C-386/87

OPINION OF MR JACOBS —CASE 386/87

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 26 September 1989 *

* Original language: English.

BESSIN ET SALSON v ADMINISTRATION DES DOUANES ET DROITS INDIRECTS

three-year limitation period laid down in the '(1) Do the provisions of Council Regu­ French Customs Code. To displace the lation (EEC) No 1430/79 of 2 July application of those national rules, the 1979 on the repayment or remission of Company sought to rely on Community import or export duties apply in a case law, in particular Article19 of Council where an application for reimbursement Regulation No 1430/79 of 2 July 1979 on of customs duties was submitted to the the repayment or remission of import or competent authorities of a Member export duties (Official Journal 1979, L 175, State by an importer after that regu­ p. 1), which provides: lation had entered into force in respect of duties paid prior to its entry into force?

OPINION OF MR JACOBS — CASE 386/87

result of the complete failure of the the regulation. The French Government and competent authorities of a non-member the Commission, on the other hand, country to provide the EUR 1 forms consider that such an interpretation would which are necessary for such an lead to retroactive application of the regu­ application and when the importer has lation, contrary to Community law. They repeatedly explained to the competent both consider that the first question should authorities of the Member State that it be answered in the negative, i. e. to the was absolutely impossible for him to effect that the regulation does not apply to submit the said forms which the the circumstances stated. Relying in competent authorities of the particular on Joined Cases 212 to 217/80 non-member country had to send to Amministrazione delle Finanze dello Stato v him but which he received, counter­ Salumi [1981] ECR 2735 and Case 113/81 signed retroactively, only 10 years after Reichelt v Hauptzollamt Berlin-Süd [1982] the imports in question had ECR 1957, they argue that the regulation commenced? applies only to future transactions and that the relevant transactions are either the entry in the accounts (a phrase defined at Article 1(2)(e) of the regulation) or the payment of the amount in question: the lodging of a claim for reimbursement or the national customs authorities' decision on such a claim are not relevant transactions (4) In so far as the answer to Questions 1 for this purpose, nor is it relevant whether a and 2 or to Question 3 is in the dispute is still in progress over an amount affirmative, may the importer claim which has been paid or entered in the interest on the amount of the customs accounts. duties which he is seeking to have repaid and, if so, from what date?'

7. That the terms of Article 19 are to be 8. 'Entry in the accounts' is defined in read subject to Article 2(2) in this respect is Article 1(2)(e) of Regulation No 1430/79 confirmed by the amendment effected by as 'the official act by which the amount of Regulation No 3069/86. The fifth recital of the import duties or export duties to be the latter regulation states: collected by the competent authorities is duly determined'. In my view it is reasonable that that should be the relevant event for the present purpose because it is the first time that the importer or exporter can know the amount demanded of him and 'Whereas this time-limit [namely in can form a view as to whether he should Article 13] and those laid down in the claim its repayment or remission. The date second subparagraph of Article 3(2), the of payment of the sums in question might be second subparagraph of Article 5(2), the envisaged as an alternative, but I would second subparagraph of Article 10(2) and reject it for two reasons. First, it would the second subparagraph of Article 13(2) conflict with the wording of the regulation. may be exceeded only in duly justified Secondly, it would be less satisfactory as a exceptional cases; whereas Article 19 choice of starting point because the therefore applies only to the time-limit importer or exporter could extend the referred to in Article 2; whereas the text period unilaterally by delaying payment, should consequently be simplified by which could engender inequalities between amending Article 2 and deleting Article 19.' one case and another and would provide less legal certainty than the criterion of 'entry in the accounts'. The same reasons exclude a fortiori the possibility of using as the relevant event the date of the claim for Accordingly Article 1 of Regulation No reimbursement and still more the date of the 3069/86 deleted Article 19 from Regulation decision on such a claim; indeed the latter No 1430/79 and inserted the following of those two possibilities has already been subparagraph after the first subparagraph of expressly excluded by the Court in Reichelt Article 2(2) thereof: (see point 2 of the ruling).

the reimbursement of duties paid prior to its national authorities that he was unable to entry into force. supply those certificates which the auth­ orities of the non-member country should have given him and which were only supplied a posteriori 10 years after the imports in question began. The French Government and the Commission, on the other hand, contend that in the absence of Community rules on the reimbursement of customs duties unduly paid (and in their 10. Even if the regulation did apply, the view it follows from their proposed answer Company would face two further diffi­ to the first question that no such culties: First, Article 19 grants only a power Community rules were in force at the and not an obligation to derogate from the relevant time in the present case) the matter three-year period laid down in Article 2. is governed by national law both as to Secondly, the case might be regarded as substance and as to procedure, provided falling under Article 10(1)(e) of the regu­ that the national rules do not result in lation as a 'special situation' rather than claims under Community law being dealt under Articles 2 and 19, from which it with less favourably than claims under would follow under Article 10(2) that the national law or make claims under basic period for applying for reimbursement Community law impossible. The would be three months, not three years as Commission and the French Government under Article 2. However, those difficulties take the view that there are no aspects of do not arise if, as I propose, the first the present case to bring it within the question is answered in the negative. Nor, proviso. Therefore at the relevant time, on that view, does the second question fall Community law did not prohibit the to be considered. national law of a Member State from imposing a three-year prescription period on claims for the reimbursement of customs duties paid but allegedly not due.

legislation was applicable to the matter at regarding interest, does not fall to be the relevant time. Therefore national law considered. governed the question of the limitation period at that time. The Court's case-law imposes two conditions on the applicability of national law in such circumstances: it should not discriminate between claims under Community law and similar claims under national law, and it should not make the exercise of rights conferred by Community law impossible in practice: see 14. If it did fall to be considered, the for example Case 130/79 Express Dairy Commission submits that national law not Foods v Intervention Board for Agricultural Community law governs the award of Produce [1980] ECR 1887. It is not interest (as it governs other aspects of the suggested in this case that application of the procedure) on claims for the reimbursement three-year limitation period prescribed by of customs duties such as the present one. French law infringes either of those The Company, for its part, argues that, conditions, and indeed it is difficult to see since the reimbursement of the customs how it could. On the other hand, the duties in question is dictated by a general application of that limitation period in my principle of Community law (the principle view proceeds from a concern to ensure of fairness), Community law also requires legal certainty which is common to the legal the importer to be adequately compensated order of the Community and to the laws of for being kept out of his money for the the Member States. Moreover, the period of duration of the dispute, and hence requires three years prescribed by French law in this interest to be awarded on customs duties case appears reasonable and adequate to unduly paid, such interest to run from the ensure the legal protection of the date of payment of the duties by the Community citizen, particularly when it is importer. borne in mind that the limitation period approved by the Court in Comet was 30 days and in Rewe was one month or, in certain circumstances, one year. In my view, therefore, the general principles of law recognized in Community law do not prohibit the application of a limitation period under national law such as that in the present case. 15. It is clear from the Court's case-law that, in the absence of any applicable Community law, the question of interest, like that of limitation periods, is governed by national law: see in particular Case 26/74 Roquette v Commission [1976] ECR 677, at p. 686, paragraphs 12 and 13 and Case 130/79 Express Dairy Foods [1980] ECR 1901, paragraph 17. However, in my opinion, no such reference to national law falls to be made in the present case, because Community law does not require the re­ imbursement of the customs duties claimed 13. If Questions 1 and 3 are answered in outside the limitation period imposed by the negative, as I propose, Question 4, national law.