1 BY JUDGMENT OF 7 JUNE 1983 , WHICH WAS RECEIVED AT THE COURT ON 16 JUNE 1983 , THE TRIBUNAL D ' INSTANCE ( DISTRICT COURT ), PARIS ( FIRST ARRONDISSEMENT ), REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS ON THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 652/76 OF 24 MARCH 1976 CHANGING THE MONETARY COMPENSATORY AMOUNTS FOLLOWING CHANGES IN EXCHANGE RATES FOR THE FRENCH FRANC ( OFFICIAL JOURNAL 1976 NO L 79 , P . 4 ).
2 THOSE QUESTIONS WERE RAISED IN THE COURSE OF A DISPUTE BETWEEN THE FRENCH CUSTOMS ADMINISTRATION AND THE SOCIETE DES PRODUITS DE MAIS , A FRENCH MANUFACTURER OF PROCESSED MAIZE PRODUCTS , THE PLAINTIFF IN THE MAIN PROCEEDINGS .
3 IN PARAGRAPH 1 OF THE OPERATIVE PART OF ITS JUDGMENT OF 15 OCTOBER 1980 ( CASE 145/79 ROQUETTE ( 1980 ) ECR 2917 ), THE COURT , RULING ON QUESTIONS REFERRED TO IT BY THE TRIBUNAL D ' INSTANCE , LILLE , BY JUDGMENT OF 29 JUNE 1979 , DECLARED INVALID COMMISSION REGULATION NO 652/76 OF 24 MARCH 1976 :
' IN SO FAR AS IT FIXES 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 STARCH ;
IN SO FAR AS IT FIXES THE COMPENSATORY AMOUNTS APPLICABLE TO WHEAT STARCH ON A BASIS OTHER THAN THAT OF THE REFERENCE PRICE OF WHEAT AFTER DEDUCTION OF THE PRODUCTION REFUND ON STARCH ;
IN SO FAR AS IT FIXES THE COMPENSATORY AMOUNTS APPLICABLE TO ALL THE DIFFERENT PRODUCTS OBTAINED BY THE PROCESSING OF A GIVEN QUANTITY OF THE SAME BASIC PRODUCT , SUCH AS MAIZE OR WHEAT , IN A SPECIFIED MANUFACTURING PROCESS AT A FIGURE APPRECIABLY HIGHER THAN THE COMPENSATORY AMOUNT FIXED FOR THAT GIVEN QUANTITY OF THE BASIC PRODUCT , AND
IN SO FAR AS IT FIXES COMPENSATORY AMOUNTS APPLICABLE TO POTATO STARCH WHICH EXCEED THOSE APPLICABLE TO MAIZE STARCH . '
IN PARAGRAPH 3 OF THE OPERATIVE PART OF THAT JUDGMENT , HOWEVER , THE COURT STATED , FOR REASONS SET OUT IN PARAGRAPHS 51 AND 52 OF THE JUDGMENT , THAT ,
' THE FACT THAT THE ABOVE-MENTIONED PROVISIONS ARE INVALID DOES NOT ENABLE THE CHARGING OR PAYMENT OF MONETARY COMPENSATORY AMOUNTS BY THE NATIONAL AUTHORITIES ON THE BASIS OF THOSE PROVISIONS TO BE CHALLENGED AS REGARDS THE PERIOD PRIOR TO THE DATE OF THIS JUDGMENT . '
4 IN ITS OWN DECISION OF 15 JULY 1981 ON THE BASIS OF THAT JUDGMENT , THE TRIBUNAL D ' INSTANCE , LILLE , NEVERTHELESS ORDERED THE CUSTOMS AUTHORITIES TO REFUND TO ROQUETTE THE SUMS OVERPAID BY IT SINCE 25 MARCH 1976 AS MONETARY COMPENSATORY AMOUNTS ON ITS EXPORTS . ACCORDING TO THE TRIBUNAL , IT WAS NOT BOUND BY PARAGRAPH 3 OF THE OPERATIVE PART OF THE COURT ' S JUDGMENT SINCE ' AFTER IT HAD INTERPRETED COMMUNITY LAW FOR THE PURPOSE OF REPLYING TO QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING AND HAD EXHAUSTED ITS POWERS , THE COURT TOOK THE STEP , FOR WHICH THERE WAS NO BASIS IN LAW , OF ADDING TO THE OPINION IT HAD THEREBY GIVEN A COMMENT BASED ON A PROVISION WHICH WAS NOT APPLICABLE TO THE SITUATION UNDER CONSIDERATION ' . THE TRIBUNAL STATED MOREOVER THAT SINCE THE COURT HAD NO REGULATORY POWER WITH REGARD TO THE COMMUNITY , ITS ACTION COULD NOT MODIFY THE DIVISION OF JURISDICTION BETWEEN ITSELF AND THE NATIONAL COURTS , AND THAT IT WAS FOR THE NATIONAL COURTS ALONE TO DRAW THE CONSEQUENCES IN THEIR DOMESTIC LEGAL SYSTEM OF THE COURT ' S DECLARATION OF INVALIDITY .
5 RELYING ON THE ABOVE-MENTIONED JUDGMENT OF THE COURT OF 15 OCTOBER 1980 DECLARING INVALID COMMISSION REGULATION NO 652/76 AND THE SUBSEQUENT REGULATIONS ON THE ONE HAND AND ON THE JUDGMENT OF THE TRIBUNAL D ' INSTANCE , LILLE , OF 15 JULY 1981 ON THE OTHER , ON 30 DECEMBER 1981 THE SOCIETE DES PRODUITS DE MAIS BROUGHT AN ACTION BEFORE THE TRIBUNAL D ' INSTANCE , PARIS , AGAINST THE DIRECTOR GENERAL FOR CUSTOMS AND INDIRECT DUTIES SEEKING THE REPAYMENT OF THE COMPENSATORY AMOUNTS IMPROPERLY LEVIED BY THE FRENCH CUSTOMS AUTHORITIES , UNDER REGULATION NO 652/76 , ON ITS EXPORTS TO OTHER MEMBER STATES OF A NUMBER OF MAIZE PRODUCTS .
6 THE DEFENDANT IN THE MAIN PROCEEDINGS RAISED AN OBJECTION OF INADMISSIBILITY BASED ON PARAGRAPH 3 OF THE OPERATIVE PART OF THE SAID JUDGMENT OF 15 OCTOBER 1980 . IT ARGUED FURTHERMORE , AGAIN REFERRING TO THAT JUDGMENT , THAT THE PLAINTIFF HAD NOT ESTABLISHED THAT THE COMPENSATORY AMOUNTS FIXED BY THE REGULATION IN QUESTION FOR PRODUCTS OBTAINED BY THE PROCESSING OF MAIZE CLEARLY EXCEEDED THOSE FIXED FOR THE QUANTITY OF MAIZE USED IN THEIR MANUFACTURE .
7 THE DEFENDANT SUGGESTED HOWEVER THAT IF THE TRIBUNAL DID NOT CONSIDER THE JUDGMENT OF 15 OCTOBER 1980 TO BE SUFFICIENTLY CLEAR , IT SHOULD REFER THE MATTER TO THE COURT . TAKING INTO ACCOUNT THE EVIDENCE PRODUCED BY THE PARTIES AND THEIR SUBMISSIONS , THE TRIBUNAL HELD IT NECESSARY , IN THE INTERESTS OF CLARITY AND OF THE PROPER ADMINISTRATION OF JUSTICE , TO STAY THE PROCEEDINGS AND REFER THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
( 1 ) ARE THE PROVISIONS OF COMMISSION REGULATION ( EEC ) NO 652/76 OF 24 MARCH 1976 FIXING THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO EXPORTS OF BROKEN MAIZE ( TARIFF HEADING NO 10.05 , NOW NO 23.02 ), GLUTEN ( HEADING NO 23.03 ) AND PRODUCTS FALLING WITHIN SUBHEADINGS 11.08 A I , 17.02 B I ( A ), 17.02 B I ( B ), 17.02 B II ( A ), 17.02 B II ( B ), 17.02.23 , 17.02 . 28.0 , 17.02 . 28.1 , 35.05 A AND 29.04.-77.001 VALID?
( 2)IF THE REPLY TO THE FIRST QUESTION IS IN THE NEGATIVE , TO WHAT EXTENT ARE THEY INVALID?
( 3)IF THE REPLY TO THE FIRST QUESTION IS IN THE NEGATIVE , WHAT ARE THE LEGAL CONSEQUENCES OF SUCH INVALIDITY WITH REGARD TO A REQUEST FOR REIMBURSEMENT OF ALL OR PART OF THE MONETARY COMPENSATORY AMOUNTS LEVIED BY THE NATIONAL AUTHORITIES ON THE BASIS OF COMMISSION REGULATION NO 652/76 OF 24 MARCH 1976?
( 4)IF IT IS DULY ESTABLISHED THAT A COMMUNITY REGULATION IS INVALID AND IF SUCH INVALIDITY EXCLUDES ANY POSSIBILITY OF CALLING INTO QUESTION MONETARY COMPENSATORY AMOUNTS ALREADY CHARGED UNDER THAT REGULATION , DOES IT ALSO EXCLUDE , AND IF SO , TO WHAT EXTENT , ANY PAYMENT IN RESPECT OF THE MONETARY COMPENSATORY AMOUNTS IN QUESTION?
THE FIRST QUESTION
8 IN ITS FIRST QUESTION THE TRIBUNAL ASKS WHETHER THE PROVISIONS OF COMMISSION REGULATION NO 652/76 FIXING THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO EXPORTS OF BROKEN MAIZE ( TARIFF HEADING NO 10.05 , NOW NO 23.02 ), GLUTEN ( HEADING NO 23.03 ) AND PRODUCTS FALLING WITHIN SUBHEADINGS 11.08 A I , 17.02 B I ( A ), 17.02 . B I ( B ), 17.02 B II ( A ), 17.02 B II ( B ), 17.02 . 23 , 17.02 . 28.0 , 17.02 . 28.1 , 35.05 A , 29.04.-77.001 ARE VALID .
9 DURING THE PROCEEDINGS IT BECAME APPARENT , HOWEVER , THAT THE PROVISIONS AT ISSUE IN THE MAIN PROCEEDINGS ARE THOSE OF REGULATION NO 652/76 WHICH FIX THE COMPENSATORY AMOUNTS APPLICABLE TO PRODUCTS FALLING WITHIN SUBHEADINGS 23.02 A I ( MAIZE OR RICE BRAN ), 23.03 A I ( GLUTEN ), 11.08 A I ( MAIZE STARCH ), 17.02 B I ( A ) ( GLUCOSE AND GLUCOSE SYRUP ), 17.02 B I ( B ) ( GLUCOSE AND GLUCOSE SYRUP ), 17.02 B II ( A ) ( GLUCOSE AND GLUCOSE SYRUP ), 17.02 B II ( B ) ( GLUCOSE AND GLUCOSE SYRUP ), 35.05 A ( DEXTRIN ), 29.04 C III ( B ) 1 ( GLUCITOL OR SORBITOL ).
A - COMPENSATORY AMOUNTS APPLICABLE TO PRODUCTS OTHER THAN MAIZE BRAN ( BROKEN MAIZE )
10 SINCE THE COMMISSION HAS ACCEPTED THAT THE GROUNDS OF INVALIDITY LAID DOWN BY THE COURT IN ITS SAID JUDGMENT OF 15 OCTOBER 1980 APPLY TO ALL THE PROVISIONS IN QUESTION EXCEPT FOR THAT FIXING THE COMPENSATORY AMOUNTS APPLICABLE TO MAIZE BRAN ( BROKEN MAIZE ) ( SUBHEADING 23.02 A I ), IT IS SUFFICIENT TO STATE THAT WITH REGARD TO THE FIXING OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO THE PRODUCTS FALLING WITHIN SUBHEADINGS 11.08 A I , 17.02 B I , 17.02 B II , 23.03 A I , 29.04 C III ( B ) 1 AND 35.05 A COMMISSION REGULATION NO 652/76 OF 24 MARCH 1976 IS INVALID FOR THE REASONS ALREADY STATED IN THE JUDGMENT DELIVERED ON 15 OCTOBER 1980 .
B - COMPENSATORY AMOUNTS APPLICABLE TO MAIZE BRAN ( BROKEN MAIZE )
11 WITH REGARD TO MAIZE BRAN ( BROKEN MAIZE ) IT SHOULD FIRST BE POINTED OUT , AS THE COMMISSION HAS CORRECTLY OBSERVED , THAT SINCE NO EXPORT REFUNDS ARE PAID ON THOSE PRODUCTS THE GROUND OF INVALIDITY ACCEPTED BY THE COURT IN ITS SAID JUDGMENT OF 15 OCTOBER 1980 FOR THE FIXING OF COMPENSATORY AMOUNTS ON MAIZE STARCH IS INAPPLICABLE .
12 WITH REGARD TO THE GROUND OF INVALIDITY BASED ON THE FACT THAT THE SUM OF THE MONETARY COMPENSATORY AMOUNTS APPLIED TO ALL THE PRODUCTS AND BY-PRODUCTS OF THE PROCESSING OF A GIVEN QUANTITY OF MAIZE IS APPRECIABLY GREATER THAN THE COMPENSATORY AMOUNT APPLICABLE TO THAT QUANTITY OF MAIZE , IT SHOULD BE POINTED OUT THAT THE COMMISSION HAS EXPOUNDED THE VIEW THAT MAIZE BRAN ( BROKEN MAIZE ) IS NOT OBTAINED BY THE PROCESSING OF MAIZE . IN ITS VIEW MAIZE BRAN IS SIMPLY WASTE TO WHICH THAT GROUND OF INVALIDITY CANNOT BE APPLIED .
13 IN THE PROCEDURE UNDER ARTICLE 177 OF THE TREATY IT IS NOT FOR THE COURT OF JUSTICE BUT FOR THE NATIONAL COURT ALONE TO MAKE THE FINDINGS OF FACT NECESSARY FOR THE RESOLUTION OF THAT PROBLEM . AS THE CASE NOW STANDS , THERE ARE THEREFORE NO GROUNDS FOR EXTENDING THE DECLARATION OF INVALIDITY CONTAINED IN THE JUDGMENT OF 15 OCTOBER 1980 TO MAIZE BRAN ( SUBHEADING 23.02 A 1 ). IF THE TRIBUNAL FINDS THAT MAIZE BRAN ( BROKEN MAIZE ) IS NOT MERELY WASTE BUT CONSTITUTES A BY-PRODUCT OF MAIZE , IT MAY REFER A SECOND QUESTION TO THE COURT .
14 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT THE PROVISIONS OF COMMISSION REGULATION NO 652/76 ARE INVALID IN SO FAR AS THEY FIX THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO EXPORTS OF MAIZE GLUTEN ( HEADING NO 23.03 ) AND PRODUCTS FALLING UNDER SUBHEADINGS 11.08 A I ; 17.02 B I ( A ); 17.02 B I ( B ); 17.02 B II ( A ); 17.02 B II ( B ); 17.02 . 23 ; 17.02 . 28.0 ; 17.02 . 28.1 ; 35.05 A ; 29.04.-77.001 .
THE SECOND , THIRD AND FOURTH QUESTIONS
15 IN THOSE QUESTIONS THE TRIBUNAL ESSENTIALLY ASKS THE COURT TO SPECIFY THE LIMITS AND CONSEQUENCES OF THE INVALIDITY OF REGULATION NO 652/76 , AS LAID DOWN IN THE JUDGMENT OF 15 OCTOBER 1980 , TAKING PARTICULAR ACCOUNT OF WHAT WAS SAID IN PARAGRAPH 3 OF THE OPERATIVE PART OF THAT JUDGMENT .
16 IT SHOULD IN THE FIRST PLACE BE RECALLED THAT THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 13 MAY 1981 ( CASE 66/80 INTERNATIONAL CHEMICAL CORPORATION ( 1981 ) ECR 1191 ) THAT ALTHOUGH A JUDGMENT OF THE COURT GIVEN UNDER ARTICLE 177 OF THE TREATY DECLARING AN ACT OF AN INSTITUTION , IN PARTICULAR A COUNCIL OR COMMISSION REGULATION , TO BE VOID 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 SECONDLY , IT MUST BE EMPHASIZED THAT THE COURT ' S POWER TO IMPOSE TEMPORAL LIMITS ON THE EFFECTS OF A DECLARATION THAT A LEGISLATIVE ACT IS INVALID , IN THE CONTEXT OF PRELIMINARY RULINGS UNDER INDENT ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 , IS JUSTIFIED BY THE INTERPRETATION OF ARTICLE 174 OF THE TREATY HAVING REGARD TO THE NECESSARY CONSISTENCY BETWEEN THE PRELIMINARY RULING PROCEDURE AND THE ACTION FOR ANNULMENT PROVIDED FOR IN ARTICLES 173 , 174 AND 176 OF THE TREATY , WHICH ARE TWO MECHANISMS PROVIDED BY THE TREATY FOR REVIEWING THE LEGALITY OF ACTS OF THE COMMUNITY INSTITUTIONS . THE POSSIBILITY OF IMPOSING TEMPORAL LIMITS ON THE EFFECTS OF THE INVALIDITY OF A COMMUNITY REGULATION , WHETHER UNDER ARTICLE 173 OR ARTICLE 177 , IS A POWER CONFERRED ON THE COURT BY THE TREATY IN THE INTEREST OF THE UNIFORM APPLICATION OF COMMUNITY LAW THROUGHOUT THE COMMUNITY . IN THE PARTICULAR CASE OF THE JUDGMENT OF 15 OCTOBER 1980 , REFERRED TO BY THE TRIBUNAL , THE USE OF THE POSSIBILITY PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 174 WAS BASED ON REASONS OF LEGAL CERTAINTY MORE FULLY EXPLAINED IN PARAGRAPH 52 OF THAT JUDGMENT .
18 IT MUST BE POINTED OUT THAT WHERE IT IS JUSTIFIED BY OVERRIDING CONSIDERATIONS THE SECOND PARAGRAPH OF ARTICLE 174 GIVES THE COURT DISCRETION TO DECIDE , IN EACH PARTICULAR CASE , WHICH SPECIFIC EFFECTS OF A REGULATION WHICH HAS BEEN DECLARED VOID MUST BE MAINTAINED . IT IS THEREFORE FOR THE COURT , WHERE IT MAKES USE OF THE POSSIBILITY OF LIMITING THE EFFECT ON PAST EVENTS OF A DECLARATION IN PROCEEDINGS UNDER ARTICLE 177 THAT A MEASURE IS VOID , TO DECIDE WHETHER AN EXCEPTION TO THAT TEMPORAL LIMITATION OF THE EFFECT 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 THE DECLARATION OF INVALIDITY OR WHETHER , CONVERSELY , A DECLARATION OF INVALIDITY APPLICABLE ONLY TO THE FUTURE CONSTITUTES AN ADEQUATE REMEDY EVEN FOR TRADERS WHO TOOK ACTION AT THE APPROPRIATE TIME WITH A VIEW TO PROTECTING THEIR RIGHTS .
19 THAT QUESTION , WHICH CONCERNS THE DETERMINATION OF THE SCOPE OF THE SAID JUDGMENT OF 15 OCTOBER 1980 , IS HOWEVER IRRELEVANT FOR THE PURPOSE OF THIS ACTION , WHICH WAS BROUGHT BEFORE THE NATIONAL COURT ON 30 DECEMBER 1981 , THAT IS , AFTER THE DECLARATION THAT THE PROVISIONS REFERRED TO IN THE FIRST QUESTION WERE INVALID .
20 THE ANSWER TO THE QUESTIONS RAISED BY THE TRIBUNAL MUST THEREFORE BE THAT IT MUST BE HELD , AS THE COURT HAS ALREADY STATED IN THE SAID JUDGMENT OF 15 OCTOBER 1980 , THAT THE FACT THAT THE PROVISIONS OF COMMISSION REGULATION NO 652/76 OF 24 MARCH 1976 HAVE BEEN HELD INVALID DOES NOT MAKE IT POSSIBLE TO CHALLENGE THE CHARGING OR PAYMENT OF MONETARY COMPENSATORY AMOUNTS BY NATIONAL AUTHORITIES ON THE BASIS OF THOSE PROVISIONS PRIOR TO THE DATE OF THE JUDGMENT DECLARING THEM INVALID .
COSTS
21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL D ' INSTANCE , PARIS ( FIRST ARRONDISSEMENT ), BY JUDGMENT OF 7 JUNE 1983 , HEREBY RULES :
( 1 ) THE PROVISIONS OF COMMISSION REGULATION NO 652/76 ARE INVALID IN SO FAR AS THEY FIX THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO EXPORTS OF MAIZE GLUTEN ( HEADING NO 23.03 ) AND PRODUCTS FALLING UNDER SUBHEADINGS 11.08 A I ; 17.02 B I ( A ); 17.02 B I ( B ); 17.02 B II ( A ); 17.02 B II ( B ); 17.02 . 23 ; 17.02 . 28.0 ; 17.02 . 28.1 ; 35.05 A ; 29.04.-77.001
( 2)THE FACT THAT THE PROVISIONS OF COMMISSION REGULATION NO 652/76 OF 24 MARCH 1976 HAVE BEEN HELD INVALID DOES NOT MAKE IT POSSIBLE TO CHALLENGE THE CHARGING OR PAYMENT OF MONETARY COMPENSATORY AMOUNTS BY NATIONAL AUTHORITIES ON THE BASIS OF THOSE PROVISIONS PRIOR TO THE DATE OF THE JUDGMENT DECLARING THEM INVALID .
