CELEX: 61979CJ0130
Powdered whey
Recovery of undue payment

1 BY ORDER OF 23 JULY 1979 , WHICH WAS RECEIVED AT THE REGISTRY OF THE COURT OF JUSTICE ON 10 AUGUST 1979 , THE HIGH COURT OF JUSTICE , QUEEN ' S BENCH DIVISION , COMMERCIAL COURT , SUBMITTED UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS RELATING TO THE VALIDITY OF ALL REGULATIONS ADOPTED BY THE     COMMISSION BETWEEN 1 FEBRUARY 1973 AND 11 AUGUST 1977 FIXING MONETARY COMPENSATORY AMOUNTS APPLICABLE TO TRADE IN POWDERED WHEY , THE EFFECT OF A DECLARATION OF INVALIDITY OF A REGULATION DELIVERED BY THE COURT IN PROCEEDINGS FOR A PRELIMINARY RULING AND THE OBLIGATION TO MAKE REPAYMENT OF SUMS UNDULY CHARGED BY THE COMPETENT AUTHORITIES OF A MEMBER STATE TOGETHER , WHERE APPROPRIATE , WITH THE OBLIGATION TO PAY INTEREST .
2 THOSE QUESTIONS HAVE BEEN SUBMITTED IN THE CONTEXT OF A DISPUTE BETWEEN A TRADER , EXPRESS DAIRY FOODS LIMITED , AND THE BRITISH INTERVENTION AGENCY , THE INTERVENTION BOARD FOR AGRICULTURAL PRODUCE ( HEREINAFTER REFERRED TO AS ' ' THE BOARD ' ' ) WHICH IS THE APPROPRIATE AUTHORITY IN THE UNITED KINGDOM FOR THE COLLECTION OF SUMS PAYABLE UNDER THE COMMON AGRICULTURAL POLICY . BETWEEN 1 FEBRUARY 1973 AND 7 AUGUST 1977 THE UNDERTAKING , EXPRESS DAIRY FOODS LTD , EXPORTED CONSIDERABLE QUANTITIES OF POWDERED WHEY CLASSIFIED UNDER HEADING 04.02 A I OF THE COMMON CUSTOMS TARIFF AND WAS OBLIGED BY VIRTUE OF COMMISSION REGULATIONS IN FORCE AT THE TIME OF THOSE EXPORTS TO PAY TO THE BOARD BY WAY OF MONETARY COMPENSATORY AMOUNTS A TOTAL OF POUNDS 267 355.40 .
3 THAT SUM WAS CALCULATED ON THE BASIS OF VARIOUS COMMISSION REGULATIONS FIXING , IN REGARD TO THE PERIOD IN QUESTION , THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO TRADE IN POWDERED WHEY . HOWEVER , BY ITS JUDGMENT DELIVERED ON 13 MAY 1978 IN CASE 131/77 , MILAC V HAUPTZOLLAMT SAARBRUCKEN ( 1978 ) ECR 1041 , THE COURT DECLARED INVALID ONE OF THOSE REGULATIONS , NAMELY , REGULATION ( EEC ) NO 539/75 OF THE COMMISSION OF 28 FEBRUARY 1975 ( OFFICIAL JOURNAL , L 57 , P . 2 ) FIXING THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO TRADE IN POWDERED WHEY BETWEEN 3 MARCH AND 4 AUGUST 1975 .
4 THE PLAINTIFF IN THE MAIN ACTION CLAIMED REIMBURSEMENT FROM THE BOARD OF THE WHOLE OF THE SUMS PAID BY WAY OF MONETARY COMPENSATORY AMOUNTS ON THE EXPORTS OF POWDERED WHEY WHICH IT HAD EFFECTED AND SOUGHT PAYMENT OF INTEREST THEREON . THE BOARD OBJECTED THAT IT WAS BOUND TO COLLECT THE MONETARY COMPENSATORY AMOUNTS PAYABLE UNDER ALL THE REGULATIONS WHICH HAD NOT BEEN DECLARED INVALID AND TO APPLY THE INVALIDATED REGULATION UP TO THE DATE OF ITS BEING DECLARED INVALID BY THE COURT .
FIRST QUESTION
5 IN THOSE CIRCUMSTANCES THE HIGH COURT OF JUSTICE HAS PUT TO THE COURT THE FOLLOWING QUESTION :
' ' WHETHER IN THE LIGHT OF THE DECISION OF THE COURT OF JUSTICE IN CASE 131/77 , ALL COMMISSION REGULATIONS MADE BETWEEN 1 FEBRUARY 1973 AND 11 AUGUST 1977 ARE INVALID , IN SO FAR AS THEY PURPORT TO FIX COMPENSATORY AMOUNTS IN RESPECT OF TRADE IN POWDERED WHEY?
' '
6 IN ORDER TO ANSWER THIS QUESTION IT IS OF IMPORTANCE TO EXAMINE THE REASONS UPON WHICH THE INVALIDATION BY THE COURT OF ARTICLE 1 OF REGULATION NO 539/75 WAS FOUNDED IN SO FAR AS THAT PROVISION FIXED MONETARY COMPENSATORY AMOUNTS IN RESPECT OF TRADE IN POWDERED WHEY , TO CONSIDER THEREAFTER WHETHER SUCH REASONS MAY EQUALLY APPLY TO ALL THE REGULATIONS FIXING MONETARY COMPENSATORY AMOUNTS FOR THE PERIOD IN QUESTION IN RESPECT OF THE SAID PRODUCT AND TO DEDUCE THEREFROM WHETHER OR NOT THE REGULATIONS WERE VALID .
7 IT APPEARS FROM THE REASONS ON WHICH THE JUDGMENT IN CASE 131/77 WAS BASED THAT ARTICLE 1 OF REGULATION NO 539/75 , IN SO FAR AS IT FIXED MONETARY COMPENSATORY AMOUNTS IN RESPECT OF TRADE IN POWDERED WHEY , WAS DECLARED INVALID FOLLOWING UPON A FINDING THAT THE PRICE OF SKIMMED-MILK POWDER HAD NO DECISIVE INFLUENCE ON THE MARKET PRICE OF POWDERED WHEY . THE COURT ACCORDINGLY HELD THAT THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS TO WHEY WAS CONTRARY TO ARTICLE 1 ( 2 ) ( B ) OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ), WHICH AUTHORIZES THE INTRODUCTION OF SUCH AMOUNTS ONLY FOR PRODUCTS THE PRICE OF WHICH DEPENDS ON THE PRICE OF PRODUCTS WHICH ARE COVERED BY INTERVENTION ARRANGEMENTS .
8 IT IS NOT DISPUTED THAT THAT REQUIREMENT WAS DISREGARDED BY ALL THE REGULATIONS IN DISPUTE , THE SUCCESSIVE REDRAFTING OF WHICH HAD MOREOVER THE PURPOSE ONLY OF AMENDING THE RATES NECESSARY FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS IN ORDER TO BRING THEM INTO LINE WITH CHANGES IN CURRENCY PARITIES . IT IS FURTHER TO BE OBSERVED THAT IT HAS NOT BEEN ALLEGED IN THE WRITTEN OBSERVATIONS OR IN THE COURSE OF ORAL ARGUMENT , IN PARTICULAR BY THE COMMISSION , THAT THE REGULATIONS IN QUESTION MIGHT BE OTHER THAN INVALID     IN SO FAR AS THEY FIX MONETARY COMPENSATORY AMOUNTS IN RESPECT OF TRADE IN POWDERED WHEY . IN THE LIGHT OF THE JUDGMENT DELIVERED BY THE COURT IN CASE 131/77 THE CONCLUSION SHOULD THEREFORE BE DRAWN THAT THE COMMISSION REGULATIONS ADOPTED BETWEEN 1 FEBRUARY 1973 AND 11 AUGUST 1977 MUST BE REGARDED AS INVALID IN SO FAR AS THEY FIX MONETARY COMPENSATORY AMOUNTS IN RESPECT OF TRADE IN POWDERED WHEY .
SECOND QUESTION
9 QUESTION 2 IS WORDED AS FOLLOWS :
' ' WHETHER , WHEN A COMMISSION REGULATION AUTHORIZING OR REQUIRING THE COLLECTION OF MONETARY COMPENSATORY AMOUNTS HAS BEEN DECLARED BY THE COURT OF JUSTICE IN PROCEEDINGS UNDER ARTICLE 177 OF THE EEC TREATY TO BE INVALID , THE COMPETENT AUTHORITIES OF THE MEMBER STATES ARE BOUND UNDER COMMUNITY LAW TO REFUND ANY , IF SO WHAT , SUMS COLLECTED UNDER THE AUTHORITY OF THAT REGULATION?
' '
10 TO REPLY TO THAT QUESTION IT SHOULD BE RECALLED THAT IT IS CLEAR FROM THE PROVISIONS ON THE COMMUNITIES '  OWN RESOURCES , THAT IS TO SAY , THE DECISION OF THE COUNCIL OF 21 APRIL 1970 AND REGULATION NO 2/71 OF THE COUNCIL OF 2 JANUARY 1971 IN IMPLEMENTATION THEREOF ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 224 , AND ENGLISH SPECIAL EDITION 1971 ( I ), P . 3 ) IN CONJUNCTION WITH REGULATION NO 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 ) THAT THE NATIONAL AUTHORITIES MUST ENSURE ON BEHALF OF THE COMMUNITY AND IN ACCORDANCE WITH THE PROVISIONS OF COMMUNITY LAW THAT A NUMBER OF DUES , INCLUDING THE MONETARY COMPENSATORY AMOUNTS , ARE COLLECTED .
11 IN THE WORDS OF ARTICLE 6 OF THE DECISION OF 21 APRIL 1970 , REPEATED BY ARTICLE 1 OF REGULATION NO 2/71 , THESE RESOURCES ARE COLLECTED BY THE MEMBER STATES IN ACCORDANCE WITH NATIONAL PROVISIONS IMPOSED BY LAW , REGULATION OR ADMINISTRATIVE ACTION ; DISPUTES RELATING TO THE RECOVERY OF SUMS LEVIED ON BEHALF OF THE COMMUNITY THEREFORE COME WITHIN THE JURISDICTION OF NATIONAL COURTS AND MUST BE SETTLED BY THOSE COURTS IN APPLICATION OF THEIR NATIONAL LAW AS REGARDS BOTH PROCEDURE AND SUBSTANCE TO THE EXTENT TO WHICH COMMUNITY LAW HAS NOT MADE OTHER PROVISION IN THE MATTER .
12 IN THE REGRETTABLE ABSENCE OF COMMUNITY PROVISIONS HARMONIZING PROCEDURE AND TIME-LIMITS THE COURT FINDS THAT THIS SITUATION ENTAILS DIFFERENCES IN TREATMENT ON A COMMUNITY SCALE . IT IS NOT FOR THE COURT TO ISSUE GENERAL RULES OF SUBSTANCE OR PROCEDURAL PROVISIONS WHICH ONLY THE COMPETENT INSTITUTIONS MAY ADOPT . THE RULES TO BE ADOPTED SHOULD INVOLVE EQUAL TREATMENT AS REGARDS CONDITIONS OF FORM AND SUBSTANCE IN WHICH TRADERS MAY CONTEST COMMUNITY CHARGES IMPOSED UPON THEM AND CLAIM THEIR RECOVERY IN THE EVENT OF UNDUE PAYMENT TOGETHER WITH A SIMILAR HARMONIZATION OF THE CONDITIONS IN WHICH THE ADMINISTRATIVE AUTHORITIES OF THE MEMBER STATES , ACTING ON BEHALF OF THE COMMUNITY , IMPOSE THE SAID CHARGES AND , WHERE APPROPRIATE , RECOVER FINANCIAL BENEFITS WHICH HAVE BEEN IRREGULARLY GRANTED . IN THE ABSENCE OF COMMUNITY RULES HOWEVER , THE NECESSARY REFERENCE TO NATIONAL LAWS IS NEVERTHELESS SUBJECT TO LIMITS THE NEED FOR WHICH HAS BEEN ACKNOWLEDGED INASMUCH AS THE APPLICATION OF NATIONAL LEGISLATION MUST BE EFFECTED IN A NON-DISCRIMINATORY MANNER HAVING REGARD TO THE PROCEDURAL RULES RELATING TO DISPUTES OF THE SAME TYPE , BUT PURELY NATIONAL , AND IN SO FAR AS PROCEDURAL RULES CANNOT HAVE THE RESULT OF MAKING IMPOSSIBLE IN PRACTICE THE EXERCISE OF RIGHTS CONFERRED BY COMMUNITY LAW .
13 THE ESSENTIAL POINT SUBMITTED TO THE COURT CONCERNS THE AMOUNT OF THE SUMS TO BE REIMBURSED , WHICH INCLUDES THE QUESTION WHETHER OR NOT THE SUMS PAID BUT NOT OWED ARE TO BE RECOVERED IN THEIR ENTIRETY IN THE EVENT OF THE CHARGE ' S HAVING BEEN PASSED ON TO SUBSEQUENT PURCHASERS BY THE AGGRIEVED TRADER .
THE COURT HAS ALREADY RULED THAT THE PROTECTION OF RIGHTS GUARANTEED IN THE MATTER BY THE COMMUNITY LEGAL ORDER DOES NOT REQUIRE THE GRANT OF AN ORDER FOR THE RECOVERY OF CHARGES IMPROPERLY LEVIED IN CONDITIONS SUCH AS WOULD INVOLVE AN UNJUSTIFIED ENRICHMENT OF ASSIGNS AND THAT FROM THE POINT OF VIEW OF COMMUNITY LAW THERE IS THEREFORE NOTHING TO PREVENT NATIONAL COURTS FROM TAKING ACCOUNT IN ACCORDANCE WITH THEIR NATIONAL LAW OF THE FACT THAT IT HAS BEEN POSSIBLE FOR CHARGES UNDULY LEVIED TO BE INCORPORATED IN THE PRICES OF THE UNDERTAKING LIABLE FOR THE CHARGE AND TO BE PASSED ON TO THE PURCHASERS OF THE PRODUCTS IN QUESTION ( JUDGMENT OF 27 MARCH 1980 , DENKAVIT ITALIANA , CASE 61/79 , ( 1980 ) ECR ).
14 THE REPLY TO QUESTION 2 SHOULD THEREFORE BE THAT IT IS FOR THE NATIONAL AUTHORITIES TO DECIDE AS TO THE RECOVERY OF SUMS UNDULY CHARGED ON THE BASIS OF     COMMUNITY REGULATIONS WHICH HAVE BEEN DECLARED INVALID ; IT IS FOR THEM TO SETTLE IN TERMS OF THE NATIONAL LAW APPLICABLE ALL ANCILLARY QUESTIONS SUCH AS WHETHER THE FACT THAT IT MAY HAVE BEEN POSSIBLE FOR THE CHARGE IMPROPERLY IMPOSED TO BE PASSED ON TO OTHER TRADERS OR TO CONSUMERS SHOULD BE TAKEN INTO ACCOUNT .
THIRD QUESTION
15 QUESTION 3 IS WORDED AS FOLLOWS :
' ' WHETHER , IF THE COMPETENT AUTHORITIES OF A MEMBER STATE ARE BOUND TO REFUND ANY PART OF SUCH SUMS , THEY ARE BOUND UNDER COMMUNITY LAW TO PAY INTEREST THEREON AND IF SO , FROM WHAT DATE AND AT WHAT RATE?
' '
16 TO REPLY TO THIS QUESTION IT IS SUFFICIENT TO RECALL THAT , SINCE DISPUTES IN CONNEXION WITH THE REIMBURSEMENT OF AMOUNTS COLLECTED FOR THE COMMUNITY ARE AT THE PRESENT TIME A MATTER FOR THE NATIONAL COURTS , THEY MUST BE SETTLED BY THOSE COURTS UNDER NATIONAL LAW IN SO FAR AS COMMUNITY LAW HAS NOT PROVIDED OTHERWISE .
17 IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW ON THIS POINT IT IS AT PRESENT FOR THE NATIONAL AUTHORITIES , AND PARTICULARLY FOR NATIONAL COURTS , IN A CASE CONCERNING THE RECOVERY OF CHARGES IMPROPERLY IMPOSED , TO SETTLE ALL ANCILLARY QUESTIONS RELATING TO SUCH REIMBURSEMENT , SUCH AS THE PAYMENT OF INTEREST , BY APPLYING THEIR DOMESTIC RULES REGARDING THE RATE OF INTEREST AND THE DATE FROM WHICH INTEREST MUST BE CALCULATED .
Decision on costs
18 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HIGH COURT OF JUSTICE , QUEEN ' S BENCH DIVISION , COMMERCIAL COURT , BY ORDER OF 23 JULY 1979 , LODGED AT THE COURT REGISTRY ON 10 AUGUST 1979 , HEREBY RULES :
1 . THE COMMISSION REGULATIONS ADOPTED BETWEEN 1 FEBRUARY 1973 AND 11 AUGUST 1977 MUST BE REGARDED AS INVALID IN SO FAR AS THEY FIX MONETARY COMPENSATORY AMOUNTS IN RESPECT OF TRADE IN POWDERED WHEY .
2 . IT IS FOR THE NATIONAL AUTHORITIES TO DECIDE AS TO THE RECOVERY OF SUMS UNDULY CHARGED ON THE BASIS OF COMMUNITY REGULATIONS WHICH HAVE BEEN DECLARED INVALID ; IT IS FOR THEM TO SETTLE IN TERMS OF THE NATIONAL LAW APPLICABLE ALL ANCILLARY QUESTIONS SUCH AS WHETHER THE FACT THAT IT MAY HAVE BEEN POSSIBLE FOR THE CHARGE IMPROPERLY IMPOSED TO BE PASSED ON TO OTHER TRADERS OR TO CONSUMERS SHOULD BE TAKEN INTO ACCOUNT .
3 . IT IS AT PRESENT FOR THE NATIONAL AUTHORITIES , AND PARTICULARLY FOR NATIONAL COURTS , IN A CASE CONCERNING THE RECOVERY OF CHARGES IMPROPERLY IMPOSED , TO SETTLE ALL ANCILLARY QUESTIONS RELATING TO SUCH REIMBURSEMENT , SUCH AS THE PAYMENT OF INTEREST , BY APPLYING THEIR DOMESTIC RULES REGARDING THE RATE OF INTEREST AND THE DATE FROM WHICH INTEREST MUST BE CALCULATED .
4 . THE APPLICATION OF NATIONAL LEGISLATION MUST BE EFFECTED IN A NON-DISCRIMINATORY MANNER HAVING REGARD TO THE PROCEDURAL RULES RELATING TO DISPUTES OF THE SAME TYPE , BUT PURELY NATIONAL , AND THE PROCEDURAL RULES CANNOT HAVE THE RESULT OF MAKING IMPOSSIBLE IN PRACTICE THE EXERCISE OF RIGHTS CONFERRED BY COMMUNITY LAW .