C-188/95

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FANTASK AND OTHERS v INDUSTRIMINISTERIET

Østre Landsret seeks guidance on the scope 3. As the eighth recital in the preamble to of that expression and also asks the Court the Directive states: whether, in the light of the ruling in Emmott, 3 a Member State can rely upon a limitation period in proceedings brought against it even though it has failed to imple- ment a directive properly.

'... the retention of other indirect taxes with the same characteristics as ... capital duty or the stamp duty on securities might frustrate the purpose of the measures provided for in this Directive and those should therefore be abolished'.

Relevant Community rules

4. Article 10 of the Directive accordingly provides:

7. The Court held first that charges such as those in issue fell within the scope of Article 10. That was so even though the rev- enue from the charge contributed to the financing of the department responsible for keeping the register. If Member States were able to impose, without any limitation under (e) duties paid by way of fees or dues: Community law, a charge other than capital duty on capital companies in respect of one of the essential formalities for their forma- tion, that would run counter to the objec- tives of the Directive. 5

...'.

8. The Court then went on to consider the scope of Article 12 of the Directive. Distin- guishing its case-law on the Treaty provi- 6. The Court had occasion to consider the sions on charges having an equivalent effect scope of Articles 10 and 12(l)(e) in its judg- to customs duties, the Court held that ment in Ponente Carni. 4 In issue in that case Article 12 permitted the charging of fees or were Italian charges payable on the first reg- dues representing 'the consideration for a istration of a company and annually thereaf- transaction required by law for an object of ter. The level and structure of the charges public interest. That may be precisely the were amended several times during the mate- case with a charge required as consideration rial period. The charges were invariably for a transaction such as the registration of higher for public limited companies than for capital companies which is required by

4 — Joined Cases C-71/91 and C-178/91 Ponente Carni and Cis- padana Coaruzioni [1993] ECR I-1915. 5 — Paragraph 30 of the judgment.

A payment the amount of which had no link with the cost of the particular service or was 11. Law N o 468 of 29 September 1917 and, calculated not on the basis of the cost of the more recently, Law N o 370 of 13 June 1973 transaction for which it is a consideration authorized the competent minister, and later but on the basis of all the running and capital the Danish Trade and Companies Office, to costs of the department responsible for that levy certain charges for registering the transaction would have to be regarded as a formation of public limited companies and tax falling solely under the prohibition of increases in their capital. Corresponding Article 10 of the Directive.

7 — Paragraphs 41 to 43 of the judgment. 6 — Paragraphs 37 and 38 of the judgment. 8 — Paragraph 44 of the judgment.

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FANTASK AND OTHERS v INDUSTRIMINISTERIET

produced a different set of figures for the and budgeting, staff management, computer years 1987 to 1991. The table produced by development, administration of buildings the Audit Board shows surpluses ranging and equipment, library, messenger services from DKR 4.9 million (1980) to DKR 139.4 and staff training. million (1990). The table produced by the Office shows smaller surpluses ranging from DKR 12.0 million (1987) to D K R 90.2 mil- lion (1991).

The facts and the national court's questions

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OPINION OF MR JACOBS — CASE C-188/95

D K R 2 900 (Fantask) to D K R 4 800 000 22. Against that background the national (the Tryg group). court decided to put the following questions to the Court:

'Question 1

20. According to the order for reference the claims of the plaintiffs in the main proceed- Does Community law impose requirements ings are governed by Paragraph 1 of the upon the Member States' delimitation of the Danish Law of Limitations of 22 December concept of "fees or dues" in Article 12(l)(e) 1908, which prescribes a limitation period of of Directive 69/335/EEC or are the indi- five years. Paragraph 2 of the Law provides vidual Member States free to decide what that the period runs in principle from the may be regarded as "fees or dues" for a spe- moment at which payment of the debt could cific service? have been demanded by the creditor, nor- mally the moment when the debt fell due. However, by virtue of Paragraph 3, where the creditor has been unaware of his claim through no fault of his own, the period Question 2 begins to run only from the moment at which the creditor was, or with normal dili- gence would have been, in a position to demand payment of his debt.

May the basis for the calculation of duties charged under Article 12(l)(e) of Directive 69/335/EEC by a Member State for registra- tion of formation or increase in capital of a public limited company or a private limited company include the following types of costs or some of them:

(b) If that is not possible, is a Member State required to adjust its scale of charges every year or at other fixed intervals?

— Payment of interest and depreciation of all capital costs which are regarded by the registration authority as concerning the (c) Is it of any significance for the answer field of company law and related fields of whether charges are fixed in proportion law. to the amount of the capital to be raised, as notified for registration?

Question 4

— The cost of official journeys not con- nected with the specific work of registra- Is Article 12(1)(e) in conjunction with tion. Article 10(c) of Directive 69/335/EEC to be

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Question 6 Does Article 10(c) in conjunction with Article 12(1)(e) of Directive 69/335/EEC as interpreted in the foregoing questions result in rights on which citizens in the individual If national law contains a general principle Member States may rely before the national that, in determining claims for recovery of courts?'

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FANTASK AND OTHERS v INDUSTRIMINISTERIET

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OPINION OF MR JACOBS — CASE C-188/95

of subsidiarity, which the Court must take States would be free to circumvent its provi- into account even in interpreting legislation sions by imposing taxes other than capital existing prior to the entry into force of the duty in the guise of fees or dues for sup- Treaty on European Union. The Danish posed services. Government is supported by the Danish Ministry of Trade and Industry and by the Swedish Government, which considers that the Office was entitled to take all the items of expenditure mentioned in the national court's second question into account in fix- ing the amount of its charges.

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FANTASK A N D OTHERS v INDUSTRIMINISTERIET

both third parties and of the companies 30. It seems to me that the present case themselves'. 12 raises two basic questions: first, for what activities may the Office charge fees or dues within the meaning of Article 12(1)(e) and secondly, what limits does the Directive place on the manner in which such fees or dues are calculated?

— Any fees or duties charged must be cal- culated on the basis of the actual cost of the specific services in question. They may not be fixed so high as to cover 'all Activities for which charges may lawfully be the running and capital costs of the made department responsible'. 13

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Kingdom of Spain and the Portuguese (i) are authorized to represent the com- Republic, 1 6 provides: pany in dealings with third parties and in legal proceedings;

'Member States shall take the measures (ii) take part in the administration, required to ensure compulsory disclosure by supervision or control of the com- companies of at least the following docu- pany. ments and particulars:

(a) The instrument of constitution, and the statutes if they are contained in a sepa- It must appear from the disclosure whether rate instrument; the persons authorized to represent the com- pany may do so alone or must act jointly;

(b) Any amendments to the instruments mentioned in (a), including any exten- (e) At least once a year, the amount of the sion of the duration of the company; capital subscribed, where the instrument of constitution or the statutes mention an authorized capital, unless any increase in the capital subscribed necessitates an amendment of the statutes; (c) After every amendment of the instru- ment of constitution or of the statutes, the complete text of the instrument or statutes as amended to date;

(k) The termination of the liquidation and, in Member States where striking off the register entails legal consequences, the fact of any such striking off.'

17 — Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Mem- ber States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the for- mation of public limited liability companies and the main- tenance and alteration of their capital, with a view to mak- ing such safeguards equivalent, OJ 1977 L 26, p. 1. 32. Under Article 3(4) of the First Directive 18 — Third Council Directive 78/855/EEC of 9 October 1978 those documents and particulars are to be based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies, OJ 1978 L 295, p. 36. disclosed by publication in the national 19 — Fourth Council Directive 78/660/EEC of 25 July 1978 gazette appointed for that purpose by the based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies, OJ 1978 L 222, Member State; disclosure may be limited to p. 11. publication of a reference to the document 20 — Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated deposited. accounts, OJ 1983 L 193, p. 1.

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Article 16 of the Sixth Directive 21 requires made; examination of company accounts and publication of divisions of companies. The supervision of their bookkeeping. Eleventh Directive 22 lays down disclosure requirements concerning a branch opened in a Member State by a company governed by the law of another Member State. Article 3 of the Twelfth Directive 23 requires disclo- sure of single member companies.

35. By its second question the national court inquires about three specific activities: other work of the Office such as preparatory legal work in the field of company law; registra- 37. O n the other hand it is clear that the ser- tion of other matters relating to companies vices provided to individual companies by in respect of which no specific charge is the Office include a number of tasks for which no specific charge is made. It appears that the Office makes a charge only for first registration and for registration of increases 21 — Sixth Council Directive 82/891ÆEC of 17 December 1982 based on Article 54(3Xg) of the Treaty, concerning the divi- in capital. As I have stated above, 24 a regis- sion of public limited liability companies, OJ 1982 L 378, tration authority is responsible for ensuring p. 47. 22 — Eleventh Council Directive 89/666/EEC of 21 December compliance with numerous other registration 1989 concerning disclosure requirements in respects of and disclosure requirements. As I shall branches opened in a Member State by certain types of company governed by the law of another State, OJ 1989 L 395, p. 36. 23 — Twelfth Council Company Law Directive 89/667/EEC of 21 December 1989 on single-member private limited- liability companies, OJ 1989 L 395, p. 40. 24 — At paragraphs 31 to 35.

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FANTASK AND OTHERS v INDUSTRIMINISTERIET

38. As regards, more specifically, examina- tion of accounts and accounting records, it must be remembered that Article 51(1) of the Fourth Directive on company law 26 lays down a compulsory audit requirement for companies (other than very small compa- nies). The Eighth Directive 27 lays down Calculation of the cost of the services rules governing the qualifications of persons or firms who may be approved by Member States for the purpose of carrying out a statutory audit. It may be assumed that such an audit, which is also carried out partly in the general interest and for which a fee is charged by the auditor, will include inspec- tion of a company's accounting records and accounts with a view to ensuring that they accurately represent the affairs of the com- pany and comply with accepted accounting 40. It is clear from paragraph 41 of the judg- practice and with statutory or stock ment in Ponente Carni that any fees or exchange requirements. duties charged must be calculated on the basis of the actual cost of the specific services in question. In paragraph 42 the Court added that a Member State could not charge an 25 — At paragraph 45. amount which 'had no link with the cost of 26 — Cited in note 19. 27 — Eighth Council Directive 84/253/EEC of 10 April 1984 the particular service or was calculated not based on Article 54(3)(g) of the Treaty on the approval of on the basis of the cost of the transaction for persons responsible for carrying out the statutory audits of accounting documents, OJ 1984 L 126, p. 20. which it is a consideration but on the basis

41. That passage makes it clear that the fees 42. The Court's statement, cited above, in must reflect the costs of specific services and Ponente Carni that the charges should not be cannot be used to finance the general admin- based on 'all the running and capital costs of istrative expenditure of the department con- the [relevant] department' may have been cerned. In that regard the Danish Govern- prompted by the Italian Government's sug- ment's reference to the judgment in gestion that the fees could be fixed at a level Corbeau 28 is inapposite. There the Court which would finance the entire machinery accepted, in the context of Article 90 of the for disclosure of documents. As I noted in Treaty, that it was legitimate to protect an my Opinion in that case, the only costs undertaking entrusted with the performance which can be taken into consideration in set- of certain tasks in the general interest, such ting the fees are the administrative costs of as the provision of postal services, from effecting the registration (including, I should competition in profitable sectors of its activ- add, publication in the appointed national ity in order to allow it to achieve an econ- gazette). The other costs of the system, in omic equilibrium by offsetting less profitable particular those involved in providing copies sectors against the profitable sectors. 29 The of documents to individuals, cannot properly rationale for that principle is clear. In the be charged to the companies but must be absence of restrictions on competition pri- financed by other means, for instance by vate operators not subject to the same obli- means of a fee charged to the recipients of gations as the public-service operator would the information as expressly permitted by be able to undercut the latter's prices in the Article 3(3) of the First Directive. 31 profitable sectors, leaving it solely with the unprofitable sectors. 30 That ruling, which takes account of the varying cost structures of the different sectors of a public-service undertaking's economic activity, has no rel- evance to the activities of the Office. Any profits which the Office makes from com- pany registration will not be used to subsi- dize other, less profitable sectors of an 43. The present case, in particular the national court's second question, requires the

Court to go a little further than in Ponente interest and depreciation costs and the cost Carni and offer more detailed guidance on of disseminating information in the field of the manner in which the costs of a registra- company law must be left out of account to tion authority are to be calculated. It would the extent to which they are not directly in my view be appropriate to base the calcu- connected with the specific work of registra- lation of the relevant costs on the normal tion or filing. O n the other hand, the fees principles of cost or management accounting. charged could, I think, lawfully cover the In other words, the fees may reflect the cost of publications directly linked to the direct costs and overheads of the authority registration and filing services, e. g. guides attributable to the services in question. Thus, for directors concerning disclosure require- such costs might include, in addition to ments. direct material costs and the salary and social security costs of the staff carrying out the services, a proportion of the overheads of the authority such as lighting and heating, staff management costs, computer operation and development costs, office rents or deprecia- tion, depreciation of other fixed assets such as furniture and equipment etc. The propor- tion of such costs referable to registration services should, where possible, be deter- 45. I accept the Danish Government's mined by direct attribution, for example by proposition that in the interests of adminis- identifying the rent payable for the offices trative simplicity the Office should be able to used specifically for the services in question. limit its charges to major transactions and Where costs relate both to registration ser- pass on the costs of comparatively minor ser- vices and to other activities such as prepara- vices (e. g. recording changes of registered tory work on legislation, it will be necessary office or directors) in the registration charges to make an apportionment on the basis of which it does make. The contrary view appropriate criteria such as staff employed would require the Office to make individual on the various types of activity, office space charges for every service which it performs, however small. used, computer time used etc.

47. However, while I am willing to accept that registration of the formation of larger 48. In any event it is clear in the present case public companies and of large share issues, that the proportional charge goes beyond possibly in conjunction 'with a merger or application of a solidarity principle. The lack restructuring, may involve more than the of any direct correlation between the costs of average time required for registrations gener- registration and the amount of capital raised, ally, I doubt that the costs of such transac- the high level of the proportional charge tions and the amount of capital raised (DKR 4 per DKR 1 000) and the absence of increase in direct proportion. The Danish any ceiling on the charge will inevitably have Government itself implicitly acknowledges led, during the period in question, to charges that when it suggests that its scale of charges which in total exceeded the total costs of the introduces a degree of solidarity between services provided to companies. Confirma- larger and smaller companies. As Norsk tion of that is provided by the surpluses Hydro and Tryg-Baltica Forsikring pointed shown by the tables set out in the order for out at the hearing, such solidarity is difficult reference. While I accept that small or iso- to reconcile with the Court's statement in lated surpluses may be necessary to cover Ponente Carni that, although a Member State future pension commitments (depending on might charge different fees for public and how pensions are funded), to supplement private companies, 'none of the amounts depreciation reserves for replacement of required for any of the companies [should fixed assets or to cover deficits in other exceed] the costs of the transaction of regis- years, the large recurring surpluses shown by tration'. Contrary to the suggestion of the the Audit Board's figures or even those of Danish Ministry, I do not think the Court's the Office are scarcely consistent with the ruling in Corbeau, referred to above, has any proposition that the Office merely covered relevance here. Unlike, for example, a post its costs. Moreover, it is apparent from the office which must provide unprofitable ser- order for reference that the Audit Board vices to the population of outlying districts, came to the view that the Office's charges there is no particular reason why the Office were substantially in excess of costs (which should not be able to structure its charges to in fact include the cost of certain activities cover its costs for the various services offered which cannot be regarded as services pro- to companies of different sizes. That must vided to the companies).

49. Ultimately, however, it is for the national 52. In my view it is appropriate to leave it to court, in the light of the criteria set out the national court to arrive at the best esti- above, and the figures which are available to mate of any repayment due in the light of it, to determine the amount of the costs of the figures available to it. The national court the Office which could lawfully be passed on could base its calculation either on the actual to the plaintiffs in the main proceedings and cost to the registration authority of the spe- the amount of any repayment due. cific services supplied to each company or, if that is not possible, on the average cost of the services at or about the relevant time or, if necessary, over a longer period. If the repayment is based on average costs, it may be appropriate for the national court, if it is able to do so, to adjust the figures to take account of the different costs of larger and smaller transactions. 50. With reference to the national court's third question it is clear from the judgment in Ponente Carni that a Member State is entitled to charge flat-rate fees where the costs of specific services would be difficult to determine. It seems to me that that will nor- Questions 6 and 7 mally be the case since individual costing is unlikely to be practicable in the case of a companies registry responsible for process- ing large numbers of comparatively small transactions. A Member State is however obliged to review its fees periodically, per- haps every few years, in order to ensure that 53. By its sixth question the national court they do reflect the costs of the transactions asks whether Community law precludes it concerned. from dismissing the claims for reimburse- ment on the ground that the charges were levied in pursuance of rules which had been in force for a long time and had been assumed by all concerned to be lawful. The national court's seventh question is designed to establish whether the time-limit for insti- tuting proceedings could begin to run before the Directive was properly implemented. 51. By its fifth question the national court asks whether any repayment which falls to be made must be calculated on the basis that the duty should reflect the cost of the spe- cific service at the moment at which the ser- vice is performed, or whether the calculation can be based on a comprehensive assessment 54. The latter question is prompted by the over a longer period, for example an Court's ruling in Emmott, 32 a case concern- accounting year or the period within which it is possible under national law to assert a claim for recovery. 32 — Cited in note 3.

'So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individu- als subsists even after the Court has deliv- ered a judgment finding that the Member 55. The Danish, French, Italian and United State in question has not fulfilled its obliga- Kingdom Governments consider that the tions under the Directive and even if the principle as formulated above is too broad Court has held that a particular provision or inasmuch as it has the effect of imposing provisions of the Directive are sufficiently almost limitless retrospective liability on precise and unconditional to be relied upon Member States. Norsk Hydro and Tryg- before a national court. B al tica, Alka Forsikring and others and the Commission contend that the Court should adhere to its ruling in Emmott, so that the five-year limitation period did not begin to run until 1 May 1992 when Denmark imple- mented the Directive by abolishing the supplementary charge. They argue that to allow a Member State to rely on time-limits in a case such as the present would permit it Only the proper transposition of the Direc- to escape the consequences of its own tive will bring that state of uncertainty to an unlawful conduct and discourage it from taking steps to remedy the defects in its rules.

33 — Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treat- ment for men and women in matters of social security, OJ 1979 L 6, p. 24. 34 — Paragraphs 21 to 23 of the judgment.

59. Turning to the reasoning underlying the ruling, the French Government noted that the Court's statement that, until a directive had been properly transposed into national 57. All the Governments have emphasized law, individuals were unable to ascertain the the far-reaching financial consequences of full extent of their rights was unsupported in the Emmott ruling. For example, at the hear- the judgment. The French Government ing the Italian Government stated that, fol- referred however to the passage in the Opin- lowing the Court's judgment in Ponente ion of Advocate General Mischo in which he Carni, the Italian courts, applying the ruling argued that the very nature of the directive in Emmott, had set aside the three-year time- precluded its final date for implementation limit laid down by national law, exposing the from being taken as the starting point of the Italian State to substantial repayment claims. Similarly the French Government pointed to a judgment of 9 July 1996 in which the 35 — Joined Cases C-197/94 md C-252/94 Bautiaa and Société French Cour de Cassation, referring to Française Maritime [1996] ECR 1-505.

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three-month period for applying for judicial must have transposed it, as well as the fact review. H e said: that the period begins to run from the date of notification of the directive to the Mem- ber State. However, that date is not given and there is no reason to suppose that indi- viduals are aware of it.

36 — See C u e 152/84 Marshall v Southampton and South West Hampshire Area Health Authority [1986] ECR 723. 37 — Paragraphs 26 to 29 of the Opinion.

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61. Secondly, it argues that it is immaterial 64. Although, as I shall explain below, I whether the publication of a directive satis­ think the result in Emmott can be justified, I fies a legal obligation imposed by the Treaty. share the Governments' reservations about What matters is whether it was actually pub­ the broad wording of the ruling. lished. Directives have in practice been pub­ lished systematically for many years, and Article 191 of the Treaty, as amended by the Treaty on European Union, now requires publication of most directives.

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given greater protection than those arising Although not requiring implementation in from the Treaty itself or from measures national law, Treaty provisions, which by which have direct application under the nature are broadly worded, often leave con- Treaty. siderable scope for uncertainty as to the extent of the rights, if any, which they confer on individuals.

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70. The scope for error in applying such leg- States and public bodies to plan their income islation is considerable. Regrettably that is and expenditure and to ensure that their particularly so in the case of Community budgets are not disrupted by huge unfore- legislation, which is often rather loosely seen liabilities. That need was particularly drafted. For example, the provision in issue clear in Denkavit, 43 in which repayment was in Ponente Carni and in the present case is sought of the annual levies imposed by the hardly a model of clarity: the Directive pro- Netherlands Chambers of Trade and Indus- vides no indication of the scope of the term try in order to finance their activities. As I 'fees or dues' or how they are to be calcu- noted in my Opinion in that case, retrospec- lated. The recent Argos 39 and Elida Gibbs 40 tive claims of up to 20 years would have had cases provide a further example of how huge catastrophic effects on their finances. 44 repayment claims can arise from a compara- tively minor error 41 in implementing a Community tax directive. In those cases the Court found that the fiscal treatment accorded by the United Kingdom to voucher transactions — used extensively in that Member State as a business promotion tech- nique — was not in accordance with the Sixth VAT Directive. The resultant repay- ment claims are reported to be between £200 and £400 million. 42

Subsequent case-law on time-limits to a period not exceeding 12 months prior to a claim, could equally be viewed as a time- limit barring claims in respect of a particular period after 12 months; although in most cases the application of such a time-limit will merely reduce the amount of benefit paid, it will lead to complete denial of the claim in all cases in •which entidement to benefit has 73. It is clear from the rulings in Steenhorst- ceased 12 months before the claim is made. Neerings 45 and Johnson 46 that Emmott does not preclude reliance on rules limiting the period to which a claim may relate back. It might be thought that such time-limits are distinguishable from time-limits for bringing proceedings, such as the three-month time- limit for applying for judicial review in Emmott; the latter constitute an absolute bar to a claim whereas the former merely limit the extent of the claim: see paragraph 21 of the judgment in Steenhorst-Neerings. 75. Some time-limits are of a hybrid nature. For example United Kingdom law com- monly lays down comparatively short time- limits for appealing against current assess- ments to tax, while separately allowing a taxpayer to make a claim in respect of previ- ous years on more limited grounds. 48 The latter type of time-limit, although expressed 74. As I shall explain below, 47 the judg- as a time-limit on retrospective claims, might ments in Steenhorst-Neerings and in particu- equally be viewed as an extended time-limit lar Johnson suggest however that in Emmott for bringing proceedings but on more lim- it was the application of the time-limit in the ited grounds. particular circumstances of the case which denied Mrs Emmott the opportunity to assert her rights under the directive in the courts. Moreover I doubt whether it is pos- sible to make any general distinction of the kind mentioned above between the two types of time-limit. For example, a five-year time-limit for instituting proceedings, if applied to recurring taxes or benefits, could equally be viewed as a rule limiting to five 76. In any event, as I noted in my Opinion years the extent to which a claim may relate in Denkavit, the Court's reasoning in back. Conversely a rule, such as that in Emmott, in particular the statement that an Johnson, which limits entitlement to benefits individual cannot ascertain his rights until a directive has been properly implemented,

77. Moreover, BP Supergas 49 concerned a similar type of time-limit to that in issue in Emmott, namely a three-year time-limit for bringing proceedings laid down by Greek law; yet the Court, although referring to Emmott, did not suggest that the ruling pre- cluded reliance on such a time-limit in the absence of proper implementation of the Sixth VAT Directive. 79. In Comateb 51 the Court held that a Member State could, on certain conditions, resist repayment of charges levied in breach of Community law on the ground that repayment would unjustly enrich the trader. In the framework of repayment proceedings Recent case-law on State liability in damages a national court could, where domestic law permitted, take account of damage incurred by the trader by way of loss of business which wholly or partly negated any unjust enrichment on his part. The Court also rec- ognized the right of the trader to bring a separate damages claim subject to the condi- tions laid down in Brasserie du Pêcheur in the competent courts in accordance with the 78. The issues arising from the Emmott rul- appropriate procedures of national law in ing cannot however be considered in isola- order to obtain reparation of the loss caused tion. It is necessary, in assessing the by the overpaid charges (irrespective of adequacy of the protection of Community whether those charges had been passed on). rights, in particular those under directives, to have regard also to more recent develop- ments in the case-law, in particular the line 50 — Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357. 51 — Joined Cases C-192/95, C-193/95 and C-196/95 to C-218/95 Société Comateb and Others v Directeur Général 49 — Case C-63/93 SP Supergas v Greek State [1995] ECR des Douanes et Droits Indirects, judgment of 14 January 1-1883. 1997.

80. In Sutton 52 the Court held that Article 6 different nature, and what is recoverable of the Equal Treatment Directive did not under each may differ. For example, interest require a Member State to pay an individual on arrears of benefit irrecoverable under an interest on arrears of a social security benefit entidement claim may be recoverable under such as invalid care allowance where the a damages claim. delay in payment of the benefit was the result of discrimination prohibited by the Directive. The Court distinguished its judg- ment in Marshall II, 53 where it had held that compensation for discriminatory dismissal could not leave out of account factors, such as effluxion of time, which could reduce its value; in such a case the interest was an essential component of the compensation. By contrast, amounts payable by way of arrears of social security benefits did not in any way constitute reparation for loss or damage of the kind in issue in Marshall II. However, the Court pointed out that Mrs Sutton might have a claim in damages if the conditions laid down in Brasserie du Pêcheur 54 were met. It was for the national court to verify whether that was so and to determine the amount of the damages. 82. It seems to me that, in matters of taxa- tion and social security, an individual should be able, where the conditions for a Francov- ich claim are met, to obtain full compensa- tion for loss or damage incurred, including the amount of the tax overpaid or benefit withheld (subject to the setting off of amounts actually obtained by means of other remedies). The duty to mitigate loss or dam- age by using other remedies, recognized by the Court in Brasserie du Pêcheur, 55 has no 81. Thus, in those judgments the Court rec- relevance to the restitutionary or entitlement ognized that repayment or entidement element of the claim, i. e. the amount of the claims against State authorities and damages overpaid tax or benefit denied. Whereas the claims against the State may co-exist as inde- duty to mitigate will be relevant in the case pendent remedies in matters of taxation and of a loss of profits, the loss corresponding to social security. Repayment or entidement overpaid tax or denial of benefits will not be claims and damages claims are claims of a aggravated by the delay in bringing proceed- ings. 56

85. An important factor in Emmott was that it would have seemed unjust in the particular circumstances of the case to permit the Irish authorities to rely on the time-limit laid down by national law. As I noted in my Opinion in Denkavit, 57 the Court in its rul- ings in Steenhorst-Neerings and Johnson emphasized the following circumstances: Mrs Emmott had sought payment of the benefits in question on the basis of the Court's judgment in McDermott and Cot- 84. Such an approach has a number of ter; 58 the administrative authorities had advantages. It provides comprehensive pro- declined to adjudicate on her claim until the tection of individual rights within the exist- litigation concerning the directive pending ing framework of remedies and time-limits, before the national courts had been con- making it unnecessary to set aside national cluded; and the authorities sought to rely on time-limits for repayment or entitlement the time-limit notwithstanding the failure claims. It draws a proper balance between correctly to implement the directive. individual rights and the collective interest in legal certainty; in particular it takes proper account of the degree of culpability of the State in failing properly to implement a directive and ensures that claims are properly categorized and brought in the appropriate courts in accordance with appropriate sub- stantive and procedural conditions, in par- 86. Consequently, as the Court stated in ticular time-limits. Moreover, while not giv- Johnson, 59 'the solution adopted in Emmott ing unduly privileged treatment to rights was justified by the particular circumstances under Community directives, such an approach will nevertheless provide a sub- stantial incentive to Member States to imple- 57 — Cited in note 43. ment directives on time and to make every 58 — Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453. effort to do so properly; it will also encour- 59 — Paragraph 26 of the judgment.

87. Similar rulings based on principles of equity and good faith are to be found in the case-law of national courts. 60 I do not in fact think it is necessary to develop any new principle of Community law in order to explain the result in Emmott. As I suggested in my Opinion in Denkavit, the ruling can be seen as an application, albeit a new appli- 88. It seems to me that so understood the cation, of the 'well-established principles laid Emmott principle, although confined to very down in Rewe and subsequent cases, 61 in exceptional circumstances, continues to pro- particular the principle that the exercise of vide an important safeguard notwithstanding Community rights must not be rendered the more recent developments in the case- excessively or unduly difficult. The ruling law which I have discussed above. An indi- can be read as standing for the proposition vidual must be allowed to make use of all available remedies. The existence of another claim, for example a claim for damages in the 60 — Sec, by way of analogy, the judgment of the Baden- competent courts, cannot justify the obstruc- Württembergischer Verwaltungsgerichtshof of 21 October tion of a repayment or entitlement claim 1992 (Vervialtungsblatter für Baden-Württemberg 1993, 220). There the court, referring to the principle of good which an individual was seeking to exercise. faith applicable in German administrative law, set aside the time-limit laid down by national law for challenging an administrative measure because the authority concerned led the individual to believe that it was reconsidering the mat- ter. See also, for English law, the judgment of the English Court of Appeal in Unilever [1996] C O. D. 421 (where it was held that it would be an abuse of power for the revenue authorities to rely on a two-year time-limit for claiming losses when they had not done so previously) and Order 53 of the Rules of the Supreme Court, which allow the three- month period for applications for judicial review to be The present case extended if there is 'good reason' for the applicant's delay. 61 — See Case 33/76 Rewe vLandwirtscbaftskammer Saarland [1976] ECR 1989, paragraph 5 of the judgment; Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, paragraph 13; Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 12; Case C-208/90 Emmott, cited in note 3, paragraph 16; Joined Cases C-6/90 and C-9/90 Francovich and Others, cited in note 50, paragraph 43; Case C-338/91 Steenhorst- Neerings, cited in note 45, paragraph 15; Case C-410/92 Johnson, cited in note 46, paragraph 21; CaseC-312/93 Peurbroeck v Belgian State [1995] ECR I-4599, paragraph 12; Joined Cases C-430/93 and C-431/93 Van Schindel [1995] ECR I-4705, paragraph 17; Casc C-212/94 f MC and Others v Intervention Board for Agricultural Produce and 89. With reference to the national court's Another [1996] ECR I-389, paragraph 71. seventh question, I therefore take the view

90. Apparently more objectionable however is the so-called 'forest fees' principle referred to in the national court's sixth question, a principle which was developed by the Højes- Question 8 teret (Danish Supreme Court) in its judg- ment of 17 January 1899 and which takes its name from the fees in issue in the case. The principle, as described in the order for refer- ence (the parties disagree about its scope and effect), would require the national court, in determining claims for recovery of charges made without the requisite authority, to have regard to the fact that the charge was made in pursuance of rules which had been in force over a long period without either the authorities or other parties having been 92. The final question is whether aware that the charge was unauthorized. Article 10(c), in conjunction with Article 12(1 )(e), of Directive 69/335 confers rights on which individuals can rely before the national courts. That question must clearly be given an affirmative answer, the provisions in question being unconditional and sufficiently precise. That answer is 91. In so far as the effect of the principle is implicit in the judgment in Ponente Carni. 64 to negate the otherwise reasonable period allowed by Danish law for contesting charges, it renders the exercise of rights con- 62 — Cited in note 61. ferred by the Directive virtually impossible 63 — Paragraph 72 of the judgment. or excessively difficult contrary to the 64 — See paragraph 38 of my Opinion in that case, and on Article 4(2)(b) of the Directive see Case C-38/88 Siegen requirements laid down by the Court in [1990] ECR I-1447.

I-6818

FANTASK AND OTHERS v INDUSTRIMINISTERIET

(3) A Member State is entitled to fix standardized charges where individual cost- ing of services is not practicable. It must however periodically review its charges, whether fixed on a flat-rate basis or containing a proportional ele- ment, in order to ensure that they do not exceed the average costs of the ser- vices provided. A Member State is not entitled to levy, in addition to a flat-rate basic charge, a charge with no upper limit increasing in direct proportion to capital raised where that results in total average charges which exceed the aver- age cost of the services provided and in a disproportionately high level of fees for certain companies.

(4) It is appropriate to leave it to the national court to arrive at the best estimate of any repayment due in the light of the figures available to it. The national court could base its calculation either on the actual cost to the registration authority of the specific services supplied to each company or, if that is not possible, on the average cost of the services at or about the relevant time or, if necessary, over a longer period. If the repayment is based on average costs, it may be appropriate for the national court, if it is able to do so, to adjust the figures to take account of the different costs of larger and smaller transactions.

(5) Community law precludes dismissal of an action for recovery of charges levied contrary to Directive 69/335 on the ground that the charge was made in pur- suance of rules which have been in force over a long period without either the authorities or other parties having been aware that the charge was unautho- rized.