‘1.

An award shall:

2.

Rights and obligations arising from awards shall not be transferable. Rights shall be exercised and obligations shall be fulfilled within eighteen days after the time limit for the submission of tenders has expired’.

‘2.

The award shall be made either on the basis of:

3.

The price to be paid by the successful tenderer shall be:

(a)

the intervention price for white sugar … valid for the Community area with the largest surplus,

—

the date of substituting an application for an export licence together with the preliminary fixing of the rate of refund, or

—

the date of expiry of the period of submitting offers (in the case of refunds based upon tenders)

—

and the date of exportation, an adjustment of the refund may be applied’. ( 2 )

1.

Must Articles 1 and 2 of Regulation No 1048/71/EEC of the Council of 25 May 1971 (OJ L 114 p. 10) be interpreted as meaning that Article 12 of Regulation No 766/68 of the Council of 18 June 1968 (OJ L 143 p. 6), as it is to be applied from 27 May 1971, must be applied in the same manner where the Einfuhr- and Vorratsstelle für Zucker issued before 27 May 1971 a declaration of increase and an export licence and where the sugar was exported after 1 July 1971?

2.

If the above interpretation is to be followed, do Articles 1 and 2 of Regulation No 1048/71/EEC of the Council of 25 May 1971 infringe the principle of legal certainty, a general principle which applies equally in Community law, as well as the principle deriving from it which prescribes that the confidence of persons concerned deserves protection (‘Vertrauensschutz’)?

3.

Does the adjustment of the amount of refund, as provided in the original text of Article 12 of the Regulation No 766/68/EEC, following the alteration in the intervention price for sugar, require a prior decision by the Commission?

1.

In regard to the first question, i.e. on the question of an interpretation or Regulation No 1048/71 and a definition of its actual range of applicability.

In this connection the plaintiffs in the national proceedings stress above all that the Regulations state nothing as to the facts caught by its provisions. From this they draw the conclusion that it cannot be applied to established legal positions, since such a direct effect could only arise from the use of express terms. A further factor in support of this view was the absence of transitional provisions, which were indispensable in cases of immediate applicability of altered legislation to existing circumstances.

The Commission counters this by referring inter alia to the previous history of Regulation 1048/71 which, as emerges from statements in the management committee meetings and in the Community preparatory working party, shows that a direct applicability to existing circumstances had indeed been intended. This cannot admittedly be wholly without significance, neither can relevant statements of departments of the Commission addressed to the national intervention agencies after the coming into force of the Regulation; they cannot however in themselves suffice for the purpose of reaching a conclusion on the question now submitted.

A reliable answer to the first question can really be given only if one takes into account the wording of the relevant Regulations in the different official languages, if one has regard to the relevant interests of the parties and if one makes use of the principles of law applicable in this context.

If one adheres to this plan of investigation, one must recognize first that no general legal principle can be discerned therein and that provisions under public law that change legislation can in principle be applied directly to as yet developing situations, even in the absence of an appropriate express provision to this effect (cf. Scheerbarth, Die Anwendung von Gesetzen auf früher entstandene Sachverhalte, p. 99) yet it is noteworthy that theories to this effect findings of the French Cour de Cassation of 20 February 1917 (D.P. 1917 I, 81) and of the Brussels Cour d'Appel of 23 October 1940 (Pasicrisie 194, II, 96) according to which a new law ‘régit en principe même les situations etablies ou les rapports juridiques formés dès avant sa promulgation’. One might also recall a judgment of the former Reichsgericht which accorded immediate effect to a legal provision under public law by the simple argument that the relevant provisions formed part of public law (cf. Scheerbarth p. 97) one must also refer to a judgment of the Italian Corte di Cassazione (Foroital. Mass 1954, 839) of 29 October 1954, according to which one must proceed from the assumption that new laws pertaining to the field of public policy are to be applied directly in relation to circumstance the effects of which have not yet fully come into being and which under the previous law are not yet exhausted, even if they only impliedly show this intention. Noteworthy also is the fact that only in the case law of the Court one can find pointers in this direction, e.g. the judgment in case No 44/65 (Rec. 1965, p. 1267), in which it is said ‘In the absence of any express provisions to the contrary the criteria laid down by Regulation No 3 are to be regarded as having effect as from the entry into force of that Regulation, in so far as they establish legal consequences from past events in relation to the present’, or in the judgement in Case No 68/69 (Rec. 1970 p. 171) where there is a reference to a principle pursuant to which ‘Unless otherwise provided, changes in the law apply to the future effects of solutions which arose under the old law’. There thus emerges at least a tendency, not to see in the absence of a specific provision in Regulation No 1048/71 an obstacle to its immediate application in relation to situations that are, as yet, developing.

The wording of the Regulation too is important in the present case. As you know it consists of only two provisions, an article 1, which states: ‘Article 12 of EEC Regulation No 766/68 shall read as follows’. (in relation to which the altered text of the law is quoted) as well as an Article 2 which provides that the Regulation shall come into force on the day following upon its publication in the Official Journal. From this one may well draw the conclusion that upon the coming into force of the amending Regulation, only the new version shall be applicable. At any rate the French text militates clearly in favour of this explanation, since it uses the work ‘remplacer’. It does suggest the reasonableness of assuming that as from the day of replacement of the original version, the earlier provision was no longer applicable.

Finally, we might also bear in mind the relevant interests of the parties. As we have seen, export licences with a relatively long period of validity apply in the field with which we are at present concerned. In such a situation it can however hardly have been the intention to leave two sets of rules applicable for a considerable period of time and thus cause a possibility of confusion (a point of view which Scheerbarth, in the book already referred to, has stressed as being of importance in this context).

In my opinion one likewise cannot — as has been attempted by the plaintiffs in the national proceedings — counter the interpretive conclusions that suggest themselves in relation to the first question with arguments based on legal logic or based upon the fact that Regulation No 1048/71 did not provide transitional provisions in relation to existing legal relationships.

As regards the last-mentioned point, in relation to which the plaintiffs referred in particular to the judgement in Case No 16/70 (Rec. 1970, p. 921) it must be stressed that you cannot extract from this judgment such a far-reaching principle, that you cannot therefore base upon it the thesis that transitional provisions are always required when changes of law are applied to existing legal relationships; that accordingly the application of new provisions in the absence of transitional provisions must be limited to newly arising facts. Admittedly, in the said judgment the proposition that transitional provisions were required was only approved of — and that only tacitly — in cases in which alterations of law involve an interference with existing legal rights. We shall however first have to examine whether there can be any question of such an encroachment in the present case; (this can be dealt with in connection to the reply to the second question). For the purpose of supplying an answer to the first question nothing can therefore be gained for the present by referring to the case law that I have mentioned and the absence of transitional provisions in Regulation No 1048/71. — Besides, as regards the grounds relating to legal logic put forward by the plaintiffs, they will allow me to say that they are wrong in proceeding from the assumption that Article 12 of Regulation No 766/68 concerns the content of the export licences. In fact this is not laid down in Community law. Article 12 of Regulation No 766 therefore, if correctly understood, consitutes no more than a provision that regulates the legal relationship between exporter and administration and seen in this light, there is no obstacle from the point of view of legal logic applying this provision in its new version also to existing legal relationships.

In my opinion all this justifies adopting the view in relation to the first question, that notwithstanding the absence of an express provision in Regulation No 1048/71 one is entitled to assume that it can also be applied to situations as yet developing, i.e. to cases where export licences were issued before it is coming into force and exports only took place thereafter.

2.

The second question which arises upon the first question being answered in this way, is whether Regulation No 1048/71, insofar as it is to be applied to situations as yet developing, offends against the general legal principles of legal certainty and protection of confidence, which to this extent might affect its validity.

That as we know — and I have already hinted at it in outlining the national proceedings — was the plaintiffs' opinion. In this connection they do admittedly concede that we are not dealing with real retrospective effect, i.e. the burdensome effect upon completed state of affairs which, if at all, is only permissible within narrow confines and in rare exceptional cases. They do however take the view that we are dealing with a ‘material or quasi retrospective effect’ (eine naturelle oder unechte Rückwirkung, see e.g. Breifelds Rechtswörterbuch, 2. Auflage, ‘Rückwirkung von Gesetzen’ pp. 904/905) since Regulation No 1048/71 has effect upon situations as yet developing and resulted in invalidating legal positions that had previously been acquired. This being only permissible when Community interests rendered such a solution indispensable and since in the case at presenet before us this justification was lacking, one was left with the conclusion that the validity of Regulation No 1048/71 might be open to doubt.

In relation to the second range of problems in the national proceedings that have thus been mapped out, one must first of all emphasize that Community law does not provide a clear answer. One can however say that the principles adduced in this connection by the plaintiffs, i.e. the principles of legal certainty and protection of confidence, have already been recognized in Community Law in another context and have become the object of national case law (cf. Cases 42 and 49/59 (Rec. 1961 p. 109), 14/60 (Rec. 1961 p. 345), 14/61 (Rec. 1962 p. 511), 13/61 (Rec. 1962 p. 97), 17 and 20/61 (Rec. 1962 p. 653), 111/63 (Rec. 1965 p. 893), 2/70 (Rec. 1970 p. 97), 12/71 (Rec. 1971 p. 743)). It therefore seems reasonable in connection with the present examination first to proceed from the principles of German law adduced by the plaintiffs. This is all the more justifiable since, I think I am right in saying, similar concepts can also be found in French and Belgian case law.

According to those decided cases it is crucial that there should be a reference to a material or quasi-retrospective effect, not merely a permissible retrospective effect on the immediate application of new provisions upon as yet incompleted situations facts developing and legal relationships, when it is a case of loss of legal positions (cf. the decision of the Bundesverfassungsgericht (Federal Constitutional Court) of 22 June 1971, ‘Die öffentliche Verwaltung’ 1971, p. 604). Under French and Belgian law there is a proviso that there must be no infringement upon well-established rights (cf. the judgments of the French Cour de Cassation of 20 February 1917 and of the Cour d'Appel de Bruxelles of 23 October 1940).

It therefore falls to examine whether in the event of an alteration of Article 12 of Regulation No 766/68 and its applicability to export licences as yet not fully used, i.e. upon a correction of the provision which in the event of a change in the intervention prices compulsorily provided for an adjustment of the refunds, into a discretionary provision, one can speak of such an encroachment, even if the concession took place before the changed intervention price came into force and became applicable.

The Commission, as we know gave a negative answer and, let me say this here and now, we shall probably have to agree to their appraisal of the situation.

In this connection we can right from the start leave out of consideration the fact, that following national administrative practice or perhaps national administrative provisions, a reference to Article 12 of Regulation No 766/68 was included in the export licence. This reference is in fact of no significance, not only because Community law did not provide for it but also because in the interests of a useful clarification, it had the specific function of pointing to a possible reduction of the amount of the refund.

The only really crucial fact is that the abovementioned Article 12 in its old version, upon the issue of the licence and for a considerable period thereafter, provided only a conditional right, only a prospect of an increase in the amount of the refund, but did not provide any kind of certainty in this respect. Even when an increase in intervention price was being seriously discussed, it could not provide certainty of a further improvement in the situation of the exporters concerned, since after all they too had to expect Article 37 (2) of Regulation No 1009 to apply, i.e. the provision under which, upon changes in the price level and for the purpose of avoiding disturbances on the transition from one accounting year in the sugar section to another, the necessary provisions can be promulgated by administration process e.g. by the raising of a levy on old stock which had been acquired at a lower price. At the earliest, one could therefore speak of an actual right to an increase in the amount of the refund at the point of time when the rise in the intervention price came into force, that is, as from 16 June 1971. Before that point of time and accordingly also at the moment when Regulation No 1048/71, came into force, a change of the provision concerning the rectification of the refund could have taken place without this constituting an infringement of rights previously acquired by holders of licences issued at an earlier date.

Likewise one cannot object on the grounds that the Commission itself concedes the preliminary laying down of the amount of the refund amounted to the grant of a legal position which even though conditional upon exports taking place, could not be interfered with by changes in the law. This state of affairs cannot really be regarded as on all fours with the one at present before the Court, for the simple reason that as regards exports — the condition precedent for the granting of a refund — there exists, due to the well known obligation secured by a deposit, a very much higher degree of security than in respect of the rise in the intervention price, the factor which is relevant in the national proceedings; there the payment depended on a political decision and therefore had to be regarded as uncertain at the time of granting the licence.

Although, therefore proceeding from the principles of some national legal systems, one cannot in the alteration of Article 12 of Regulation No 766/68 and its direct application before the coming into effect of the rise in the intervention prices applicable for the economic year 1971/1972 to existing licences as yet not fully utilized, discern a diminution of a legal position or an infringement of existing acquired rights; there yet exists no reason based on this precedent, for applying principles and restrictions which operate under some national legal systems, in respect of genuine cases of material retrospective effects e.g. the case where the admissibility of direct applicability of changed legal norms is dependant upon proof of a compelling Community interest. I repeat, in principle there is no cause for criticism in the fact that Regulation No 1048/71 is directly applicable even in relation to existing legal relationships. This does not however completely conclude the examination of the second question. One ought rather to consider imposing on our conclusions some limitations to which the plaintiffs in the course of the oral proceedings drew attention and which the Commission — if I understand them correctly — did not consider entirely unjustified. They are based on the principle of protection of confidence in the individual case, the recognition of an acquired position of confidence i.e. upon the argument according to which under our case law it may in relation to the principles of legal certainty and protection of confidence be assumed, that they have taken their place in Community law.

What it amounts to might be explained as follows. One must proceed from the assumption that the issue of a licence creates the basis of a legal situation in public law that for delaing with this and for its evolution a certain legal framework was essential within one could find Article 12 of Regulation No 776/68 in its old form. Now it is possible that some people affected thereby made arrangements, such as commercial contracts, taking account of these provisions and trusting in their continuing in force. If then one cannot go back on such arrangements in time, then a subsequent alteration of the legal position upon which one had relied might result in damage. This in itself is not however sufficient; in such circumstances, just as in the case of a ‘quasi retrospective’ effect it requires a weighing up of respective interests and an interference with a position of confidence entitled to production can only be sanctioned if public interests predominate (cf. the decision of the Bundesverfassungsgericht of 23. 3.1971 (Die öffentliche Verwaltung 71, p. 605)).

In the present case this may not be so. It would appear that exporters (admittedly this is not relevant in the case of intervention sugar) have for years on the purchase of sugar accepted clauses in contracts of sale — perhaps they were obliged to accept such clauses — pursuant to which changes in price can take place in the cases of delivery after 30 June 1971, if official sugar prices in respect of the financial year then commencing should change. Such agreements could be arrived at without any risk since the existence of Article 12 of Regulation No 766/68 in its original version automatically provided for increased refund in the event of rises in price. At any rate this applied to a period during which the change in Article 12 was not yet the subject of discussion and was not yet known in commercial circles, (a state of affairs which from the statements of the Commission could only apply to the period prior to March and April 1971). The subsequent alteration of Article 12 and its application to existing licences could in such a case lead to damage to a position of confidence; in the final resort this forces us to face the question whether in weighing up the relation interests such damage is to be treated as less important than the Community interests that are involved. That can hardly be the case. If I see it correctly, the Community is solely concerned with avoiding a rise in the refund, i.e. with certain financial considerations. Besides, after what we have heard the sums are likely to be comparatively modest. Finally, we must also consider that the Community has renounced applying Article 37 of Regulation No 1009, i.e. to levy charges on the disposal of old stock within the Community. This surely justifies us in seeing here a certain discrimination against exporters, it also entitles us to assume that the financial effects of the price rises are likely to be modest from a Community point of view.

Considerations of protection of confidence would therefore in individual cases exclude the application of the changed law affected by Regulation No 1048/71 to previously issued export licences, even when the validity of such a change of law cannot be questioned on principles of material retrospective effect. In my view that is the way to answer the second question and thus to make it clear to the national court that in the final resort the answer to the delicate problems which it has submitted depends upon an appraisal of the individual circumstances.

After all this, little more will have to be said on the third question submitted by the Hessisches Finanzgericht. That question apparently arises from the assumption that Article 12 of Regulation No 766/68 in its original version is to be applied in cases in which licences had been issued before the change of this Regulation. In respect of this case the Finanzgericht desires to know whether an adjustment of the refund requires a prior decision on the part of the Commission.

The plaintiffs in the national proceedings and the Commission agreed that this question can be answered in the negative. Relevant is the fact that we are dealing not with an assessment of the refund, which is the prorogative of the Community organizations, but solely with a correction. Furthermore, it is important that we are dealing with an obligatory adjustment of the refund based upon a certain test i.e. the application of an obligatory provision contained in a Community Regulation, in respect of which the formalities have been precisely laid down. In fact there is no reason to reserve measures of this kind to Community bodies. As simple arithmetical operations they clearly fall within the sphere of competence of the national executive organs.

4.

My views for the purposes of this opinion might therefore be summarized as follows: