C-45/76

1. Customs duties on exports — Charges having equivalent effect Abolition — —

Direct effect — Individual rights — Protection by the national courts (EEC Treaty, Article 16; Regulation No 234/68, Article 10)

2. Community law — Direct effect — Individual rights — Protection by the

national courts — Legal proceedings — National procedural rules — Application

1. The prohibition laid down in Article ensure the protection of the rights

16 of the Treaty and that contained in which individuals acquire through the

JUDGMENT OF 16. 12. 1976 - CASE 45/76

COMET BV, Sassenheim,

and

PRODUKTSCHAP VOOR SIERGEWASSEN,

on the interpretation of the Community provisions for the free movement of goods,

THE COURT

The order making the reference and the said products (Blumenwerbung) in the

written observations submitted under Federal Republic of Germany. The levy Article 20 of the Protocol on the Statute is payable by the German importer to the of the Court of Justice of the EEC may Netherlands exporter who has to pass it be summarized as follows: on to the Produktschap. The regulation

was repealed on 8 July 1969 with effect from 1 June 1969. By levy notices of I — Facts and procedure 7 July 1969 and 19 September 1969, the Comet BV company was notified that it A Netherlands regulation of 1956 by the owed several amounts in respect of Siergewassen'

'Produktschap voor flower bulb exports effected before (Ornamental Plants Production Board) 1 June 1969.

provides for a levy on exports of bulbs and corms of flowering plants to West Comet did not initiate proceedings

Germany. against levy notices or against a these

proceedings against this refusal before Advocate -General, decided to open the

the College van Beroep voor het oral procedure without any preparatory Bedrijfsleven. inquiry.

Before that court, the Produktschap did not dispute that the contested charges II — Written observations sub­

were incompatible with Community law mitted before the Court but it maintains that the application for set-off should be rejected because A — Observations of the Comet proceedings were not taken against the company 1969 levy notices and the 1971 reminder

within the period of 30 days prescribed The plaintiff in the main action agrees

by Article 33 of the Law concerning that as a rule, the expiry of the limitation administrative jurisdiction over trade period for an appeal can, under national

decision of a national body for law.

incompatibility with Community law on the ground that he has allowed the Has a party an independent right of

period for lodging an appeal under action to end a situation in which

national law to elapse, either in the sense Community law is being infringed? Is that the action of the litigant may be such an action beyond the reach of

declared inadmissible by the court for national provisions with the result that it failure to observe the time-limit or in the can validly be brought even after expiry further sense that the administration may of the limitation periods for proceedings

derive from the failure to comply with under national law? Or, on the other

submitted by the Comet company, the invalidity of EEC provisions — on which

JUDGMENT OF 16. 12. 1976 - CASE 45/76

the relevant decision is based, thereby judgment of the Court in Case 39/72

depriving the administration of the Commission v Italy [1973] ECR 101 in protection necessary to enable it to carry which it was held that the default of a

out properly its own duties as well as Member State can constitute the basis of

those assigned to it in a Community liability on its part towards individuals.

The general legal principle that national law as justification for refusing

Community law prevails over national to rescind the contested decision. The law is one which implies that the incompatibility of the national provision Community legal order would be is something separate from a finding by undermined if the Member States were the Court that Community provisions still in practice able to promulgate have been infringed. The judgment of

measures the practical effect of which the Court is declaratory and does not

would be to frustrate the application of confer rights.

the Treaty on the basis of the direct effect of certain provisions. A Member As regards the consequences for the State State ought not to be able to rely on authorities of the independent existence

procedural requirements if this means of a right of action and the misgivings

Community law. be Member State which, in practice, effectiveness'

of the

determined the extent of the legal As regards the question whether a party consequences of its actions. The has a right of action the plaintiff in the protection which should be available to

main action considers that the answer the administration to enable it to fulfil its depends not only on procedural rules but tasks ought primarily to be determined also on the duty of the Member States, of by the administration itself which should individuals and of the Community take care to ensure that administrative

institutions to contribute to the practical acts accord with Community law. application of Community law. All subject to Community law possess a right B — Observations of the Commission of corresponding duty; this is the to this the European Communities right to obtain a 'Folgenbeseitigung', that

is to say, the annulment, whatever form it While noting that it is common ground

levied, the undertaking concerned must judgment May 1976 in Case 26/74 of 21 be recognized as having an independent (Roquette [1976] ECR 677) that actions right of action whereby the latter may brought in connexion with the common

claim reimbursement of the charge agricultural policy for reimbursement of

imposed regardless of any principle of levies improperly collected on imports national law. must first be brought, in accordance with

the rules of national law, against the

There can be no doubt about the direct Member State which collected them,

applicability of Article 16 but the mere before proceedings may be brought fact that the accountable party is against the Community under Article recognized as being able, on its own 215 of the EEC Treaty. account, to claim the illegality of the charge in the light of the Treaty is Undoubtedly, the need to base insufficient indication in what applications for a refund on the circumstances, in what manner and on provisions of national law has the effect what legal basis that party can claim of making repayment dependent on rules repayment of a charge collected contrary which vary from one Member State to to the Treaty. another, but this is the position at the

decide which court has jurisdiction and the conditions laid down by that national for this purpose to classify those rights law. This applies to the actual conditions

with reference to the criteria of national for the right to repayment as it does to law'. questions of jurisdiction and procedure

and the question remains whether a

Similarly, in its judgment of 16 single legal basis is adequate in the case

December 1960 in Case 6/60 (Humblet, of an application for refund of a payment Rec,p. 1131) the Court held that it was made or whether, in addition to an

for the national legislature to determine action for repayment properly so-called, a whether an unlawful imposition of tax separate action should be brought for

case, whether certain provisions of overpayment must be brought before the

national law, which, a priori, make full Netherlands court in accordance with

and unconditional repayment of the rules of procedure applicable in the

amounts collected out of the question, Netherlands.

may be incompatible with the guarantee of legal protection given by Article 16 of In respect of procedural matters, there

the EEC Treaty and, if the answer is in are Community provisions which no

foundation for an independent and

individual right to repayment. The If Article 16 of the Treaty is interpreted conditions for repayment would thus be as a straightforward statement that

based on a single legal foundation and charges on exports are illegal, the

would be freed from the conditions, national rules of procedure continue to

variations and fortunes of national legal apply unconditionally, there being no

systems. In this way the legal protection conflict with the paramountcy of

obviously be alien to the precedence If, on the one hand, an action brought established by the Court of Justice under Article 16 is fully discharged only concerning the direct effect of Articles after all the overpayments have been 13 (2) and 16, failing acceptance of the reimbursed and, on the other, the effect

concept of parallel actions which gives a of the provisions of the ARBO Law is in litigant the choice between national and fact to make recovery impossible after a Community means of legal redress. Apart certain period, the conditions laid down from the fact that this would involve by the ARBO Law cannot be pleaded

something totally new in Community against the applicant. A consideration

law it is likely that, because it would be which argues in favour of this solution is

COMET v PRODUKTSCHAP VOOR SIERGEWASSEN

that, for individuals, as a result of direct to conditions which cannot be fulfilled applicability, the object and the effect of are illegal. But the application of Article legal protection would, as far as 33 of the ARBO Law gives rise to no

abandonment of national rules of of Germany refers to its observations in Case 33/76, Rewe. procedure cannot easily be reconciled

with the principle hitherto recognized by These observations are to the effect that the Court of Justice that national courts

must take their decisions in accordance no rule of Community law confers on an individual the right to have an with national rules of procedure. administrative act of a Member State annulled or withdrawn if under the In the Commission's view, the declared national law of that Member State, the precedence of Article 16 of the EEC act can no longer be contested and has Treaty over national law does not become final. absolutely preclude the application of

national rules of procedure.

Individuals are able to rely on the direct The principle on which the provisions of effect of a Community provision only in the ARBO Law are based and which so far as they may do so under the

makes the protection of the right of provisions of the administrative law and

out of a provision of the EEC Treaty harmonization but to the fact that the

may, for considerations of legal certainty, Community was constructed by the be exercised only within prescribed Treaty of Rome in such a way that, with time-limits, even if none have been the exception of the fields which come

expressly laid down by Community law. under the direct control of the

Community and the general task of

Nevertheless, rules of procedure which, a harmonization assigned to it, the

priori, make it impossible for an application of Community law was

Member States inherent in the Member States in the field of

constitution of the Community makes it administrative procedure justify the

clear that the rights of individuals to conclusion that there exists a right under

have administrative acts annulled or Community law to have administrative

withdrawn or to recover over-payments acts which have become final withdrawn.

are laid down and defined by the relevant national provisions. The precedents established by the Court of Justice have, on many occasions, recognized the power of the national There is no question of conflict between legislature to lay down rules on the Community law and national law since

Community law. the right to have annulled an

administrative act which, under the

The Government of the Federal Republic provisions of the Member State which

of Germany accepts that the legal rights promulgated it, can no longer be of an individual may differ from one impugned because of non-compliance

Member State to another. However, the with the prescribed time-limit.

existence of a uniform right to have The plaintiff in the main action, administrative acts which conflict with a represented by Hattinga Verschure, of Community provision annulled would The Hague Bar, the Government of the produce the scarcely acceptable result Federal Republic of Germany, that the administrative law of the

of Community law prohibit the principle raising of an objection against a litigant who is challenging before the national courts a decision of a national

body for incompatibility with Community law on the ground that he has allowed the period for lodging an appeal under national law to elapse, either in the sense that the action of the litigant may be declared inadmissible by the court for failure to observe the time-limit or in the further sense that the

administration may derive from the failure to comply with the time-limit a decision?'

right to refuse to reconsider its

2 The question was submitted in connexion with proceedings brought before that court by the plaintiff in the main action for a declaration that, on exports

of bulbs and corms of flowering plants to West Germany effected during the concluding months of 1968 and the early months of 1969, it made an undue payment to the Produktschap voor Siergewassen (hereinafter referred to as 'the Produktschap'), the defendant in the main action, of levies constituting charges having an effect equivalent to customs duties on exports which are contrary to Article 16 of the Treaty and are, moreover, prohibited by Article 10 of Regulation (EEC) No 234/68 of the Council of 27 February 1968 on the

1968, the date of entry into force of Regulation No 234/68, become incompatible with Article 10 of the Regulation which, in the internal trade of

the Community in the horticultural products covered by the regulation, prohibited the levying of any customs duty or charge having equivalent effect.

5 It must, however, be observed that this incompatibility came into being on 1 January 1962 by virtue of Article 16 of the Treaty, under which the

Member States are enjoined to abolish between themselves customs duties on

exports and charges having equivalent effect by the end of the first stage at the latest.

JUDGMENT OF 16. 12. 1976 - CASE 45/76

9 The applicant in the main action contends, on the other hand, that the

primacy of Community law means that it overrules any decision which

constitutes an infringement of it and that, before the national courts, which

are bound to protect the rights conferred on by Article 16, it possesses, in it

consequence, an independent right of action which is unaffected by limitations provided for under national law which are liable to weaken the

impact of the direct effect of that article in the legal order of the Member States.

conferred on individuals by the direct effect of the provisions of Community law.

13 Consequently, in the absence of any relevant Community rules, it is for the national legal order of each Member State to designate the competent courts

and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of

Community law, provided that such rules are not less favourable than those governing the same right of action on an internal matter.

14 Articles 100 to 102 and 235 of the Treaty enable the appropriate steps to be taken as necessary, to eleminate differences between the provisions laid down in such matters by law, regulation or administrative action in Member States if these differences are found to be such as to cause distortion or to affect the

functioning of the common market.

19 The answer must therefore be that, in the case of a litigant who is challenging before the national courts a decision of a national body for incompatibility with Community law, that law, in its present state, does not prevent the

expiry of the period within which proceedings must be brought under

JUDGMENT OF 16. 12. 1976 - CASE 45/76

national law from being raised against him, provided that the procedural rules

applicable to his case are not less favourable than those governing the same

right of action on an internal matter.

On those grounds,

THE COURT

in answer to the question referred to it by the College van Beroep voor het

Bedrijfsleven by order of 25 May 1976, hereby rules:

In the case of a litigant who is challenging before the national courts a decision of a national body for incompatibility with Community law, that law, in its present state, does not prevent

the expiry of the period within which proceedings must be brought under national law from being raised against him, provided that the procedural rules applicable in his case are not

Registrar President