Opinion of Mr Advocate General

Mr President,

Members of the Court,

I shall take the liberty ot' dealing with Cases 108. 110 and 114/81 in the same Opinion since the problems raised by those cases are essentially the same

At issue once again is isoclucose. the liquid sweetener which is alreadv well known to the Court as a result or a series of other proceedings. Since the relevant provisions of Community law have on several occasions been rehearsed before the Court I can this time confine myself in mv introductory remarks to certain essential indications.

On 1 May 1977 the Council adopted Regulation No 1111/77 laying down common provisions for isoglucose(Official Journal 1977, L 134 p. 4). In Articles 8 and 9, in Title II, it was provided that in the 1977/78 and 1978/79 marketing years a production levy should be charged on isoglucose producers which, in the first of the two aforementioned sugar years, was not to exceed the amount of five units of account per 100 kg of dry matter. Regulation No 1111/77 was amended by Council Regulation No 1298/78 of 6 June 1978 (Official Journal 1978, L 160, p. 9) so that a production levy was also to be charged on isoglucose in respect of the sugar marketing year 1979/80 and that in respect of the marketing year 1978/79 the amount of the levy was to remain unchanged at five units of account per 100 kg of dry matter.

Isoglucose producers proceeded in several different ways against the system of levies described above. They applied to national courts which referred questions as to the validity of Regulation No 1111/77 to the Court of Justice pursuant to Article 177 of the EEC Treaty, and they applied direci to the Court of Justice seeking damages for the adoption of the aforementioned regulation. Thus, on 23 October 1978 a preliminary ruling was given in Joined Cases i:3.77 and 145/77 in which 11 was held that Regulation No 1111/77 was invalid to the extent to which Articles 8 and 9 thereof imposed a production levy on isoglucose of five units of account per \ZZ kg of dry matter for the period corresponding to the sugar marketing vear 1977/78. The decisive factor in that luagment was the finding that the system o', levies offended against the general principle oi equalitv On 3 December 1979 judgment was delivered in Joined Cases 116^ and 124/77, which were proceedings based on official liability. There it was held that non-contractual liability had not been incurred by the Community on the ground that, although the fixing of the isoglucose production levy at five units of account per 10C kg of dry matter was illegal, there were not errors of such gravity that it might be said that the conduct of the defendant institutions in that respect was verging on the arbitrary, since an appropriate levy was fully justified.

The Council drew the appropriate consequence from the declaration of invalidity of Regulation No 1111/77 and on 25 June 1979 adopted Regulation No 1293/79 (Official Journal 1979, L 162, p. 10) which entered into force on 1 July 1979. Article 2 thereof repealed the provisions of Title II of Regulation No 1111/77 on the system of production levies, with effect from 1 July 1977. Article 3 installed a new version of Title II of Regulation No 1111/77 adopting a quota system based on that of the organization of the market in sugar with basic quotas and maximum quotas in which the basic quotas were given for each undertaking in Annex II. Additionally provision was made for a production levy to be charged on production in excess of the basic quota but not of the maximum quota. The svstem was to apply for the period 1 July 1979 to 30 June' 1980. It was then extended to the marketing year 1980/81 bv Council Regulation No 1592/80 of 24 June 1980 (Official Journal 1980, L 160. p. 12) and the basic quotas fixed in respect of the marketing year 1979/80 e re retained.

In August and September 1979 Cases 138/79 and 139/79 were brought before the Court of Justice in which the system was challenged on a series of substantive legal grounds and on the ground that the system had been adopted in the absence of an opinion of the European Parliament. In the judgments in those cases delivered on 29 October 1980 it was held that the contentions founded on substantive law (breach of the rules on competition, breach of the prohibition of discrimination, and breach of the principle of proportionality could not succeed; however, the regulation was declared void on the ground that the opinion of the Parliament had not been obtained.

Thereupon the Council, having this time obtained the opinion of the European Parliament, adopted on 10 February 1981 Regulation No 387/81 (Official Journal 1981, L 44, p. 1) which repealed, with effect from 1 July 1977, Title II of Regulation No 1111/77 in the version as amended by Regulation No 1298/78. It also reintroduced for the period from 1 July 1979 to 30 June 1980 the system of quotas and levies established by Regulation No 1293/79, changing merely the basic quotas of Maizena GmbH as a result of submissions to that effect in Case 139/79 which seemed to me at the time to be well founded. Similarly, on 10 February 1981. Council Regulation No 388/81 (Official Journal 1981. L 44, p. 4) was adopted amending Regulation No 1392/80. That regulation provided that Article 9 of Regulation No 1111/77, in the version as amended bv Regulation No 387/81, was also to apply for the period 1 July 1980 to 30 June 1981 and that for that period the basic quota for each isoglucose-producing undertaking was to be that applicable during the period 1 July 1979 to 30 June 1980 pursuant to Regulation No 387/81. Regulation No 388/81 was to applv from 1 July 1980.

It should also be mentioned that two cases were brought against Regulation No 1592/80 (Cases 176/80 3 and 179/80). On 2 April 1981 the first case was ordered to be removed from the Court register after the plaintiff had stated that the application had lost its purpose, following the judgment of 29 October 1980. In the second case the oral procedure took place on 8 July 1981. In my Opinion I expressed the view that in this case too there was no need to give a decision. Judgment had not yet been delivered in that case; it will presumably now be delivered in connection with the present case.

On 4, 7 and 11 May 1981 the companies G. R. Amylum NV, Roquette Frères SA, and Tunnel Refineries Limited brought applications before the Court against Regulation No 387/81 seeking:

In support of their claims the applicants contend that it was unlawful to give retroactive effect to the aforementioned regulation, furthermore it fails to respect the authority of the Parliament and the Court of Justice and lacks an adequate statement of the grounds on which it is based. In addition two of the applicants claim in their reply that the illegality of the regulation also stems from the fact that the Council, without adhering to the procedure under Article 201 of the EEC Treaty and contrary to the provisions of its decision of 21 April 1970 replacing the financial contributions of Member States by own resources of the Communities, created for itself new own revenue in the form of production levies on isoglucose.

I take the following view on those submissions which the Council, and the Commission intervening in the proceedings in its support, consider unrounded, and. as regards the submission contained in the reply, inadmissible. I shall confine myself in the first instance to an examination of Regulation No 387/81 and fmallv I shall examine Regulation No 3SS/SI which is contested only in case 110/81.

I — Breach of the prohibition of retroactivity

The applicants claim such a breach on partly differing grounds for further details of which I refer the Court to the Report for the Hearing.

1. In that connection it should first be stated that the contested Regulation No 387/81 did indeed reintroduce production quotas and production levies with retroactive effect in respect of the marketing year 1979/80, and that was genuine retroactivity and not merely material or sham retroactivity. Indeed it is not a question of applying legal provisions to the future consequences of preexisting situations which the applicants call material retroactivity. Transactions completed entirely in the past are covered, that is to say — and this is highlighted in the applicants' arguments — a production levy, having been declared void by a judgment of the Court, is reinstated for the marketing year 1979/80 after the expiry of that year.

2. The applicants, in particular Amylum NV, undertook extensive investigations into comparative law in order to demonstrate that there is a common legal principle according to which burdens and obligations on individuals may in principle not be imposed by means of retroactive laws.

3. In the light of the case-law of the Court hitherto the following points may accordingly be made as regards the present cases:

II — Breach of the institutional equilibrium; disregard of the authority of Parliament

The applicants in Cases 108 and 114/81 then assen that doubt may be cast on the legality of Regulation No 387/81 on the basis of the abovementioned submission. Thev point out that it is in the procedure of consulting Parliament, to which, as the Court has held, great importance is to be attached, that the supervisory powers of the Parliament mentioned in Article 137 of the EEC Treaty find expression. By their very nature those powers must be exercised before the measure on which the Parliament has to give its opinion takes effect. In any event those supervisory powers would practically be rendered nugatory if, after a measure has been declared void for failure to consult the Parliament, the same measure could be adopted retroactively. In that case the Council could ride roughshod over Parliament's right to play its part because the matter could be remedied later.

I consider this criticism also to be unfounded — and the question may remain open whether, as the Commission asserts, it is only of a secondary nature in relation to the first submission and loses its legal foundation forthwith upon the latter's not being accepted. It is evident beyond doubt that the procedure for consultation with the Parliament provided for in the Treatv is intended to ensure that the opinion of the Parliament may have a bearing on the content of the provisions in respect of which an opinion is required. That is however still possible even in the case of a subsequent consultation. The Parliament can then express its opinion on the question of retroactivity and the Community legislature may thereby be restrained from providing for retroactivity. That, however, did not happen in the present case, since in the Parliament's resolution dated 9 February 1981 (Official Journal 1981, C 50, p. 14) annexed to the report of the Committee on Agriculture dated 13 January 1981 (Document 1-792/80, p. 10) the retroactivity was expressly affirmed. The Parliament may take such an opportunity to express also its opinion on the formulation of the content of the regulation in question with the possible consequence that the new retroactive rules need not necessarily agree with those declared void by the Court of Justice.

In any event it seems to me that fears are misplaced that, if retroactive regulations are permitted in a case such as the present, there is a danger that the Council, in future, will irresponsibly disregard its duty of consultation. At the same time it must not be forgotten that that has happened only once in a particular situation in which, in order to avoid discrimination, a new set of provisions had to be adopted quickly and in which the Parliament did not deal with the matter with particular expedition. The status of the Council as the actual legislature must also be taken into account; this ensures that the rules of the Treaty are paid the utmost respect and in appropriate cases other organs such as the Commission may also perform that function. Finally, retroactivity may not lightly be provided for, so that the Council may not always assume that consultation with the Parliament may take place subsequently with the result that the legal position will remain the same as the one which the Council wished to bring about in the first place without the participation of the Parliament.

III — Breach of the institutional equilibrium; disregard of the authority of the Court of Justice

The applicants in Cases ICS and II /81 are also of the opinion that the contested regulation is open to criticism on the ground that the authority ol the Court as disregarded In their vie the Court of justice, where it declares a regulation void, is to define us temporal consequences pursuant to Article |.*4 ot the EEC Treaty. If the Court does not order that certain effects are to remain in force — as proposed bv the Commission and myself in the case of Regulation No 1293/79 — then that necessarily means that retroactive nullity was intended. Therefore it is not permissible to restore the situation as if the judgment of nullityhad not been delivered. Otherwise, in so far as procedural deficiencies are involved, parties would be deterred from bringing proceedings and would thus virtually be deprived of a pan of their legal protection; moreover the legislature might be induced to ignore procedural requirements of the kind in question here because their observance could not be enforced by Parliament even by means of legal action.

I do not find those arguments convincing either.

First, it is difficult to support the view that the contents of the judgments in Cases 138/79and 139/79 sought to prohibit retroactive measures or to lay down that production levies should be paid back. There are in fact indications to the contrary. One might point to the fact — already mentioned — that the Court also examined the substantive claims and considered that they should be rejected. In any event that is what mav be understood by the quite unusual reference to appropriate measures which clearly, since that adjective is not to be found in Article 176 of the EEC Treatv, cannot mean consultation with the Parliament, which is in any event mandatory Also in support of that view is previous case-lauhhich u would be difficult to reconcile the possibility that the Court might have wished tobring about a discriminator)' situation to the detriment of sugar producers which would have been the result if the production levies had been paid back.

In particular it cannot be said that, by making no order under the second paragraph of Article 174, the Court wished to preclude subsequent provisions from having retroactive effect. That fact may indeed be explained in another way. It may be that it was a significant factor in the proceedings relating to Cases 138/79 and 139/79 that the measure under review was not a regulation pure and simple but also contained elements of individual decisions. In particular it is entirely conceivable that use was not made of the second paragraph of Article 174 out of respect for the Parliament because there was no wish to produce a fait accompli by maintaining in force Regulation No 1293/79. That regulation was of course declared void merely for failure to consult the Parliament; the way was to be left open for that failure to be remedied and it would not have been altogether appropriate if, at the same time, an order had been made that the regulation, which came into existence without the Parliament's being consulted, was nevertheless to retain its effects. Moreover, it should not be overlooked that, following the declaration that Regulation No 1293/79 was void, the problem of retroactive reinstatement arose and that the public interest which plays an important pan in thai respect was to be reserved tor appraisal bv the legislative bodies (Council and Parliament).

Moreover, as regards tears that private panics might in tru: w av be deterred from bringing proceedings on the ground of procedural defects and Community institutions might be tempted to disregard procedural requirements, it should not be forgotten that possibilities exist elsewhere, for example with the Commission, on initiating judicial review; in particular it ought not to be forgotten that where a measure is declared void for procedural errors its retroactive reinstatement is by no means the automatic result. Whether retroactivity is to be permitted depends on each particular case and must be examined according to strict criteria.

IV — Inadequate statement of grounds

Furthermore, all the applicants see a ground for a declaration of nullity in the tact that Regulation No 387/81 contains no particular statement of grounds for its retroactivity. In addition the applicant, Tunnel Refineries Limited, raises the objection of a lack of a statement of grounds against Regulation No 387/81 in general. As regards the first point, the applicants stressed that the scope of Regulation No 387/81 is essentially its retroactivity, since its content corresponds to that of Regulation No 1293/79. In that connection it is certainly not sufficient to state that the regulation is substantially compatible wuh Community law. Apan from the tact that the Coun made no such finding, but merely rejected the claims made at that time, such a statement is sufficient merely to justify réintroduction ot the regulation but not its retroactivity. On the second point the applicant. Tunnel Refineries, takes the view, which hoever is evidently not shared by the applicant in Case 1CS/81, that equally detailed reasoning as in the case of Regulation No 1293/79 was appropriate; that reasoning cannot however bereplaced by a reference to that regulation since that regulation has been declared void.

1. In my view, the arguments of the applicants on the first of the two points stated cannot be accepted either.

2. Nor can it be said, in mv view, that there was a lack of a statement of grounds in the sense suggested by Tunnel Refineries. The Council rightly relied upon the relevant case-law to the effect that such statements may be shorter for regulations than for individual decisions and if a regulation forms pan of a wider set of provisions the reasoning must be adjudged in the light of that set of provisions (see for instance Case 125/77and 230/78). In that connection no doubt the recitals in the preamble to Regulation No 1111/77 are material in which it was stated that isoglucose is a direct substitute for liquid sugar, enjoys economic advantages as a result ot production constraints on sugar, that because of a sugar surplus it is necessary to export quantities of sugar and therefore there should be provision for a production levy on isoglucose to supplement provisions already applying to sugar and to contribute to expon costs. In thai connection, the reasons given for the svstem of quotas and levies laid down by Regulation No 1293/79 mav also sene as a tacit reference; for, although that regulation was also declared void, u did not thereby become totally nonexistent but remained entirely intact ir. lhe Official Journal as a source of mtormation

V — Infringement of Article 201 of the EEC Treaty and Article 2 of Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources

A further section of this Opinion must be given over to consideration of a further submission which the applicants in Cases 198 and 110/81 put forward only in their replies. They claimed that by introducing a levy on isoglucose the Council sought to create own resources within the meaning of its Decision of 21 April 1970 (Official Journal, English Special Edition 1970 (I), p. 224). However, since Article 2 (b) is not material, only the items specified in Article 2 (a) might be regarded as own resources, namely:

Since, however, the isoglucose levy is not provided for in the context of the common organization of the markets in sugar, in that respect the second paragraph of Article 2 of the Council Decision and thus the procedure laid down in Article 2ZÌ of the EEC Treaty ought to have been observed The Council ought therefore to have recommendeo appropriate provisions to the Member States tor adoption in accordance with their respective constitutional requirements. In particular the applicants pointed in that connection to the fact that the isoglucose levy was not in existence when the Decision of 21 April 1970 came into being. The only comparable product at that time was glucose, from which isoglucose is obtained, but that product clearly did not come within the organization of the markets in sugar, which in practice only applied to saccharose, as Article 1 of Regulation No 1009/67 (Official Journal, English Special Edition 1967, p. 304) makes clear. It came instead within the scope of the organization of the markets in cereals, as is apparent from Article 1 of Regulation No 120/67 (Official Journal, English Special Edition 1967, p. 33) and from Regulations Nos 1862/76 (Official Journal 1976, L 206, p. 1) and 2158/76 (Official Journal 1976, L 241, p. 21), concerning the grant of production refunds. Finally, on the establishment by Regulation No 1111/77 of an organization of the market for isoglucose, it was at the same time made clear bv Regulation No 1110/77 (Official'journal 1977, L 134, p. 1) that isoglucose does not fall within the organization of the markets in sugar.

1. A number of questions as to admissibility arise in connection with this argument.

2. If one disregards the objections as to admissibility which have been indicated — as to the last-mentioned point perhaps on the ground that Regulation No 387/81 tacitly reveals that the production levy may be regarded in that way because the objective pursued by it mav only be achieved if the Community is able to have at its disposal the revenue arising from it — a consideration of the substance of the new argument, however, shows that it too, cannot assist towards the success of the applications. I have already tried to give my reasons for that in my Opinion in Case 103/77 and, even after the arguments submitted in the present cases, I see no reason for changing my view.

VI — The application for a declaration that Regulation No 388/81 is void

It only remains therefore to say a few words about the application, made solely in Case 110/81, for a declaration that Regulation No 388/81 is void.

That regulation — as I explained at the outset — was adopted so as to amend Regulation No 1592/8C. The latter regulation, which has not yet been declared void and dearly came into existence after the Parliament had been consulted, originalu referred to Article 9 of Regulation No llll.~~ tor the period from I July losZ to }Z lune 19SI and provided that tor that period the basic quota for each isogiucove-producing undenaking should be that applicable during the period from 1 July 1979 to 30 June 1980; in so doing it referred to Regulation No 1293/79 which was subsequently declared void by the Court. Regulation No 388/81 also provided that Article 9 of Regulation No 1111/77, in the version as amended by Regulation No 387/81, was to apply during the period 1 July 1980 to 30 June 1981 and that for that period the basic quota of each isoglucose-producing undertaking was to be that applicable during the period from 1 July 1979 to 30 June 1980 pursuant to Regulation No 387/81. It is clear that, as may be inferred from the abovementioned repon of the European Parliament's Committee on Agriculture this was done in view of the fact that Regulation No 1592/80 originally referred to Regulation No 1293/79 and thus in order to avoid any doubts as to legality.

The applicant Roquette did not make any submissions of its own in regard to Regulation No 388/81. It may therefore be assumed that it takes the view that if Regulation No 387/81 were declared void Regulation No 388/81 would fall with it because it refers to the firstmentioned regulation and its validity therefore depends on that regulation. Since, however, it has been shown that there is no reason for declaring Regulation No 387/81 void it also manifestly follows that the application for a declaration that Regulation No 388/81 is void must be dismissed.

In the result I can therefore only propose that the actions brought by the undertakings Amylum, Roquette and Tunnel Refineries be dismissed as unfounded and that each applicant be ordered to pay the costs of the proceedings brought by it.

1 Translated to the German

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4 Judgment of the Court of 29 October 1980 in Case 138/74 Sa Roquette Frères v Council [1980] ECR 333

5 Judgment of 29 October 1980 in case 139/74 Maizena GmbH v Council [1980] ECR 3393

6 Case 176/80 SA Roquett Frères v Council Judgment not π tìrmrre

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17 of the Court of 5 December 1979 in...

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