JUDGMENT OF 4. 7. 1973 — CASE 1/73 WESTZUCKER v EINFUHR- UND VORRATSSTELLE ZUCKER

In Case 1/73 Reference to the Court of Justice under Article 177 of the EEC Treaty by the Hessisches Finanzgericht, VIIth Senate, for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner (Rapporteur), J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh, M. Sørensen and A. J. Mackenzie Stuart, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Statute

Grounds of judgment

As to the first and second questions

As to the third question

Costs

I —. Facts and procedure

(a). it was not empowered to grant such an increase;

(b). from 27 May 1971 the new wording of Article 12 of Regulation No 766/68/EEC was to be applied, which meant that the increase was no longer obligatory.

1. Must Articles 1 and 2 of Regulation No 1048/71/EEC of the Council of 25 May 1971 (OJ L 114, 26. 5.1971, p. 10) be interpreted as meaning that Article 12 of Regulation No 766/68 of the Council of 18 June 1968 (OJ L 143, 25. 6.1968, p. 6), as it is to be applied from 27 May 1971, must be applied in the same manner where the Einfuhr- und Vorratsstelle fur Zucker issued before 27 May 1971 a declaration of increase and an export licence and where the sugar was exported after 1 July 1971?

2. If the above interpretation is to be followed, do Articles 1 and 2 of Regulation No 1048/71/EEC of the Council of 25 May 1971 infringe the principle of legal certainty, a general principle which applies equally in Community law, as well as the principle deriving from it which prescribes that the confidence of persons concerned deserves protection (Vertrauensschutz) ?

3. Does the adjustment of the amount of refund, as provided in the original text of Article 12 of the Regulation No 766/68/EEC, following the alteration in the intervention price for sugar, require a prior decision by the Commission?

II —. Observations submitted under Article 20 of the Statute

1. By order dated 18 December 1972, received at the Court Registry on 2 January 1973, the Finanzgericht of Hesse referred to the Court of Justice, under Article 177 of the Treaty, for a preliminary ruling on three questions relating to the interpretation of Article 12 of Regulation No 766/68 of the Council of 18 June 1968, laying down general rules for granting export refunds on sugar (OJ L 143, 25. 6. 1968, p. 6) and to the interpretation of Regulation No 1048/71 of the Council of 25 May 1971 (OJ L 114, 26.5. 1971, p. 10), amending the abovementioned Regulation and. especially Article 12.

2. The rules on the common organization of the market in sugar provide for the grant of export refunds for white sugar to cover the difference between the prices on the world market and those within the Community, and the advance fixing, for a specified period, of the refund to be paid equal to that valid on the day of the application for advance fixing.

3. It can be seen from the file that the plaintiff in the main action obtained on 1 February and 5 May 1971 three advance fixing certificates for the exportation of white sugar, valid variously until 31 July and 31 August 1971 and containing the phrase subject to Article 12 of Regulation No 766/68, and requested that the refund fixed in advance be increased on the basis of the increase in the intervention price brought in on 1 July 1971 under Regulation No 1061/71 of the Council of 25 May 1971 (OJ L 115, 27. 5. 1971, p. 17).

4. It is asked whether Regulation No 1048/71 must be interpreted as meaning that the new Article 12 of Regulation 766/68 applies to the case where an export licence has been issued before 27 May 1971 (the date of the entry into force of the new wording), and also where exportation has been carried out after 1 July (the date of the entry into force of the increase in the intervention prices).

5. According to a generally accepted principle, the laws amending a legislative provision apply, unless otherwise provided, to the future consequences of situations which arose under the former law.

6. It is asked in the second question whether Regulation No 1048/71, thus interpreted, infringes a principle of legal certainty by which the confidence of persons concerned deserves to be protected (Vertrauensschutz).

7. It can be seen from the recitals in the Preamble to the Regulation that the Council, considering the provision for a strict adjustment of the export refund fixed in advance to be too rigid, replaced the obligatory provision of the old Article 12 by an optional provision permitting the fixing of an appropriate adjustment.

8. Consequently, if it is true that in the case of an alteration of the intervention price between the time when the refund is fixed and exportation is carried out adjustments may be necessary, it is no less true that the optional provision of the new Article 12 has more regard for the need for stability in trade and in the functioning of the market.

9. Moreover, in the case particularly of an increase in the intervention price, one cannot claim, as does the plaintiff in the main action, that the old Article 12 conferred on the persons concerned the certainty of profiting from such increase.

10. It must be concluded from this that the Council, by amending Article 12 instead of resorting to the more complex remedy of an application of the said Article 37, did not change intrinsically the position of the persons concerned and there is no reason to consider that Regulation No 1048/71 infringes the protection of confidence of persons concerned.

11. These conclusions are further confirmed by the circumstances of the case.

12. If these facts are correct, it follows that the loss claimed to have been suffered was not caused by reliance on the old Article 12, but by other circumstances.

13. Examination of the second question has therefore revealed no factors leading one to conclude that, by amending Article 12 of Regulation No 766/68, Regulation No 1048/71 has failed to recognize a principle of legal certainty by which the confidence of persons concerned deserves protection (Vertrauensschutz).

14. There is no need to deal with this question as it is only to be considered in the case of either a reply in the negative to the first question or a reply in the affirmative to questions 1 and 2, neither of which is the case.

15. The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable, and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before the national court, the decision, on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the plaintiff in the main action and the Commission, of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 1009/67 of the Council of 18 December 1967, especially Article 37; Having regard to Regulation No 766/68 of the Council of 18 June 1968, especially Article 12; Having regard to Regulation No 1048/71 of the Council of 25 May 1971; Having regard to Regulation No 1061/71 of the Council of 25 May 1971; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the questions referred to it by the Finanzgericht of Hesse, by order of that Court dated 27 December 1972, hereby rules:

1 The amendment of Article 12 of Regulation No 766/68 of the Council of 18 June 1968 by Regulation No 1048/71 of the Council of 25 May 1971 applies not only to advance fixing certificates issued after its entry into force, but also to those issued before that date to the extent that the exportation in question had not yet taken place.

2 Examination of the second question posed has not revealed any factors leading one to conclude that, in so doing, Regulation No 1048/71 has failed to recognize a principle of legal certainty by which the confidence of persons concerned deserves protection.