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form of goods listed in Annex B on the 4. However, in the case of products listed in basis of quotations or prices for those Article l(l)(a) and (b), the refund applic- products on the world market, the differ- able on the day on which application for ence between those quotations or prices the licence is lodged, adjusted for the and prices in the Community may be threshold price which will be in force covered by an export refund. during the month of exportation, shall be applied to an export to be effected during the period of validity of the licence if the applicant so requests when applying for the licence.

2. The refund shall be the same for the whole Community. It may be varied according to use or destination. A corrective amount may be fixed. It shall be applied to refunds fixed in advance. The corrective amount shall be fixed at the same time as the refund according to the same procedure; however, where necessary The refund shall be granted on application. the Commission may, at the request of a Member State or on its own initiative, alter the corrective amounts in the intervening period.

Refunds shall be fixed at intervals in accordance with the procedure laid down in Article 23. The provisions of the first and second subparagraphs may be applied, in whole or in part, to any of the products listed in Article l(l)(c) and (d) and to any products listed in Article 1 which are exported in the form of goods specified in Annex B. Where necessary the Commission may, at the request of a Member State or on its own initiative, alter the refunds in the interven- ing period.

4. Also of relevance to the present proceed- ings is Article 1 of Regulation (EEC) No 1913/69 of the Commission of 29 Sep- tember 1969 on the granting and the advance fixing of the export refund on (c) outlets and conditions of sale for the cereal-based compound feedingstuffs,6 as products in question on the world amended by Commission Regulation (EC) market;

6 — OJ. English Special Edition 1969 (III, p. 403. 7 — O J 1994 L 180, p. 19.

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(d) the need to avoid disturbances on the (b) any adjustments to be made to the Community market; rate of the refund where it is so fixed.

(e) the economic aspects of the exports concerned.' 3. Any other act having the same effect in law as the acceptance of the export declaration shall be deemed to be equivalent to such acceptance.

(c) in so far as is necessary for calcu- reintroduced the refund and fixed the lating the refund, particulars of the amount for maize and maize products at composition of the products or the ECU 62.51 per tonne. relevant reference.

If the document mentioned in this paragraph is the export declaration, Facts and procedure this document must also include these references and the reference "refund code". 7. Silos e Mangimi Martini SpA (herein- after: 'Silos') is an Italian undertaking which engages in the production of finished and semi-finished cattle feed in Sardinia and Ravenna. It has, for many years, 6. At the time of such acceptance, or of exported its products to countries outside such equivalent act, the products shall the European Union. be placed under customs control until they leave the customs territory of the Community.'

The refunds were abolished by subsequent Regulation No 1521/95 of 29 June 1995 and set again at zero by Regulation (2) M u s t Commission R e g u l a t i o n No 1576/95 of 30 June 1995. However, No 1521/95 of 29 June 1995 be inter- they were reintroduced and fixed at ECU preted as meaning that it may be 62.51 per tonne by Regulation No 1652/95 applied to export operations already of 6 July 1995. underway and already completed on the same day on which the regulation itself was published and thus made available to the operators concerned?

Observations submitted to the Court

12. Firstly, Silos points out that Regulation 14. Silos' third observation relates to the No 1576/95 reproduces the wording of contradictory nature of Regulation Regulation No 1521/95, supplemented in No 1521/95. The Commission let it be the preamble by the statement of reasons known informally that the entry into force which was absent from Regulation of the GATT agreements had resulted in the No 1521/95. Regulation No 1576/95 does suspension of the export refunds. Since the not refer to Regulation No 1521/95. This GATT agreements did not enter into force means that Regulation No 1521/95 is until 1 July 1995 they can provide no repealed from the outset. Unlike where a justification for Regulation No 1521//95 regulation is withdrawn, a repealed regula- which was already in force on 30 June tion produces no effects save where the 1995. Furthermore, at that time the price repealed decision established rights for the difference between maize on the world benefit of certain citizens who would suffer market and maize on the Community harm as a consequence of the withdra- market had actually increased. That should wal. 11 Since Regulation No 1521/95 is have resulted precisely in an increase in the export refund. Finally, the réintroduction of refunds on 7 July 1995 also highlighted 11 — Silos refers to the judgmentin Case 15/85 Consorzio the intrinsically contradictory nature of Cooperative d'Abruzzo v Commission [1987] ECR 1005. Regulation No 1521/95.

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15. Fourthly, Silos takes the view that the 17. In brief, Silos considers that Regulation obligation to provide a statement of rea- No 1415/95 must be regarded as applicable sons is not satisfied also in respect of to its export operations. Regulation No 1576/95. 12 The observa- tions on the contradictory nature of Reg- ulation No 1521/95 also apply to Regula- tion No 1576/95.

16. Fifthly, Silos contends that Regulation No 1521/95 was introduced after the export declaration had been accepted by the competent customs authorities, was unforeseeable and had unlawful retroactive effect. Silos points out that the Official 19. According to the 10th recital in the journal became available to the public only preamble to Regulation No 1766/92, the after the customs operations had already function of the export refunds is to cover been completed. 13 In brief, its legitimate the difference between prices outside and expectations were damaged since it was not within the Community. The objective is not aware that the export refund might be to create a guarantee mechanism for under- abolished (having regard also to the devel- takings but is rather an instrument to opment of the market) and had been unable facilitate exports. In that respect the Com- to examine the regulation in time. Silos' mission enjoys a broad margin of discretion good faith is also relevant and in that in fixing refunds. The Commission may fix respect it refers to the recognition of good refunds but, under Article 13 of Regulation faith in the European case-law. 14 Inter alia No 1766/92, is not obliged to do so. an undertaking is protected by good faith in circumstances in which no deception or obvious negligence may be attributed to the person concerned. It should not suffer harm beyond normal commercial risk. Silos claims that in this case its good faith is beyond all doubt. 20. The Commission requires maximum flexibility in order to be able to adapt the refunds to the many fluctuations in the 12 — Silos refers to the judgment in Case 158/80 Reive v markets which are subject to many factors Hauptzoliamt Kiel [1981] ECR 1805, paragraph 25. such as, for example, climatic conditions. 13 — In that respect reference is made to the judgment in Cast 98/78 Räcke v Hauptzollamt Mainz [1979] ECR 69 and in In order to discourage speculation the Case C-370/96 Covita v Greek State [1998] ECR 1-7711. 14 — Judgment in Case C-366/95 Landbrugsministeriet — EF Commission follows a set procedure with Direktoratet v Steff-Houlberg Export and Others [1998 which all undertakings in the sector are ECR 1-2661 and in Case T-42/96 Eyckeler & Malt v Commission [1998] ECR 11-405. familiar.

24. In the face of this exceptional market situation the Commission decided to sus- pend export refunds until there was greater clarity as regards developments. This resulted in Regulation No 1521/95 on 22. Moreover, a specific mechanism is which the management committee was available to undertakings, so-called not consulted. However, this regulation 'advance fixing', which enables undertak- could not remain in force for long because ings to obtain the refund which applied at on 1 July 1995 a new regulatory frame- the time of the application for an export work was to enter into force. It was on licence and therefore not the refund at the these specific grounds that the Commission time of the export itself. This possibility drew up a new regulation on 1 July 1995, limits the risk run by undertakings. More- the preamble to which refers to this new over, since 1 July 1995 advanced fixing has framework. been compulsory.

25. As regards the first question referred by 23. The Commission then sets out the the national court, the Commission takes situation on the cereals markets in June the view that Regulation No 1521/95 was 1995. Under Article 2 of Regulation not repealed by Regulation No 1576/95 No 1766/92 the marketing year for cereals (see also the previous paragraph). A careful runs from 1 July to 30 June. The final reading of the Official journal shows that months of the year are of particular impor- the wording of the preamble to Regulation tance in the development of the market No 1576/95 differs from that of Regulation because the prices are then already influ- No 1521/95. Regulation No 1576/95 has enced by expectations relating to the next no retroactive effect.

26. The Commission states as following in Finally, the Commission refers to the judg- respect of the second question. It follows ment of the Court in Westzucker 18 which from Article 2 of Regulation No 1521/95, related to a regulation which set the read in conjunction with Article 13(3) of premium for denaturing sugar at zero from Regulation No 1766/92 (in the version in the day of publication. The Court con- force on 30 June 1995) and Article 3(1) firmed the direct effect of the regulation and (2) of Regulation No 3665/87, that and, furthermore, acknowledged that par- Regulation No 1521/95 applies to all trans- ticular reasons did not have to be stated for actions in respect of which the export direct effect. declaration was accepted on 30 June 1995. That acceptance determines the time of export. According to the settled case-law of the Court, 15 undertakings acquire no right at all until the facts establishing that right arise. This applies all the more clearly 28. The third and fourth questions relate to in a case where the sudden changes in the statement of reasons for Regulation tariffs are an essential element of the system No 1521/95 and Regulation No 1576/95. as, moreover, the undertakings concerned The Commission places emphasis on the are aware. Furthermore, undertakings can fifth recital in the preamble to the two insure against changes in tariffs by means regulations which refers to the need to take of advanced fixing. into account the situation on the world market and to avoid disturbances on the Community market. The Commission also refers to a standard judgment of the Court, that is to say Schwarze, 19 in which the Court rules — in connection with the common agricultural policy — that the obligation to state reasons is limited. This 27. In the alternative, the Commission limited obligation to state reasons certainly contends that the Court has also recognised applies to cases such as the present where retrospective effect — and thus, a fortiori, the Commission often has to respond to direct effect — in cases where 'when the market developments within a matter of purpose to be achieved so demands and hours. It also refers to the fact that any when the legitimate expectations of those statement of reasons must also be trans- concerned are duly respected'. 16 What is lated subsequently into the eleven lan- clear is that those concerned could have no guages of the European Union. legitimate expectation that the tariff pre- viously in force would be maintained. 17

assumes that Regulation No 1521/95 is Below I will outline the most important invalid. The Commission considers that case-law relevant to this case. In doing so I this cannot be the case. In addition, the will examine, in succession, the objectives Commission notes that the institution of the system of export refunds, the Com- whose act has been declared void is mission's broad discretion, the Commis- required — by analogy with Article 176 sion's obligation to state reasons and, of the EC Treaty (now Article 233 EC) — finally, the trader's perspective: do the to take a new measure. 20 The fact that a general principles of law provide protection measure is invalid does not mean that the in respect of the Commission's exercise of provisions repealed by that measure its discretion? become applicable again. Any other view would result in Regulation No 1521/95 having to be regarded as non-existent or the Court itself being given the power to fix the export refund independently. The Com- mission's preference — in the, in its view hypothetical, event that Regulation No 1521/95 is declared invalid — would be for the Court to maintain the effects of Objective of export refunds the regulation until the Commission has replaced it by means of a new regulation.

31. The system of export refunds forms part of the common organisation of the market in cereals. I should point out that the Commission refers to the 10th recital in the preamble to Regulation No 1766/92, the basic regulation relating to the common The case-law of the Court regarding the organisation of the market in cereals. That system of export refunds recital provides as follows:

market from affecting prices ruling within The broad discretion of the Commission the Community; whereas, therefore, provi- sion should be made for charging a levy on imports from third countries and for the payment of a refund on exports to those countries, both being designed to cover the difference between prices ruling outside and within the Community; whereas, more- over, in respect of products processed from 33. The common agricultural policy is the cereals to which this Regulation characterised by direct and radical inter- applies, account should be taken of the vention in economic practices concerning need to ensure a measure of protection for the production, processing and marketing the Community processing industry.'21 of agricultural products. In order to render such intervention effective, the administra- tion requires flexible and broad discretion. A further particular aspect of the system is that the discretion is exercised by laying down generally binding provisions, that is to say the Commission regulations by which the export refunds are fixed at intervals. The nature of these regulations is also particular: the frequency with which they are amended is very high and, further- more, they are directed at a very limited group of persons. 32. It is established, as the Court also acknowledges, that the system of export refunds is intended to produce stability in the common market and to ensure that agricultural products can be sold to non- member countries.22 The export refunds do not serve to ensure exporters a decent income. Their purpose is to enable rapid and effective advance intervention in a rapidly changing market. Frequent change 34. The Commission has a wide discretion- is a central characteristic of the system of ary power in taking measures to implement European agricultural law. Legislation the common agricultural policy. 23 This must constantly be adapted to changing power is not, however, unlimited. Natu- economic circumstances and changing pol- rally, account must be taken — in respect icy priorities. of the export of compound feedstuffs which underlies this dispute — of the in part very general criteria of Article 1 of Regulation No 1913/69, as amended by Regulation 21 — A former objective of the common agricultural policy (see, for example, the preamble to Regulation (EEC) No 1707/94. In Racke 24 the Court states in No 2727/75 of the Council of 29 October 1975 on the common organisation of the market in cereals}, namely to ensure the supply of certain basic foodstuffs within the Community itself, was no longer mentioned in this new market organisation which was established in 1992. 23 — See inter alia judgment in Case C-350/88 Delacre and 22 — See inter alia Case C-94/91 Wagner v Fonds d'intervention Others v Commission [1990] ECR I-395 and Racke v et de Régularisation du Marché du Sucre [1992] ECR Hauptzollamt Mainz (cited in footnote 13). I-2765. 24 — Cited in footnote 13, paragraph 5.

In Crispoltoni and Others the Court exam- ined the matter in greater detail. 25 'In In Denmark v Commission 27 the Court pursuing the objectives of the common points out that the Commission must also agricultural policy set out in Article 39 of take account of considerations of commer- the Treaty, the Community institutions cial policy when fixing export refunds. The must secure the permanent harmonisation export refund cannot be so high that it does made necessary by any conflicts between more than offset the difference between the those aims taken individually and, where Community price and the world price. necessary, allow any one of them tempor- Otherwise, the export refund would make ary priority in order to satisfy the demands it possible for products 'to be sold below of the economic factors or conditions in the world price, which could provoke a view of which their decisions are made. reaction by the Community's trading part- That harmonisation must preclude the ners. Such a rate of refund might therefore isolation of any one of those objectives in jeopardise the attainment of one of the such a way as to render impossible the objectives of the common commercial pol- icy set out in Article 110 of the Treaty, namely the harmonious development of 25—Judgment in Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR I-4863, world trade.' The difference between the paragraph 32. In that judgment the Court refers to the judgments in Case 5/73 Balkan-Import-Export v Haupt- zollamt Berlin-Packhof [1973] ECR 1091, paragraph 24, and in Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle and Others v Council 26 — Cited in footnote 25, paragraph 27. and Commission [1981] ECR 3211, paragraph 41. 27 — Case 263/87 Denmark v Commission [1989] ECR 1081.

38. The first limitation may lie in the procedure which is followed. The usual procedure is for the level of the export 36. If it is established that a measure is refund to be fixed after a (weekly) meeting taken for the sake of the common agricul- of the management committee. The invol- tural policy and there can therefore be no vement of the management committee question of manifest error or a misuse of enables the Commission to '[cooperate power, the Commission's discretion is great closely] with the national authorities indeed. That discretion is certainly great in charged with the management of the mar- fixing export refunds since — as the Com- ket sectors concerned.' 31 mission emphasises in particular in its written observations — the relevant regu- lations provide that export refund may be granted. 2 8The Court has already ruled previously on a case in which the Commis- sion suddenly set a tariff at zero. In Westzucker, 29which related to premiums The Court has also acknowledged a more for denaturing sugar, the Court defended active role of the management committee. such a measure by stating that '[n]o obliga- tion exists, therefore, by virtue of the regulation, permanently to maintain the system of denaturing premiums, with the result that those premiums may be reduced or even suspended entirely, according to the In Racke the Court states that '[i]t is for the development of production and market Commission, acting according to the pro- fluctuations.' cedure known as the management commit- tee procedure, to decide as to the existence of a risk of disturbance.' Moreover, the Commission may, in the meantime, adjust the level of the refund on its own initiative. In the present case the management com- 37. Moreover, this judgment means, in my mittee was not consulted. In short, the view, that the Commission's discretion is management committee does not have to great, but that this discretion is by no be involved, but it should be wherever means unlimited. It is necessary to con- possible.

39. A second limitation may lie in the time Court of 4 July 1973 in Westzucker. 36 of the entry into force. Article 191 of the 'According to a generally accepted princi- EC Treaty (now Article 254 EC), as inter- ple, the laws amending a legislative provi- preted by the Court, permits entry into sion apply, unless otherwise provided, to force on the day of publication. 32 There is the future consequences of situations which no dispute about that. What is more arose under the former law.' The Court interesting is the legal consequence. In considers that the time of placing in the academic writings a distinction is drawn Official Journal (and the actual availability between actual retroactive effect and direct thereof) is central. However, I take the view effect. 33 In principle retroactive effect is that the difference between retroactive not permitted, but there are exceptions. In effect and direct effect is not always that Zuckerfabrik Süderdithmarscben and great in respect of agricultural traders. For Zuckerfabrik Soest, 34 for example, the example, the placing of Regulation Court agreed with the subsequent fixing No 1521/95 in the Official Journal was of levies as a consequence of certain not particularly relevant in respect of Silos. exceptional, unforeseeable, events, that is This is because it was required to effect the to say the fall in the value of the dollar and export on the relevant date. In my view, the the collapse of world sugar prices. The foregoing means that direct effect per se is Court 35 has consistently held that: permitted, but — as stated in Zuckerfab- 'Although in general the principle of legal rik Süderdithmarscben and Zuckerfabrik certainty precludes a Community measure Soest 37 — consideration must be given to from taking effect from a point in time whether or not the legal certainty of the before its publication, it may exceptionally individual is breached as a result of that be otherwise where the purpose to be direct effect. achieved so demands and where the legit- imate expectations of those concerned are duly respected.'

A considerable amount of case-law already 42. However, the need to amend the rules, exists concerning the obligation to state often very quickly, is balanced by the reasons for Commission regulations which trader's need to be able to have legitimate are c o m p a r a b l e with R e g u l a t i o n expectation of the law as it stands at the No 1521/95 and Regulation No 1576/95. time he takes a commercial decision. In my The Commission refers to the standard view, the protection of the trader's legal judgment of the Court in Schwarze, 39 in certainty, the fourth limitation, is of limited which the Court ruled — in connection relevance. That is because the trader parti- with the common agricultural policy — cipates in a market in which economic 'that the Commission was entitled to con- circumstances and price fluctuations are the fine itself to setting out in a general form order of the day. The same is true of the essential factors to and the procedure fluctuations in the export subsidies which which formed the background to its eva- respond to them. luation of the facts without its being necessary to specify the facts themselves.' In my view the Commission is also right to observe that a comprehensive obligation to state reasons is not really conceivable in the case of regulations such as those at issue in view of the speed with which the Commis- 43. In addition, I attach importance to the sion has to respond to economic develop- following. Council Regulation (EEC) ments. Nevertheless, certain reasons must No 1766/92 of 30 June 1992 on the com- be stated to enable a review of the regula- mon organisation of the market in cereals tion by the Court and thus to comply with provides for an instrument by means of Article 190 of the Treaty. However, more which the undertaking concerned can avoid detailed reasons are naturally required the risk of a sudden change in the export where a decision deviates from usual prac- refund, that is to say so-called 'advance

fixing', whereby the refund which applied several appropriate measures recourse must at the time when the application for an be had to the least onerous, and the export certificate was made is decisive.41 It disadvantages caused must not be dispro- is for the trader to decide whether or not to portionate to the aims pursued. make use of this instrument. For the sake of completeness, I should point out that the advance fixing is indeed compulsory in the cereal sector following the entry into force of Regulation (EC) No 3290/94 42 on 1 July 1995. However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Commu- nity legislature has a discretionary power which corresponds to the political respon- 44. The relevance of legal principles from sibilities given to it by Articles 40 and 43 of which an individual can derive protection is the Treaty. Consequently, the legality of a also limited, but not non-existent. I refer measure adopted in that sphere can be primarily to the principle of proportionality affected only if the measure is manifestly which — and I cite the judgment in The inappropriate having regard to the objec- Queen v Minister of Agriculture 43 — has tive which the competent institution is the following effect in respect of the seeking to pursue....' common agricultural policy:

The Court thus acknowledged the principle of proportionality also — albeit to a lim- 'The Court has consistently held that the ited degree — in matters concerning the principle of proportionality is one of the common agricultural policy. general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibi- tory measures are appropriate and neces- sary in order to achieve the objectives 45. In its judgment in Hoche 44 the Court legitimately pursued by the legislation in noted that no general Community principle question; when there is a choice between of objective fairness exists.

Therefore, only in the event of unforesee- 'It should be noted that whilst the protec- able and arbitrary changes in the legisla- tion of legitimate expectations is one of the tion — and I assume that this relates to fundamental principles of the Community, cumulative requirements — does the traders cannot have a legitimate expecta- aggrieved trader stand a chance of bringing tion that an existing situation which is a successful claim. capable of being altered by the Community institutions in the exercise of their discre- tionary power will be maintained; this is particularly true in an area such as the common organisation of the markets It is interesting that Advocate General Lenz whose purpose involves constant adjust- puts forward a broad view in this case. 45 ments to meet changes in the economic He links the absence of a general principle situation.... It follows that traders cannot of objective unfairness to the danger that it claim a vested right to the maintenance of could otherwise have the effect of leaving an advantage which they derive from the

45 — See paragraphs 24 et seq. of the Opinion in Hoche, cited in 46 — See also Barents, R., loc. cit., in footnote 33, p. 328. footnote 44. 47 — Cited in footnote 25.

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47. In its written observations Silos again refers to the Court's recognition of good faith. In my view good faith is of limited The third and central question: the validity relevance in the present case which con- of Regulation No 1521/95

48 — Judgment cited in footnote 24, paragraphs 57 and 58. In that judgment the Court also refers to the judgment m Delacre and Others v Commission, cited in footnote 2.1. 49 — See inter alia the judgment in Case C-120/86 Mulder v 49. In previous cases the Court has always Minister van Landbouw en Vissent [1988] ECR 2321. defended the Commission's exercise of its

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53. Furthermore, the importance of the legal certainly of the undertakings con- 51.1 also assess this case on the basis of the cerned requires that explicit and specific second criterion in Racke, 51 that is to say: reasons be stated for a decision which

50 — Cited in footnote 13. 52 — I also read this in the judgment in Moskof, cited in 51 — Cited in footnote 13. footnote 38, paragraph 54.

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deviates radically from normal practice. (2) the movement in prices outside the Although the undertakings concerned can- European Union, not expect that an export refund will be maintained — they have no right to a refund under the system of the common agricultural policy — the Commission must take account of their legitimate inter- ests in its decision-making. Where no great changes occur in prices or other circum- (3) the danger of speculation by traders. stances, they should not have to — and indeed cannot — make allowances for unexpected and abrupt changes in refunds. 53

The Commission contends that these three factors, taken together, led to an excep- tional market situation which justifies exceptional measures.

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57. Thirdly, the Commission points to the 55 — The actual development of supply and demand relation- ships on these markets is, as it were, foreshadowed by the danger of speculation by traders on account conditions in futures contracts.

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56 — See paragraph 6 or this Opinion. 57 — Cited in footnote 19.

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repeals Regulation No 1521/95. My view is and thus made available to the operators based on the following consideration. The concerned.' Commission has the power, also outside the weekly meeting of the management com- mittee, to adjust the export refund at any time in the intervening period. Where it exercises this power, this does not in principle mean that the previous rule is 66. The decisive factor in answering this repealed. Nor do I infer from the preamble question is, in my view, the fact that the to Regulation No 1576/95 that it intended direct effect of regulations such as the one to repeal the previous regulation. On the in question is established practice, which is contrary, I can se no reason to doubt the also confirmed by the Court. In that respect reasoning which the Commission set out in it is significant that the direct effect of the its written observations to the Court. There tariffs — as the Commission also states in was a very specific reason for the introduc- its written observations — is an essential tion of Regulation No 1576/95. A new element of the system as, moreover, the regulatory framework came into force on undertakings concerned are aware. 1 July 1995. Reference thereto had to be made in the preamble, as was in fact done.

The fourth question

The second question

69. Secondly, this regulation contains — unlike Regulation No 1521/95 — a recital of a substantive nature. This recital reads as follows: 'Whereas, as a result of the market situation refunds are not to be fixed.' However, read in conjunction with the preceding recitals — which say nothing about the current market situation — it 71. I consider that, on the main point, it is could just have easily had the opposite necessary to concur with the reasoning of content. Moreover, as reasoning for an the Commission. 61 If the regulation is exceptional measure which assumes an declared invalid, it is for the competent exceptional market situation it is comple- Community institution, in this case the tely insufficient. In its written observations Commission, to adopt a new decision. The Silos observes that Regulation No 1576/95 Commission refers inter alia to the judg- seeks to state the reasons which were ment in Van Landschoot, 62 in which the lacking in Regulation No 1521/95. In the Court rules that it is for the institution light of the concise nature of the recital, I concerned to adopt appropriate measures consider that Silos' view is incorrect and to implement the judgment. In this case also irrelevant. Furthermore, I consider that means that the Commission must convincing the Commission's view that adopt a regulation which is consistent with there was a very specific reason behind the situation which existed on the relevant the introduction of Regulation No 1576/95 markets at the end of June 1995. The (see also my answer to the first question at margin of discretion available to the Com- paragraph 59 above). mission would thus be respected.

74. In principle, a judgment of the Court in proceedings for a preliminary ruling declar- — only a small number of undertakings ing a Community act to be invalid takes are affected, that is to say the under- effect from the date on which the act takings which exported compound entered into force, with all the conse- cereal-based feedingstuffs during the quences which that entails. The Court period from 30 June to 6 July 1995; may, however, limit in the judgment itself the temporal effects of a ruling declaring a Community regulation invalid, where that is justified by overriding considerations of legal certainty. 63 Significant financial con- sequences can constitute such overriding considerations. The Court may make an exception in favour of the party to the main proceedings which brought an action before the national court against the — the ruling declaring the regulation national measure implementing the regula- invalid relates only to the quantities tion, as in the case of Silos. In its judgment of compound feedingstuffs for which in Lomas and Others, 64 the Court also an export declaration was accepted in made an exception in favour of persons the abovementioned period. 65 entitled who had initiated proceedings or made an equivalent complaint under the applicable national law before that date. In conclusion, I would observe that the Court rarely exercises its power to limit the temporal effects of a ruling.

Therefore, the consequences are — cer- tainly having regard to the annual budget 75. I consider that in this case there is no of the common agricultural policy — lim- need to fear such serious financial conse- ited in nature. Moreover, in principle the consequences for that budget should not be greater than if the export refund had not 63 — Sec inter alia the judgment in Case C-212/94 FMC and been suspended for a short time in 1995. Others v Intervention Board for Agricultural Produce and Ministry of Agriculture, fisheries and food [1996] ECU I-389. 64 —Judgment in Joined Cases C-38/90 and C-151/90 Lomas 65 — See Article 3 of Regulation No 3665/87, paragraph 5 of and Others [1992] LCR I-1781. this Opinion.

Commission Regulation No 1521/95 of 29 June 1995 fixing the export refunds on cereal-based compound feedingstuffs may be applied to export operations already underway and already completed on the same day on which the regulation itself was published and thus made available to the operators concerned. I - 8432

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(3) Third question: Commission Regulation No 1521/95 of 29 June 1995 fixing the export refunds on cereal-based compound feedingstuffs must be regarded as invalid since the Commission has made clearly improper use of its margin of discretion and because it has stated clearly incorrect or incomplete reasons for this regulation.

(4) Fourth question: Commission Regulation (EC) No 1576/95 of 30 June 1995 fixing the export refunds on cereal-based compound feedingstuffs must also be regarded as invalid since the Commission has made clearly improper use of its margin of discretion and because it has stated clearly incorrect or incomplete reasons for this regulation.

(5) Fifth question: The ruling declaring invalid Regulation (EC) No 1521/95 of 29 June 1995 and Regulation (EC) No 1576/95 of 30 June 1995 fixing the export refunds on cereal-based compound feedingstuffs has the following legal effect. It is for the competent Community institution, in this case the Commission, to adopt a new regulation which is consistent with the situation which existed in June 1995. There is no need for transitional rules pending the introduction of the new regulation.

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