61973J0143

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1 . ACTS OF AN INSTITUTION - AMENDMENT OF A PRIOR PROVISION - SITUATIONS ARISING UNDER THE PROVISIONS OF THE LATTER - FUTURE CONSEQUENCES - APPLICATION OF THE MODIFYING RULE

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - MILK - SUGAR - COMPOSITE PRODUCTS - EXPORTATION - REFUNDS - FIXING IN ADVANCE - AMOUNT - ADJUSTMENT - SCOPE OF APPLICATION

( REGULATION NO 1098/68 OF THE COMMISSION, ARTICLE 2 ( 3 ), SECOND PARAGRAPH, AMENDED BY REGULATION NO 951/71 OF THE COMMISSION AND BY REGULATION NO 1048/71 OF THE COUNCIL )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - MILK - SUGAR - COMPOSITE PRODUCTS - EXPORTATION - REFUNDS - AMOUNT - ADJUSTMENT - PAYMENT BY NATIONAL ORGANIZATIONS - FORMAL ACT ON THE PART OF COMMUNITY AUTHORITY - CONDITION NECESSARY

( REGULATION NO 1098/68 OF THE COUNCIL, ARTICLE 2 ( 3 ), SECOND PARAGRAPH, AMENDED BY REGULATION NO 951/71 OF THE COMMISSION AND REGULATION NO 1048/71 OF THE COUNCIL )

1 . UNDER A GENERALLY RECOGNIZED PRINCIPLE, LAWS AMENDING A LEGISLATIVE PROVISION APPLY, UNLESS OTHERWISE PROVIDED, TO THE FUTURE CONSEQUENCES OF SITUATIONS WHICH AROSE UNDER THE FORMER LAW .

2 . THE AMENDMENT OF ARTICLE 2 ( 3 ), SECOND PARAGRAPH, OF REGULATION NO 1098/68 OF THE COMMISSION OF 27 JULY 1968, BY THE COMBINED EFFECT OF REGULATIONS NO 951/71 OF THE COMMISSION OF 7 MAY 1971 AND NO 1048/71 OF THE COUNCIL OF 25 MAY 1971 APPLIES NOT ONLY TO ADVANCE FIXING CERTIFICATES ISSUED AFTER THE ENTRY INTO FORCE OF THE LAST-MENTIONED REGULATION, BUT ALSO TO THOSE ISSUED BEFORE THAT DATE, TO THE EXTENT THAT THE INTENDED EXPORTATION HAD NOT YET TAKEN PLACE .

3 . WHILST THE SYSTEM EXISTING PRIOR TO REGULATIONS NO 951/71 AND NO 1048/71 DID NOT REQUIRE A FORMAL ACT ON THE PART OF THE COMMUNITY AUTHORITIES TO ENABLE THE NATIONAL BODIES TO EFFECT PAYMENT OF THE SUMS WHICH RESULTED FROM THE ADJUSTMENT OF THE AMOUNT OF THE REFUNDS, THE ENTRY, INTO FORCE OF THE SAID REGULATIONS RENDERED SUCH AN ACT INDISPENSABLE .

IN CASE 143/73

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL ADMINISTRATIF OF PARIS FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SOCIETE DES PRODUITS ALIMENTAIRES ET DIETETIQUES ( SOPAD ), S . A ., OF COURBEVOIE ( FRANCE ),

AND

FONDS D' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES ( FORMA ), OF PARIS AND FONDS D' INTERVENTION ET DE REGULARISATION DU MARCHE DU SUCRE ( FIRS ), OF PARIS,

ON THE INTERPRETATION OF REGULATIONS NO 1098/68 OF THE COMMISSION OF 27 JULY 1968, ESTABLISHING DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON MILK AND MILK PRODUCTS ( OJ L 184 OF 29 JULY 1968 ), NO 951/71 OF THE COMMISSION OF 7 MAY 1971 AMENDING REGULATION NO 1098/68 ( OJ NO 103 OF 8 MAY 1971 ) AND NO 1048/71 OF THE COUNCIL OF 25 MAY 1971 AMENDING REGULATION NO 766/68 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON SUGAR ON THE SUBJECT OF ADJUSTMENT OF THE REFUND ( OJ L 114 OF 26 MAY 1971 ),

1 BY ORDER DATED 5 JUNE 1973 RECEIVED AT THE COURT REGISTRY ON 20 JUNE 1973, THE TRIBUNAL ADMINISTRATIF OF PARIS REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY FOR A PRELIMINARY RULING TWO QUESTIONS RELATING TO THE INTERPRETATION OF REGULATIONS NO 1098/68 OF THE COMMISSION OF 27 JULY 1968 ( OJ L 184 OF 29 JULY 1968 ) " ON DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON MILK AND MILK PRODUCTS ", NO 951/71 OF THE COMMISSION OF 7 MAY 1971 ( OJ L 103 OF 8 MAY 1971 ) AMENDING THE AFOREMENTIONED REGULATION AND NO 1048/71 OF THE COUNCIL OF 25 MAY 1971 ( OJ L 114 OF 26 MAY 1971 ) AMENDING REGULATION NO 766/68 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON SUGAR AS REGARDS THE ADJUSTMENT OF THE REFUND;

2 IT APPEARS FROM THE ORDER OF REFERENCE THAT THE PLAINTIFF IN THE MAIN ACTION - CONSEQUENT UPON THE INCREASE IN THE INTERVENTION PRICE FOR WHITE SUGAR WHICH TOOK EFFECT ON 1 JULY 1971 UNDER THE PROVISIONS OF REGULATION NO 1061/71 OF THE COUNCIL OF 25 MAY 1971 ( OJ L 115 OF 27 MAY 1971 ) - APPLIED FOR THE REFUND FIXED IN ADVANCE FOR SUGAR CONTAINED IN MILK AND CREAM TO BE INCREASED AS WAS EXPRESSLY PROVIDED FOR BY THE EXPORT LICENCE WHICH THE PLAINTIFF HAD OBTAINED ON 29 OCTOBER 1970 FOR THE EXPORT OF THESE PRODUCTS TO ALGERIA BEFORE 28 FEBRUARY 1972;

3 THE REGULATIONS ESTABLISHING THE COMMON ORGANIZATION OF THE MARKET FOR THE SECTOR OF MILK AND MILK PRODUCTS PROVIDE FOR THE GRANT OF EXPORT REFUNDS FOR THESE PRODUCTS IN ORDER TO COVER THE DIFFERENCE BETWEEN THE WORLD MARKET PRICE AND THE COMMUNITY PRICE AND FOR THE FIXING IN ADVANCE, FOR A DEFINITE PERIOD, OF THE REFUND TO BE PAID;

4 IN ITS ORIGINAL VERSION, ARTICLE 2 ( 3 ), SECOND PARAGRAPH, OF REGULATION NO 1098/68 PROVIDED THAT IN THE EVENT OF AN ALTERATION IN THE INTERVENTION PRICE FOR WHITE SUGAR, THE AMOUNT FIXED IN ADVANCE WOULD BE ADJUSTED IN ACCORDANCE WITH THIS ALTERATION;

5 REGULATION NO 951/71, WHICH CAME INTO FORCE ON 8 MAY 1971, ALTERED THIS PROVISION TO READ : " WHEN ... THE PRICES FOR SUGAR ... ARE ALTERED DURING THE PERIOD BETWEEN THE DAY WHEN THE APPLICATION FOR AN EXPORT LICENCE WAS LODGED AND THE DAY ON WHICH THE GOODS ARE EXPORTED, THE AMOUNT OF THE REFUND SHALL BE ADJUSTED IF AN ADJUSTMENT IS PROVIDED FOR PURSUANT TO ARTICLE 12 OF REGULATION ( EEC ) NO 766/68 " FOR THE SUGAR SECTOR;

6 IT WAS PRECISELY THE STRICT ADAPTATION OF THE EXPORT REFUND FIXED IN ADVANCE IN THE SUGAR SECTOR THAT WAS REMOVED BY REGULATION NO 1048/71, WHICH CAME INTO FORCE ON 27 MAY 1971, WHICH IN THE PREAMBLE EXPRESSED THE VIEW THAT THIS PROVISION HAD PROVED TOO RIGID, AND ALTERED THE TEXT OF THE SAID ARTICLE 12 TO READ : " IF DURING THE ( SAID ) PERIOD ... AN ALTERATION OCCURS IN THE PRICE OF SUGAR OR MOLASSES, ... THE AMOUNT OF THE REFUND MAY BE ADJUSTED . ";

7 THE FIRST QUESTION ASKS WHETHER, HAVING REGARD TO THE DATE ( 29 OCTOBER 1970 ) ON WHICH PERMISSION TO EXPORT WAS GRANTED WITH ADVANCE FIXING OF THE RATE OF REFUND, THE VARIATIONS OF THIS RATE, IN ACCORDANCE WITH AN ALTERATION OF THE INTERVENTION PRICE OF WHITE SUGAR, REMAINED SUBJECT TO THE SYSTEM ESTABLISHED BY REGULATION NO 1098/68, OR WHETHER, ON THE CONTRARY, THE NEW PROVISIONS RESULTING FROM REGULATIONS NOS 951/71 AND NO 1048/71 HAD TO BE APPLIED;

8 UNDER A GENERALLY RECOGNIZED PRINCIPLE, THE LAWS AMENDING A LEGISLATIVE PROVISION APPLY, UNLESS OTHERWISE PROVIDED, TO FUTURE CONSEQUENCES OF SITUATIONS WHICH AROSE UNDER THE FORMER LAW;

9 IT FOLLOWS THAT THE MODIFICATION OF ARTICLE 2 ( 3 ), SECOND PARAGRAPH, OF REGULATION NO 1098/68 APPLIES NOT ONLY TO ADVANCE FIXING CERTIFICATES ISSUED AFTER ITS ENTRY INTO FORCE, BUT ALSO TO THOSE ISSUED BEFORE SUCH DATE, TO THE EXTENT THAT THE INTENDED EXPORTATION HAD NOT YET TAKEN PLACE;

10 THE SECOND QUESTION ASKS WHETHER, WHATEVER THE SCHEME APPLICABLE, A FORMAL ACT ON THE PART OF THE COMMUNITY AUTHORITIES IS INDISPENSABLE FOR THE ORGANIZATIONS COMPETENT IN THE MATTER TO PROCEED WITH THE PAYMENT OF SUMS RESULTING FROM THE ADJUSTMENTS;

11 PRIOR TO THE MODIFICATION THAT OCCURED IN 1971, THE ADJUSTMENT IN THE REFUND WAS AUTOMATIC AND COULD BE APPLIED BY THE COMPETENT NATIONAL ORGANIZATIONS WITHOUT THE NEED FOR A FORMAL ACT BY THE COMMUNITY AUTHORITIES;

12 IN THE FRAMEWORK OF THE NEW REGULATIONS IT SEEMS ON THE CONTRARY THAT IN ORDER TO ENSURE THE NECESSARY UNIFORMITY OF MEASURES TAKEN WITHIN THE COMMUNITY, THE ADJUSTMENT OF THE REFUND MUST RESULT FROM A FORMAL ACT ON THE PART OF THE COMMUNITY;

13 THE COSTS INCURRED BY THE COMMISSION, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR 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 .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL ADMINISTRATIF OF PARIS BY ORDER OF THAT COURT DATED 5 JUNE 1973 HEREBY RULES :

1 . THE AMENDMENT OF ARTICLE 2 ( 3 ), SECOND PARAGRAPH, OF REGULATION NO 1098/68 OF THE COMMISSION OF 27 JULY 1968, BY THE COMBINED EFFECT OF REGULATIONS NO 951/71 OF THE COMMISSION OF 7 MAY 1971 AND NO 1048/71 OF THE COUNCIL OF 25 MAY 1971 APPLIES NOT ONLY TO ADVANCE FIXING CERTIFICATES ISSUED AFTER THE ENTRY INTO FORCE OF THE LAST-MENTIONED REGULATION, BUT ALSO TO THOSE ISSUED BEFORE THAT DATE, TO THE EXTENT THAT THE INTENDED EXPORTATION HAD NOT YET TAKEN PLACE;

2 . WHILST THE SYSTEM EXISTING PRIOR TO REGULATIONS NO 951/71 AND NO 1048/71 DID NOT REQUIRE A FORMAL ACT ON THE PART OF THE COMMUNITY AUTHORITIES TO ENABLE THE NATIONAL BODIES TO EFFECT PAYMENT OF THE SUMS WHICH RESULTED FROM THE ADJUSTMENT OF THE AMOUNT OF THE REFUNDS, THE ENTRY INTO FORCE OF THE SAID REGULATIONS RENDERED SUCH AN ACT INDISPENSABLE .