Roquette Frères SA v Hauptzollamt Geldern.

• Jurisdiction: European Union
• Celex Number: 61992CC0228
• ECLI: ECLI:EU:C:1993:862
• Docket Number: C-228/92
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 27 October 1993

61992C0228

Opinion of Mr Advocate General Darmon delivered on 27 October 1993. - Roquette Frères SA v Hauptzollamt Geldern. - Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany. - Monetary compensatory amounts on derived products of maize - Declaration of invalidity - Temporal effect. - Case C-228/92.

European Court reports 1994 Page I-01445

Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Court once again has before it, following the three judgments of 15 October 1980, Providence Agricole de la Champagne, Maïseries de Beauce and Roquette Frères, (1) the Société des Produits de Maïs judgment of 27 February 1985, (2) and the Fragd judgment of 22 May 1985, (3) the difficult problem of the temporal effect of a finding, in the context of a reference for a preliminary ruling, that a Community regulation is invalid.

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 ("MCA") wrongly paid or received prior that date could thus not give rise to a claim for repayment.

3. That "ex nunc erga omnes" effect is what the Commission, supporting the plaintiff in the main proceedings, once again (4) invites the Court to reconsider. For that reason it asks the plenary court to rule on the questions referred by the Finanzgericht Dusseldorf. (5)

4. It was once again the firm of Roquette which brought proceedings in that court against the customs authorities for repayment of excess MCAs wrongfully charged on maize derived products (starch, dextrine and soluble starch).

5. The defendant in the main proceedings resisted the claim on the grounds that Commission Regulation (EEC) No 2719/75 of 24 October 1975 fixing the monetary compensatory amounts and certain rates for their application, (6) had been correctly applied in the instant case, and the Finanzgericht, in view of Roquette' s complaints relating to that regulation, asks the Court:

- firstly, whether the aforesaid regulation is 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 maize starch, without reducing the basis for calculating the MCAs by the amount of the refunds on production,

- secondly, if it is invalid, whether Roquette is entitled to rely on that invalidity in the present case, given that it "has done everything legally necessary and possible to prevent the contested tax notice from remaining in force".

6. The first question need not detain us long.

7. The Commission concedes that Regulation No 2719/75 incurs the criticisms referred to by the Finanzgericht in the first question, which were the reasons for the declarations of invalidity in the Court' s three judgments of 15 October 1980. (7) It expressly acknowledges that the amount claimed and paid as MCA on the derived products amounts to a sum which is clearly more than the MCAs on the corresponding quantity of the basic product (8) and that the basis of calculation of the MCAs on maize starch had not been reduced by the amounts of refunds on production. (9)

8. The regulation under consideration should therefore be declared invalid for those reasons.

9. The Commission further considers that the declaration of invalidity should extend to certain other regulations, since they are tainted by the same irregularities with respect to the same products. (10)

10. As the Commission stated in replying to the question put to it by the Court, the provisions in question are as follows: the amending Regulations No 2829/75 of 31 October 1975, No 271/76 of 6 February 1976, and No 512/76 of 5 March 1976, (11) Regulation No 572/76 of 15 March 1976, (12) which replaced the regulation in issue, (13) and Regulation No 618/76 of 18 March 1976, (14) which amended the latter regulation. All these regulations are earlier than those declared invalid by the Court' s decisions of 15 October 1980.

11. The declaration of invalidity should be extended for the same reasons as those stated by the Court in the Roquette judgment cited above:

"The fact that that regulation is invalid renders invalid the provisions of the subsequent regulations of the Commission the purpose of which is to alter the monetary compensatory amounts applicable to the products referred to in the foregoing paragraph". (15)

12. I come to the second question.

13. It appears to me to be essential here to begin by examining the principles governing the effects ratione temporis of judgments declaring a regulation invalid in the context of a reference for a preliminary ruling.

14. It appears from the Court' s judgment in Case 66/80 International Chemical Corporation v Amministrazione delle finanze dello Stato (16) that such a judgment is binding on any court which has to apply the invalid act, and has effect erga omnes:

"... although [that judgment] is directly addressed only to the national court which brought the matter before the Court, it is sufficient reason for any other national court to regard that act as void for the purposes of a judgment which it has to give". (17)

15. Unlike a regulation which has been annulled on the basis of Article 173 of the Treaty, which is declared null and void, the regulation thus declared invalid "does not disappear from the legal order" (18) until it has been expressly repealed by a new act. Under Article 176 of the EEC Treaty, the institution whose act has been declared void is required to take the necessary measures to put an end to the illegality which has been found. (19)

16. Whether by reason of Article 173 or by reason of Article 176, the act in question ceases to apply. (20) There is thus a close relationship between a judgment annulling an act and a preliminary ruling declaring an act invalid.

17. It is therefore inevitable that the following question should be asked: must the rule that annulment has retroactive effect, stated in the first paragraph of Article 174, and the exception in the second paragraph of that article also apply to preliminary rulings declaring an act invalid? (21)

18. Those judgments, like judgments annulling acts, in principle have retroactive effect: "a regulation declared not to be valid is unlawful ab initio". (22) Mr Advocate General Capotorti gave the principal reason in his Opinion in Case 238/78 Ireks-Arkady v Council and Commission (23): "... 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 reference to the preliminary ruling in which the existence of the unlawful act was established is of no avail to the persons interested in pressing such claims". (24)

19. However, because of the erga omnes effect of a declaration of invalidity, retroactive effect may bring about serious consequences in that it leads to the re-opening of established legal relationships which have been entered into in good faith.

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 conditions of admissibility ratione personae et temporis under the third paragraph of Article 173, the procedure for invalidity could be set in motion on the initiative of any individual person, with no time-limit other than that resulting from the rules on prescription in national law, in other words, several years in certain cases after the coming into force of the rule in question. (25) Secondly, rules of Community law may effect especially sensitive sectors and declaring them invalid may entail significant consequences, including financial ones, which it is essential to be able to control. That concern is apparent in the Court' s Pinna judgment. (26)

21. It may be noted in passing that the European Court of Human Rights followed the Defrenne II judgment (27) in limiting the temporal effect of its Marckx judgment of 13 June 1979, (28) laying down the principle of equal treatment for legitimate and illegitimate children in estate matters: "... the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present judgment". (29)

22. Nevertheless, ex nunc effect does raise serious difficulties. Firstly, it means that Community law is divided according to time; although declared invalid by the Court, a regulation will still have legal effect with regard to certain persons. Secondly, it resembles an estoppel; an individual will not be able to rely on the finding of invalidity for the period prior to the date of the judgment.

23. In the judgments of 15 October 1980, cited above, the Court held that: "... it is necessary to apply by analogy the second paragraph of Article 174 of the Treaty, whereby the Court of Justice may state which of the effects of the regulation which it has declared void shall be considered as definitive, for the same reasons of legal certainty as those which form the basis of that provision". (30)

24. However, in the Société de Produits de Maïs judgment the Court, no longer referring to analogy, gave as the reason for limiting the temporal effect of a declaration of invalidity "the necessary consistency between the preliminary ruling procedure and the action for annulment ... which are two mechanisms provided by the Treaty for reviewing the legality of acts of Community institutions". (31)

25. If the principles underlying the...