62010CC0089_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. The present two references for a preliminary ruling (2) from the Rechtbank van eerste aanleg te Brussel (Court of First Instance, Brussels) (Belgium) concern the interpretation of the principles of European Union law on the recovery of amounts paid but not due.
2. These matters have been raised in a dispute between Q‑Beef NV (‘Q‑Beef’), a company dealing in cattle, and the Belgian State and in a dispute between Frans Bosschaert, a farmer, and, first, Belgisch Staat (the ‘Belgian State’) and, secondly, Vleesgroothandel Georges Goossens en Zonen NV and Slachthuizen Goossens NV (together the ‘Goossens establishments’). Those disputes concern an application for reimbursement of contributions paid by Q‑Beef and Mr Bosschaert respectively into the Animal Health and Production Fund (‘the 1987 Fund’) on the ground that they were charged in breach of European Union law.
3. The three questions raised in these cases essentially relate to the duration of the limitation period, the starting date for that period and, in the Bosschaert
case, in which there are intermediaries between the debtor and the State, the effects of limitation periods of varying lengths. With regard to observance of the principles of equivalence and effectiveness, the Court has delivered an abundance of decisions serving as guidance in addressing the first and second questions; the third question, to my mind, is without precedent and calls for a more detailed analysis.
4. At the outset, I note that these cases call to mind two maxims that are well known in all legal systems: first, the fact that rights come to those who are vigilant, not to those who sleep ( iura vigilantibus, non dormientibus prosunt ) and, secondly, that no one can make a claim based on his own wrongdoing ( nemo auditur propriam turpitudinem allegan s). (3) In my view, the existing case-law leads to answers based on the former principle. However, that outcome would result in the Belgian State being able to benefit from the inconsistent approach which it has adopted since the early 1990s and which lies in its failure to make good the economic consequences of its unlawful action vis-à-vis private individuals.
5. Turning now to the facts and the law, the two cases have some similarities with the 1992 judgments in Lornoy and Others, Claeys and Demoor and Others, (4) and with the 2003 judgment in van Calster and Others . (5)
II – Relevant legislation
A –	The Law of 1998 and the judgment in van Calster and Others
6. The Law of 23 March 1998 establishes a Budgetary Fund for the health and quality of animals and animal products (‘the Law of 1998’). (6)
7. That law replaces a scheme and fund established in 1987. That hybrid scheme of aid and compulsory contributions, which was not notified to the European Commission, had been found to be incompatible with European Union law by the Commission in a decision of 1991 and by the Court in the judgments of 1992 in Lornoy and Others, Claeys and Demoor and Others.
8. By letters of December 1995 and May 1996, the Kingdom of Belgium notified draft legislative measures for repealing the 1987 scheme and for replacing it with a new scheme. Those draft measures, which were to become the Law of 1998, were declared, unconditionally, to be compatible with the common market by a Commission decision of 30 July 1996.
9. Article 5 of the Law of 1998 provides that the 1998 Fund is to be financed in particular by contributions imposed on natural and legal persons who raise, process, transport, handle, sell or trade in animals or animal products.
10. The Law of 1998 does not apply merely to the future; it also contains some provisions which replace the 1987 scheme with retroactive effect.
11. Article 14 of the Law of 1998, which took effect from 1 January 1988, (7) requires abattoirs and exporters to pay contributions. The provision establishes, retroactively, seven different periods starting from 1 January 1988 and sets out the amounts owed for each of those periods.
12. Article 15 of the Law of 1998, however, which took effect from 1 January 1993, (8) imposes contributions on persons responsible for holdings in which pigs are kept.
13. The second paragraph of Article 17 of the Law of 1998 provides for an automatic offsetting of the amounts owed in relation to the contributions paid under the 1987 scheme against the contributions payable under the 1998 scheme:
‘The amounts payable pursuant to Articles 14, 15 and 16 shall, as appropriate, be offset automatically, by force of law only, against the amounts paid pursuant to [the 1987 Decree], …’.
14. Article 18 of the Law of 1998 provides:
‘…
At each stage of the marketing or production prior to slaughter or export, the compulsory contributions referred to in Article 14 shall be passed in full to the producer. That measure shall take place on the setting of prices between the parties both of the sale of animals and the provision of services by the abattoir or the exporter.
That compulsory contribution may not be referred to on the invoice or on the document referred to in Article 4 of Royal Decree No 22 of 15 September 1970 on the special value added tax scheme applying to farmers.
These compulsory contributions must be paid by the abattoirs at the latest by the last day of the month following the month of slaughter or of receipt of a registered letter from the authorities. They must be paid by the exporters to the authorities at the latest by the last day of the month following the month of receipt of the registered letter from those authorities.
The compulsory contributions referred to in Article 15 shall be payable annually. They shall be paid to the authorities within 30 days of receipt of the payment request sent by registered letter.
…’
15. Article 21 of the Law of 1998 provides:
‘The following shall be repealed:
1° Article 32(2) and (3) of the Law of 24 March 1987 on animal health, as amended by the Laws of 29 December 1990, 20 July 1991, 6 August 1993, 21 December 1994 and 20 December 1995; …’.
16. Article 23 of the Law of 1998 provides that the Law is to enter into force on the date of its publication in the Belgisch Staatblad, with the exception, inter alia, of Articles 14 and 15 thereof. The Law was published on 30 April 1998.
17. The Court, which had already been asked about the Law of 1998, was called upon to give a ruling on the interpretation of Article 93(3) of the EC Treaty (which corresponds to what is now Article 108(3) TFEU) and on the Commission decision of 1996. In van Calster and Others, (9) the Court held that:
– Article 93(3) of the EC Treaty precludes, in circumstances such as those in the main proceedings, the levying of charges which finance specifically an aid scheme that has been declared compatible with the common market by a Commission decision, in so far as those charges are imposed retroactively in respect of a period prior to the date of that decision;
– the Commission Decision of 1996 does not approve the retroactive effect of the Law of 1998 establishing a Budgetary Fund for the health and quality of animals and animal products.
B –	National legislation on the recovery of amounts paid but not due and on the limitation period
18. Article 1376 of the Civil Code is worded as follows:
‘A person receiving what is not due to him, whether he receives it through error or knowingly, shall be bound to return it to the person from whom he has wrongly received it.’
19. Article 2262a(1) of the Civil Code provides:
‘The limitation period for all personal actions shall be ten years.
By way of derogation from the first subparagraph, the limitation period for any action seeking compensation for damage based on non-contractual liability shall be five years from the day following that on which the person harmed became aware of the damage or its aggravation and the identity of the person responsible for the damage.
…’.
20. The referring court states that the provision cited above was inserted into the Civil Code only by virtue of the Law of 10 June 1998 amending certain provisions on the limitation period. Previously, the general rule providing for a 30-year limitation period applied. For actions which had arisen prior to entry into force of that Law, the limitation period was similarly reduced to 10 years, it being understood that the transitional provisions contained in Article 10 of that Law provided that this new period would not begin to run until its entry into force on 27 July 1998.
21. Article 2244 of the Civil Code defines the principal causes of an interruption of the limitation period:
‘A summons to appear before a court, a formal notice or an attachment order, served on the person whom one wishes to prevent from invoking the statute of limitations, shall constitute a civil interruption.
A summons to appear before a court shall interrupt the limitation period until such time as a final decision is given …’.
22. According to the referring court, the public authorities are, in principle, subject to the limitation periods applying in ordinary law, at least under Article 2227 of the Civil Code, which reads:
‘The State, public bodies and local authorities shall be subject to the same limitation periods as private individuals and may also rely upon them.’
23. Article 100 of the Consolidated Laws on State Accounting of 17 July 1991 provides: (10)
‘The following claims shall be statute-barred and wholly extinguished in favour of the State, without prejudice to any cancellation arising from other statutory or regulatory provisions or agreements in the matter:
1. claims the submission of which, in a form determined by statute or regulation, did not take place within a period of five years running from the first of January of the financial year during which they arose;
2. claims for which, although submitted within the period referred to in subparagraph 1, the Ministers did not authorise payment within a period of five years running from the first of January of the year during which they were submitted;
3. any other claims payment of which was not authorised within a period of 10 years running from the first of January of the year during which they arose.
However, claims resulting from judgments shall remain subject to the 10-year limitation period; they must be paid through the Deposit and Consignment Office.’
24. Under Article 101 of the Consolidated Laws, ‘the institution of proceedings before a court shall suspend the limitation period until such time as a final decision is given’.
25. According to the referring court, unless otherwise provided by statute, the five-year limitation period applies as a rule to all claims against the State. Accordingly, an action based on Article 1382 of the Civil Code which is brought against the public authorities and seeks to establish the unlawful adoption or enforcement of a ministerial decree is subject to a five-year limitation period. (11)
26. The referring court notes that Article 100, subparagraph 1, of the Consolidated Laws on State Accounting also applies to claims for amounts paid but not due.
27. The referring court states, moreover, that a number of judgments of the Arbitragehof (Court of Arbitration) have held, on the basis of parliamentary proceedings, that, in subjecting actions brought against the State to the five-year limitation period, the legislature had adopted a measure which was not disproportionate to the objective pursued, which was to close the State accounts within a reasonable period.
28. Lastly, it should further be pointed out that, under the second subparagraph of Article 2257 of the Civil Code, the limitation period for an action to enforce a guarantee may begin to run only after the principal claim has been dismissed.
III – The main proceedings, the questions referred for a preliminary ruling and procedure before the Court of Justice
A –	The Q‑Beef case (C‑89/10)
29. Q‑Beef is a Belgian undertaking trading in animals. Between January 1993 and April 1998, it paid various contributions into the 1987 Fund pursuant to the 1987 legislation, following the export of animals.
30. Since the 1998 scheme replaced the 1987 scheme retroactively, those contributions paid by Q-Beef were ‘confirmed’ by the new scheme and automatically offset as soon as the new scheme entered into force on 30 April 1998. (12)
31. On 2 April 2007 Q‑Beef brought a claim against the Belgian State for a refund of the contributions paid between January 1993 and April 1998 in view of the unlawfulness of the 1998 scheme.
32. As regards the limitation period, the referring court states that under Article 100(1) of the Consolidated Laws on State Accounting the five-year limitation period started to run, in respect of Q‑Beef’s claim against the Belgian State, on 1 January of the financial year during which it had arisen, in this case the year of entry into force of the Law of 1998, that is to say on 1 January 1998, and expired on 31 December 2002 at midnight. Since the summons instituting the claim against the Belgian State was issued on 2 April 2007, Q‑Beef’s claim against the Belgian State was time-barred under Belgian law. (13) The referring court takes the view that the judgment in van Calster and Others has no more than a declaratory effect with regard to national law and does not trigger the limitation period.
33. It was in those circumstances that the Rechtbank van eerste aanleg te Brussel (Court of First Instance, Brussels) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1) Does Community law preclude national courts from applying the five-year limitation period, which is laid down in the national legal system in respect of debts owed by the State, to claims for the reimbursement of charges paid to a Member State under a hybrid system of aid and charges which not only was partially illegal but was also found to be partially incompatible with Community law, and which were paid before the entry into force of a new system of aid and compulsory contributions which replaces the first system, and which, by a final decision of the Commission, was declared compatible with Community law, but not in so far as those charges were imposed retroactively in respect of a period prior to the date of that decision?
(2) Does Community law preclude a Member State from successfully invoking national limitation periods which, in comparison with those applicable under ordinary national law, are particularly favourable to that Member State, as a defence against proceedings instituted against it by a private individual with a view to vindicating that private individual’s rights under the EC Treaty, in a case such as that before the national court, in which the effect of those particularly favourable national limitation periods is to render impossible the recovery of charges which were paid to the Member State under a hybrid system of aid and charges which not only was partially illegal but was also found to be partially incompatible with Community law, where the conflict with Community law was established by the Court of Justice of the European Communities only after those particularly favourable national limitation periods had expired, even if the illegality had existed earlier?’
B –	The Bosschaert case (C‑96/10)
34. Frans Bosschaert is a farmer and, as such, has been rearing pigs since 1970. Under the 1987 scheme and during the period from 1989 to 1996, he paid contributions earmarked for the 1987 Fund in relation to the animals slaughtered on his behalf. Mr Bosschaert paid the contributions to Vleesgroothandel Georges Goossens en Zonen NV, which, in turn, forwarded them to Slachthuizen Goossens NV, which ultimately paid them into the 1987 Fund.
35. As the 1998 scheme replaced the 1987 scheme retroactively, those contributions paid by Mr Bosschaert were ‘confirmed’ by the new scheme and automatically offset as soon as the new scheme entered into force on 30 April 1998. (14)
36. The referring court states that, according to the summonses of 30 and 31 July 2007, Mr Bosschaert brought this action before the Belgian court primarily to claim reimbursement from the Belgian State of the contributions he paid during the period from 1989 to 1996, on the ground that they were imposed on him unlawfully since the relevant legislation was contrary to European Union law.
37. In the alternative, and inasmuch as it would be impossible to bring proceedings against the Belgian State, the applicant claims that the Goossens establishments should be ordered jointly and severally with the Belgian State to refund the amounts concerned.
38. With regard to the limitation period, as in the Q‑Beef
case, the referring court points out that the action brought by Mr Bosschaert (on 31 July 2007) directly against the Belgian State and that brought by the Goossens establishments (on 21 November 2007) against the Belgian State are time-barred by virtue of the special five-year limitation period laid down in Article 100(1) of the Consolidated Laws on State Accounting, which began to run on 1 January 1998 and expired on 31 December 2002. It also takes the view that the judgment in van Calster and Others is no more than declaratory, inasmuch as it does not create or alter the status of the charges concerned as having been paid but not due, since it is confined to establishing that the charges were unlawful in that they were levied retroactively.
39. However, it is apparent from the decision to refer the case that, because the respective actions brought by Mr Bosschaert against the Goossens establishments are treated as personal actions, they are subject to a 10-year limitation period. That 10-year period would not have started to run until 27 July 1998, that is to say, the date of entry into force of the Law of 10 June 1998 which introduced that new 10‑year period for disputes between private individuals. That period would, therefore, have run until the end of July 2008, that is to say, some time after the judgment in van Calster and Others,
cited above, from which it can be concluded that the limitation period could not be relied upon against those actions.
40. The indirect actions to enforce a guarantee brought by the Goossens establishments against the Belgian State on 21 November 2007 were not time‑barred because they are a consequence of the actions brought by Mr Bosschaert on 30 and 31 July 2007. (15)
41. In those circumstances the Rechtbank van eerste aanleg te Brussel decided to stay the proceedings and refer three questions to the Court for a preliminary ruling, the first and third of which are the same as the first and second questions respectively in the Q‑Beef
case. The second of those three questions reads as follows:
‘2. Does Community law preclude a situation in which, when a Member State levies charges on a private individual who is in turn obliged to pass the charges on to other private individuals with whom he carries on a commercial activity in a sector on which the Member State has imposed a hybrid system of aid and charges, but that system was subsequently found to be not only partially illegal but also partially incompatible with Community law, those individuals are then, by reason of national provisions, subject to a shorter limitation period with regard to the Member State in respect of the recovery of contributions levied in breach of Community law, whereas they have a longer limitation period with regard to recovery of those same amounts from a private intermediary, with the result that such an intermediary might find itself in a situation where the claim against it is not time-barred but the claim against the Member State is, and the intermediary may thus have an action brought against it by other parties and consequently have to seek indemnification from the Member State concerned, but cannot recover from that Member State the contributions which it paid directly to that Member State?’
C –	Procedure before the Court
42. By order of the President of the Court of Justice of 6 April 2010, Cases C‑89/10 and C‑96/10 were joined for the purposes of the written and oral procedure and of the judgment.
43. Written observations have been submitted by Q‑Beef, Mr Bosschaert, the Goossens establishments, the Belgian Government and the European Commission.
44. All the parties concerned were represented at the hearing on 3 February 2011.
IV – Analysis
A –	Preliminary remarks
45. It should be stated at the outset that, as regards recovery of amounts paid but not due in European Union law, it is clear from settled case-law that Member States are in principle required to repay charges levied in breach of European Union law. (16)
46. The Court has observed on several occasions that the problem of the repayment of charges paid though not due is settled in different ways in the various Member States, and even within a single Member State, depending on the various kinds of taxes or charges in question.
47. This diversity between national systems derives mainly from the lack of European Union rules on the refunding of national charges levied though not due. In such circumstances, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness). (17)
B –	The first question referred in Q‑Beef and Bosschaert
48. By these questions, the referring court asks this Court whether the application of a five-year limitation period, which is laid down in the national legal system in respect of debts against the State, to claims for the reimbursement of charges paid in breach of European Union law under a hybrid system of aid and charges is compatible with European Union law.
49. The time-limits laid down by national law cannot be so framed as to make it in practice impossible or excessively difficult to obtain reparation, in accordance with the principle of effectiveness. (18)
50. As regards the latter principle, the Court has held that it is compatible with European Union law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty which protect both the taxpayer and the administration concerned. (19) Such time-limits are not liable to render virtually impossible or excessively difficult the exercise of rights conferred by European Union law.
51. The question whether the time-limits are reasonable is assessed on a case‑by-case basis. Thus, the Court has taken the view that a time-limit of three years under national law appeared reasonable. (20) In the circumstances specific to the judgment in Recheio – Cash & Carry, cited above, even a period of 90 days was considered to be reasonable. (21)
52. In this instance, a limitation period which is from four to five years, depending on the date on which the obligation arose, (22) should be considered to be a sufficient length of time to enable the taxpayer to take the decision to bring an action for annulment in full awareness of all the facts and to assemble all necessary factual and legal information that it may require for that purpose.
53. I therefore suggest that the Court should rule that European Union law does not preclude the national court, in the circumstances of the main proceedings, from applying the five-year limitation period, which is laid down in the national legal system in respect of debts owed by the State, to claims for the reimbursement of charges which were paid unlawfully to the Member State under a hybrid system of aid and charges.
C –	The second question in Q‑Beef and the third question in Bosschaert
54. By these questions the referring court is seeking essentially to ascertain whether the Court’s finding, in a judgment following a reference for a preliminary ruling, that the retroactive nature of the Law of 1998 is incompatible with European Union law has any bearing on the starting date of the limitation period laid down by national law in respect of claims for the recovery of contributions levied in breach of European Union law.
55. As regards the starting date for the limitation period, it has been consistently held that this issue is a matter in principle for national law. The approach adopted in each instance may vary: the starting date for the limitation period can be determined directly by the date of payment, on the basis of that date (23) or, as here, by reference to the entry into force of the new law.
56. It should be noted that the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of European Union law clarifies and defines, where necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. (24) In other words, a preliminary ruling does not create or alter the law but is purely declaratory, with the consequence that it generally takes effect from the date on which the rule interpreted entered into force. (25)
57. In the main proceedings, according to the national court, the limitation period started to run on 1 January 1998, in order to expire on 31 December 2002. Admittedly, the limitation period formally begins prior to the adoption, publication and entry into force of the law, which occurred in March and April 1998 respectively. However, as the case in van Calster and Others, illustrates, these factors do not render it impossible to exercise a right of action. In this instance the fixing of that limitation period was slightly retroactive but still left a period of time which, to my mind, is sufficient for bringing an action.
58. Therefore, the fact that the judgment in van Calster and Others, dates only from 2003 does not, per se, influence the starting date for the limitation period which the national court considers to have started to run on 1 January 1998.
59. I should point out that the Court has intervened only very rarely with regard to the starting date of limitation periods. It has done so only in the Emmott
judgment, where it fixed the ‘acceptable’ starting date for the limitation period as the date on which the relevant directive was fully transposed into national law. It pointed out that the applicant had been completely denied recourse to an effective remedy. (26)
60. There is no question of that here, inasmuch as the approach adopted in Emmott has been clarified in subsequent case-law, in particular in Fantask and Others, (27) as recently confirmed by Danske Slagterier. (28) Those judgments state that the applicants could not rely on the solution adopted in Emmott . The Court clearly held that the solution adopted in Emmott was justified by the particular circumstances of that case, in which the time-bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under a European Union directive. (29)
61. The starting date for the limitation period is therefore a question for national law. Indeed, in national law, it is possible to link that starting date to a number of events, such as a court’s finding that a national rule is not compatible with European Union law. This is not an unfamiliar outcome within the European Union: the Court was required to assess the French legislation in that regard in the Roquette Frères
judgment, where it confirmed that possibility. (30) However, it is normally a matter for the Member State to opt to follow that route and, clearly, the Kingdom of Belgium has not done so in this case.
62. In the light of the foregoing considerations, and although the judgment in van Calster and Others
was given after expiry of the limitation period, I suggest that the answer to this question should be that European Union law does not preclude a Member State, in the circumstances of the main proceedings, from invoking national limitation periods which, in comparison with those applicable under ordinary national law, are more favourable to that Member State, as a defence against proceedings instituted against it by a private individual with a view to vindicating that private individual’s rights under the Treaty on the Functioning of the European Union.
63. However, I must clarify one final point because, for the reasons I shall set out below it is not inconceivable, in exceptional circumstances, that the Member State may not rely on a limitation period in its favour, if the conduct of the national authorities, coupled with the existence of a limitation period, might deprive a person of any opportunity of enforcing his rights before the national courts. (31)
D –	The second question in Bosschaert
1. Analysis
64. This question raised by the referring court relates to whether a limitation period concerning an action for recovery of contributions levied in breach of European Union law, which, under national rules, is longer for claims against private individuals than for claims against Member States, is compatible with European Union law. A private intermediary, who has passed the charges levied on it by the State on to another private individual, may thus find himself in a situation where the action brought against him for recovery of charges levied in breach of European Union law is not time-barred but the action brought against the Member State is. (32)
65. According to the referring court, private individuals no longer have the opportunity in this case to bring a claim against the State for recovery of the sums paid but not owed because of the expiry of the five-year period, the starting date for which is fixed at the beginning of the financial year during which the obligation arose. Therefore, under national law, neither Mr Bosschaert nor the Goossens establishments can receive reimbursement directly from the State in respect of recovery of the amount paid but not due. (33)
66. However, Mr Bosschaert, who paid his contributions to the State via the intermediary Goossens establishments, ought to be able to recover them from those establishments, given that the limitation period applying, between private individuals, to the recovery of sums paid but not due is one of 10 years.
67. Furthermore, if the Goossens establishments were ordered to repay the contributions paid but not due to Mr Bosschaert, they could, according to the referring court, recover those sums from the State, not by instituting proceedings to recover sums paid but not due, which are therefore subject to a five-year limitation period, but by bringing an action to enforce a guarantee relating to a personal obligation.
68. As to whether this situation is in conformity with European Union law, the following points should be observed.
69. As regards the principle of effectiveness, different treatment as between ‘national’ and ‘Community’ situations has not even been mentioned. It would appear therefore that the law at issue meets that criterion.
70. As regards the principle of equivalence, the situation likewise seems to be relatively clear, in the light of the previous case-law.
71. In Prisco and CASER, the Court held that ‘Community law does not prohibit a Member State from resisting actions for repayment of charges levied in breach of Community law by relying on a time-limit under national law of three years, by way of derogation from the ordinary rules governing actions between private individuals for the recovery of sums paid but not due, for which the period allowed is more favourable, provided that that time-limit applies in the same way to actions based on Community law for repayment of such charges as to those based on national law.’ (34)
72. In the light of that judgment, the answer to that question should be that European Union law does not prohibit a Member State from resisting actions for repayment concerning contributions charged in breach of European Union law by relying on a time-limit under national law of five years, by way of derogation from the ordinary rules governing actions between private individuals for the recovery of sums paid but not due, for which the period allowed is more favourable, provided that that time-limit applies in the same way to actions based on European Union law for repayment of such contributions as to those based on national law.
73. However, that approach must be qualified in respect of situations where the contributions have been paid to the State through an intermediary and where a 10‑year time-limit applies for actions between private individuals, whereas the time-limit in place for actions against the State is five years.
74. Such a situation would be in conformity with European Union law if the intermediary, who had to repay the sums paid but not due to another private individual, enjoyed a reasonable period within which effectively to demand the sums accordingly repaid from the State. Failing that, the inconsistency in the limitation periods applicable would not be in conformity with European Union law, since the consequences of the unlawfulness which are attributable to the State would be borne by the intermediary, who would not have had any legal recourse to avoid passing the charges on to its customers.
75. Here, as the referring court states, an action of this kind to enforce a guarantee should, in principle, be possible and even beneficial.
76. Since those criteria have been met, I consider the situation to be in conformity with European Union law.
2. Additional remarks
77. Even though I have already answered this question in part, I consider it necessary to make a few additional remarks.
(a) The starting date and the duration of the limitation period
78. I suggested above that the Court should find the five-year limitation period with a starting date at the beginning of the financial year during which the obligation arose to be compatible with European Union law.
79. I therefore ruled out revisiting the approach adopted in Emmott, namely the suggestion by the applicants in the main proceedings that the limitation period should commence on the date on which the Court gives its judgment.
80. However, a preliminary ruling by the Court clarifying a legal situation, such as the judgment in van Calster and Others, could have an impact in exceptional circumstances, even after the time-limit has passed.
81. The law on the limitation periods applying in respect of claims against the Belgian State means that the preliminary ruling in van Calster and Others, delivered in 2003, will have no effect erga omnes, given that the claims of other persons in the same legal situation will be time-barred.
82. The Court has itself established, in van Calster and Others, that by making the Law of 1998 retroactive, the aim of the Belgian legislature was to remedy the consequences of the breach of the obligation to make prior notification of the aid established by the 1987 Law. (35)
83. The Belgian Government, for its part, had taken a different view in the case of van Calster and Others
and the country’s supreme court, the Arbitragehof (Court of Arbitration), had upheld the retroactive nature of the Law of 1998. (36) All the economic operators concerned, with the exception of Mr van Calster and Mr Cleren, clearly considered it pointless to challenge the legislation and did not therefore bring any action for reimbursement to them of the payments made.
84. Following the judgment in van Calster and Others, the Kingdom of Belgium did not, on its own initiative, attempt to remedy the existing situation so as to make it consistent with European Union law. On the contrary, all that it has done by invoking the expiry of the limitation period is to confirm its intention to keep the payments charged in breach of European Union law.
85. In any event, it was clear that the Belgian Government could not in any way justify the failure to reimburse the payments made. (37)
86. To my mind, in order to safeguard the erga omnes effect of the Court’s case-law, the national court should, on an exceptional basis and notwithstanding expiry of a limitation period, be able to declare admissible a claim for recovery of sums paid but not due, even if it was made after expiry of that period, in so far as that claim was made within a reasonable period following the Court’s judgment establishing the incompatibility with European Union law.
87. That measure should be possible in particular where the Member State has, actively and on a number of occasions, tried to prevent exercise of rights flowing from European Union law as interpreted by the Court, as, otherwise, the Member State could benefit improperly from its unlawful action, which would be contrary to the maxim nemo auditur propriam turpitudinem allegans . I would note that the Court has envisaged such a possibility in cases where the failure to act on the part of the applicant, against whom a limitation period is pleaded, was the result of deliberate misrepresentation by the national authorities. (38)
88. I would emphasise the exceptional nature of that possibility. Furthermore, it will be for the national court to assess whether a period is reasonable, but to my mind this is more a question of months, not years. (39) In this case, I consider that the applicants in the main proceedings cannot use an exception of this kind in light of the fact that they did not bring their claim until several years after the judgment in van Calster and Others .
(b) Inactivity on the part of the Member State once the incompatibility with European Union law has been established
89. A further issue involves ascertaining whether the principle of cooperation is good faith obliges a Member State to take action to remedy a situation that is inconsistent with European Union law once that inconsistency has been established by the Court.
90. Since the Commission decision of 1991, (40) it is likely that the Kingdom of Belgium was fully appraised of the incompatibility with EU law of the 1987 scheme with regard in particular to the national producers and exporters. The Belgian authorities apparently attempted to remedy the failure to comply with the procedure (41) for notifying the 1987 scheme to the Commission by providing for the retroactive and automatic offsetting of any charge payable under the new 1998 scheme against the sums previously paid to the State. The retroactive nature of the scheme, which the Court found to be incompatible with European Union law in van Calster and Others, to my mind casts serious doubt on the good faith of the Kingdom of Belgium in this instance.
91. In my view, the Belgian State has taken no steps of its own volition to refund the sums charged though not due. However, European Union law does not prevent the Member State from actively taking measures.
92. The possibility cannot be ruled out that a Member State would require to take active measures in order to repay sums charged but not due, at least where the amount illegally charged can be clearly defined or can be defined approximately. The same would apply where the parties concerned are a large number of private individuals who have suffered minimal losses which do not justify the risk involved in committing, on an individual basis, significant costs connected with any court proceedings. (42)
93. It is clear that European Union law does not preclude a practice of that kind. On the contrary, such a practice should be encouraged, perhaps even required. In some areas, specific procedures are even established for that purpose. Plainly, the underlying objectives are different and the procedures involved are not the same, but, as far as the effectiveness of European Union law is concerned, the matter is of considerate importance, especially when the sums at issue may be negligible and therefore deter many individual claims for recovery, the success of which would be uncertain. (43)
94. To my mind, the principle of cooperation in good faith required the Belgian State to draw the appropriate conclusions from the judgment in van Calster and Others
and to facilitate its implementation, if necessary with the assistance of the national legislature.
95. I note finally that, under national law, the State, as debtor, is treated more favourably than any other debtor, irrespective of the nature of the claim or any other factor. The reason given for this is the need to expedite the closure of the accounts.
96. In the light of the judgment in Zouboulidis v Greece, (44) such reasoning, that is to say the interest in promptly clearing off the liabilities of the State, is not an adequate reason for granting a shorter limitation period to the State. The European Court of Human Rights in this respect found that Article 1 of the First Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), concerning a person’s entitlement to the peaceful enjoyment of his possessions, had been infringed. That finding should also apply pursuant to the Charter of Fundamental Rights of the European Union. (45)
97. However, a four- to five-year limitation period concerning the recovery of amounts paid though not due in relation to tax levies is, to my mind, relatively generous, not too short. Given the margin of discretion enjoyed by the Member States as contracting parties to the ECHR, it seems to me that the Court should also not interpret the said charter in such a manner as to preclude the application of the limitation period laid down in Belgian law in respect of the obligations of the State.
V – Conclusion
98. In the light of the foregoing considerations, I suggest that the Court of Justice give the following reply to the questions referred by the Rechtbank van eerste aanleg te Brussel for a preliminary ruling:
(1) European Union law does not preclude the national court, in the circumstances of the main proceedings, from applying the five-year limitation period, which is laid down in the national legal system in respect of debts owed by the State, to claims for the reimbursement of charges which were paid to the Member State concerned under a hybrid system of aid and charges.
(2) European Union law does not preclude a Member State, in the circumstances of the main proceedings, from invoking national limitation periods which, in comparison with those applicable under ordinary national law, are more favourable to that Member State, as a defence against proceedings instituted against it by a private individual with a view to vindicating that private individual’s rights under the Treaty of the Functioning of the European Union, where the conflict of those national provisions with European Union law was established by the Court only after those particularly favourable national limitation periods had expired, even if the unlawfulness had existed earlier.
(3) European Union law does not, in the circumstances of the main proceedings, preclude a situation in which, when a Member State levies charges on a private individual who is in turn obliged to pass those charges on to other private individuals with whom he carries on a commercial activity, those individuals are then, by reason of national provisions, subject to a shorter limitation period with regard to the Member State in respect of the recovery of contributions levied in breach of European Union law, whereas they have a longer limitation period with regard to recovery of those same amounts from a private intermediary, with the result that such an intermediary might find itself in a situation where the claim against it is not time-barred but the claim against the Member State is, and the intermediary may thus have an action brought against it by other parties, inasmuch as it can, where appropriate, seek indemnification from the Member State concerned, and only if it can recover from that Member State the contributions which it paid directly to that Member State.
(1) .
(2)  –	According to the Belgian Government, these cases are just two of the 879 actions pending before the referring court which have been brought in connection with the Law of 24 March 1987 on animal health and the Law of 23 March 1998 establishing a Budgetary Fund for the health and quality of animals and animal products. The sums claimed in those cases are provisionally estimated to amount to a total of EUR 119 million.
(3)  –	The first maxim is known in English law, with regard to the concept of equity, as vigilantibus non dormientibus aequitas subvenit . The Court is particularly familiar, however, with the second maxim. One commentator suggests that it is in fact the maxim to which the Court and its Advocates General most often refer (see Masson, A., ‘Usages et réflexivité du latin à la Cour de justice des Communautés européennes’, Revue trimestrielle de droit européen, 2007, No 4, pages 609 to 633).
(4)  –	Case C‑17/91 Lornoy and Others [1992] ECR I‑6523; Case C‑114/91 Claeys
[1992] ECR I‑6559; and Joined Cases C‑144/91 and C‑145/91 Demoor and Others [1992] ECR I‑6613.
(5)  –	Joined Cases C‑261/01 and C‑262/01 van Calster and Others
[2003] ECR I‑12249.
(6)  –	Belgisch Staatsblad
of 30 April 1998, p. 13469.
(7)  –	See Article 23 of the Law of 1998.
(8)  –	See Article 23 of the Law of 1998.
(9)  –	See paragraphs 65 and 77.
(10)  –	Belgisch Staatsblad
of 21 August 1991, p. 17960.
(11)  –	See, inter alia, judgment of the Court of Cassation of 14 April 2003.
(12)  –	See Articles 14, 17 and 21 of the Law of 1998.
(13)  –	However, if the relevant limitation period was 10 years from entry into force of the Law of 1998, that is to say from 30 April 1998, an action brought on 2 April 2007 would have arisen prior to expiry of that period.
(14)  –	See Articles 14, 17, 21 and 23 of the Law of 1998.
(15)  –	See point 28 of this Opinion.
(16)  –	See Joined Cases C‑192/95 to C‑218/95 Comateb and Others [1997] ECR I‑165, paragraph 20, and Case C‑30/02 Recheio – Cash & Carry
[2004] ECR I‑6051, paragraph 15.
(17) – See, inter alia, with regard to the recovery of sums paid but not due, Case C‑231/96 Edis
[1998] ECR I‑4951, paragraph 34, and Recheio – Cash & Carry, paragraph 17, and, more generally, Case C‑268/06 Impact
[2008] ECR I‑2483, paragraph 46, and Case C‑240/09 Lesoochranárske zoskupenie
[2011] ECR I‑0000, paragraph 48.
(18) – See, inter alia, Case C‑445/06 Danske Slagterier
[2009] ECR I‑2119, paragraph 31 and the case-law cited there.
(19) – See Case C‑228/96 Aprile
[1998] ECR I‑7141, paragraph 19 and the case-law cited there.
(20)  –	See, inter alia, Aprile, cited above, at paragraph 19; Case C‑62/00 Marks & Spencer
[2002] ECR I‑6325, paragraph 35; and Case C‑542/08 Barth
[2010] ECR I‑0000, paragraph 28.
(21)  –	Paragraph 18 of the judgment.
(22)  –	Defined in Article 100 of the Consolidated Laws (mentioned above at point 23 of this Opinion).
(23)  –	As is the case in Article 100 of the Consolidated Laws.
(24) – See, inter alia, Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16; Case C‑50/96 Deutsche Telekom
[2000] ECR I‑743, paragraph 43; Case C‑453/00 Kühne & Heitz
[2004] ECR I‑837, paragraph 21; and Case C‑2/06 Kempter
[2008] ECR I‑411, paragraph 35.
(25) – See, to that effect, Case C‑137/94 Richardson
[1995] ECR I‑3407, paragraph 33; Case C‑292/04 Meilicke and Others [2007] ECR I‑1835, paragraph 34 and the case-law cited there; and Kempter, cited above, at paragraph 35.
(26)  –	See Case C‑208/90 Emmott
[1991] ECR I‑4269, paragraph 21.
(27) – Case C‑188/95 [1997] ECR I‑6783, paragraph 51.
(28)  –	See paragraph 54.
(29)  –	See also Case C‑90/94 Haahr Petroleum [1997] ECR I‑4085, paragraph 52, and Joined Cases C‑114/95 and C‑115/95 Texaco and Olieselskabet Danmark
[1997] ECR I‑4263, paragraph 48.
(30)  –	Case C‑88/99 Roquette Frères
[2000] ECR I‑10465, paragraph 37.
(31)
–	See, to that effect, Barth, paragraph 33, and Aprile, paragraphs 43 to 45.
(32) – The referring court seems to consider there to be a difference in the applicable limitation periods. However, having treated the present cases as concerning non-contractual liability, the Belgian Government adopted a different position at the hearing: it maintained that the limitation periods were of the same duration, namely five years, even if the starting dates differed slightly. I note that the referring court has treated these cases as concerning the recovery of sums paid but not due ( condictio indebiti ). See, on the issue of classification, Case C‑446/04 Test Claimants in the FII Group Litigation
[2006] ECR I‑11753, paragraph 201.
(33)  –	It should be noted that Q‑Beef, which paid the contributions directly to the State, is not affected by this question for a preliminary ruling.
(34)  –	See Edis, paragraph 39; Aprile, paragraph 34; and Joined Cases C‑216/99 and C‑222/99 Prisco and CASER
[2002] ECR I‑6761, paragraph 70.
(35)  –	Van Calster and Others, cited above, at paragraph 59. At paragraph 60, the Court added that ‘[t]hat legislative method cannot be considered compatible with the obligation to notify under Article 93(3) of the Treaty. If it were upheld, the Member States could immediately put a plan for State aid into effect without notifying it to the Commission and the consequences of a failure to notify could be avoided by abolishing the measure and reintroducing it simultaneously with retroactive effect’.
(36)  –	See point 16 of the Opinion of Advocate General Jacobs in van Calster and Others .
(37)  –	Case C‑24/95 Alcan Deutschland
[1997] ECR I‑1591.
(38)
–	See Case C‑326/96 Levez
[1998] ECR I‑7835, paragraph 34, and Barth, paragraph 36.
(39)
–	For example, in Kühne & Heitz, the company concerned sent a claim for payment of certain sums some two months after the judgment of the Court giving an interpretation in its favour (see the Opinion of Advocate General Léger, point 14).
(40)  –	Which, moreover, the Kingdom of Belgium does not dispute.
(41)  –	Even at the hearing, the agent for the Belgian Government had treated the failure to notify merely as a procedural error. In my view, the situation is much more serious inasmuch as that failure to act corresponds to the failure to fulfil a fundamental obligation concerning State aid.
(42)  –	By way of example, it may to be useful to mention the steps taken in response to the judgment in Case C‑319/02 Manninen
[2004] ECR I‑7477, in which the Court found Finnish legislation to be incompatible with European Union law. Once the referring court had given its final decision (judgment of the Korkein hallinto-oikeus [Supreme Administrative Court] of 22 December 2004 in Case KHO:2004:117), a law on compensation was adopted. It is clear from the drafting history of that law that it was adopted in order to guarantee effective reimbursement (see also Governmental draft 57/2005).
(43)  –	The thirteenth recital in the preamble to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) states that, in cases of unlawful aid which is not compatible with the common market, effective competition should be restored and that, for this purpose, it is necessary that the aid, including interest, be recovered without delay.
(44)  –	European Court of Human Rights, judgment in Zouboulidis
v Greece of 25 June 2009, paragraphs 33 to 37. That case involved claims against the Greek State which, in some circumstances, were time-barred after two years, whereas the claims in favour of the Greek State were subject to a limitation period that was between two and ten times longer. The European Court of Human Rights ruled in that regard that the preferential limitation rules enjoyed by the Greek State were not compatible with Article 1 of the First Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.
(45)  –	See Article 17, on the right to property.