C-453/00

1 — Original language: French. 2 —OJ 1975 L 282, p. 77.

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products. The list of products for which an 6. In addition, under Article 8:88, para- export refund is granted and the amount of graph 1, of the said Law, '[t]he court may, the refund are laid down by a Commission on application by one party, review a final regulation for a period of approximately judgment taking account of facts or circum- three months, taking account of develop- stances which: ments in the markets in question. Five regulations of this type have accordingly been applied during the period relevant to the dispute in the main proceedings (from December 1986 to December 1987). 3 (a) occurred before the judgment;

(b) were not known, and could not reason- ably have been known, by the appli- B — The national legislation cant before the judgment was delivered and,

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'legs and cuts of legs of other poultry (than the amount of the refunds and the payment turkeys)', according to the nomenclature of more than the exporter had been entitled referred to by Regulations Nos 3176/86, to claim. As the chicken legs in question 267/87, 1151/87, 2800/87 and 3205/87. had included part of the back, they ought to have been shown as falling under tariff subheading 02.02 B II ex g ('other'), which was a residual subheading applying to non-deboned poultry parts not specifically covered by any other subheading. 7

8. In accordance with the tariff description of the products shown in the various declarations, the Productschap voor Pluim- vee en Eieren ('the PW') 5paid Kühne & Heitz the amounts claimed by way of 10. Kühne & Heitz lodged a complaint export refunds and then released the bond concerning this decision and objected to provided by the latter to guarantee the refunding the alleged over-payment of pre-financing of the said amount, that is to export refunds. The P W ruled that the say, payment before the goods were complaint was unfounded by a decision of exported ('the first decision'). 6 13 December 1990 ('the third decision').

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declarations were products which were 13. In the judgment in Case C-151/93 strictly in accordance with the wording in Voogd Vleesimport en -export [1994] the annexes to the relevant regulations, ECR I-4915, 1 1the Court held that 'a namely those limited to 'legs and cuts of [chicken] leg to which a piece of back legs', excluding any other part. Chicken remains attached must... be described as a legs to which a part of the back remained leg, within the meaning of tariff subhead- attached did not meet those exact con- ings 02.02 B II e) 3 of the old nomenclature ditions and should have been classified and 0207 41 51 000 of the new, if that u n d e r the r e s i d u a l s u b h e a d i n g piece of back is not sufficiently large to give 02.02 B II ex g, not the heading used in the product its essential character'. 12 The the contested declarations. Court added that '[t]o determine whether that is so, in the absence of Community rules at the material time, it is for the national court to take into account national commercial practices and traditional cut- ting methods'. 13

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had been correctly classified under tariff 17. Kühne & Heitz brought an action for subheading 02.02 B II e) 3, in accordance the annulment of this decision before the with the Court's interpretation of the College van Beroep. nomenclature in the Voogd Vleesimport en -export judgment cited above ('the second head of claim').

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legal force of a judicial decision and 21. This question relates to the applicant cannot, under Netherlands law, be company's first head of claim. The circum- reviewed by reason of a subsequent judg- stances of the case to which reference is ment of the Court of Justice and that, in made are as follows. 16 First, the said any case, it cannot be said that there is a company had exhausted the remedies avail- sufficiently serious breach of Community able to it. Secondly, the College van Beroep law within the meaning of the Brasserie du judgment of 22 November 1991 had Pêcheur, Factortame 14 and Hedley adopted an interpretation of Community Lomas 15case-law. law which had been found contrary to that subsequently given by the Court of Justice in the Voogd Vleesimport en -export judg- ment, cited above. Thirdly, the College van Beroep had refrained from requesting a preliminary ruling from the Court on that occasion, taking the view at the time (wrongly, in its view) that it was entitled to refrain from doing so in the light of the I I I— The question referred Court's existing case-law on the subject. 17 Fourth, the applicant company is said to have made representations to the auth- orities immediately after learning of the Voogd Vleesimport en -export judgment.

20. In view of the parties' submissions, the College van Beroep decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

22. It follows that the national court's 'Under Community law, in particular under question seeks to establish whether Com- the principle of Community solidarity con- munity law requires the reconsideration tained in Article 10 EC, and in the circum- and, if necessary, the withdrawal of a stances described in the grounds of this national administrative decision by the decision, is an administrative body required body making that decision if, when the to reopen a decision which has become decision has become final after domestic final in order to ensure the full operation of remedies have been exhausted, it is found Community law, as it is to be interpreted in to be contrary to Community law as inter- the light of a subsequent preliminary rul- preted by the Court in a later preliminary ing?' ruling.

26. In this connection, the facts of the case and the main proceedings show that the contested decision is based on the assump- tion that judgments giving preliminary rulings can have direct effects only in cases 24. On this point the national court where a national court has not yet given a observes that the contested decision may (final) judgment. Respect for the legal be annulled only on the ground that it is authority of a judicial decision is said to based on a misinterpretation of national prevent a national authority from granting law because, contrary to the impression a new application seeking to call into given by the decision, there is no rule of question an earlier administrative decision Netherlands law which, in principle, pre- which has become final following the vents an administrative body from recon- dismissal by a court of the proceedings sidering a decision which it has taken, even against that decision. where the decision has become final when the remedies against it have been exhausted and even where there are no new facts or changed circumstances.

27. The reference in the contested decision to the question whether and, if so, to what extent, the judgment of the College van Beroep of 22 November 1991 is still open to review under domestic law must be understood in the light of that assumption. In the framework of the main proceedings 25. That being so, the national court con- the P W asserts that the exceptional rem- siders that annulment of the contested edy of review is excluded because, under decision would be useful and appropriate Article 8:88 of the Algemene Wet Bestuurs- only if it were certain that the P W had not recht, it would require a fact which came to only the power to reconsider its earlier light before the College van Beroep decision but also the duty to reexamine delivered judgment, whereas the Voogd whether there was a right to a refund for all Vleesimport en -export judgment was the goods exported and, if so, the amount

28. Consequently I think the question from the national court should be understood as seeking to establish whether, in substance, Community law, and in particular 30. Kühne & Heitz submits that the second Article 10 EC, prevents a national adminis- decision (ordering the repayment of the trative body from refusing to grant a claim refunds in question), which was not criti- for payment based on Community law on cised by the College, failed to take account the ground that the claim seeks to call into of the Court's existing case-law at the time question a prior administrative decision (in particular the Ekro judgment, cited which has become final, following the above) which was subsequently confirmed dismissal of an action for the annulment by the Voogd Vleesimport en -export judg- of the decision by a decision which has the ment. The exporter's main argument is that legal authority of a final judicial decision, the P W has an obligation to reconsider the although that final decision is based on an second decision because that is the only interpretation of Community law which legal means available (after the exhaustion was invalidated by the Court in a sub- of domestic remedies) or at least the most sequent preliminary ruling. effective for giving full effect to Commu- nity law (being shorter and less costly than an action for redress on the basis of the liability of the Netherlands State). Alter- 20 — See point 5, third paragraph, of the order for reference. 21 — Ibid. natively, the exporter contends that the 22 — Ibid. Member State concerned is liable for a

34. Like the Netherlands and the French Governments, the Commission of the Euro- 32. Like the P W , the Netherlands Govern- pean Communities considers that the reply ment objects to the argument that the should be in the negative, either on the Member States have a general obligation basis of legal certainty or that of procedural to reconsider administrative decisions. autonomy, although a slight preference was Relying on the principles of procedural expressed for the former. autonomy and legal certainty, the P W contends that the fact that judgments which have acquired the force of res judicata and administrative decisions which have not been contested or invalidated are final in principle, as laid down in Netherlands law, is consistent with the principles of equival- ence and effectiveness developed by the Court. In addition, the circumstances of the 35. So far as the European Free Trade present case cannot justify an exception to Association is concerned, it also submits the principle that the decisions in question that the reply should be in the negative on were unalterable. the ground of procedural autonomy.

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V — Discussion 38. As a judgment giving a preliminary ruling is purely declaratory and does not establish a new legal situation, it 'takes effect [in principle] from the date on which the rule interpreted entered into force'. 25 As the Court has previously held in the cases cited above, 'it follows that the rule as so interpreted may, and must, be applied by 36. A judgment of the Court giving a the courts even to legal relationships arising preliminary ruling concerning interpre- and established before the judgment ruling tation has, in principle, retroactive effect, on the request for interpretation, provided like a judgment in proceedings for a that in other respects the conditions preliminary ruling declaring a Community enabling an action relating to the appli- act invalid. 23 cation of that rule to be brought before the courts having jurisdiction, are satisfied'. 26

23 — See the judgment in Case C-228/92 Roquette Frères [1994] ECR I-1445, paragraph 17. 24 — This principle was laid down by the judgments in Case 61/79 Denkavit Italiana [1980] ECR 1205, paragraph 16, and Joined Cases 66/79, 127/79 and 128/79 Salumi and Others [1980] ECR 1237, paragraph 9, and has been 40. Only exceptionally, and for the first reaffirmed on many occasions, in particular by the judg- ments in Case 811/79 Ariete [1980] ECR 2545, paragraph time in the judgment in the Defrenne case, 6; Case 826/79 Mireco [1980] ECR 2559, paragraph 7; has the Court reserved the right (going Case 309/85 Barra and Others [1988] ECR 355, para- graph 11; Case 24/86 Blaizot and Others [1988] ECR 379, paragraph 27; Case C-62/93 BP Soupergaz [1995] ECR I-1883, paragraph 39; Joined Cases C-367/93 to C-377/93 Roders and Others [1995] ECR I-2229, paragraph 42; 25 — See the Richardson judgment, cited above, paragraph 33. Case C-137/94 Richardson [1995] ECR I-3407, paragraph 31; Case C-415/93 Bosman [1995] ECR I-4921, paragraph 26 — See the cases cited in footnote 24 above. 141; Joined Cases C-197/94 and C-252/94 Bautiaa and 27 — See in particular the judgments in Case 166/73 Rhein- Société Française Maritime [1996] ECR I-505, paragraph mühlen [1974] ECR 33, paragraph 2, and Case 283/81 47; Case C-188/95 Fantask and Others [1997] ECR Cilfit and Others [1982] ECR 3415, paragraph 7. The I-6783, paragraph 36; Case C-231/96 Edis [1998] ECR requirement of uniformity in the application or Commu- I-4951, paragraph 15; Case C-262/96 Sürül [1999] ECR nity law is particularly imperative where the validity of a I-2685, paragraph 107; Case C-184/99 Grzelczyk [2001] Community act, and not merely its interpretation, is in ECR 1-6193, paragraph 50, and Case C-347/00 Barreira question. See, to that effect, the judgment in Case 314/85 Pérez [2002] ECR I-8191, paragraph 44. Foto-Frost [1987] ECR 4199, paragraph 15.

42. It has consistently been held that 'such a restriction may... be allowed only in the actual judgment ruling upon the interpre- tation sought'. 33 The reason for this is that 'the fundamental need for a general and uniform application of Community law implies that it is for the Court of Justice alone to decide upon the temporal restric- tions to be placed on the interpretation 41. As was later emphasised in the judg- which it lays down'. 34 ments cited above, Roders and Others and Bautiaa and Société Française Maritime, 'the Court has taken such a step only in certain specific circumstances', 30 adding that these arose 'where there was a risk of serious economic repercussions owing in particular to the large number of legal 43. In the present case, it must be observed relationships entered into in good faith on that the Court did not limit the temporal the basis of rules considered to be validly in effect of its Voogd Vleesimport en -export force, and where it appeared that both judgment, cited above. It follows that it individuals and national authorities had necessarily has retroactive effect, so that it been led into adopting practices which did may be applied to legal relations arising not comply with Community law by reason and established before the judgment, in of objective, significant uncertainty regard- ing the implications of Community provi- sions, to which the conduct of other 32 — Since the Defrenne judgment, cited above, the Court has Member States or the Commission may been moved to impose such a restriction in only a few cases. See, to that effect, the judgments in Case C-262/88 even have contributed'. 31 Only in such Barber [1990] ECR I-1889; Case C-163/90 Legros and Others [1992] ECR I-4625; Case C-126/94 Cadi Surgelés circumstances may the Court 'be moved to and Others [1996] ECR I-5647; Case C-437/97 EKW and Wein & Co. [2000] ECR I-1157, and the Blaizot and Others, Bosnian and Sürül judgments, cited above. In such cases the Court generally takes care not to exclude the retroactive effect of its judgments giving preliminary 28 — Article 231 EC provides that the Court may, if it considers rulings in relation to the parties to the main proceedings this necessary, state which of the effects of a regulation and persons who, before the date when such judgments which it has declared void are to be considered as were given, institute legal proceedings or raise an equiv- definitive. There are no comparable provisions in the alent claim. Treaty with regard to preliminary rulings concerning validity or interpretation. 33 — See the judgments cited above: Denkavit Italiana (para- graph 18), Ariete (paragraph 8), Mireco (paragraph 9), 29 — Case 43/75 [1976] ECR 455, paragraphs 69 to 75. Blaizot and Others (paragraph 28), Legros and Others 30 — Roders and Others, paragraph 43, and Bautiaa and Société (paragraph 30), Bosnian (paragraph 42) and EKW and Française Maritime, paragraph 48. Wem & Co. (paragraph 57). 31 — Ibid. 34 — Ibid.

44. In my opinion, the PVVought to have 46. This vigorous affirmation is based on drawn the appropriate conclusions from the principles of direct applicability 37 and that judgment. It should not have rejected the primacy of Community law. 38 the applicant's claim based on the inter- pretation of the relevant regulations, given by the Court on that occasion, merely on the ground that this was precluded by respect for the legal authority of a judicial decision, because the claim sought to call into question a prior administrative decision which had become definitive fol- 47. It is also based on certain provisions of lowing the dismissal of an application for the Treaty, in particular Article 10 EC. In its annulment by a decision of the ordinary the Factortame and Others judgment the courts which had the legal authority of a Court observed that 'it is for the national judicial decision. 35 courts, in application of the principle of cooperation laid down in Article 5 of the EEC Treaty [now Article 10 EC], to ensure the legal protection which persons derive from the direct effect of provisions of Community law'. 39 This reference to the provisions of Article 10 EC occurs again in the judgment in Francovich and Others 40 45. It must be observed that the Court has to justify the obligation of Member States emphatically stated that 'any provision of a to make good damage caused to individuals national legal system and any legislative, as a result of breaches of Community law administrative or judicial practice which for which the State can be held responsible. might impair the effectiveness of Commu- In this connection the Court observed that, nity law by withholding from the national under Article 10 EC, 'the Member States court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside 36 — See the judgments in Case 106/77 Simmenthal [1978] ECR 629, paragraph 22, and Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 20. 37 — See the Simmenthal (paragraphs 14 to 16) and Factortame 35 — To be precise, we should speak of the legal authority of a and Others (paragraph 18) judgments, cited above. (final) judicial decision rather than the legal authority of a 38 — See the Simmenthal (paragraphs 17 and 18) and Fac- judicial decision. No appeal lies against decisions of the tortame and Others (paragraph 18) judgments, cited College van Beroep (save for a special application to above. reopen the proceedings). For the distinction between the two concepts, see paragraph 96 of my Opinion of 8 April 39 — Paragraph 19. 2003 in Case C-224/01 Köbler, pending before the Court. 40 — Joined Cases C-6/90 and C-9/90 [1991] ECR I-J357.

48. As we know, the Simmettthal and Factortame judgments concerned the con- nection between the national court and national law. It is interesting to note that the national rules at issue in those two cases were far from insignificant. One was a 51. On the basis of the principles of direct principle of the constitution, the other was applicability and the primacy of Commu- deeply rooted in the internal legal system in nity law, as well as Articles 10 EC and 234 question. EC, the Court observed that 'a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any 49. The Simmenthal case involved an Ita- conflicting provision of national legislation, lian rule to the effect that any conflict even if adopted subsequently, and it is not between a national law and a provision of necessary for the court to request or await Community law had to be resolved by the the prior setting aside of such provision by Corte Costituzioniale (Constitutional legislative or other constitutional means'. 44 Court) (Italy) and not by the national courts, whose role was limited to raising the question whether the law at issue was unconstitutional.

52. The Factortame case was concerned 50. It must be observed that the conflict in with a traditional common-law rule that that case had been revealed by an earlier the English courts had no power to order judgment giving a preliminary ruling in interim relief suspending the application of reply to a question from the same national statutes, even where there was reasonable

57. It must be observed that the Court pointed out that the argument that the 54. It is not only the national courts, but infringement of a directly applicable Com- also administrative bodies which are under munity rule can be terminated only by the a duty to set aside any national rule which adoption of measures constitutionally is an obstacle to the full effectiveness of appropriate to repeal the legislative provi- Community law. sion establishing the tax 'would amount to saying that the application of the Commu- nity rule is subject to the law of each Member State and more precisely that this application is impossible where it is contrary to a national law'. 49 The Court added that 'the attainment of the objectives 55. Even before the Simmenthal judgment of the Community requires that the rules of the Court had held, in the case of Com- 47 — Case 48/71 [1972] ECR 529. 48 — See the judgment in Commission v Italy, cited above, 45 — See the Factortame judgment, paragraph 22. paragraph 7. 46 — Ibid., paragraph 23. 49 — Ibid., paragraph 6.

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50 — Ibid., paragraph 8. 51 — Ibid., paragraph 9. 52 — See the judgments in Case 103/88 Fratelli Costanzo [1989] 63. Relying on the judgment giving the ECR 1839, paragraph 33; Case C-101/91 Commission v Italy [1993] ECR I-191, paragraph 24, and Case C-118/00 preliminary ruling, the person concerned Larsy [2001] ECR I-5063, paragraph 52. asked the competent authority to put his

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situation in order. He was given partial ority in question] should have disapplied satisfaction in that his entitlement was those provisions'. 54 The Court based this reviewed so that he received a full pension, statement on the primacy of Community but it was made only partly, and not fully, law, placing it in the context of the retrospective (pursuant to certain provi- continued development of the settled case- sions of a Community regulation on social law cited above concerning the functions of security which should not have been the national courts and authorities, those applied). The person concerned appealed judgments having been given by virtue of against the judgment of the Tribunal de the same principle. 55 Travail, claiming damages from the Belgian State on the ground that it was liable by reason of the alleged breach of Community law by the administrative body.

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based on Community law on the ground Community law 58 and to the role of the that the claim seeks to call into question a national courts in raising points of Com- prior administrative decision which has not munity law of their own motion. 59 been criticised by a judicial decision, irre- spective of whether it has the legal auth- ority of res judicata or that of a final judgment.

70. I conclude from that case-law that the principle of procedural autonomy should be applied in the context of asserting before 67. This conclusion is also dictated in the the courts a right based on Community law light of the principle of direct applicability and not in an action concerning the actual and the provisions of Article 10 EC, in the existence of such a right. Moreover, it must further development of the Simmenthal and be borne in mind that to extend the scope Factortatne judgments cited above, and in of the principle of procedural autonomy parallel with the Francovich judgment, also beyond the present context would amount cited above. to making the existence of rights based on Community law dependent on the current state of the domestic legislation of the different Member States. It would be difficult to reconcile this situation with the requirements inherent in the very nature 68. In my view, the foregoing observations of Community law, namely the principles do not tend to call into question the of primacy and uniform application. In this principle of procedural autonomy as connection it must be said that the Court hitherto formulated and applied by the did not take that path in order to develop a Court. right of redress for individuals which is directly based on Community law.

have a right such as that consisting in have the authority of a final judgment obtaining the examination by an adminis- where such decisions or judgments are trative body of the substance of a claim for based on an interpretation of Community payment based on Community law, as law which was invalidated by the Court in interpreted by the Court in a preliminary a subsequent preliminary ruling. I merely ruling, even where that claim seeks to call consider that Community law precludes a into question a prior administrative national administrative body from refusing decision which has become final. a payment claim based on Community law, as interpreted by the Court in a judgment giving a preliminary ruling, merely on the ground that to allow the claim would be contrary to a national rule of respect for the legal authority of a final judgment. If such a 72. On the other hand, it must be observed claim were allowed by the administrative that, in accordance with the Court's settled body, that would not necessarily entail the case-law concerning procedural autonomy, withdrawal of the prior administrative the Member States may, for the sake of the decision or a review of the judicial decision principle of legal certainty, require a claim in question. Accordingly it is for the for payment based on Community law, Member States to take measures for that such as that which is the subject of the main purpose, if they deem it necessary. proceedings, to be raised (before the com- petent authority) within a reasonable period. 60

77. 'The principles of direct applicability and the primacy of Community law, and also the provisions of Article 10 EC, preclude a national administrative body from refusing an individual's claim for payment based on Community law on the ground that the claim seeks to call into question a prior administrative decision which has become final, following the dismissal of an action for the annulment of the decision by a decision which has the legal authority of a final judgment, although that final decision is based on an interpretation of Community law which was invalidated by the Court in a subsequent preliminary ruling.'

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