C-265/78

JUDGMENT OF 5. 3. 1980 — CASE 265/78

for the national courts and must be Such considerations apply both where settled by them under national law in there is an express reference to so far as no provisions of Community national laws as there is in Article 8 of law are relevant. In those circum- Regulation N o 729/70, and where an stances it is for the courts of the implied reference is made to such Member States to provide, in laws. pursuance of the requirement of co- operation embodied in Article 5 of the direct effect of the Community 3. Community law in its present state provisions both when such provisions and Article 6 (5) of Regulation N o create obligations for the subject and 1957/69 in particular do not preclude when they confer rights on him. It is the application, in proceedings thus for the national legal system of concerning the recovery by the auth- each Member State to determine the orities of the Member States of sums courts having jurisdiction and to fix paid in error as export refunds to the procedures for applications to the traders, of a principle of legal courts intended to protect the rights certainty based on national law which the subject obtains through the whereby financial benefits granted in direct effect of Community law but error by the public authorities may such procedures may not be less not be recovered if the error favourable than those in similar pro- committed was not due to incorrect cedures concerning internal matters information supplied by the and may in no case be laid down in beneficiary or if such error, despite such a way as to render impossible in the fact that the information supplied practice the exercise of the rights was incorrect though supplied in which the national courts must good faith, could easily have been protect. avoided.

FERWERDA v PRODUKTSCHAP VOOR VEE EN VLEES

refunds on products subject to an single price system (Official Journal, English Special Edition 1969 (II), p. 417),

THE COURT,

c o m p o s e d of: A. O'Keeffe, (President of the First C h a m b e r ) , Acting as President, A. Touffait (President of the Second C h a m b e r ) , J. M e r t e n s de W i l m a r s , P . Pescatore, Lord M a c k e n z i e Stuart, G. Bosco and T . K o o p m a n s , Judges,

A d v o c a t e G e n e r a l : J.-P. W a r n e r Registrar: A. V a n H o u t t e

gives the following

English Special Edition (II), p. 417), such special destinations included which laid down detailed rules for the "supplies for victualling sea-going implementation of Regulation No vessels" (leveranties voor de 441/69, "the amount of the refund paid, bevoorrading van zeeschepen), adopting plus any increase, shall be repaid in the wording of Article 3 of Regulation accordance with the provisions of this No 192/75, but omitting the point article if the proofs referred to in contained in that article that such paragraph (1) are not furnished within supplies to ships must be for victualling the time-limits laid down. In such case, if "within the Community".

Fur- clear the destination of the consignments thermore Article 3 of Regulation (EEC) dispatched. When the Produktschap N o 192/75 of the Commission of 17 subsequently noticed its mistake it sent January 1975 (Official Journal 1975, L Ferwerda a letter on 16 December 1977 25, p. 1) laying down detailed rules for demanding repayment of the refunds the application of export refunds in paid, claiming that the grant of such respect of agricultural products treats as refunds was contrary both to Article 3 of equivalent to exportation, for the Regulation No 441/69 of the Council, purposes of entitlement to a refund, since Bermuda does not appear in the list "supplies for victualling within the of non-member countries constituting Community sea-going vessels or aircraft destinations in respect of which exports of beef and veal qualify for refunds, and

declaration. It appears however from the Bedrijfsleven to contest this request for file put before the Court that this repayment maintaining that it was circular was preceded by another dated entitled to claim a refund because the 12 March 1976. According to the wording of the circular of 15 October annexes to those two circulars, for such 1976 listed amongst the specific products a trader could claim a refund in destinations which were treated as respect of supplies to "special equivalent to an exportation qualifying destinations" (leveranties aan bijzondere for the grant of refunds "supplies for bestemmingen) and a note stated that victualling sea-going vessels" without

giving any reason to think that these administration (algemeen beginsel van words referred exclusively to "supplies behoorlijk bestuur), embodied in the for victualling within the European Netherlands legal system, which requires Economic Community sea-going legal certainty to be preserved. vessels". It was thus misled by the circular in question and this precludes the right of the Produktschap to claim repayment of the refund wrongly The national court wonders in any case granted. whether general rules or principles of Community law preclude the application of the general rules and principles of domestic law referred to above, and if so to what extent. The Produktschap does not dispute that its circular was ambiguously worded but considers on the one hand that the ambiguity was not such as to mislead In those circumstances the national court Ferwerda and on the other that Article 6 took the view that the dispute gave rise (5) of the above-mentioned Regulation to problems of interpretation of No 1957/69 in any event prevents it Community law and by its judgment of from waiving repayment of the refunds 15 December 1978, which was received made. at the Court Registry on 21 December 1978, referred the following questions to the Court of Justice for a preliminary ruling: In its judgment of 15 December 1978 the College van Beroep voor het Bedrijfsleven considers first of all the " 1 . Properly interpreted, does Article 6 legal basis in Netherlands law for the (5) of Regulation (EEC) No obligation to repay refunds wrongly 1957/69 signify that reliance on the received. In this connexion it quotes principle of legal certainty laid down Article 9 (1) of the In- en Uitvoerwet in, or applied pursuant to, a national (import and export law) of 5 July 1962, law is precluded in respect of a claim Staatsblad 1962, No 295, p. 741 [here- for repayment of a refund? inafter referred to as "the 1962 Law"]. That provision states that "the competent minister may withdraw a licence, refund or exemption if the information given in 2. Does it follow from a proper in- order to obtain it appears incorrect or terpretation of Article 6 (5) of Regu- incomplete with the result that a lation (EEC) No 1957/69 that a different decision would have been taken decision to seek repayment of a on the application if the true position refund is not subject to the principle had been fully known at the time when it of legal certainty derived from was considered". In the same judgment Community law? the College declares that in its pro- visional view (naar het voorlopig oordeel van het College) Article 9 of the 1962 Law does not, having regard to the 3. If the answer to Questions 1 and 2 circumstances of this case, provide a must be that it is not possible in legal basis for a claim for repayment those cases to rely on a national and that such a claim might conflict with or Community principle of legal the general principle of proper certainty, does Article 6 (5) of Regu-

The Produktschap considers that there can be no question of such impingement. II — W r i t t e n o b s e r v a t i o n s s u b - The objective of the system of pre- m i t t e d u n d e r A r t i c l e 20 of financing is to make provision, in order the P r o t o c o l on the Statute to offset the advantages for which of t h e C o u r t of J u s t i c e of inward processing traffic qualifies, for a the E E C . similar advantage in respect of goods which are to be exported but which are still in bond, that is, that the refund may A — Observations of the Produktschap be paid in advance in respect of such voor Vee en Vlees. goods on the assumption that it will be subsequently established that the grant of a refund was justified. The Produktschap concedes that the information on the destination of the consignments dispatched, which was It is accordingly an integral feature of contained in the forms completed by that system that the payments are made Ferwerda for the Produktschap, namely at a time at which it is uncertain whether "ms Rotterdam — Bermuda — the person concerned will fulfil his eilanden" ("M.S. Rotterdam — Bermuda obligations. The Produktschap analyses Islands"), was correct and complete so the system of deposits established by that Article 9 (1) of the 1962 Law is not Regulation No 441/69 of the Council applicable to Ferwerda's case. Ferwerda and Regulation No 1957/69 of the was granted refunds on the basis of an Commission and compares them with the

FERWERDA v PRODUKTSCHAP VOOR VEE EN VLEES

The situation in this case is that the B — Observations of the Commission exports were indeed effected but to a territory for which no refund was provided. This objective situation is unaffected by the fact that the person First and second questions concerned may have erred in interpreting the Community provisions or by the fact that at the outset the Produktschap The Commission observes first that perhaps created the impression that the Article 6 (5) of Regulation No 1957/69 statement of the destination was such does not apply in the present case. that the payment would not subsequently According to that provision the amount be called in question. In that case the of the refund paid is to be repaid if the rights of the person concerned could proofs referred to in paragraph (1) — in only be queried if he had formed the particular proof that the goods have left view in good faith that provision had the geographical territory of the also been made for granting a refund in Community or reached their destination respect of supplies to ships anchored within the meaning of Article 3 of Regu- outside the EEC. lation No 1041/67 (Official Journal, English Special Edition 1967, p. 323) — have not been furnished within the time- According to the Produktschap it is limits laid down. Ferwerda has complied moreover unlikely that a person who has with that requirement as to proof. been engaged for a number of years in Further, it is doubtful whether the supplying ships should never have read provision in question is applicable to Article 3 of Regulation No 192/75 errors which may be attributed to a which specifically excludes the possibility national administration. The Commission of such a grant. It is accordingly considers that the application of Article 6 irrelevant to rely on the Produktschap's (5) would constitute an ultra vires act by inaccurate circular because the person the relevant authorities. concerned cannot rely on it in good faith. On the other hand regard must be had The reply to the first question must be to Article 8 of Regulation (EEC) No that the objective of the system of pre- 729/70 of the Council of 21 April 1970

In the cases to which Article 6 (5) of In the alternative the Commission Regulation No 1957/69 applies the queries whether the application of situation, according to the Commission, national legal principles is not restricted is different. In that provision the by Community law. In fact the Court of Community legislature not only laid Justice, in its judgment of 28 June 1977 down the requirements for repayment (Case 118/76 Balkan-Import-Export but also the consequences entailed for GmbH, [1977] ECR 1177), where the persons concerned where no another general principle of the legal repayment is made. The Commission system of a Member State was at issue, doubts whether in such a case, where the concluded that the so-called principle of rules for recovery of the payment natural justice which is recognized in the wrongly made are laid down in such tax, law of the Federal Republic of detail by Community law, there is any Germany cannot be applied by a national room for the principles of national law.

FKRWERDA v PRODUKTSCHAP VOOR VEE EN VLEES

Decision

' By a j u d g m e n t of 15 D e c e m b e r 1978 which was received at the C o u r t o n 21 D e c e m b e r 1978, the College van Beroep v o o r het Bedrijfsleven referred three questions to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y on the interpretation of Article 6 (5) of Regulation ( E E C ) N o 1 9 5 7 / 6 9 of the Commission of 30 September 1969 on additional detailed rules for granting e x p o r t refunds on products subject to a single price system (Official J o u r n a l , English Special Edition 1969 (II), p. 417).

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2 Those questions are worded as follows:

"1 Properly interpreted, does Article 6 (5) of Regulation (EEC) No 1957/69 signify that reliance on the principle of legal certainty laid down in, or applied pursuant to, a national law is precluded in respect of a claim for repayment of a refund?

2 Does it follow from a proper interpretation of Article 6 (5) of Regu- lation (EEC) N o 1957/69 that a decision to seek repayment of a refund is not subject to the principle of legal certainty derived from Community law?

3 The questions were put in the course of an action between Ferwerda B.V. a Netherlands exporter of meat, and the competent authority in the Netherlands which claims that the former should reimburse it the export refunds which the parties agree were wrongly granted and paid following a mistaken application of Article 3 of Regulation (EEC) N o 192/75 of the Commission (Official Journal 1975, L 25, p. 1) laying down detailed rules for the application of export refunds in respect of agricultural products. According to the said Article 3 for the purposes of entitlement to a relund, supplies for victualling within the Community sea-going vessels or aircraft serving on international routes, including intra-Community routes, shall be treated as exports from the Community and confer entitlement to an export refund The file of the national court establishes that the meat exported was intended for victualling ships flying the Netherlands flag sailing in Bermudan waters so that the condition that victualling must take place within the Community if it is to be treated as an export qualifying for a refund was not fulfilled since Bermuda does not appear in the list of non-member countries constituting destinations in respect of which exports qualify for refunds, l h e

FERWERDA v PRODUKTSCHAP VOOR VEE EN VLEES

circumstances of that mistaken application were such that the national court considered it must give a ruling on the point whether the mistaken application was the work of the Netherlands administration or of Ferwerda and decide on what conditions the amounts in question are recoverable from the latter.

7 The arrangements for the fixing and the conditions of collection of the financial charges which the Community is empowered to levy and which specifically constitute its own resources, such as customs duties, agricultural levies and monetary compensatory amounts, and the arrangements concerning the conditions for the granting and payment 'of financial benefits

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te traders from the Community budget are laid down by the Council Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (Official Journal, English Special Edition 1970 (I), p. 224) and the regulations in implementation thereof, together with Regulation (EEC) N o 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (Official Journal, English Special Edition 1970 (I), p. 218) the provisions of which were extended to monetary compensatory amounts by Article 2 of Regu- lation N o 2746/72 of the Council of 19 December 1972 (Official Journal, English Special Edition 1972 (28-30 December), p. 64). These provisions must be considered within the framework of the general arrangements regarding the financial provisions of the Treaty which, like the corresponding arrangements in the Member States, are governed by the general principle of equality which requires that comparable situations may not be treated differently unless difference of treatment is objectively justified.

to the problems concerning the equality of persons in this sphere and the necessarily technical and detailed nature of such provisions means that a judicial interpretation can only provide a partial remedy.

10 It follows, as the Court held in its judgment of 21 May 1976 in Case-26/74 Roquette [1976] ECR 677), that disputes in connexion with the reimbursement of amounts collected for the Community are thus a matter for the national courts and must be settled by them under national law in so far as no provisions of Community law are relevant. In those circumstances it is for the courts of the Member States to provide, in pursuance of the requirement of co-operation embodied in Article 5 of the Treaty, the legal protection made available as a result of the direct effect of the Community provisions both when such provisions create obligations for the subject and when they confer rights on him. It is, however, for the national legal system of each Member State to determine the courts having jurisdiction and to fix the procedures for applications to the courts intended to protect the rights which the subject obtains through the direct effect of Community law but such procedures may not be less favourable than those in similar procedures concerning internal matters and may in no case be laid down in such a way as to render impossible in practice the exercise of the rights which the national courts must protect.

n The considerations set out above have been stated inter alia in the said Regu- lation No 729/70 of the Council, Article 8 of which expressly requires the Member States acting on behalf of the Community to recover financial benefits which have been improperly granted but adds that such recovery shall be "in accordance with national provisions laid down by law, regulation or administrative action".

ie The considerations of the national court show that the principle of legal certainty to which it refers is embodied, with regard to the recovery by the public authorities of export refunds wrongly paid, in Article 9 (1) of the In- en Uitvoerwet in accordance with which "a refund may be withdrawn if the information given in order to obtain it appears incorrect or incomplete with the result that a different decision would have been taken on the application if the true position had been fully known at the time when it was considered".

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i7 Although in the context of an application for a preliminary ruling it is not for the Court of Justice to interpret the national provision in question or determine its precise scope it must nevertheless be found that an application of a principle of legal certainty based on national law, whereby financial benefits wrongly conferred on a trader may not be recovered if the error committed was not due to incorrect information supplied by the recipient or if, despite the fact that the information was incorrect though supplied in good faith, the error could easily have been avoided, does not in the present state of Community law conflict with a general principle thereof.

is It must nevertheless be considered whether Article 6 of Regulation N o 1957/69, and in particular paragraph (5) thereof, the interpretation of which has been requested, constitutes a special provision which forms an exception to the reference to national law and substitutes for it a Community rule unconditionally requiring the trader in question to reimburse the refund granted in error.

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referred to in paragraph (1) are not furnished within the time-limits laid down. In such case, if repayment has been claimed but is not received the deposit which was lodged shall be forfeited".

20 It is unnecessary to decide whether the said Article 6 (5) covers situations such as those at issue in this case and it is sufficient to find that it is impossible to establish from the wording of paragraph (5), and in particular from the words "in accordance with the provisions of this article" alone that it was intended by that provision to make, for proceedings which might arise from the particular situations governed by Regulation No 441/69 of the Council and of the above-mentioned Regulations Nos 1041/67, 192/75 and 2730/79 of the Commission, specific Community arrangements concerning the recovery of payments wrongly made whilst in all other disputes concerning the recovery of refunds national law is to be applied where no Community provisions are applicable.

2i It follows from the foregoing considerations that the reply to the first question must be that Community law in its present state and in particular Article 6 (5) of Regulation No 1957/69 of the Commission do not preclude the application in proceedings concerning the recovery by the authorities of the Member States of sums paid in error as export refunds to traders, of a principle of legal certainty based on national law whereby financial benefits granted in error by the public authorities may not be recovered if the error committed was not due to incorrect information supplied by the beneficiary or if such error, despite the fact that the information supplied was incorrect though provided in good faith, could easily have been avoided.

in answer to the question referred to it by the College van Beroep voor het Bedrijfsleven, by a judgment of 15 December 1978, and received at the Court Registry on 21 December 1978, hereby rules:

Community law in its present state and Article 6 (5) of Regulation No 1957/69 of the Commission of 30 September 1969 (Official Journal, English Special Edition, 1969 (II), p. 417) in particular do not preclude the application, in proceedings concerning the recovery by the authorities of the Member States of sums paid in error as export refunds to traders, of a principle of legal certainty based on national law whereby financial benefits granted in error by the public authorities may not be recovered if the error committed was not due to incorrect information supplied by the beneficiary or if such error, despite the fact that the information supplied was incorrect though supplied in good faith, could easily have been avoided.

O'Keeffe Touffait Mertens de Wilmars

Pescatore Mackenzie Stuart Bosco Koopmans

Delivered in open court in Luxembourg on 5 March 1980.

A. Van Houtte A. O'Keeffe Registrar President of the First Chamber, Acting as President