61978J0084

1 . AGRICULTURE - COMMON ORGANIZATION OF MARKETS - VARIATION OF RULES - PRINCIPLE OF PROTECTION OF LEGITIMATE EXPECTATION - APPLICATION - CONDITIONS AND LIMITS

2 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - INTRODUCTION IN RESPECT OF DURUM WHEAT AND PRODUCTS DERIVED THEREFROM - COMMISSION REGULATION NO 2604/77 - VALIDITY

3 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - INTRODUCTION IN RESPECT OF DURUM WHEAT AND PRODUCTS DERIVED THEREFROM - APPLICATION TO TRANSACTIONS IN COURSE OF EXECUTION

( COMMISSION REGULATION NO 2604/77 , AS AMENDED BY REGULATION NO 2792/77 )

1 . IN THE CONTEXT OF ECONOMIC RULES SUCH AS THOSE GOVERNING THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS , IF IN ORDER TO DEAL WITH INDIVIDUAL SITUATIONS THE COMMUNITY INSTITUTIONS HAVE LAID DOWN SPECIFIC RULES ENABLING TRADERS IN RETURN FOR ENTERING INTO CERTAIN OBLIGATIONS WITH THE PUBLIC AUTHORITIES - AS REGARDS TRANSACTIONS DEFINITIVELY UNDERTAKEN - TO PROTECT THEMSELVES FROM THE EFFECTS OF THE NECESSARILY FREQUENT VARIATIONS IN THE DETAILED RULES FOR THE APPLICATION OF THE COMMON ORGANIZATION , THE PRINCIPLE OF RESPECT FOR LEGITIMATE EXPECTATION PROHIBITS THOSE INSTITUTIONS FROM AMENDING THOSE RULES WITHOUT LAYING DOWN TRANSITIONAL MEASURES UNLESS THE ADOPTION OF SUCH MEASURES IS CONTRARY TO AN OVERRIDING PUBLIC INTEREST .

ON THE OTHER HAND , THE FIELD OF APPLICATION OF THIS PRINCIPLE CANNOT BE EXTENDED TO THE POINT OF GENERALLY PREVENTING NEW RULES FROM APPLYING TO THE FUTURE EFFECTS OF SITUATIONS WHICH AROSE UNDER THE EARLIER RULES IN THE ABSENCE OF OBLIGATIONS ENTERED INTO WITH THE PUBLIC AUTHORITIES .

THIS IS PARTICULARLY TRUE IN A FIELD SUCH AS THE COMMON ORGANIZATION OF THE MARKETS , THE PURPOSE OF WHICH NECESSARILY INVOLVES CONSTANT ADJUSTMENT TO THE VARIATIONS OF THE ECONOMIC SITUATION IN THE VARIOUS AGRICULTURAL SECTORS .

2 . CONSIDERATION OF THE QUESTIONS RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION REGULATION NO 2604/77 INTRODUCING MONETARY COMPENSATORY AMOUNTS IN RESPECT OF DURUM WHEAT AND PRODUCTS DERIVED THEREFROM .

3 . APART FROM THE EXCEPTION PROVIDED FOR BY REGULATION NO 2792/77 , THE MONETARY COMPENSATORY AMOUNTS LAID DOWN BY REGULATION NO 2604/77 ARE APPLICABLE TO THE EXPORTATION OF PASTA FROM ITALY TO THE OTHER MEMBER STATES AND TO NON-MEMBER COUNTRIES AS FROM 2 JANUARY 1978 IN PURSUANCE OF CONTRACTS CONCLUDED PRIOR TO 25 NOVEMBER 1977 .

IN CASE 84/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETURA DI TRENTO FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

ANGELO TOMADINI , S.N.C .

WITH UNIONE INDUSTRIALI PASTAI ITALIANI ( ASSOCIATION OF INDUSTRIAL PASTA MANUFACTURERS ) AS INTERVENER

AND

AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( STATE FINANCE ADMINISTRATION )

ON THE VALIDITY OF COMMISSION REGULATION ( EEC ) NO 2604/77 OF 25 NOVEMBER 1977 INTRODUCING MONETARY COMPENSATORY AMOUNTS IN RESPECT OF DURUM WHEAT AND THE PRODUCTS DERIVED THEREFROM ( OFFICIAL JOURNAL 1977 , L 302 , P . 40 ),

1BY AN ORDER OF 16 MARCH 1978 , WHICH WAS RECEIVED AT THE COURT ON 23 MARCH 1978 , THE PRETURA DI TRENTO REFERRED SEVERAL QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE VALIDITY OF COMMISSION REGULATION NO 2604/77 OF 25 NOVEMBER 1977 INTRODUCING MONETARY COMPENSATORY AMOUNTS IN RESPECT OF DURUM WHEAT AND THE PRODUCTS DERIVED THEREFROM ( OFFICIAL JOURNAL 1977 , L 302 , P . 40 ).

2THESE QUESTIONS WERE RAISED IN THE CONTEXT OF A DISPUTE OVER THE CHARGING OF MONETARY COMPENSATORY AMOUNTS TOTALLING LIT 724 200 IN RESPECT OF THE EXPORTATION FROM ITALY TO THE FEDERAL REPUBLIC OF GERMANY IN JANUARY 1978 OF 8 500 KILOGRAMS NET OF PASTA CONTAINING EGGS BY THE TOMADINI UNDERTAKING , THE PLAINTIFF IN THE MAIN ACTION .

3THE PLAINTIFF ASKED THE PRETURA DI TRENTO TO DECLARE UNLAWFUL THE CHARGING OF A COMPENSATORY AMOUNT ON THESE GOODS PURSUANT TO REGULATION NO 2604/77 BY THE AMMINISTRAZIONE DELLE FINANZE , THE DEFENDANT IN THE MAIN ACTION .

4THE AMMINISTRAZIONE DELLE FINANZE RAISED THE OBJECTION THAT THE PRETURA HAD NO JURISDICTION RATIONE MATERIAE AND ON THE SUBSTANCE OF THE CASE CONTENDED THAT TOMADINI ' S APPLICATION SHOULD BE DISMISSED , BUT IT DID NOT OPPOSE A REFERENCE TO THE COURT OF JUSTICE , POINTING OUT THAT THE COURT HAD ALREADY BEEN REQUESTED TO CONSIDER THE VALIDITY OF THE COMMUNITY PROVISIONS AT ISSUE FOLLOWING THE APPLICATION SUBMITTED BY THE ITALIAN GOVERNMENT IN CASE 12/78 .

5THE UNIONE INDUSTRIALI PASTAI ITALIANI INTERVENED IN THE MAIN ACTION IN SUPPORT OF TOMADINI ' S CASE .

6THE DISPUTE CONCERNS THE APPLICATION OF THE MONETARY COMPENSATORY AMOUNTS SYSTEM TO DURUM WHEAT AND CERTAIN OF THE PRODUCTS DERIVED THEREFROM WHICH ARE NOT COVERED BY ANNEX II TO THE TREATY AND ARE THE SUBJECT OF A SPECIFIC ARRANGEMENT UNDER ARTICLE 235 OF THE TREATY ACCORDING TO THE TERMS OF ARTICLE 1 ( 2 ) ( B ) OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ).

7THE COMMISSION CONSIDERED THAT THE ABSENCE OF MONETARY COMPENSATORY AMOUNTS HAD IN SUMMER 1977 CAUSED DIFFICULTIES AS REGARDS BOTH DURUM WHEAT AND THE PRODUCTS DERIVED THEREFROM , THAT DEFLECTIONS OF TRADE IN THE CASE OF DURUM WHEAT AND DISTORTIONS OF COMPETITION IN THE CASE OF SOME OF THE PRODUCTS IN QUESTION HAD BEEN NOTED , AND THAT THIS STATE OF AFFAIRS WAS FURTHERMORE WORSENED BY THE SHARP DROP IN SUPPLIES OF HOME-GROWN DURUM WHEAT AND THE INCREASED NEED FOR IMPORTS FROM NON-MEMBER COUNTRIES .

8CONSEQUENTLY , BY REGULATION NO 2604/77 IT INTRODUCED MONETARY COMPENSATORY AMOUNTS IN RESPECT OF PRODUCTS UNDER IN PARTICULAR TARIFF SUBHEADINGS 10.01 B ( DURUM WHEAT ), 11.02 A I ( A ) ( GROATS AND MEAL OF DURUM WHEAT ), 19.03 A ( MACARONI , SPAGHETTI AND SIMILAR PRODUCTS CONTAINING EGGS ), 19.03 B I ( MACARONI , SPAGHETTI AND SIMILAR PRODUCTS CONTAINING NO COMMON WHEAT FLOUR OR MEAL ) AND 19.03 B II ( OTHER MACARONI , SPAGHETTI AND SIMILAR PRODUCTS ).

9A FEW DAYS LATER , BY REGULATION NO 2792/77 OF 15 DECEMBER 1977 , THE COMMISSION ADDED A PARAGRAPH TO ARTICLE 2 OF THE PRECEDING REGULATION , ACCORDING TO WHICH THE COMPENSATORY AMOUNTS INTRODUCED BY THE LATTER SHALL NOT APPLY ' ' TO OPERATIONS CARRIED OUT UNDER COVER OF A CERTIFICATE FIXING THE EXPORT REFUND OR THE IMPORT LEVY IN ADVANCE IN RESPECT OF WHICH THE APPLICATION WAS LODGED PRIOR TO 26 NOVEMBER 1977 ' ' .

10TWO WEEKS LATER , BY REGULATION NO 2917/77 , THE COMMISSION DECIDED THAT DURING THE PERIOD FROM 2 JANUARY 1978 TO 28 FEBRUARY 1978 THE COMPENSATORY AMOUNTS FIXED FOR THE PRODUCTS FALLING WITHIN TARIFF SUBHEADINGS 10.01 B ( DURUM WHEAT ) AND 11.02 A I ( A ) ( GROATS AND MEAL OF DURUM WHEAT ) WERE TO BE GRANTED ON CERTAIN EXPORTS AND IMPORTS ONLY UNDER SPECIFIED TERMS .

11THE QUESTIONS RAISED BY THE PRETURA DI TRENTO ARE AS FOLLOWS :

1 . MUST REGULATION ( EEC ) NO 974/71 OF THE COUNCIL ( AS SUCCESSIVELY AMENDED ) BE INTERPRETED AS MEANING THAT THE COMMUNITY INSTITUTIONS MAY , FOLLOWING A PERIOD OF THREE YEARS - DURING WHICH THEY REFRAINED FROM APPLYING COMPENSATORY AMOUNTS TO A BASIC AGRICULTURAL PRODUCT ( DURUM WHEAT ) - INTRODUCE SPECIFIC MONETARY COMPENSATORY AMOUNTS IN RELATION TO PRODUCTS DERIVED FROM THE SAID BASIC PRODUCT ( PASTA PRODUCTS ), EVEN THOUGH WITHIN THE SAID THREE YEARS AND CERTAINLY DURING THE LAST YEAR ( 1977 ), NO DISTURBANCES WHATEVER HAD OCCURRED ON THE MARKET IN THE BASIC AGRICULTURAL PRODUCT IN QUESTION ( DURUM WHEAT)?

2 . IN THE EVENT OF A NEGATIVE ANSWER TO QUESTION 1 ( ABOVE ), MUST COMMISSION REGULATION ( EEC ) NO 2604/77 BE CONSIDERED INVALID , AT LEAST IN SO FAR AS IT INTRODUCES MONETARY COMPENSATORY AMOUNTS ON EXPORTS OF PASTA PRODUCTS?

3 . IN THE EVENT OF AN AFFIRMATIVE ANSWER TO QUESTION 1 ( ABOVE ), MAY REGULATION NO 2604/77 IN CONJUNCTION WITH REGULATIONS ( EEC ) NOS 2792/77 AND 2917/77 BE CONSIDERED TO BE APPLICABLE TO EXPORTATIONS OF PASTA PRODUCTS FROM ITALY TO THE OTHER MEMBER STATES AND NON-MEMBER COUNTRIES AFTER 2 JANUARY 1978 , PURSUANT TO CONTRACTS CONCLUDED PRIOR TO 25 NOVEMBER 1977 , THE DATE OF THE ADOPTION OF REGULATION NO 2604/77 , DURING A PERIOD IN WHICH IT WAS NOT POSSIBLE TO FORESEE THE INTRODUCTION OF ANY COMPENSATORY AMOUNT IN THE SECTOR IN QUESTION?

QUESTIONS 1 AND 2

12THE LEGAL PROBLEMS RAISED BY THE FIRST TWO QUESTIONS FROM THE PRETURA DI TRENTO ARE IDENTICAL TO THOSE CONSIDERED IN THE CONTEXT OF THE APPLICATION FOR ANNULMENT LODGED ON 25 JANUARY 1978 BY THE ITALIAN GOVERNMENT AGAINST THE COMMISSION ( CASE 12/78 ).

13THAT APPLICATION WAS DISMISSED BY A JUDGMENT OF 10 MAY 1979 .

14ACCORDINGLY IT SUFFICES TO REFER TO THE JUDGMENT IN CASE 12/78 , THE TEXT OF WHICH IS ANNEXED TO THE PRESENT JUDGMENT , AND TO RULE THAT CONSIDERATION OF THE QUESTIONS HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 2604/77 .

QUESTION 3

15THE PLAINTIFF IN THE MAIN ACTION ARGUES THAT , IF REGULATION NO 2604/77 IS VALID , THE MONETARY COMPENSATORY AMOUNTS SHOULD NOT BE APPLIED TO EXPORTATIONS OF PASTA FROM ITALY TO THE OTHER MEMBER STATES PURSUANT TO CONTRACTS CONCLUDED PRIOR TO 25 NOVEMBER 1977 , THE DATE OF THE ADOPTION OF REGULATION NO 2604/77 .

16IN ORDER BETTER TO DISPOSE OF THEIR PRODUCTS ON THE MARKETS OF THE OTHER MEMBER STATES , ITALIAN EXPORTERS CONCLUDED LONG-TERM CONTRACTS .

17THE PLAINTIFF ARGUES THAT AT THE TIME OF THE CONCLUSION OF THE CONTRACT UNDER WHICH THE EXPORTS AT ISSUE IN THE MAIN ACTION WERE CARRIED OUT , THE ITALIAN PRODUCER COULD NOT REASONABLY HAVE FORESEEN THE INTRODUCTION OF MONETARY COMPENSATORY AMOUNTS ON PASTA .

18IN 1976 THE ITALIAN PASTA PRODUCERS REQUESTED THAT MONETARY COMPENSATORY AMOUNTS ON DURUM WHEAT AND PASTA SHOULD BE REINTRODUCED , BUT BY A LETTER OF 9 AUGUST 1976 THE COMMISSION REFUSED THIS REQUEST .

19THE PLAINTIFF SUBMITS THAT THE ADOPTION OF REGULATION NO 2604/77 WITHOUT ANY TRANSITIONAL ARRANGEMENTS BEING LAID DOWN FOR INTRA-COMMUNITY TRADE BREACHES THE PRINCIPLE OF LEGITIMATE EXPECTATIONS , ALL THE MORE SO AS REGULATION NO 2792/77 OF 15 DECEMBER 1977 EXEMPTED OPERATIONS CARRIED OUT UNDER COVER OF A CERTIFICATE FIXING THE EXPORT REFUND OR THE IMPORT LEVY IN ADVANCE IN RESPECT OF WHICH THE APPLICATION HAD BEEN LODGED PRIOR TO 26 NOVEMBER 1977 , AN EXEMPTION WHICH APPLIES ONLY TO TRADE WITH NON-MEMBER COUNTRIES .

20IN THE CONTEXT OF ECONOMIC RULES SUCH AS THOSE GOVERNING THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS , IF IN ORDER TO DEAL WITH INDIVIDUAL SITUATIONS THE COMMUNITY INSTITUTIONS HAVE LAID DOWN SPECIFIC RULES ENABLING TRADERS IN RETURN FOR ENTERING INTO CERTAIN OBLIGATIONS WITH THE PUBLIC AUTHORITIES TO PROTECT THEMSELVES - AS REGARDS TRANSACTIONS DEFINITIVELY UNDERTAKEN - FROM THE EFFECTS OF THE NECESSARILY FREQUENT VARIATIONS IN THE DETAILED RULES FOR THE APPLICATION OF THE COMMON ORGANIZATION , THE PRINCIPLE OF RESPECT FOR LEGITIMATE EXPECTATIONS PROHIBITS THOSE INSTITUTIONS FROM AMENDING THOSE RULES WITHOUT LAYING DOWN TRANSITIONAL MEASURES UNLESS THE ADOPTION OF SUCH A MEASURE IS CONTRARY TO AN OVERRIDING PUBLIC INTEREST .

21ON THE OTHER HAND , THE FIELD OF APPLICATION OF THIS PRINCIPLE CANNOT BE EXTENDED TO THE POINT OF GENERALLY PREVENTING NEW RULES FROM APPLYING TO THE FUTURE EFFECTS OF SITUATIONS WHICH AROSE UNDER THE EARLIER RULES IN THE ABSENCE OF OBLIGATIONS ENTERED INTO WITH THE PUBLIC AUTHORITIES .

22THIS IS PARTICULARY TRUE IN A FIELD SUCH AS THE COMMON ORGANIZATION OF MARKETS , THE PURPOSE OF WHICH NECESSARILY INVOLVES CONSTANT ADJUSTMENT TO THE VARIATIONS OF THE ECONOMIC SITUATION IN THE VARIOUS AGRICULTURAL SECTORS .

23IN ORDER TO COMPLY WITH THE PRINCIPLE OF RESPECT FOR LEGITIMATE EXPECTATIONS , THE COMMISSION PROVIDED IN THE LAST PARAGRAPH OF ARTICLE 2 OF REGULATION NO 2604/77 , AS AMENDED BY ARTICLE 1 OF REGULATION NO 2792/77 OF 15 DECEMBER 1977 , THAT ON APPLICATION BY THE PARTIES CONCERNED THE NEWLY INTRODUCED MONETARY COMPENSATORY AMOUNTS WERE NOT TO APPLY TO OPERATIONS CARRIED OUT UNDER COVER OF A CERTIFICATE FIXING THE EXPORT REFUND OR THE IMPORT LEVY IN ADVANCE IN RESPECT OF WHICH THE APPLICATION WAS LODGED PRIOR TO 26 NOVEMBER 1977 , THE DATE OF THE PUBLICATION AND ENTRY INTO FORCE OF REGULATION NO 2604/77 .

24IT IS TRUE THAT THIS EXEMPTION IS LINKED TO THE TRADER CONCERNED HAVING APPLIED FOR AND OBTAINED A CERTIFICATE FIXING THE LEVY OR REFUND IN ADVANCE , WHICH RESTRICTS THE BENEFIT OF THE EXEMPTION TO TRADE WITH NON-MEMBER COUNTRIES AND EXCLUDES FROM SUCH BENEFIT INTRA-COMMUNITY TRADE , IN RESPECT OF WHICH THERE IS NO REFUND OR LEVY AND CONSEQUENTLY NO ADVANCE FIXING .

25HOWEVER , FOR THE REASONS STATED ABOVE , NEITHER THE GENERAL PRINCIPLE OF RESPECT FOR ACQUIRED RIGHTS NOR THAT OF RESPECT FOR LEGITIMATE EXPECTATIONS REQUIRED SUCH EXEMPTION TO BE EXTENDED TO ALL CONTRACTS IN PROGRESS ON 26 NOVEMBER 1977 .

26FURTHERMORE , BY PUBLISHING REGULATION NO 2604/77 ON 26 NOVEMBER 1977 WHEN IT WAS TO APPLY ONLY WITH EFFECT FROM 2 JANUARY 1978 , THE COMMISSION MITIGATED THE EFFECTS OF THE NEW RULES ON OPERATIONS IN THE COURSE OF BEING PERFORMED , TO THE EXTENT CONSISTENT WITH MAINTAINING THE AIMS PURSUED BY THE REINTRODUCTION OF MONETARY COMPENSATORY AMOUNTS .

27THE SUBMISSION BASED ON THE FAILURE TO RESPECT LEGITIMATE EXPECTATIONS MUST THEREFORE BE DISMISSED .

28ACCORDINGLY THE ANSWER TO QUESTION 3 SHOULD BE THAT , APART FROM THE EXCEPTION PROVIDED FOR BY REGULATION NO 2792/77 , THE MONETARY COMPENSATORY AMOUNTS LAID DOWN BY REGULATION NO 2604/77 ARE APPLICABLE TO THE EXPORTATION OF PASTA FROM ITALY TO OTHER MEMBER STATES AND TO NON-MEMBER COUNTRIES AS FROM 2 JANUARY 1978 IN PURSUANCE OF CONTRACTS CONCLUDED PRIOR TO 25 NOVEMBER 1977 .

COSTS

29THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND THE COMMISSION , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

30SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE PRETURA DI TRENTO , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETURA DI TRENTO BY AN ORDER OF 16 MARCH 1978 , HEREBY RULES :

1 . CONSIDERATION OF THE FIRST TWO QUESTIONS RAISED BY THE PRETURA DI TRENTO HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 2604/77 .

2 . APART FROM THE EXCEPTION PROVIDED FOR BY REGULATION NO 2792/77 , THE MONETARY COMPENSATORY AMOUNTS LAID DOWN BY REGULATION NO 2604/77 ARE APPLICABLE TO THE EXPORTATION OF PASTA FROM ITALY TO THE OTHER MEMBER STATES AND TO NON-MEMBER COUNTRIES AS FROM 2 JANUARY 1978 IN PURSUANCE OF CONTRACTS CONCLUDED PRIOR TO 25 NOVEMBER 1977 .