C-148/87

* Translated from the German.

FRYDENDAHL PEDERSEN v COMMISSION

8. The defendant requests the Court to necessary to depart from the order in which the applicant presented them in its application and to examine first whether the contested decision is not void because the time-limit was exceeded. dismiss the application and order the applicant to pay the costs.

13. 1. The time-limit rules laid down in Article 7 of Commission Regulation No 9. I shall examine the parties' submissions as 1575/80 far as is necessary in the course of my opinion. For the rest I would refer to the contents of the Report for the Hearing. 14. Article 7 of Commission Regulation N o 1575/80 1 which, according to Articles 12 and 13 of Commission Regulation N o 3799/86 2 of 12 December 1986 was in B — Opinion force until 31 December 1986, provided as follows:

10. The applicant seeks a declaration that the decision addressed to the Kingdom of 'If the Commission fails to take a decision Denmark by the defendant stating that the within the period referred to in Article 5 repayment of import duties paid by the (namely, four months of the date on which applicant is not justified is void. Since the the application is received by the applicant is thus directly and individually Commission) 3or fails to notify a decision concerned, it is entitled to bring proceedings to the Member State in question within the under the second paragraph of Article 173 period referred to in Article 6, the of the EEC Treaty. decision-making authority shall grant the application.'

at the latest and the Member State notified 20. Since the period of three months laid of the decision by 18 November 1986. down in the original version of Regulation No 1575/80 had, in the Commission's opinion, proved to give rise to difficulties, in Regulation No 945/83 that period was extended to four months. In the preamble to that regulation the Commission explained 16. Since the Commission's negative that in order to maintain a balance between decision was adopted only on 26 February the interests of the administration and those 1987, it was possibly already illegal on the of the persons concerned, a limit should be ground that it constituted a breach of set to such an extension by increasing the Article 7 of Commission Regulation N o period to four months. That balancing of 1575/80. interests provided for in the regulation had to be respected as long as it was applicable. It was indeed open to the Commission, pursuant to Article 25 (2) of Regulation No 1430/79, 4 to amend the administrative 17. On that point the defendant has procedure and the time-limit rules on its explained that the time-limit rules contained own initiative as it then did when it adopted in Regulation N o 1575/80 proved to be Regulation N o 3799/86. However, before unsatisfactory in individual cases. They were the administrative provisions were amended therefore replaced by new rules which the Commission was bound by the basically extended the time-limit to six provisions in force. To have a Member State months and in addition suspended the withdraw and then re-submit a case in order period if further information was requested to render ineffective the time-limit rule by the Commission. adopted for the benefit of the person concerned therefore appears to be an unac- ceptable circumvention of the provisions of Regulation N o 1575/80.

26. Moreover, it cannot be contended that 23. According to Article 13 of Regulation the applicant acted negligently. Although N o 1430/79, import duties may be repaid in the Common Customs Tariff and Regula- situations resulting from special circumstances tion N o 2695/77 5 had been properly in which no negligence or deception may be formulated, even in the Danish version, in attributed to the person concerned. the period within which the import duties repayable were levied, the applicant cannot be blamed for relying on the Danish legal provisions which did not contain the relevant suspension of duties. In my opinion, the applicant was entitled to expect 24. In view of the fact that the suspension that the national legal provisions correctly of customs duties on the fishing nets reproduced the Community customs law in imported by the applicant did not initially force, especially since the relevant provisions appear in the Danish version of the had never been criticized by the defendant. Common Customs Tariff, but was only included in the version in force from 1978, it cannot be disputed that there was a situation resulting from special circum- stances. After all, the erroneous language version of the Danish customs authorities 27. The defendant's submission that the for which the Community was responsible application for repayment made by the had been the cause of a mistaken interpre- applicant could not be granted because the tation of the Common Customs Tariff. applicant never expressly applied for duty exemption cannot be accepted either. The extensive correspondence conducted by the applicant with the Danish authorities and submitted to the Court must be regarded at least as an implied application for duty 25. Since, pursuant to Article 155 of the exemption. The fact that the applicant did EEC Treaty, it is the Commission's duty to not rely expressly on the Preliminary ensure that the provisions of the Treaty and Provisions of the Customs Tariff or on the the measures taken by the institutions 5 — Commission Regulation N o 2695/77 of 7 December 1977 pursuant thereto are applied, it ought to determining the conditions under which goods for certain have expressly informed the Danish auth- categories of aircraft and ships are eligible upon importation for a favourable tariff arrangement (OJ 1977, orities by 1977 at the latest, when the L 314, p. 14).

28. Even upon an express application of Article 13 of Regulation N o 1430/79 the import duties paid by the applicant must be refunded. In view of the special circum- 3. The legal basis of the contested decision stances for which the Community is responsible, the Commission does not enjoy any discretion. That result is not gainsaid by the judgment of the Court of Justice of 12 March 1987 in Joined Cases 244 and 245/85. 6 It is true that in that judgment the 30. The applicant submits that the Court stated that the applicants could 'only Commission's decision which, according to properly r e l y . . . on arguments seeking to its wording, was adopted on the basis of show the existence . . . of special circum- Council Regulation No 3069/86 8 and stances . . . and not on arguments seeking Commission Regulation No 3799/86, is to show that the decision . . . was unlawful', founded on an incorrect legal basis, because and 'that errors or omissions on the part of Council Regulation No 3069/86 was not the administrative authorities cannot give applicable to applications submitted before rise to the application of the general 1 January 1987. The Commission replies equitable provision provided for in the first that the decision shows clearly that the paragraph of Article 13 of Regulation N o applicant's case was examined with 1430/79 unless such errors or omissions reference to the old rules; the reference to imposed upon a trader a financial obligation Council Regulation No 3069/86 was merely which he had no legal means of an indication of the most recent amendment contesting'. 7 to Regulation N o 1430/79. 6 — Judgment of 12 March 1987 in Joined Cases 244 and 8 — Council Regulation (EEC) No 3069/86 of 7 October 1986 245/85 Cerealmangimi SpA and Others v Commission [1987] ECR 1303. amending Regulation (EEC) N o 1430/79 on the repayment or remission of import or export duties (OJ 7 — Paragraphs 13 and 17. 1986, L 286, p. 1).

32. At all events, either the Commission's decision of 26 February 1987 is founded on an incorrect legal basis, or it is founded on 35. Since Commission Regulation No the appropriate basis to which it does not, 3799/86 was adopted on the basis of however, refer. In my opinion, that question Council Regulation No 1430/79 in the can be left unresolved, since in both cases version contained in Regulation No there is an infringement of Article 190 of 3069/86, which, as already mentioned, the EEC Treaty. After all, that provision provides in the second paragraph of Article requires Community measures to state the 2 that the new provisions which are of reasons which led the institution to adopt importance in this case are to apply to them so as to make possible review by the applications for repayment or remission of Court and so that the Member States and import or export duties submitted to the the nationals concerned may have competent authorities on or after 1 January knowledge of the conditions under which 1987, it must be assumed that Commission the Community institutions have applied the Regulation No 3799/86 is also applicable Treaty. 9 This is especially important for only to the applications referred to in the traders who have not taken part in all the second paragraph of Article 2 of Council Regulation N o 3069/86. Consequently, that 9 — See the judgment of 7 July 1981 in Case 158/80 REWE- Handeisgesellscbaft Nord mbH and Others v Hauptzollami regulation cannot be considered to have Kiel [1981] ECR 1805, and the judgment of 26 March retroactive effect and to that extent the 1987 in Case 45/86 Commission v Council [1987] ECR 1805. applicant's submission cannot be sustained.