61981J0108

1 . MEASURES ADOPTED BY THE INSTITUTIONS - APPLICATION RATIONE TEMPORIS - NON- RETROACTIVITY - EXCEPTIONS - CONDITIONS

( EEC TREATY , ART . 191 )

2 . MEASURES ADOPTED BY THE INSTITUTIONS - STATEMENT OF THE REASONS ON WHICH MEASURES ARE BASED - DUTY TO PROVIDE - OBJECTIVE - SCOPE

( EEC TREATY , ART . 190 )

3 . EUROPEAN COMMUNITIES - OWN RESOURCES - COUNCIL DECISION OF 21 APRIL 1970 - OBJECTIVE - BUDGETARY MEASURE NOT OPERATING AS A BAR ON THE CREATION OF AN ISOGLUCOSE PRODUCTION LEVY

( COUNCIL DECISION OF 21 APRIL 1970 )

1 . ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .

2.THE STATEMENT OF THE REASONS ON WHICH A MEASURE IS BASED , WHICH IS REQUIRED BY ARTICLE 190 OF THE TREATY , MUST BE ADAPTED TO THE NATURE OF THE MEASURE IN QUESTION . IT MUST ENABLE THE REASONING OF THE COMMUNITY INSTITUTION RESPONSIBLE FOR THE MEASURE TO EMERGE CLEARLY AND UNEQUIVOCALLY SO AS TO ENABLE THOSE CONCERNED TO RECOGNIZE THE REASONS FOR THE MEASURE ADOPTED AND THE COURT TO EXERCISE ITS POWER OF REVIEW .

THAT REQUIREMENT IS SATISFIED BY THE PREAMBLE TO A REGULATION WHICH , LACONIC AS IT MAY BE , SETS FORTH IN ESSENCE THE OBJECTIVE PURSUED BY THE INSTITUTION RESPONSIBLE FOR THE CONTESTED MEASURE .

3.THE PURPOSE OF THE COUNCIL DECISION OF 21 APRIL 1970 ON THE REPLACEMENT OF FINANCIAL CONTRIBUTIONS FROM MEMBER STATES BY THE COMMUNITIES ' OWN RESOURCES , ADOPTED IN PURSUANCE OF ARTICLE 201 OF THE TREATY BY THE MEMBER STATES IN CONFORMITY WITH THE PROVISIONS OF THAT ARTICLE , IS TO DEFINE OWN RESOURCES ALLOCATED TO THE COMMUNITY BUDGET AND NOT TO STIPULATE THE COMMUNITY INSTITUTIONS WHICH ARE COMPETENT TO IMPOSE DUTIES , TAXES , CHARGES , LEVIES OR OTHER FORMS OF REVENUE . AS A MEASURE ADOPTED UNDER BUDGETARY LAW , THAT DECISION DOES NOT PREVENT THE COUNCIL FROM CREATING A LEVY SUCH AS THE ONE IMPOSED ON THE PRODUCTION OF ISOGLUCOSE WHERE THE POWER OF THE COUNCIL TO CREATE THAT LEVY HAS ITS BASIS IN THE PROVISIONS OF THE TREATY RELATING TO THE COMMON AGRICULTURAL POLICY .

IN CASE 108/81

G . R . AMYLUM , A COMPANY INCORPORATED UNDER BELGIAN LAW , HAVING ITS REGISTERED OFFICE AT 479 AVENUE LOUISE , BOX 57 , 1050 BRUSSELS , REPRESENTED BY MICHEL WAELBROECK , ADVOCATE , A MEMBER OF LIEDEKERKE , WOLTERS , WAELBROECK & KIRKPATRICK , 341 AVENUE LOUISE , 1051 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , ADVOCATE , 34 RUE PHILIPPE-II ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DANIEL VIGNES , DIRECTOR OF ITS LEGAL DEPARTMENT , ASSISTED BY ARTHUR BRAUTIGAM , ADMINISTRATOR IN THAT DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE , DIRECTOR OF LEGAL AFFAIRS AT THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

DEFENDANT ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY R . WAINWRIGHT , LEGAL ADVISER , ASSISTED BY F . LAMOUREUX , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

INTERVENER ,

APPLICATION FOR A DECLARATION THAT COUNCIL REGULATION ( EEC ) NO 387/81 OF 10 FEBRUARY 1981 ( OFFICIAL JOURNAL L 44 , P . 1 ) AMENDING COUNCIL REGULATION ( EEC ) NO 1111/77 OF THE COUNCIL OF 17 MAY 1977 LAYING DOWN COMMON PROVISIONS FOR ISOGLUCOSE ( OFFICIAL JOURNAL L 134 , P . 4 ) IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 4 MAY 1981 G . R . AMYLUM NV , A LIMITED COMPANY INCORPORATED UNDER BELGIAN LAW , BROUGHT AN ACTION BEFORE THE COURT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COUNCIL REGULATION ( EEC ) NO 387/81 OF 10 FEBRUARY 1981 ( OFFICIAL JOURNAL 1981 L 44 , P . 1 ) AMENDING COUNCIL REGULATION ( EEC ) NO 1111/77 OF 17 MAY 1977 LAYING DOWN COMMON PROVISIONS FOR ISOGLUCOSE ( OFFICIAL JOURNAL 1977 L 134 , P . 4 ) IS VOID INASMUCH AS ARTICLE 1 ( 3 ) AND ( 4 ) OF THAT REGULATION REINSTATES , IN RESPECT OF THE SAME PERIOD , THAT IS TO SAY WITH RETROACTIVE EFFECT , THE SYSTEM OF QUOTAS LAID DOWN BY REGULATION NO 1293/79 IN RESPECT OF THE PERIOD RUNNING FROM 1 JULY 1979 TO 30 JUNE 1980 .

2 COUNCIL REGULATION NO 1293/79 OF 25 JUNE 1979 , WHICH AMENDED THE AFOREMENTIONED REGULATION NO 1111/77 IN PARTICULAR BY INSERTING IN IT A NEW ARTICLE 9 , WAS IN FACT DECLARED VOID BY JUDGMENTS OF THE COURT OF 29 OCTOBER 1980 IN CASE 138/79 ROQUETTE FRERES SA V COUNCIL OF THE EUROPEAN COMMUNITIES ( 1980 ) ECR 3333 AND IN CASE 139/79 MAIZENA GMBH V COUNCIL OF THE EUROPEAN COMMUNITIES ( 1980 ) ECR 3393 BECAUSE IT WAS ADOPTED IN THE ABSENCE OF THE OPINION OF THE PARLIAMENT , REQUIRED BY ARTICLE 43 OF THE TREATY .

3 IN SUPPORT OF ITS ACTION THE APPLICANT CLAIMS IN ITS APPLICATION FIRST THAT THE CONTESTED REGULATION OFFENDS AGAINST THE PRINCIPLE THAT COMMUNITY MEASURES SHOULD NOT HAVE RETROACTIVE EFFECT AND SECONDLY THAT THE STATEMENT OF THE REASONS UPON WHICH THE MEASURE WAS BASED IS INSUFFICIENT . IN ITS REPLY THE APPLICANT MAKES A FURTHER SUBMISSION BASED ON THE COUNCIL ' S LACK OF COMPETENCE TO CREATE AN ISOGLUCOSE PRODUCTION LEVY .

I - FIRST SUBMISSION : BREACH OF THE PRINCIPLE THAT COMMUNITY MEASURES MAY NOT HAVE RETROACTIVE EFFECT

4 AS THE COURT HAS ALREADY HELD , IN PARTICULAR IN ITS JUDGMENTS OF 25 JANUARY 1979 IN CASE 98/78 RACKE ( 1979 ) ECR 69 AND CASE 99/78 DECKER ( 1979 ) ECR 101 , ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY , AS THE APPLICANT STATES , PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .

5 AS REGARDS THE FIRST OF THOSE TWO CONDITIONS IT IS WELL TO CALL TO MIND CERTAIN MATTERS OF FACT OR LAW WHICH ARE MOREOVER WELL KNOWN TO THE PARTIES . DURING THE PERIOD OF APPLICATION OF THE CONTESTED REGULATION SUGAR PRODUCERS WERE , IN PARTICULAR , SUBJECT TO QUOTAS AND PRODUCTION LEVIES . ISOGLUCOSE IS A PRODUCT WHICH MAY BE SUBSTITUTED FOR SUGAR AND IS IN DIRECT COMPETITION WITH IT . ANY COMMUNITY DECISION CONCERNING ONE OF THOSE PRODUCTS NECESSARILY HAS REPERCUSSIONS ON THE OTHER . HAVING REGARD TO THAT SITUATION , ALTHOUGH BY JUDGMENTS OF 29 OCTOBER 1980 THE COURT DECLARED REGULATION NO 1293/79 VOID FOR INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT , NAMELY THE ABSENCE OF THE PARLIAMENT ' S OPINION , THE COURT NEVERTHELESS CONSIDERED THAT IT WAS A MATTER FOR THE COUNCIL , IN VIEW OF THE FACT THAT ISOGLUCOSE PRODUCTION WAS CONTRIBUTING TO AN INCREASE IN SUGAR SURPLUSES AND THAT IT WAS OPEN TO IT TO IMPOSE RESTRICTIVE MEASURES ON THAT PRODUCTION , TO TAKE SUCH MEASURES IN THE CONTEXT OF THE AGRICULTURAL POLICY AS IT JUDGED TO BE USEFUL , REGARD BEING HAD TO THE SIMILARITY AND INTERDEPENDENCE OF THE TWO MARKETS AND THE SPECIFIC NATURE OF THE ISOGLUCOSE MARKET .

6 IF , FOLLOWING THE DECLARATION OF THE NULLITY OF REGULATION NO 1293/79 , THE COUNCIL HAD ADOPTED NO MEASURE RESTRICTIVE OF ISOGLUCOSE PRODUCTION - IN THE PRESENT CASE THE REINSTATEMENT WITH EFFECT FROM 1 JULY 1979 OF THE QUOTAS ALLOCATED AND THE LEVIES IMPOSED ON THE PRODUCERS - THE OBJECTIVE WHICH IT WAS PURSUING , NAMELY THE STABILIZATION , IN THE GENERAL INTEREST , OF THE SUGAR MARKET , COULD NOT HAVE BEEN ACHIEVED OR COULD ONLY HAVE BEEN ACHIEVED TO THE DETRIMENT OF SUGAR PRODUCERS , WHO ALONE WOULD HAVE HAD TO FINANCE THE COSTS OF COMMUNITY SURPLUSES , OR EVEN TO THE DETRIMENT OF THE COMMUNITY AS A WHOLE , WHILST ISOGLUCOSE PRODUCERS WHOSE PRODUCTION COMPETED WITH THAT OF SUGAR UNDERTAKINGS WOULD HAVE ESCAPED ALL RESTRAINTS .

7 THE COURT IS UNABLE TO UPHOLD THE ARGUMENT PUT FORWARD BY THE APPLICANT THAT THE APPLICATION OF REGULATION NO 1293/79 , UNTIL IT WAS DECLARED VOID BY THE COURT , HAD HELD ISOGLUCOSE PRODUCERS TO OBSERVE THE QUOTAS WHICH IT LAID DOWN AND THUS RENDERED SUPERFLUOUS THEIR REINSTATEMENT BY THE CONTESTED REGULATION . IN FACT , IN ADDITION TO THE LEGAL BASIS WHICH THE CONTESTED REGULATION GAVE TO THE SYSTEM OF QUOTAS DURING THE PERIOD IN QUESTION FROM 1 JULY 1979 TO 30 JUNE 1980 , THE MAINTENANCE OF LEVIES DURING THAT PERIOD , WHICH WAS NECESSARY TO ATTAIN THE OBJECTIVES OF PUBLIC INTEREST PURSUED BY THE COUNCIL , MADE IT NECESSARY TO FIX THE QUOTAS UPON WHICH THE AMOUNT OF THOSE LEVIES DEPENDED .

8 THUS THE COUNCIL WAS LAWFULLY ENTITLED TO CONSIDER THAT THE OBJECTIVE TO BE ACHIEVED IN THE GENERAL INTEREST , NAMELY THE STABILIZATION OF THE COMMUNITY MARKET IN SWEETENERS WITHOUT ARBITRARY DISCRIMINATION BETWEEN TRADERS , REQUIRED THE CONTESTED PROVISIONS TO BE RETROACTIVE IN NATURE AND THUS THE FIRST OF THE CONDITIONS WHICH THE COURT LAYS DOWN FOR THE APPLICABILITY RATIONE TEMPORIS OF A COMMUNITY MEASURE TO A DATE PRIOR TO THE DATE OF ITS PUBLICATION MAY BE REGARDED AS SATISFIED .

9 TO ASCERTAIN WHETHER THE SECOND OF THE CONDITIONS SET OUT ABOVE IS SATISFIED IT IS NECESSARY TO INQUIRE WHETHER THE ACTION OF THE COUNCIL IN PUBLISHING ON 17 FEBRUARY 1981 REGULATION NO 387/81 HAS FRUSTRATED A LEGITIMATE EXPECTATION ON THE PART OF THE APPLICANTS TO THE EFFECT THAT THE PRODUCTION OF ISOGLUCOSE WOULD NOT BE REGULATED DURING THE PERIOD FROM 1 JULY 1979 TO 30 JUNE 1980 , THE PERIOD TO WHICH THAT REGULATION MAKES APPLICABLE ARTICLE 9 RELATING TO QUOTAS AND PRODUCTION LEVIES ON ISOGLUCOSE WHICH IT INSERTED IN REGULATION NO 1111/77 .

10 IT SHOULD FIRST BE POINTED OUT THAT THE CONTESTED PROVISIONS OF REGULATION NO 387/81 DO NOT INCLUDE ANY NEW MEASURES AND MERELY REPRODUCE THE PROVISIONS OF COUNCIL REGULATION NO 1293/79 DECLARED VOID BY THE COURT ON 29 OCTOBER 1980 .

11 IN VIEW OF THE FACT THAT COUNCIL REGULATION NO 1293/79 OF 25 JUNE 1979 RETAINED ITS FULL EFFECT WITHIN THE COMMUNITY LEGAL ORDER UNTIL IT WAS DECLARED VOID , SO THAT THE NATIONAL AUTHORITIES RESPONSIBLE FOR ITS IMPLEMENTATION WERE REQUIRED TO SUBJECT THE PRODUCTION OF ISOGLUCOSE TO THE RESTRICTIVE SYSTEM WHICH IT LAID DOWN , SUCH A LEGITIMATE EXPECTATION COULD ONLY BE FOUNDED ON THE UNFORESEEABILITY OF THE REINSTATEMENT WITH RETROACTIVE EFFECT OF THE MEASURES CONTAINED IN REGULATION NO 1293/79 DECLARED VOID BY THE COURT .

12 IN THE PRESENT CASE THE APPLICANT CANNOT CLAIM ANY LEGITIMATE EXPECTATION WORTHY OF PROTECTION .

13 IN THE FIRST PLACE THE TRADERS CONCERNED BY THE RULES IN QUESTION ARE LIMITED IN NUMBER AND ARE REASONABLY WELL AWARE OF THE INTERDEPENDENCE OF THE MARKETS IN LIQUID SUGAR AND ISOGLUCOSE , OF THE SITUATION OF THE COMMUNITY MARKET IN SWEETENERS AND THEREFORE OF THE CONSEQUENCES WHICH , FOLLOWING THE DECLARATION THAT REGULATION NO 1293/79 WAS VOID , THE IMPOSITION ON THE PRODUCTION OF SUGAR IN RESPECT OF THE PERIOD FROM 1 JULY 1979 TO 30 JUNE 1980 OF STABILIZATION MEASURES FROM WHICH THE PRODUCTION OF ISOGLUCOSE WOULD HAVE BEEN ENTIRELY EXEMPT MIGHT HAVE HAD .

14 SECONDLY BY ADOPTING SUCCESSIVELY REGULATIONS NOS 1111/77 , 1293/79 AND 1592/80 , THE LATTER REGULATION EXTENDING THE EFFECTS OF THE PREVIOUS ONE IN RESPECT OF THE PERIOD FROM 1 JULY 1980 TO 30 JUNE 1981 THE COUNCIL HAD CLEARLY MANIFESTED ITS INTENTION OF REGULATING THE PRODUCTION OF ALL SWEETENERS IN THE COMMUNITY AND TO THAT END OF SUBJECTING THE PRODUCTION OF ISOGLUCOSE TO A RESTRICTIVE SYSTEM BASED ON A SYSTEM OF QUOTAS AND PRODUCTION LEVIES .

15 THIRDLY IT COULD NOT HAVE ESCAPED THE NOTICE OF THE APPLICANT THAT IN BOTH JUDGMENTS OF THE COURT OF 29 OCTOBER 1980 WHICH DECLARED VOID REGULATION NO 1293/79 ( WHICH ALSO FIXED ITS OWN PRODUCTION QUOTA ), THE COURT REJECTED THE GROUNDS ON WHICH THE APPLICANT COMPANIES ROQUETTE AND MAIZENA WERE CONTESTING THE SUBSTANTIVE VALIDITY OF THAT REGULATION AND WAS AT PAINS , AT THE SAME TIME AS PRONOUNCING IT VOID FOR FAILURE TO OBTAIN THE PARLIAMENT ' S OPINION , TO STATE THAT SUCH NULLITY WAS WITHOUT PREJUDICE TO ' ' THE COUNCIL ' S POWER FOLLOWING THE PRESENT JUDGMENT TO TAKE ALL APPROPRIATE MEASURES PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY ' ' .

16 FINALLY , FROM THE PUBLICATION OF THE COMMISSION ' S PROPOSAL IN THE OFFICIAL JOURNAL OF 20 DECEMBER 1980 ( C 334 , P . 2 ) THE APPLICANT KNEW THAT THE COMMISSION HAD , AS EARLY AS 3 DECEMBER 1980 , SUBMITTED TO THE COUNCIL A PROPOSAL FOR A REGULATION AMENDING , IN PARTICULAR , REGULATION NO 1111/77 , IN ORDER TO REINSTATE , FOR THE PERIOD FROM 1 JULY 1979 TO 30 JUNE 1980 , THE SYSTEM OF QUOTAS AND LEVIES IN THE FORM IN WHICH THAT SYSTEM HAD BEEN LAID DOWN BY REGULATION NO 1293/79 AND IN WHICH IT WAS TO BE REINSTATED BY THE CONTESTED PROVISIONS OF REGULATION NO 387/81 .

17 IN CHALLENGING THE RETROACTIVITY OF THOSE PROVISIONS THE APPLICANT FURTHER CLAIMS THAT THEY DISTURB THE INSTITUTIONAL EQUILIBRIUM OF THE COMMUNITIES . THAT CLAIM CANNOT BE UPHELD . ON THE ONE HAND , THERE IS NO PROVISION OF THE TREATY WHICH PRECLUDED THE PARLIAMENT FROM BEING CALLED UPON TO EXPRESS ITS VIEWS ON A RETROACTIVE REINSTATEMENT OF REGULATION NO 1293/79 ALTHOUGH IT HAD NOT GIVEN ITS OPINION ON THAT REGULATION . ON THE OTHER HAND , THE FACT THAT THE COURT , IN DECLARING THAT REGULATION VOID , DID NOT THINK FIT TO MAKE USE OF THE POWER GIVEN TO IT BY THE SECOND PARAGRAPH OF ARTICLE 174 TO STATE WHICH OF THE EFFECTS OF THE REGULATION WHICH IT HAD DECLARED VOID SHOULD BE CONSIDERED DEFINITIVE , GIVES NO GROUND FOR REGARDING THE RETROACTIVE EFFECT GIVEN TO THE CONTESTED PROVISIONS OF REGULATION NO 387/81 , ADOPTED BY THE COUNCIL IN THE CONTEXT OF THE FIRST PARAGRAPH OF ARTICLE 176 OF THE TREATY , AS A TRESPASS ON THE PREROGATIVES OF THE COURT .

II - SECOND SUBMISSION : BREACH OF THE DUTY TO STATE THE REASONS UPON WHICH A MEASURE IS BASED

18 THE APPLICANT CLAIMS THAT THE COUNCIL HAS GIVEN INADEQUATE REASONS FOR THE RETROACTIVE EFFECT GIVEN TO REGULATION NO 387/81 AND THEREFORE HAS INFRINGED THE PROVISIONS OF ARTICLE 190 OF THE TREATY .

19 ACCORDING TO THE CASE-LOW OF THE COURT THE STATEMENT OF THE REASONS ON WHICH A MEASURE IS BASED , WHICH IS REQUIRED BY ARTICLE 190 OF THE TREATY , MUST BE ADAPTED TO THE NATURE OF THE MEASURE IN QUESTION . IT MUST ENABLE THE REASONING OF THE COMMUNITY INSTITUTION RESPONSIBLE FOR THE MEASURE TO EMERGE CLEARLY AND UNEQUIVOCALLY SO AS TO ENABLE THOSE CONCERNED TO RECOGNIZE THE REASONS FOR THE MEASURE ADOPTED AND THE COURT TO EXERCISE ITS POWER OF REVIEW .

20 THE STATEMENT OF THE REASONS ON WHICH COUNCIL REGULATION NO 387/81 IS BASED STATES FIRST THAT ' ' COUNCIL REGULATION ( EEC ) NO 1111/77 OF 17 MAY 1977 LAYING DOWN COMMON PROVISIONS FOR ISOGLUCOSE , IN THE VERSION ESTABLISHED BY REGULATION ( EEC ) NO 1293/79 , PROVIDED FOR THE APPLICATION OF A SYSTEM OF PRODUCTION QUOTAS FOR THE PERIOD FROM 1 JULY 1979 TO 30 JUNE 1980 ' ' AND , SECONDLY THAT ' ' IN CASES 138/79 AND 139/79 THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , ON 29 OCTOBER 1980 , ANNULLED REGULATION ( EEC ) NO 1293/79 , WHICH AMENDED REGULATION ( EEC ) NO 1111/77 , ON THE GROUNDS OF AN INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT ; . . . IN REJECTING ALL THE ALLEGED COMPLAINTS OF BREACH OF THE PRINCIPLES OF THE LAW OF COMPETITION , OF PROPORTIONALITY AND OF NON-DISCRIMINATION MADE AGAINST THE SYSTEM OF PRODUCTION QUOTAS INTRODUCED BY REGULATION ( EEC ) NO 1293/79 , THE COURT AFFIRMED THAT THE LATTER REGULATION WAS SUBSTANTIVELY IN CONFORMITY WITH COMMUNITY LAW ; . . . IT IS THEREFORE APPROPRIATE TO REINSTATE INTER ALIA THE SYSTEM OF QUOTAS CONCERNED RETROACTIVELY .

21 LACONIC AS THESE REASONS MAY BE , THEY SATISFY THE REQUIREMENT LAID DOWN BY ARTICLE 190 OF THE TREATY . IN FACT , BY REFERRING TO THE SYSTEM OF PRODUCTION QUOTAS , WHICH MOREOVER WAS WELL KNOWN TO THOSE CONCERNED , THE PROVISIONS OF THE PREAMBLE TO THE CONTESTED REGULATION SET FORTH IN ESSENCE THE OBJECTIVE PURSUED BY THE INSTITUTION RESPONSIBLE FOR THE CONTESTED MEASURE , NAMELY TO ENSURE CONTINUITY IN TIME OF THE SYSTEM RESTRICTING ISOGLUCOSE PRODUCTION - A SYSTEM IN RESPECT OF WHICH THE COURT , IN ITS JUDGMENTS IN CASES 138/79 AND 139/79 OF 29 OCTOBER 1980 , REJECTED THE SUBSTANTIVE CRITICISMS MADE AGAINST IT BY THE APPLICANT UNDERTAKINGS - IN ORDER TO ENSURE AN EQUAL DIVISION OF BURDENS ON THE PRODUCTION OF ISOGLUCOSE AND THAT OF LIQUID SUGAR WHICH ARE IN DIRECT COMPETITION ON THE MARKET IN SWEETENERS .

22 THE SUBMISSION AS TO BREACH OF THE REQUIREMENT TO STATE THE REASONS ON WHICH THE MEASURE WAS BASED MUST THEREFORE BE REJECTED AS UNFOUNDED .

III - THIRD SUBMISSION : INFRINGEMENT OF ARTICLE 201 OF THE TREATY AND ARTICLE 2 OF THE DECISION OF 21 APRIL 1970 ON THE REPLACEMENT OF FINANCIAL CONTRIBUTIONS FROM MEMBER STATES BY THE COMMUNITIES ' OWN RESOURCES

23 IN ITS REPLY THE APPLICANT PUT FORWARD A NEW SUBMISSION BASED ON THE COUNCIL ' S LACK OF COMPETENCE TO CREATE BY MEANS OF REGULATION NO 387/81 A LEVY ON THE PRODUCTION OF ISOGLUCOSE . THE APPLICANT TAKES THE VIEW THAT THAT LEVY IS REVENUE ACCRUING TO THE COMMUNITY BUDGET WHICH WAS NOT PROVIDED FOR BY THE LEGISLATION AT THE TIME AT WHICH COUNCIL DECISION 70/243 OF 21 APRIL 1970 ON THE REPLACEMENT OF FINANCIAL CONTRIBUTIONS FROM MEMBER STATES BY THE COMMUNITIES ' OWN RESOURCES WAS ADOPTED ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( 1 ), P . 224 ). THE COUNCIL THEREFORE DID NOT HAVE THE POWER TO INTRODUCE THE CONTESTED LEVY BUT , IN PURSUANCE OF ARTICLE 201 OF THE TREATY , WAS ABLE MERELY TO RECOMMEND ITS ADOPTION BY THE MEMBER STATES IN ACCORDANCE WITH THEIR RESPECTIVE CONSTITUTIONAL REQUIREMENTS .

24 THE DEFENDANT AND THE INTERVENER CONSIDER THAT SUBMISSION TO BE INADMISSIBLE BY VIRTUE OF ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE WHICH ALLOWS NO FRESH ISSUE TO BE RAISED DURING THE COURSE OF THE PROCEDURE UNLESS IT IS BASED ON MATTERS OF LAW OR OF FACT WHICH HAVE COME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE .

25 IN THE PRESENT CASE , THE NEW SUBMISSION MADE BY THE APPLICANT CANNOT BE REGARDED AS BEING ' ' BASED ON MATTERS OF LAW OR OF FACT ' ' , WHICH HAVE COME TO LIGHT , ' ' IN THE COURSE OF THE WRITTEN PROCEDURE ' ' , SINCE IT IS BASED ON AN ALLEGED ILLEGALITY WHICH WAS CAPABLE OF BEING KNOWN AND PLEADED AS FROM THE MOMENT WHEN REGULATION NO 387/81 CAME INTO EXISTENCE . NOR , ON THE OTHER HAND , CAN IT BE REGARDED AS AMPLIFIYING A SUBMISSION MADE PREVIOUSLY BECAUSE IT IS ONLY IN THE REPLY THAT THE LEGAL RULE ALLEGED TO HAVE BEEN INFRINGED IS MENTIONED AND THE CAUSE OF NULLITY THUS INVOKED WAS REFERRED TO NEITHER DIRECTLY NOR BY IMPLICATION IN THE APPLICATION ORIGINATING THE PROCEEDINGS .

26 THE SUBMISSION MADE BY THE APPLICANT THEREFORE RAISES AN ENTIRELY FRESH ISSUE WHICH IS INADMISSIBLE SINCE IT IS OUT OF TIME UNDER ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE .

27 ALTHOUGH IT IS TRUE THAT THE APPLICANT ALSO SEEKS TO RELY ON THE PROVISIONS OF ARTICLE 92 ( 2 ) OF THE RULES OF PROCEDURE WHICH ENABLES THE COURT AT ANY TIME OF ITS OWN MOTION TO CONSIDER WHETHER THERE EXISTS ANY ABSOLUTE BAR TO PROCEEDING WITH THE CASE , THAT PROVISION , CONCERNED AS IT IS ONLY WITH SUCH ABSOLUTE BARS , DOES NOT ALLOW A PARTY TO RAISE A FRESH ISSUE WHICH IS OUT OF TIME AND BREACH OF THE PROVISIONS OF ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE .

28 HOWEVER , SINCE THE SUBMISSION RELATES TO THE POWERS OF THE AUTHOR OF THE CONTESTED MEASURE , THE COURT CONSIDERS THAT IT SHOULD STATE THE REASONS WHY THE COUNCIL WAS COMPETENT TO IMPOSE A LEVY ON THE PRODUCTION OF ISOGLUCOSE .

29 SUBJECT TO THE PROCEDURAL CONDITIONS WHICH IT LAYS DOWN , ARTICLE 43 OF THE TREATY ASSIGNS TO THE COUNCIL THE TASK OF CREATING THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS AND LAYING DOWN THE RULES RELATING THERETO . BY VIRTUE OF ARTICLE 40 ( 3 ) OF THE TREATY , THAT COMMON ORGANIZATION IN ONE OF THE FORMS PROVIDED FOR BY PARAGRAPH ( 2 ) OF THAT ARTICLE , WHICH COMPRISES INTER ALIA A MARKET ORGANIZATION , MAY INCLUDE ALL MEASURES REQUIRED TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 39 , IN PARTICULAR REGULATION OF PRICES , AIDS FOR THE PRODUCTION AND MARKETING OF THE VARIOUS PRODUCTS , STORAGE AND CARRY-OVER ARRANGEMENTS AND COMMON MACHINERY FOR STABILIZING IMPORTS OR EXPORTS .

30 UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 9 ( 8 ) OF COUNCIL REGULATION NO 1111/77 AS SUPPLEMENTED BY THE CONTESTED PROVISIONS OF REGULATION NO 387/81 , THE ISOGLUCOSE PRODUCTION LEVY IS CHARGED ON THE PRODUCER IN RESPECT OF THE QUANTITY OF ISOGLUCOSE PRODUCTION WHICH EXCEEDS THE BASIC QUOTA WITHOUT EXCEEDING THE MAXIMUM QUOTA . UNDER THE SECOND SUBPARAGRAPH THE AMOUNT OF THE ISOGLUCOSE PRODUCTION LEVY IS TO BE EQUAL TO THE SHARE OF THE SUGAR PRODUCTION LEVY BORNE BY THE SUGAR MANUFACTURERS FIXED FOR THE 1979/80 SUGAR YEAR PURSUANT TO ARTICLE 28 OF REGULATION NO 3330/74 . THAT SHARE OF THE LEVY ITSELF RESULTS FROM A COMPLEX METHOD OF CALCULATION WHICH IS LAID DOWN IN ARTICLE 27 OF THE LATTER REGULATION AND MAKES SUGAR PRODUCERS BEAR , BY WAY OF LEVIES , THE LOSSES INCURRED BY THE COMMUNITY AS A RESULT OF THE DISPOSAL OF THE QUANTITY PRODUCED WHICH EXCEEDS HUMAN CONSUMPTION IN THE COMMUNITY . THUS THE ISOGLUCOSE PRODUCTION LEVY WAS ESTABLISHED IN ORDER TO CONTRIBUTE TO STABILIZING THE COMMUNITY MARKET IN SWEETENERS AND , IN PARTICULAR , AS THE SEVENTH RECITAL IN THE PREAMBLE TO REGULATION NO 1111/77 INDICATES , TO EXPORT COSTS .

31 IT FOLLOWS FROM THE FOREGOING THAT THE ISOGLUCOSE PRODUCTION LEVY COMES WITHIN THE TERMS OF ARTICLES 39 AND 40 OF THE TREATY AND THAT THE COUNCIL WAS COMPETENT TO ESTABLISH IT AND TO LAY DOWN DETAILED RULES FOR ITS OPERATION PURSUANT TO ARTICLE 43 WHICH , MOREOVER , IS REFERRED TO BY THE CONTESTED REGULATION NO 387/81 .

32 AS REGARDS THE COUNCIL DECISION OF 21 APRIL 1970 ON THE REPLACEMENT OF FINANCIAL CONTRIBUTIONS FROM MEMBER STATES BY THE COMMUNITIES ' OWN RESOURCES , ADOPTED IN PURSUANCE OF ARTICLE 201 OF THE TREATY BY THE MEMBER STATES IN CONFORMITY WITH THE PROVISIONS OF THAT ARTICLE , IT SHOULD FIRST BE STRESSED THAT ITS PURPOSE IS TO DEFINE OWN RESOURCES ALLOCATED TO THE COMMUNITY BUDGET AND NOT TO STIPULATE THE COMMUNITY INSTITUTIONS WHICH ARE COMPETENT TO IMPOSE DUTIES , TAXES , CHARGES , LEVIES OR OTHER FORMS OF REVENUE . AS A MEASURE ADOPTED UNDER BUDGETARY LAW , THAT DECISION DOES NOT PREVENT THE COUNCIL FROM CREATING A LEVY SUCH AS THE ONE IMPOSED ON THE PRODUCTION OF ISOGLUCOSE WHERE THE POWER OF THE COUNCIL TO CREATE THAT LEVY HAS ITS BASIS , AS HAS BEEN SAID , IN THE PROVISIONS OF THE TREATY RELATING TO THE COMMON AGRICULTURAL POLICY .

33 FURTHERMORE , ARTICLE 2 ( A ) OF THE DECISION OF 21 APRIL 1970 INCLUDES IN COMMUNITIES ' OWN RESOURCES REVENUE COMING FROM ' ' CONTRIBUTIONS AND OTHER DUTIES PROVIDED FOR WITHIN THE FRAMEWORK OF THE ORGANIZATION OF THE MARKETS IN SUGAR ' ' . IN VIEW OF THE DEVELOPMENTS WHICH WERE INEVITABLY TO TAKE PLACE IN COMMUNITY PRODUCTION AND MARKETING OF SUGAR AND , CONSEQUENTLY , THE NEED TO ADAPT CONTRIBUTIONS , LEVIES , REFUNDS AND PRICE SUPPORT MEASURES TO THOSE DEVELOPMENTS IN THE REQUIREMENTS OF THE COMMUNITY MARKETS IN SUGAR , IT WAS NOT CONCEIVABLE THAT THE SCOPE OF APPLICATION OF THE DECISION OF 21 APRIL 1970 COULD HAVE BEEN LIMITED MERELY TO THE LEVIES WHICH WERE PROVIDED FOR WHEN IT WAS ADOPTED , THAT IS TO SAY TO THE LEVIES LAID DOWN AT THAT TIME BY REGULATION NO 1069/67 OF THE COUNCIL OF 18 DECEMBER 1967 ESTABLISHING A COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 304 ). ALTHOUGH ISOGLUCOSE WAS ONLY PRODUCED IN SIGNIFICANT AMOUNTS IN THE COMMUNITY SEVERAL YEARS AFTER THE ADOPTION OF THE DECISION OF 21 APRIL 1970 , THE DIRECT COMPETITION WHICH IT PROVIDES FOR LIQUID SUGAR ON THE MARKET IN SWEETENERS MEANS THAT IT MUST BE INCLUDED AMONGST THE PRODUCTS WHICH ARE MARKETED ON THE ' ' MARKETS IN SUGAR ' ' WITHIN THE TERMS OF THE DECISION OF 21 APRIL 1970 .

34 IT FOLLOWS THAT THE COUNCIL WAS COMPETENT TO ADOPT THE CONTESTED PROVISIONS CONTAINED IN REGULATION NO 387/81 AND THAT NO PROVISION OF BUDGETARY LAW AFFECTED THAT POWER .

IV - COSTS

35 UNDER THE TERMS OF ARTICLE 69 OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . THE APPLICANT HAS FAILED IN ALL ITS SUBMISSIONS AND MUST THEREFORE BE ORDERED TO PAY ALL THE COSTS INCLUDING THOSE OF THE INTERVENER .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES AS UNFOUNDED THE APPLICATION FOR A DECLARATION THAT COUNCIL REGULATION NO 387/81 IS VOID ;

2.ORDERS THE APPLICANT TO PAY THE COSTS INCLUDING THOSE OF THE INTERVENER .