Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The questions referred to the Court for a preliminary ruling by the Tribunal d'Instance, Paris are further evidence of the importance of the judgments of the Court of 15 October 1980, in particular of the Roquette judgment, and the interest which they aroused.

2. It is in those circumstances that the Tribunal d'Instance, Paris, before which the Société des Produits de Maïs has brought an action against the French Customs Administration for the repayment of sums collected by it as monetary compensatory amounts under Regulation No 652/76, has referred the following questions to the Court for a preliminary ruling:

3. The Commission accepts that the products in question are all derived from maize. With the exception of maize starch they are different products from those concerned in the Roquette case. It admits, however, that Regulation No 652/76 should be declared invalid with regard to the fixing of compensatory amounts applicable to all the products other than maize bran (subheading 23.02 A I). In consequence of the Roquette judgment, new compensatory amounts were in fact fixed, with effect from the date of that judgment, for maize starch and for those other products except for bran.

4. The Société des Produits de Maïs explains that the amounts which it is seeking to recover before the national court were paid before 15 October 1980, the date of the Roquette judgment. It therefore considers it particularly important that the Court hear argument on the thorny problem of whether or not preliminary rulings declaring measures invalid have retroactive effect. It submits that the Court should reconsider its position, on the ground that the second paragraph of Article 174 of the Treaty of Rome is not applicable by analogy in proceedings under Article 177 of the Treaty.

5. The Commission considers that the questions referred to the Court for a preliminary ruling by the Tribunal d'Instance, Paris, have the merit of raising before the Court the question of the application by analogy of the second paragraph of Article 174 ... whereas that question was not argued in Case 145/79 since it was raised by the Commission only at the hearing.

6. Although the French State is the defendant in the main proceedings and has, in the main proceedings in the Roquette case, appealed to the Cour de Cassation against the judgment given on 19 January 1983 by the Cour d'Appel, Douai, it has not submitted observations in these proceedings.

7. In this case no one has disputed the material grounds which led the Court to give only ex nunc effect to its declaration that the regulation in question was invalid.

8. Two principles govern the temporal effect of a decision in which the Court holds that a measure adopted by a Community institution is illegal: first, the Court has exclusive jurisdiction in the matter; secondly, the illegal measure is considered never to have existed.

9. Since the Court is the sole judge of the legality of a Community measure it must also nave exclusive jurisdiction, whenever such a decision is necessary, to determine the effect with regard to third parties and the temporal effect of its exclusive jurisdiction, allowing the national court, in accordance with the rules of its own national legal system, to rule on the effect with regard to third parties or the temporal effect of the illegality established by the Court. Because of the particular characteristics of each legal system that would undeniably raise a risk of inconsistency and even discrimination within the Community. The principle of legality cannot vary according to the treatment by each national legal system of the scope ratione personae or ratione temporis of the illegality of a rule of law, without seriously endangering the uniform enforcement of the individual rights of Community nationals.

10. The second principle governing the effect of a decision of the Court on the legality of a Community measure is that of the scope ex tunc of the illegality established. That is a general solution which applies as much to the interpretation of a provision of Community law as to a declaration that it is invalid or void.

11. In envisaging that possibility one could be accused of giving greater weight to the principle of legal certainty than to the principle of legality.

12. In conjunction with decisions in which the Court has progressively assimilated decisions on the validity of measures and declarations that measures are void, those judgments, in order to deal with the same contradiction, could arrive at no result other than the application of that exception in the context of preliminary rulings on validity, on the conditions laid down in particular in the Denkavit judgment: a risk that in the absence of any temporal limitation placed on the effects of the decision the retroactive application of the Court's judgment might cause serious disruption of legal relationships established in good faith.

13. Such an exception must however be restricted to the measures intended to prevent such disruption. That, indeed, is the purport of the Defienne II and related judgments, whose application in this case is suggested by the Commission.

14. I am therefore of the view that although the reversal of the Court's previous opinion requested by the Société des Produits de Maïs is not justified, the change of orientation proposed by the Commission is unsatisfactory. The modification which I suggest seems to me to confirm the approach taken in the Roquette case while at the same time firmly underlining the exceptional and restrictive nature of any derogation from the principle that such decisions have effect ex tunc.

15. That solution, if the Court adopted it, would reply to the second and third questions referred by the national court and deprive the fourth question of its purpose.

Having regard to these remarks, I therefore propose that the Court rule as follows:

1 Translated from the French.

2 The so-called maize cases: Case 4/79 Providence Agricole de la Champagne v ONIC [1980] ECR 2823; Case 109/79 Matsenes de Seance v ONIC [1980] ECR 2883; Case 145/79 Roquette frères v French Customs Administration [1980] ECR 2917 and the Opinion of Mr Advocate General Mayras at [1980] ECR 2855.

3 Judgment of 8 April 1976 in Case 43/75 [1976] ECR 455.

4 Judgment of 13 May 1981 in Case 66/80 [1981] ECR 1191.

5 Case 101/78, Granaria v Hoofdproduktschap voor Akkerbonwprodukten [1979] ECR 623, paragraphs 4 to 5.

6 Case 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279, paragraph 51.

7 Case 33/76, Rewe-Zentral v Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5.

8 Case 26/74, Roquette Frères v Comminimi [1976] ECR 677, paragraphs 9 to 11.

9 Case 265/78 Ferwerda v Produktschap voor Vee en Vlees [1980] ECR 617, paragraphs 10 and 12; Casc 130/79, Express Dairy Foods v Intervention Board for Agricultural Product [WW] ECR 1887, paragraph 12.

10 See [he Opinion of Mr Advocate General Capotorti in the Express Dairy Foods case, referred to above, at pp. 1908 to 1910, and the judgments referred to.

11 Case 130/79, referred to above, at paragraphs 10 and 11.

12 Case 130/79, referred to above, at paragraph 12.

13 Case 166/73, Rheinmühlen v Einfuhr- und Vorratstelle Getreide [1974] ECR 33, paragraph 2.

14 Judgment of 13 May 1981 in Case 66/80 [1981] ECR 1191, paragraphs 12 to 14.

15 Joined Cases 117/76 and 16/77, Ruckdeschel v Hauptzollamt Hamburg-St Annen [1977] ECR 1753, paragraphs 11 to 13.

16 Case 166/73, referred to above, at the second subparagraph of paragraph 2.

17 Case 61/69 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205 at paragraph 16; sec also Joined Cases 66, 127 and 128/79 Salumi [1980] ECR 1237 at paragraphs 7 to 9, Case 811/79, Ariele[m0] ECR 2545 at paragraphs 5 and 6, and the judgment of 13 December 1983 in Case 222/82, Apple and Pear Development Council v Lewis [1983] ECR 4083 at paragraph 38.

18 Joined Cases 117/76 and 16/77, Joined Cases 124/76 and 20/77 and Joined Cases 64 and 113/76; Opinion of Mr Advocate General Capotorti in Joined Cases 117/76 and 16/77 Ruckdeschel [1977] ECR 1753 at pp. 1786 to 1787 and 1791 to 1792.

19 Judgments of 4 October 1979 in Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79, Joined Cases [1979] ECR 2955, et sem sec also the Opinion of Mr Advocate General Reischl in Case 66/80, referred to above, at p. 1229.

20 Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, Opinion of Mr Advocate General Capotorti at p. 2911.

21 See in particular Case 238/78, supra, at p. 2975, point 1 of the operative part, and the judgment of 13 November 1984 in Joined Cases 256, 257, 265 and 267/80, 5 and 51/81 and 282/82 Birra Würer [1984] ECR 3693 at point 2 of the operative part.

22 Case 131/77, [1978] ECR 1041.

23 Case 130/79, referred to above, at paragraph 8, and the Opinion in that case at p. 1905 el seq.

24 Case 66/80, referred to above, where the Court also had occasion to consider the effects of an invalidated regulation as it applied before it was declared to be void (paragraph 22).

25 Case 43/75, referred to above, at paragraph 75.

26 Case 43/75, referred to above, paragraphs 71 to 74.

27 Case 61/79, referred to above, paragraph 17.

28 Case 811/79, referred to above, paragraphs 7 and 8; sec also Case 128/79, referred to above, paragraphs 10 and 12 and Case 61/79, referred to above, paragraph 18.

29 Sec in particular the Opinion of Mr Advocate General Reischl in Case 66/80, referred to above, at pp. 1227 to 1230.

30 Ibid, p. 1236.

31 Case 61/79, referred to above, paragraph 17.

32 Case 43/75, referred to above, paragraph 74.

33 Case 130/79, referred to above, paragraphs 13 and 14.