be fixed in advance'. before a court?

66. With reference to proceedings for reim 62. To be sure, the plaintiff in the main pro bursement of sums wrongly paid, the ceedings and those who brought legal pro Court's case-law consistently refers to ceedings or equivalent claims before that national legislation which must be applied 'in date would have their interests protected. a non-discriminatory manner having regard to the procedural rules relating to disputes of the same type, but purely national, and ... procedural rules cannot have the result of making impossible in practice the exercise of 70 rights conferred by Community law'. 63. But what of traders who suffered dam age as a result of the invalid regulation and did not, before the date of the judgment, bring proceedings for reimbursement of excess MCAs paid, but would still be enti 67. We come close here to the major para tled to do so from the point of view of their dox of ex nunc effect, even if limited: it is the national procedural rules? Is it acceptable Court's judgment which would make it vir that they should be excluded from benefiting tually impossible for a trader, who had been from the invalidity in question? adversely affected by the invalid regulation and who would still have the possibility of bringing proceedings under national rules on limitation, to assert his rights.

64. It is clear that by defining a terminus ante quern for bringing proceedings, the Court's judgment here would take the place of the national rules on limitation. 68. Need it be demonstrated further that ex nunc effect can only be allowed in excep tional cases, having regard to the circum stances of each particular case?

65. In his Opinion in the Express Dairy 67 Foods case Mr Advocate General Capo- torti, objecting to the use of ex nunc effect in that case, drew attention to a passage from 69. The Court's concern — shared with the ACF Chemiefarma v Commission judg national constitutional courts — to take 68 ment: 'in order to fulfil their function of account of fundamental rights, together with

67 — Paragraph 5 in fine. 69 — Paragraph 19. 68 — Case 41/69, [1970] ECR 683. 70 — Express Dairy Foods judgment, paragraph 12.

I - 1460

ROQUETTE FRÈRES

the development of its case-law in the field 73. With reference to the traders who have of ex nunc effect, in my opinion justifies tak wrongly received MCAs, I consider that ing a further step forward by restricting the their exceptional situation justifies an excep cases and consequences of the temporal lim tional decision. In the present case the itation of the effects of a declaration of inval extreme lateness of the declaration of inval idity. idity would, if given retroactive effect, be likely to have a serious effect on their finan cial equilibrium on the basis of legal relation 73 ships entered into in good faith. As I have stated, the regulation before the Court is ear lier than those declared invalid on 15 Octo ber 1980. In any event, I do not suggest that 70. The Commission itself states plainly in the Court should go back on ex nunc effect the present case: 'In the event of a declara with reference to those traders. tion of invalidity (as in the case of a binding interpretation) ex tunc effect is the rule. Lim itation of its effect to the period subsequent to the judgment must therefore be an excep tion to be taken narrowly, and must be 74. However, for those who wrongly paid 71 applied only where absolutely essential'. too much, the principle of legal certainty above all means respect for legality and the possibility for those concerned not to suffer the consequences of an invalid regulation.

71. I cannot but agree with that proposition, which ultimately takes up what I argued in 75. The Court's case-law on temporal limi my opinion in the Société des Produits de tation on declarations of invalidity endeav 72 Maïs case, although I fail to understand ours to prevent distortions in competition why, as the Commission persists in suggest 7 between economic agents. 4It appears to me ing, it should apply only to parties who have that in this case only the application in the brought legal proceedings or made an equiv normal way of ex tunc effect for the benefit alent complaint prior to the Court's judg of traders who have paid too much is capable ment. of limiting such distortions in comparison with undertakings who have received too much.

72. Are we faced here with serious problems 76. Moreover, there is no technical reason and necessities which require ex nunc effect which makes ex nunc effect necessary. To be to be adopted?

73 — Ibid., paragraph 13. 71 — Commission's observations, p. 11. 74 — Sec, for example, the Providence Agricole de In Champagne 72 — Pamgraphs 12 and 13 of the Opinion. judgment, paragraph 45.

I-1461

OPINION OF MR DARMON — CASE C-228/92

sure, as has been seen, declaring a regulation 80. In the present case the regulation will be invalid does not ipso facto make it possible to declared invalid in so far as it concerns a determine what is owed to the traders who very specific case: the MCAs on certain have suffered loss. The Commission's discre products derived from a basic product tionary power to distribute MCAs among (maize) affect undertakings which are 'easily the various products derived from the basic identifiable (if only because of the operations product presupposes further action on the of receipt or payment to which their activi 75 part of the Commission. But the Commis 7 ties give rise)'. 8The declaration of invalid sion asserts precisely that it is entirely capa ity can give rise only to repayment of excess ble of carrying out a calculation of the payments, not of the total MCAs paid. The MCAs which should have been paid, had the plaintiff in the main proceedings has indeed regulations in question not been tainted by understood this correctly, since it seeks not 76 illegality. total reimbursement but partial reimburse 79 ment of the MCAs paid.

77. Finally, is ex nunc effect essential for serious reasons of financial equilibrium? 81. The financial burden of invalidity will be borne by the Community via the EAGGF. The Commission has at no time argued that the consequences of total retroactive effect of 78. There is in my opinion a fundamental the declaration of invalidity, applied to the difference between the situations which gave traders who have paid too much, would rise to the Defrenne II, Pinna, Barber and jeopardize the financial equilibrium of the Legros cases on the one hand and proceed Community. ings for reimbursement of wrongly paid MCAs, such as that pending before the 77 Finanzgericht, on the other hand.

82. For this reason, since exceptions to the principle of ex tunc effect must be limited to 79. The former cases concerned a large num what is strictly necessary, I reaffirm the posi ber of persons. A retroactive declaration of tion I adopted in my opinion in the Société invalidity would have affected a large num des Produits de Maïs case, namely that 'the ber of legal situations. The financial reper invalidity must take effect in the ordinary cussions of retroactive effect would have way, that is to say ex tunc, with regard to been considerable. traders who have paid the compensatory 80 amounts ...'.

75 — See the Maïseries de Beaiice judgment, paragraph 42. 76 — Commission's observations, p. 12. The Commission con firmed this point at the hearing. 78 — See J. C. Masclet, op. cit., p. 174. 77 — See on this point the observations of D. Simon, op. cit., 79 — See the order of the Finanzgericht, p. 5. pp. 663-664. 80 — Paragraph 13 in fine of the Opinion.

I - 1462

ROQUETTE FRÈRES

83. I am strengthened in this conclusion by into the prices of goods and passed on to the the fact that that solution is the only one purchasers. In the Just judgment the Court which is consistent with the requirements of acknowledged that Community law did not the fundamental principles which, according prevent a national legal system from refusing to the Court's case-law, are an integral part to grant repayments of charges improperly of Community law. made if that would involve unjust enrich ment. It is noteworthy that the Court used this as one of the reasons for refusing a 84. One final comment. It may be that the request for limitation of the temporal effect 82 wrongly paid MCAs have been incorporated of a judgment.

85. I therefore propose that the Court rule as follows:

(1) The provisions of Commission Regulation (EEC) No 2719/75 of 24 Octo ber 1975 which fix the monetary compensatory amounts on starch, dextrine and soluble starch are invalid

— in so far as they fix the monetary compensatory amounts applicable to all the different products obtained by the processing of a given quantity of the same basic product, maize, in a specified manufacturing process at a figure appreciably higher than the compensatory amount fixed for that given quantity of the base product,

— in so far as they fix 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 maize starch.

(2) This invalidity means that the provisions of Regulations (EEC) Nos 2829/75, 271/76, 512/76, 572/76 and 618/76 are invalid in so far as they relate to the products referred to in the preceding paragraph.

81 — CMC 68/79 Just [1980] ECR 501, at paragraph 26. See also 82 — Judgment in Joined Cases 142/80 and 143/80 Essevi and the Express Dairy Foods judgment, paragraphs 13 and 14, Salcngo [1981] ECR 1413, at paragraph 35. and the judgment in Case 199/82 San Giorgio [1983] ECR 3595, at paragraph 13. See also my Opinion in the Société des Produits de Mais case, paragraph 13.

I - 1463

OPINION OF MR DARMON — CASE C-228/92

(3) While traders may, after determination by the Commission of the new mon etary compensatory amounts and to the extent of the damage actually suffered, rely on the invalidity of the abovementioned provisions of those regulations, that invalidity does not permit the re-opening of the payment of monetary compensatory amounts by the national authorities on the basis of those pro visions for the period prior to judgment in this case.

I -1464