Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. For the second time in the context of the actions brought by the undertaking Granaría against the Hoofdproduktschap voor Akkerbouwprodukten (Central Board for Agricultural Products), the Netherlands intervention agency for agricultural products, the College van Beroep voor het Bedrijfsleven (Administrative court of last instance in matters of trade and industry) has submitted preliminary questions to the Court of Justice, thereby increasing the number of problems arising from Council Regulation (EEC) No 563/76 of 15 March 1976 on the compulsory purchase of skimmed-milk powder held by intervention agencies for use in feeding stuffs. It will be recalled that the earlier reference for a preliminary ruling gave rise to Case 116/76 which the Court settled with its judgment of 5 July 1977 ([1977] ECR 1247), declaring that the said regulation was void. On the basis of that judgment Granaría claimed that the provisions adopted by the Netherlands intervention agency on the basis of the regulation in question should be annulled and that the agency should be ordered to pay it compensation for the damage caused to it by those provisions.

2. Although the first question is worded as though it was intended to establish the true interpretation of Regulation No 563/76 it concerns in substance a problem of a general nature: namely, whether the national agencies charged with the application of Community regulations are obliged to observe them until they are declared invalid. It seems to me clear that the reply on this point must be in the affirmative. The fact that there are doubts as to the validity of a binding measure of a Community institution is certainly insufficient to justify an administrative agency of a Member State charged with the application of Community legislation refusing of its own motion to perform its duties arising from the measure in question. Moreover, this applies to any addressee of Community measures. Such a course is contrary to the principle of legal certainty which must be upheld within the Community system with the assistance of the agencies of all Member States and which is furthermore analogous to the fundamental requirement of the uniform interpretation and application of Community law throughout the entire territory of the Community.

3. By the third question the Netherlands court asks specifically whether the second paragraph of Article 215 of the EEC Treaty must be interpreted as meaning that, because the Community enacted the regulation which was then declared void by the Court of Justice, it is directly liable to a person who has suffered damage as a consequence of the normal application of that regulation by the competent national agency.

4. By the fifth question the Netherlands court asks whether the Member State (or the authority which it controls) has a right of redress against the Community if that State is held liable, whether wholly or in part, for damage arising from the application of the regulation. We have seen that it is necessary to rule out all liability on the part of the State in respect of its application of an invalid Community measure in view of the fact that this course is lawful and indeed mandatory. Accordingly, it is unnecessary to reply to this question. In fact a right of redress can only arise in relations between a subsidiary debtor, or a person jointly and severally liable, and the principal debtor; no such relationship exists in the present case.

5. Before I conclude I should like to comment on the suggestion of the Commission that the examination by the Court should extend to the whole problem of the effects of the declaration that Regulation No 563/76 is void. The Commission, in reliance on the application by analogy of the second paragraph of Article 174 of the EEC Treaty, which, as you know, authorizes the Court in the context of proceeding for annulment under Article 173 to state, if it considers it necessary, which of the effects of the regulation which it has declared void shall be considered as definitive, has invited the Court to take advantage of the present reference for a preliminary ruling to rule that on the basis of the general principles of Community law claims for compensation put forward by direct purchasers of skimmed-milk powder can be upheld only where such persons are able to show that the charges paid under the regulation which has been declared void have not been passed on to subsequent purchasers.

6. For the reasons which I have set out above I suggest in conclusion that the Court of Justice should answer the preliminary questions referred to it by the College van Beroep voor het Bedrijfsleven by its order of 31 March 1978 with the following ruling:

1 Transtaled from the Italian.