C-33/76

JUDGMENT OF THE COURT

16 DECEMBER 1976 <apnote>1</apnote>

Rewe-Zentralfinanz eG and Rewe-Zentral AG

v Landwirtschaftskammer für das Saarland

(preliminary ruling requested by the Bundesverwaltungsgericht)

Case 33/76

in Article 13 of Regulation No have from the direct effect of

159/66/EEC have a direct effect and Community law, it being understood

confer on citizens rights which the that such conditions cannot be less national courts are required to protect. favourable than those relating to

2. In the absence or Community rules similar actions of a domestic nature. on this subject, it is for the domestic The position would be different only legal system of each Member State if the conditions made it impossible to designate the courts having in practice to exercise the rights

jurisdiction and to determine the which the national courts are obliged

procedural conditions governing to protect.

JUDGMENT OF 16. 12. 1976 — CASE 33/76

and

LANDWIRTSCHAFTSKAMMER FUR DAS SAARLAND­ , Saarbrücken (Agricultural

Chamber for the Saar),

on the interpretation of Articles 5, 9 and 13 (2) of the EEC Treaty,

THE COURT

submitted pursuant to Article 20 of the paid including interest. This claim was

Protocol on the Statute of the Court of dismissed as inadmissible on the ground

Justice of the EEC may be summarized that it was out of time under Article 58 as follows: of the Verwaltungsgerichtsordnung (Code of Procedure before the Administrative Court). The actions brought by the two

I — Facts and procedure companies before the Verwaltungsgericht für das Saarland (Saarland Administrative In German Rewe- 1968 the companies Court) were dismissed as was the appeal Zentralfinanz eG and Rewe-Zentral AG made by them to the Oberverwaltungs­

paid in respect of the import of French gericht (Higher Administrative Court). apples charges for phyto-sanitary inspection which were found by the Rewe-Zentralfinanz and Rewe-Zentral judgment of the Court of 11 October then appealed to the Bundesverwaltungs­

1973 in Case 39/73 [1973] ECR 1039 to gericht (Federal Administrative Court). be equivalent to customs duties. The latter took the view that the question whether it is possible to rely on an

preliminary ruling under Article 177 of refrained from submitting to the Court of the EEC Treaty: Justice the question whether charges

1. where an administrative body in one collected contrary to Community law State has infringed the prohibition on may exceptionally be retained because no chargeshaving an effect equivalent to claim has been brought within the

customsduties (Articles 5, 9 and 13 (2) prescribed period against the decision to

of the EEC Treaty) has the impose the charges.

Community citizen concerned a right under Community law In its judgment of 7 February 1973 in

(a) to the annulment or revocation or Case 39/72 [1973] ECR 101 the Court the administrative measure; stated that an by a Member infringement

there does exist an infringement infringements by Member States and the of the prohibition contained in consequences thereof, past and future.

Community law? 3. If a right to a refund is held to exist It is true that in the judgment of 22 under Community law, is interest to January 1976 in Case 60/75 [1976] ECR be paid on the amount and if so from 45 the Court stated that where there has what date and at what rate? been an infringement of Community law it will be for the State, as regards the

The order of the VIIth Senate of the injured party, to take the consequences

Bundesverwaltungsgericht was registered upon itself in the context of the

at the Court on 6 April 1976. provisions of national law relating to the

liability of the State. Nevertheless there In accordance with Article 20 of the can be no question in this case of simply Protocol on the Statute of the Court of referring a trader affected by an

After hearing the report of the idiosyncrasies of each national legal Judge-Rapporteur and the views of the system;

Advocate -General the Court decided to (b) the requirements of effective legal open the oral procedure without a protection and the logic of the

preparatory inquiry. system of the Treaty imply likewise

JUDGMENT OF 16. 12. 1976 — CASE 33/76

that directly applicable Community the annulment or setting aside of the

rules should be characterized as rules decision imposing the charge. According the infringement of which by to German national law this annulment

only infringements committed by the ruling on this matter but, in the

administration in the exercise of procedure under Article 177, on

public authority are covered. Further questions of interpretation raised by the German law requires a wilful or national court.

negligent breach of official duty. With regard to the third question, since

In its judgment of 17 December 1970 in the aim of the Treaty is to achieve the

Case 11/70 [1970] ECR 1125 the Court practical elimination of infringements by declared that the law stemming from the Member States, the action in Community Treaty, an independent source of law, law for the annulment of the effects of

question. The absolute precedence of follow from the direct effect of Article 13

Community law likewise extends in (2) of the EEC Treaty that after the

particular to national procedure (Case contested charge has been levied 66/73 [1974] ECR 33 and Case 146/73 notwithstanding the prohibition in

[1974] ECR 139). It would be contrary to question the appellants must be the nature of the Community system for recognized as having an independent Member States to be able to take or right of action enabling them to claim

maintain in force measures likely to the repayment of the said charge

compromise the effectiveness of the independently of any substantive ground Treaty. The mandatory nature of the in national law. Article 13 (2) was not

tribunal has jurisdiction to give this period, the conditions of admissibility protection and, for this purpose, to and the time-limits for annulment laid decide how the individual position thus down by it could not be a valid objection

protected is to be classified'. The same to the claim in the main action. In fact is true moreover for actions for the direct effect of Article 13 (2) would compensation under the second mean that the person concerned thus

paragraph of Article 215 of the EEC enjoys by means of a Community Treaty. No doubt the necessity of basing provision, which by its nature has claims for refund on the provisions of precedence, an absolute entitlement

national law may make the refund unlimited in point of time to bring an

dependent on rules which vary according action for a refund; the full and

to the Member States but this position is unconditional assertion of this right, by in accord with the present state of reason its proprietary nature, must not of

protection of the rights of individuals To interpret Article 13 (2) of the Treaty with regard to refunds would be nothing as meaning that it gives an independent other than a refusal to accept any substantive right to refund would raise conditions of admissibility and

the question of the connexion between time-limits for bringing actions. Such a

such a right based Community law on general exclusion of any national rule of and those provided for by national laws. procedure would be incompatible with To prohibit parties from basing their the legal principle that the national court

claims to refund of the provisions of gives a decision based on the rules of

their national law would be contrary to national procedure even where the

the previous case-law of the Court on the plaintiff bases his claims and arguments

having precedence in governing provisions give individuals rights 'which time-limits, the application of national national courts must protect. National rules of procedure. But to what extent courts can do so only by referring to

could Article 13 (2) of the Treaty, as a their own rules of procedure, so long as substantive provision of Community law Community law does not itself govern

having precedence, prohibit the these matters, and thus subject to the

application of the German Code of conditions on admissibility and the

administrative procedure? If the effect of time-limits for bringing actions which

the latter were indeed to exclude the they contain. The principle making the parties'

Community law has not expressly of sums paid are given concrete form and prescribed them. limited by the national provisions on the subject. The limitation afforded by the This position is certainly hardly national law on procedure to the

satisfactory since the time-limits laid assertion of Community rights is down by national law vary between 1 therefore in the true sense a rule of

month and 30 years (in this respect it Community law. may be asked whether each Member State can, in so far as it is concerned, Under German law when an

decide which is the by right laid down administrative measure can no longer be national law to which such a legal for Community the subject of a action

right must be assimilated). But to lay annulment because it has become down at a Community level uniform definitive it is also as a rule no longer time-limits for the assertion of the rights possible to require the authority to

in question in the main action would withdraw the administrative measure

the Court has referred to national law. If The provision in Article 5 of the EEC the main action fails because of German Treaty referred to in the question

procedural rules there will be no purpose certainly requires Member States to adopt in this question. appropriate measures in Community matters but it cannot give rights to

The Government of the Federal Republic parties. The same is true of the 'general

of Germany considers that the absence principles'

of Member States with regard

of Community rules on the organization to administrative procedure: they do not

recognize a right to the withdrawal of customs duties improperly charged. administrative measures which have become definitive. Moreover refund would lead in practice

to an unforeseen increase in the profit The Government of the Italian Republic margin or in any event in the assets of states that in the absence of Community the dealers concerned since the amounts rules it must necessarily be recognized in question have obviously already been that the means and conditions for taken into account in determining costs protecting subjective rights which the and therefore in the repercussions on

Community creates in favour of purchasers arising from the increase in individuals are always governed by the resultant charges. A refund would lead in laws of the various Member States. 'aid'

practice to an benefiting national

should apply in the case of the obligation specific questions raised by the order of to refund sums levied in reference a ruling may be given that the wrongly exercise of the right to the refund of contravention of the prohibition against

charges having an effect equivalent to sums paid as charges having an

equivalent effect is governed, just as in customs duties. This view accords with

that adopted by the Court in the the case of submissions of inadmissibility aforementioned Case 43/75. as regards time-limits, estoppel or

prescription, by national laws in the

same way as national laws determine It is not necessary to stress the serious whether, from which date and at what financial consequences which would rate interest may be payable on sums to ensue for the budgets of the various be refunded to those entitled to them. Member States to note that an obligation

public policy. It cannot be denied that Community provisions. they may have the effect of limiting substantive rights. The only satisfactory During the oral procedure which took

remedy lies in the adoption of place on 9 November 1976 the

Community legislation to harmonize the appellants, represented by Dietrich Ehle, relevant rules of prescription and Advocate of the Cologne Bar, the

limitation. But the invalidation of Government of the Federal Republic of

national time-limits in advance of Germany, represented by its Legal appropriate Community legislation Adviser, Mr Seidel, the Government of

would create and add the Italian Republic represented by Mr uncertainty disproportionately to the complexities of Marzano, Avvocato dello Stato, and

1976, the Bundesverwaltungsgericht referred to the Court three questions on

Articles 5, 9 and 13 (2) of the EEC Treaty for a preliminary ruling under

Article 177 of the EEC Treaty.

2 These questions have arisen in a case relating to the payment in 1968 on the

importation by the appellants of French apples of charges for phytosanitary inspection, regarded as equivalent to customs duties by the judgment of the Court of 11 October 1973 in Case 39/73 (Rewe Zentralfinanz eGmbH [1973] ECR 1039).

The respondent to the appeal rejected the appellants'

duties (Articles 5, 9 and 13 (2) or the EEC Treaty) the Community citizen concerned has a right under Community law to the annulment or revocation

of the administrative measure and/or to a refund of the amount paid even if under the rules of procedure of the national law the time-limit for contesting the validity of the administrative measure is past.

The second question asks whether this is so if the Court of Justice has already

ruled that there does exist an infringement of the prohibition contained in

Community law.

The third question asks whether, if a right to refund is held to exist under

already previously unlawful by virtue of Article 13 (1) of Regulation No 159/66/EEC of the Council of 25 October 1966 (JO 192 of 27 October 1966) which abolished them in respect of fruit and vegetables as from 1 January 1967.

5 The prohibition laid down in Article 13 of the Treaty and that laid down in Article 13 of Regulation No 159/66/EEC have a direct effect and confer on

citizens rights which the national courts are required to protect.

Applying the principle of cooperation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection

which citizens derive from the direct effect of the provisions of Community law.

Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at

States if they are likely to distort or harm the functioning of the Common

Market.

In the absence of such measures of harmonization the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules.

The position would be different only if the conditions and time-limits made

it impossible in practice to exercise the rights which the national courts are

obliged to protect.

understood that the procedural conditions the action may not be governing less favourable than those relating to similar actions of a domestic nature.

The second question

7 The fact that the Court has given a ruling on the question of infringement of the Treaty does not affect the reply given to the first question.

The third question

8 In view of the reply given to the first question the third question does not

arise.

concerned, in the nature of a step in the action pending before the national

court, costs are a matter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Bundesverwaltungsgericht by order of 23 January 1976, hereby rules:

1. In the present state of Community law there is nothing to

the first question.

Kutscher Donner Pescatore Mertens de Wilmars

Sørensen Mackenzie Stuart O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 16 December 1976.

A. Van Houtte H. Kutscher

Registrar President