C-467/01

II — Legal background 4. Article 47 of the version of Regulation No 3665/87 as amended at the time of the facts in the main proceedings provided as 2. Commission Regulation (EEC) follows: No 3665/87 2 entered into force on 1 January 1988 and was amended several times before being repealed and superseded by Commission Regulation (EC) No 800/1999. 3Regulation No 800/1999 '1. The refund shall be paid only on entered into force on 24 April 1999 and has written application by the exporter been applicable since 1 July 1999. Under and shall be paid only by the Member State in whose territory the export declaration was accepted. 1 — Original language: German. 2 — Regulation or 27 November 1987 laving down common detailed rules for the application of tile system or' export refunds on agricultural products (OJ 1987 1. 351, p. 1). 3 — Regulation of 15 April 1999 laying down common detailed rules tor the application of the system of export refunds on agricultural products (OJ 1999 I 102, p. 11).

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2. Except in cases of force majeure, the 5. Article 48(2)(a) of Regulation documents relating to payment of the No 3665/87 provided: refund or release of the security must be submitted within 12 months follow- ing the date on which the... export declaration was accepted.

'Where proof that all the requirements laid down by Community rules have been complied with is produced within six months of expiry of the periods set in 3. ... Article 47(2), (4) and (5), the refund paid shall be 85% of the sum which would have been paid if all the requirements had been complied with.'

Where, however, by reason of force 10. It should be added that the successor majeure, provisions in Articles 49 and 50 of Regu- lation No 800/1999 largely echo the above- mentioned Articles 47 and 48 of Regulation No 3665/87. Article 49(5) of Regulation No 800/1999, the successor provision to Article 47(5) of Regulation No 3665/87, — the proof to be furnished under this provides: Regulation in order to qualify for the refund cannot be produced, or

— the product arrives at a destination 'However, if those applications are sub- other than that for which the advance mitted within six months following this was calculated, time-limit, the provisions of the first subparagraph of Article 50(2) shall apply.' 4

4 — This footnote refers TO a corrigendum for the German text, the additional 15% shall not be charged.' which does not concern the English version.

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The first subparagraph of Article 50(2) of 14. By letter of 19 October 1996 the Regulation No 800/1999 corresponds to Ministero refused the applications. The Article 48(2)(a) of Regulation No 3665/87. grounds given were that at the time of the application Eurico still had a further six months available to submit the missing documents. The Ministero also found that despite the fact that the maximum periods laid down by Article 47(2) and Article 48(2) of Regulation No 3665/87 had expired, the documents were still missing. The Minis- III — Facts, procedure and questions tero concluded from this that the appli- referred cation for the granting of export refunds should be refused.

in export refunds. By judgment of 19. In the main proceedings Eurico sub- 3 February 2000 the Tribunale di Genova, mitted that Article 48 of Regulation rejecting objections of lack of jurisdiction, No 3665/87 suggests neither that the allowed the claim by Eurico on the basis of granting of further time is subject to a Article 47(4) of Regulation No 3665/87. As maximum limit, nor that the total period grounds, it stated that 'the claimant is for submission of the necessary documents asserting its entitlement to be granted may not exceed 18 months. further time for submission of the docu- ments evidencing release for consumption which it could not submit within the 12 months following the date of acceptance of the export declaration even though the exporters had been diligent in seeking to obtain them (a situation which has in fact 20. Since the referring court holds an inter- been proved in these proceedings), since pretation of Community law to be necess- Eurico arranged for diplomatic interven- ary, it has stayed proceedings and sub- tion and action by the FTI, applying for the mitted the following questions to the issue of replacement documents by the Court: Israeli customs authorities)'.

thereof granted to the exporter (E) If the interpretation given in question have been exceeded by more than A(b) is correct, may the national court, six months? on the basis of the two abovemen- tioned articles — if the administrative authority failed to grant special periods — grant further time to an exporter (if he has acted diligently to obtain the documents and forward then within the period of 12 months pursuant to Article 47(2) of the said (B) If the interpretation given in the above regulation) and may it set the length of paragraph under (b) is correct, are those periods on the basis of the time there, on the basis of the two above- actually taken to obtain and forward mentioned articles, maximum time- the prescribed documentation?' limits, — having regard to various aspects, including those indicated in the grounds of this order, which may be relevant from the Community-law point of view — within which the extensions of time may be granted?

(C) If the interpretation given in question IV — The questions referred A(b) is correct, what are those maxi- mum time-limits and how long are the additional periods under the two abovementioned articles?

21. The first three questions referred con- cern, essentially, the point whether and to (D) If the interpretation given in question what extent Article 48(2) of Regulation A(b) is correct, may a private individ- No 3665/87 lays down criteria regarding ual, on the basis of the two abovemen- the further time provided for in tioned articles, claim a legally pro- Article 47(4) of that regulation. The last tected right to the setting of a par- three questions, on the other hand, relate to ticular duration (regarded as commen- legal protection against a refusal by surate with the difficulties of obtaining national authorities to grant further time the prescribed documentation) for the under Article 47(4) of Regulation extension of time? No 3665/87. I - 6478

22. Eurico, the Commission and the French Government have all submitted, essen- tially, in their written observations that Article 47(4) of Regulation No 3665/87 24. Eurico regards the position of the does not provide a maximum duration for Italian Government as also untenable any extension of time. Consequently, it is a against the background of the judgment matter for the national authorities to set the of 21 January 1999 in Germany v Com- duration of the extended period in individ- mission.5 It points out in this connection ual cases. They contend that, when so that, according to that judgment, the pur- doing, the authorities must take account pose of the possibility of an extension of of the diligence exercised by the applicant time provided by Article 47(4) of Regu- exporter, the grounds for his application, lation No 3665/87 is that exporters who, and the period of time predictably necess- despite having made every effort required ary to overcome the difficulties cited. of them, have been prevented by circum- stances beyond their control from produc- ing the requisite documents within the 12-month period, are not automatically deprived of the refunds provided for under Community law. The imposition of a 15% reduction in the amount refunded to a diligent exporter who could justify the 23. Eurico challenges the view of the delay by circumstances beyond his control Italian administration that any extension would be incompatible with this purpose. beyond six months is in any event pre- The view of the Italian Government is also cluded, and that even if such extensions incompatible with the principles of propor- were to be granted, the amounts refunded tionality and of the protection of legitimate would have to be reduced by 15%. The expectations. reference in Article 48(2)(a) to the period laid down in Article 47(4) applies to the situation where the extension of time has 5 — Case C-54/95 [ 1 9 9 9 ] ECR I-35, at paragraph 146etseq.

29. As the present case perfectly illustrates, circumstances may, however, exist in 27. The Commission also shares the same which the exporter, despite not being at view as Eurico to a large extent. It empha- fault in any way, is unable to submit in sises that export refunds are payable in full good time the documents proving release of if the exporter submits the necessary docu- the goods for consumption in a non- ments within the 12-month period under Article 47(2) of Regulation No 3665/87 or, 6 — See judgment in Case C-155/89 Philipp Brothers [1990] as the case may be, within the consecutive ECR I-3265, at paragtaph 39, on the predecessor provision additional period under Article 47(4). The to Article 31(1) of Regulation No 2730/79: 'The fixing of the length of that period... is not unreasonable, bearing in 15% reduction provided under mind... that the intervention agencies cannot keep open indefinitely files relating to operations in respect of which a Article 48(2) only applies if the exporter Member State has paid refunds in advance...'.

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member country due solely to the customs the total period for submitting the necess- authorities in that country not acceding to ary documents may never exceed 18 his requests. 7Against that background, it months, and that the 15% reduction in is understandable that Article 47(4) should any refunds paid always operates if the envisage the possibility of an extension of documents are submitted after expiry of the time, provided that 'the exporter has acted 12-month basic period, on Article 48(2)(a) with all due diligence to obtain and com- of Regulation No 3665/87, and in par- municate them [the requisite documents] ticular on the reference there to a period of within such period'. six months after expiry of the periods provided for in Articles 47(2), 47(4) and 47(5).

31. The question here is whether the exten- sion of time granted under Article 47(4) is 3 3 . As r e g a r d s the w o r d i n g of subject to any special criteria. The Italian Article 48(2)(a) of Regulation No 3665/87, Government clearly bases its interpretation it should be noted, echoing the French of Article 47(4), namely that it precludes Government, that the reference to the any further time beyond six months, that periods laid down in Article 47 utilises the conjunction 'and', so that the reduction in the refunds provided for by this provision is 7 — See Philipp Brothers (cited i n f o o t n o t e 6) at paragraph 27 linked to the condition that the documents on the predecessor provision to Article 31(2) of Regulation have been submitted within six months No 2 7 3 0 / 7 9 : ' . . . exporters may encounter difficulties in obtaining the customs documents from the authorities of the from the expiry of the relevant period. The non member country of importation, upon whom they have no means of exerting pressure'. relevant period is the 12-month period laid 8 — Cited in footnote 5 (at paragraph 148). down in Article 47(2), or, in the case of

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further time, the extension of time granted Regulation No 3665/87, that construing under Article 47(4). The conjunction 'and' this provision to the effect that the assess- clearly indicates that the legal consequence ment of the further time for which it under Article 48(2)(a) operates after expiry provides is not subject to any criteria of both the basic period laid down under derived from Article 48(2)(a), is compatible Article 47(2), and the extension of time with its meaning and purpose. provided for in Article 47(4).

35. It should be noted, with regard to the 9 — Cited in footnote 5 (at paragraph 146 et seq.). meaning and purpose of Article 47(4) of 10 — See point 32 above.

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time-limits, despite the provision of proof period in instances where doubts had been being impossible for reasons outside their cast on its validity. 15 control.

38. In my view, taking the predecessor 11 40. As regards Regulation No 800/1999, it and successor 12 regulations on this matter should be noted that it makes express into account permits of no other result. provision in Article 49(5) inter alia for late applications for further time — and makes it clear in this connection that delay will incur the legal consequence of a reduction in the amount of the refund. Irrespective of this, it provides in Article 50(2) for reduc- tions in the amounts refunded where proof 39. As regards Regulation No 2730/79, the of compliance with requirements for pay- Court examined the appropriateness of a ment of export refunds is provided late — six-month period for submitting the necess- up to six months after expiry of the basic ary proof in Philipp Brothers. 13 The period period or the extension period. The con- in that case was a basic period which clusion, a contrario, to be drawn from this corresponded to that in the later Regulation is that this six-months' period of grace in No 3665/87 discussed here, and which was the event of late proof of compliance with only increased to 12 months in Commis- the requirements for the claim for payment sion Regulation (EEC) No 1663/81. 14 The should be separated from the extension Court referred in this connection to the period in instances where difficulties are necessity of limiting the duration of the expected in providing proof, since each of procedure. However, nothing in its obser- the two failures to comply with the time- vations to my mind suggests an implicit and limit incurs different legal consequences. rigid limitation of the extension periods to be granted under Article 47(2) of Regu- lation No 3665/87, since in that case — unlike the present case — the main point at issue was whether an application for an extension period could be made with some prospect of success after expiry of the basic

the effect that the duration of the further such a claim and itself determine the time provided for under Article 47(4) of duration of that extension of time. Regulation No 3665/87 is not limited by Article 48 of Regulation No 3665/87. Set- ting the duration of the further time lies within the discretion of the competent national authority, which must take into account all the relevant factors in the individual cases, in particular the expected 43. The French Government, as regards the duration of the measures initiated by the granting of an extension of time, advocates exporter to overcome the difficulties out- reducing the discretion on the part of the side his control in procuring the docu- national administrative authority to zero ments. provided that all the factors in an individ- ual case support the granting of such an extension. Accordingly, the exporter in such a case could then rely on Article 47(4) of Regulation No 3665/87 in order to obtain the annulment of the administrative act in question.

B — Legal protection under Regulation No 3665/87 (questions D and E) 44. On the other hand, the French Govern- ment sees nothing in Regulation No 3665/87 or in Community law to support the idea that a national court can determine the duration of the extension of time itself. It refers in this connection to the procedural autonomy of Member States 1. Submissions of the parties and concludes that the fact that a national court might not have the power under national law to set the period instead of the administrative authority would not make it unduly difficult for a diligent exporter to exercise the rights conferred upon him under Article 47(4) of Regulation No 3665/87. 42. Eurico seeks to infer from case-law 16 that where an administrative authority has wrongly refused an exporter's claim for further time, a national court may allow

49. There is no doubt that the affected exporter has a right to effective legal protection by a national court against this discretionary decision by the competent national authority. 17 Whether this legal protection takes the form of an indepen- 2. Legal assessment dent right to bring an action, or whether the discretionary decision is only examined in conjunction with the examination of the decision not to grant export refunds or to demand the repayment of relevant advances, can, owing to the close chro- nological proximity of the decision on further time and the decision on granting export refunds or repayment of any 47. In the light of the clear wording of Article 47(4) of Regulation No 3665/87, under which further time may be granted to 17 —See Case 222/84 Johnston [1986] ECR 1651, at para- the exporter in the instances stated, it graphs 17 to 19. See also the statement of principle by Advocate General Alber in the pending Case C-63/01 follows from the outset that an exporter Evans [2003] ECR I-14447, at paragraph 76 et seq.

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51. Accordingly, the fundamental auth- ority of national law to determine the powers of review of the national court is subject to two conditions. Firstly, the detailed rules for the application of 54. The answer to the fourth and fifth national law must not have the effect of questions referred must therefore be that rendering implementation of Community the decision of the competent national law impossible in practice, or excessively authority under Article 47(4) of Regulation difficult (effectiveness), and secondly, No 3665/87 constitutes a discretionary national law must be applied without decision against which effective legal pro- discrimination as compared to proceedings tection must exist, free of discrimination as for deciding national disputes of the same compared to purely national disputes of the type (equivalence). 18 same type without a Community-law aspect. It is for national law to lay down the detailed arrangements for granting legal 18 — See only judgment in Case C-298/96 Oelmühle and protection whilst preserving the principles Schmidt Söhne [1998] ECR I-4767, at paragraph 24 with further references. of effectiveness and equivalence. I - 6486

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V — Conclusion

55. In the light of all this, it is proposed that the Court give the following answers to the Corte d'Appello di Genova:

— The duration of the extension of time provided for under Article 47(4) of Regulation No 3665/87 is not limited by Article 48 of Regulation No 3665/87. Setting the duration of the extension of time lies within the discretion of the competent national authority, which must take into account all the relevant factors in the individual case, in particular the foreseeable duration of the measures initiated by the exporter to overcome the difficulties outside his control in procuring the requisite documents.