62001CJ0467_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-467/01,
REFERENCE to the Court under Article 234 EC by the Corte d'appello di Genova (Italy) for a preliminary ruling in the proceedings pending before that court between
Ministero delle Finanze
and
Eribrand SpA,
formerly Eurico Italia SpA,
on the interpretation of Articles 47 and 48 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended by Commission Regulation (EC) No 1829/94 of 26 July 1994 (OJ 1994 L 191, p. 5),
THE COURT (First Chamber),
composed of:
M. Wathelet, President of the Chamber,
P. Jann and
A. Rosas (Rapporteur), Judges,
Advocate General: C. Stix-Hackl,
Registrar: R. Grass,
after considering the written observations submitted on behalf of:
─
Eribrand SpA, by S. Turci and M. Turci, avvocati,
─
the French Government, by G. de Bergues and A. Colomb, acting as Agents,
─
the Commission of the European Communities, by M. Niejahr and A. Aresu, acting as Agents,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 14 January 2003,
gives the following
Judgment
Grounds
1.
By order of 15 November 2001, received at the Court on 6 December 2001, the Corte d'appello di Genova (Court of Appeal, Genoa) referred to the Court for a preliminary ruling under Article 234 EC five questions on the interpretation of Articles 47 and 48 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended by Commission Regulation (EC) No 1829/94 of 26 July 1994 (OJ 1994 L 191, p. 5, hereinafter
"Regulation No 3665/87"
).
2.
Those questions were raised in the course of proceedings between the Ministero delle Finanze (Italian Ministry of Finance) and Eribrand SpA (hereinafter
"Eribrand"
), formerly Eurico Italia SpA, concerning the payment, in accordance with Regulation No 3665/87, of refunds relating to the export by that company of three consignments of rice to Israel during 1995.
Legal background
3.
Regulation No 3665/87 entered into force on 1 January 1988 and was amended several times prior to its repeal and replacement by Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11).
The latter regulation entered into force on 24 April 1999 and applies with effect from 1 July 1999.
However, by virtue of the first indent of Article 54(1) of Regulation No 800/1999, Regulation No 3665/87 continues to apply to exports covered by export declarations accepted prior to 1 July 1999.
4.
Pursuant to Article 1 thereof, Regulation No 3665/87 applied, among other things, to exports of rice.
5.
Article 47 of Regulation No 3665/87 provided:
"1.
The refund shall be paid only on application by the exporter and shall be paid only by the Member State in whose territory the export declaration was accepted.
...
2.
Except in cases of
force majeure
, the documents relating to payment of the refund or release of the security must be submitted within 12 months following the date on which the ... export declaration was accepted.
...
4.
Where the documents required under Article 18 cannot be submitted within the period referred to in paragraph 2, although the exporter has acted with all due diligence to obtain them and communicate them within such period, he may be granted further time for the production of these documents.
5.
Requests for the treatment of other documents as equivalent, as referred to in paragraph 3, whether or not supporting documents are attached, and requests for extension of time referred to in paragraph 4 must be submitted within the period referred to in paragraph 2.
...
"
6.
Article 48(2)(a) of Regulation No 3665/87 read as follows:
"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 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."
7.
Article 18 of Regulation No 3665/87, referred to in Article 47(4) thereof, specified the documents by means of which proof was to be furnished that the agricultural products had been cleared for release for consumption in the relevant third country.
That provision was amended on various occasions in order to make it easier for exporters to obtain evidence establishing the release of the products for consumption in a third country.
8.
Article 22(1) of Regulation No 3665/87 provided:
"On application by the exporter, Member States shall advance all or part of the amount of the refund as soon as the export declaration has been accepted, on condition that a security is lodged of which the amount is equal to the amount advanced plus 15%.
Member States may lay down the conditions under which it shall be possible to apply for an advance of part of the refund.
"
9.
Article 23(1) of Regulation No 3665/87 provided:
"Where the amount advanced is greater than the amount actually due in respect of the relevant export operation or an equivalent export operation, the exporter shall repay the difference between the two amounts plus 15% of such difference.
Where, however, by reason of
force majeure
:
─
the proof to be furnished under this Regulation in order to qualify for the refund cannot be produced, or
─
the product reaches a destination other than that for which the advance was calculated,
the additional 15% shall not be charged
"
.
10.
In addition, the penultimate recital in the preamble to Regulation No 3665/87 was worded as follows:
"Whereas in the interests of sound administrative practice, applications for payment of the refund, accompanied by all relevant documents, should be required to be made within a reasonable period, save in cases of
force majeure
and in particular when it has not been possible to comply with the time-limit because of administrative delays beyond the control of the exporter"
.
11.
It is important to make clear that Articles 49 and 50 of Regulation No 800/1999 repeat to a great extent the contents of Articles 47 and 48 of Regulation No 3665/87 without substantially amending them.
The second sentence of Article 49(5) of Regulation No 800/1999, which corresponds to Article 47(5) of Regulation No 3665/87, is worded as follows:
"However, if those applications are submitted within six months following this time-limit, the provisions of the first subparagraph of Article 50(2) shall apply."
12.
The first subparagraph of Article 50(2) of Regulation No 800/1999 corresponds to Article 48(2)(a) of Regulation No 3665/87.
The dispute in the main proceedings and the questions referred for a preliminary ruling
13.
In the course of March and April 1995, Eribrand exported to Israel three consignments of rice which were loaded on vessels sailing from the port of Ravenna (Italy) bound for the port of Haifa (Israel).
14.
In July 1995, the Italian authorities paid Eribrand an advance of about ITL 33 million in respect of the amount of export refunds for which it had applied.
15.
The Israeli buyer did not send Eribrand the customs certificates of entry needed to prove release of the goods for consumption in Israel, despite repeated requests. Realising that it would not be in a position to comply with the time-limit of 12 months set by Article 47(2) of Regulation No 3665/87 for the production of those documents, on 6 March 1996, Eribrand submitted two applications for extensions of time to the Ministero delle Finanze.
Those applications were made timeously, that is to say within the time-limit set by Article 47(5) of Regulation No 3665/87.
16.
By letters of 19 October 1996, the Ministero delle Finanze rejected those applications.
It pointed out, first, that when Eribrand had applied for the extensions of time, it had still had six months to produce the missing documents.
It noted, secondly, that those documents had still not been submitted and that the maximum periods laid down by Articles 47(2) and 48(2) of Regulation No 3665/87 had meanwhile expired.
Consequently, the Ministero delle Finanze considered that the applications for payment of the export refunds could not be accepted.
17.
On 18 December 1996, it also demanded that Eribrand repay the advance which it had been paid.
Since Eribrand's subsequent appeals were rejected on 16 September 1997, it actually repaid the amount demanded, that is the sum received plus 15%.
18.
It was only as a result of steps taken through the Italian embassy in Israel and the local office of the Istituto per il Commercio Estero (Foreign Trade Institute, hereinafter
"the FTI"
), and having instructed Italian lawyers, and Israeli lawyers, that Eribrand succeeded in obtaining the customs certificates of entry.
On 3 December 1997, it forwarded them to the Ministero delle Finanze.
19.
On 4 December 1997, Eribrand commenced proceedings in the Tribunale di Genova (Italy) seeking judgment against the Ministero delle Finanze for a sum of about ITL 103 million in respect of the export refunds due to it.
20.
By judgment of 3 February 2000, the Tribunale di Genova, having dismissed the objections to its substantive and territorial jurisdiction raised by the Ministero delle Finanze, gave judgment for Eribrand on the basis of Article 47(4) of Regulation No 3665/87.
It considered that
"the company is asserting its entitlement to be granted further time to allow submission of the document evidencing release for consumption which it could not submit within 12 months following the date of acceptance of the export declaration even though the exporter had been diligent in seeking to obtain it (a situation which has in fact been proved in these proceedings since Eurico arranged for diplomatic intervention and action by the FTI, applying for the issue of replacement documents by the Israeli customs authorities)"
.
21.
The Ministero delle Finanze appealed against that judgment to the Corte d'appello di Genova.
22.
According to the order for reference, the Ministero delle Finanze disputes, with regard to the substance of the main proceedings, the interpretation of Article 47(4) of Regulation No 3665/87 applied by the Tribunale di Genova.
It maintains that the additional period which can be granted by virtue of that provision is limited to only six months, since the maximum period for the production of the documents required by the Community legislation cannot in any event exceed 18 months.
That is clear from Article 48(2)(a) of Regulation No 3665/87 under which, where the necessary proof is produced within six months of expiry of the periods set in Article 47(2), (4) and (5) thereof, the refund paid shall be 85% of the sum which would have been paid if all the requirements had been complied with.
It observes that the file for the payment of the refunds was completed by Eribrand only roughly 32 months after the acceptance of the export declarations.
23.
Eribrand argues that the above interpretation by the Italian authorities would deprive innocent exporters of their right to refunds where the obstacle to obtaining the documents required by the Community legislation continued beyond the additional period of six months which could be granted.
In its view, it cannot be deduced from Article 48 of Regulation No 3665/87 that extensions of time, provided for by Article 47(4) thereof, are subject to a maximum length nor that the total length of the time allowed for submitting those documents cannot exceed 18 months.
24.
In view of the arguments put forward by the parties and of the relevance of the interpretation of the Community legislation for resolving the dispute before it, the Corte d'appello di Genova decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
"(1)
On the basis of the combined provisions of Articles 47(4) and 48 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, must it be concluded that:
(a)
the further time which may be granted to an exporter may not in any circumstances exceed the maximum duration of 18 months; or
(b)
that, conversely, the reduction of 15% applies only where the ordinary time-limit and any extension thereof granted to the exporter is exceeded by more than six months?
(2)
If the interpretation given in question (1)(b) above is correct, are there, on the basis of the two abovementioned articles, maximum time-limits ─ having regard to various aspects, including those indicated in the grounds of this order, which may be relevant in this respect from the Community law point of view ─ within which the extensions of time may be granted?
(3)
If the interpretation given in question (1)(b) is correct, what are those maximum time-limits and what extensions of time are available under the two abovementioned articles?
(4)
If the interpretation given in question (1)(b) is correct, may a private individual, on the basis of the two abovementioned articles, claim a legally protected right to the setting of a particular duration (regarded as commensurate with the difficulties of obtaining the prescribed documentation) for the extension of time?
(5)
If the interpretation given in question (1)(b) is correct, may the national court, on the basis of the two abovementioned articles ─ if the administrative authority fails to grant further time ─ recognise the exporter's right (if he has acted diligently to obtain the documents and forward them within the period of 12 months laid down in Article 47(2) of that regulation) to be granted further time and may it fix that duration on the basis of the time actually taken to obtain and forward the prescribed documentation?
"
The first three questions referred
25.
By its first three questions, which it is appropriate to consider together, the referring court is asking in essence whether, in the light of Articles 47 and 48 of Regulation No 3665/87, extensions of time which can be granted to exporters under Article 47(4) are subject to maximum time-limits and, if the answer is in the affirmative, what are those time-limits, or if, on the contrary, the grant of such extensions of time for the production of documents establishing that the customs formalities for the release of the goods for consumption have been completed is possible notwithstanding the fact that the total period of 18 months is exceeded.
Observations submitted to the Court
26.
Eribrand, the French Government and the Commission, which have submitted observations to the Court, submit that, in relation to the production of the documents referred to in Article 47(4) of Regulation No 3665/87, that provision imposes no limit on the length of the extensions of time which may be granted to the exporter under that provision.
It is for the national authorities to fix the length of those extensions in relation to the specific requirements of each exporter.
To that end, the authorities must take into account in particular the diligence shown by exporters applying for an extension of time, the evidence which they submit in support of their application and the period of time reasonably necessary to overcome the difficulties which they cite.
27.
Eribrand criticises the position taken by the Italian authorities, who maintain that extensions of time granted cannot in any event exceed six months and that, even if an extension was granted, the export refunds must always be reduced by 15%.
It submits that that interpretation of the Community legislation is not only wrong, but also contrary to the objectives of the system of export refunds as well as to the principles of equity, equality, proportionality and legitimate expectation.
28.
According to Eribrand, the reference in Article 48(2)(a) of Regulation No 3665/87 to the time-limit set by Article 47(4) thereof concerns cases where the exporter has not complied with an extension of time which may have been granted by the authorities.
Where extensions of time are granted pursuant to Article 47(4), the exporter may still submit the documentation after the expiry of those periods, so long as the delay does not exceed the time-limit of six months set by Article 48(2)(a) and, in that case, subject to a reduction of 15% of the amount of the refund which would have been paid if all the requirements had been satisfied.
29.
Eribrand relies on paragraphs 146 to 148 of the judgment in Case C-54/95
Germany
v
Commission
[1999] ECR I-35, from which it is clear that Article 47(4) of Regulation No 3665/87 is really intended to prevent innocent operators, who have been diligent in obtaining customs documents, being automatically deprived of the benefit of refunds on the sole ground that they have not succeeded, within the time-limit laid down, in providing evidence of a transaction which has actually taken place.
It is not compatible with that objective to penalise, by the loss of 15% of the refunds, an operator who can objectively give good reasons for the delay in submitting the required documents.
30.
The French Government argues that it follows from the very terms of Article 48(2)(a) of Regulation No 3665/87 that an interpretation to the effect that exporters have a maximum time-limit of 18 months from the date of acceptance of the export declaration to claim their entitlement is wrong.
The use of the conjunction
"and"
supports the argument that the time-limits set by Article 47(2), (4) and (5) must have been successively exhausted before the time-limit of six months appearing in Article 48(2)(a) starts to run.
31.
According to the French Government, an interpretation of the provisions of Articles 47 and 48 of Regulation No 3665/87 consisting of a simple addition of the two periods, one of 12 months and the other of six months, would lead to disregarding the objectives of that regulation.
The consequence would be, first, that the Member States' discretion as regards the length of the extension or extensions which they can grant to diligent exporters would be removed.
Secondly, it would automatically deprive such exporters, if the time-limit of 18 months were exceeded, of any possibility of claiming their entitlements.
32.
The French Government maintains that the consequences of such an interpretation would be completely contrary to the Court's case-law.
At paragraph 146 et seq. of its judgment in
Germany
v
Commission
, cited above, the Court referred to the principle of the discretion of the competent national authorities, which are bound to check whether the exporter has shown diligence and to decide whether it is appropriate to exercise their power of granting an extension of time.
33.
The obligation of those authorities to evaluate the actual situation of each exporter implies, according to the French Government, a duty to penalise dilatory behaviour, by refusing to grant extensions of time sought by exporters who have not shown diligence.
In that context, the national authorities are also required to ensure that diligent exporters are not penalised as a result of circumstances for which they are not responsible.
That is particularly so in cases where the importer in the non-member country has not furnished the required documents in due time.
34.
The French Government observes that, by virtue of the provisions of the first subparagraph of Article 22(1) of Regulation No 3665/87, an exporter who applies for an advance on the amount of the refund is required to lodge a security the amount of which is equal to the amount advanced plus 15%.
It states that those provisions encourage exporters to show diligence, since it is against their interests to tarry in producing the required customs documents.
35.
With regard to the length of the extensions of time which the competent national authorities may grant to diligent exporters, the French Government points out that it is not fixed by any provision of Regulation No 3665/87.
However, the penultimate recital in the preamble thereto contains certain indications in that regard.
36.
According to the Commission, Article 47(2) of Regulation No 3665/87 fixes at 12 months the normal time-limit for lodging the export refund documents in order to encourage exporters to fulfil their obligations with diligence and to avoid the competent national authorities having to keep those files open indefinitely.
In that context, it is reasonable and equitable to derogate from that rule where an exporter has been diligent in obtaining and forwarding the required documents, but where he has not succeeded in complying with that time-limit for reasons for which he cannot be blamed.
It points out that Article 47(4) expressly provides for the possibility of granting extensions of time and that the exporter must, in order to obtain them, apply to those authorities in good time.
In that regard, it refers also to the penultimate recital in the preamble to that regulation.
37.
The Commission submits that no argument against such interpretation can be drawn from Article 48(2)(a) of Regulation No 3665/87, which provides only for a further time-limit of six months to be added to the ordinary and extended time-limits already granted.
It argues, also, that Article 49 of Regulation No 800/1999 is in the
same terms as Article 47(4) of Regulation No 3665/87.
38.
Furthermore, the reduction of 15% in the amount of refunds provided for in Article 48(2)(a) continues to apply fully where the exporter produces the required documents after the expiry of the extensions granted, but within the additional six months permitted.
It is a form of penalty for exporters who, even though they have obtained an extension of the ordinary time-limit of 12 months, have none the less produced the necessary documents late, even though such delay has not been considered sufficiently serious to justify the complete loss of the right to the export refunds.
The Court's reply
39.
By virtue of Regulation No 3665/87, payment of export refunds is subject, among other things, to the submission by the exporter of one or more documents, listed in Article 18 of that regulation, which establish that the customs formalities for release for consumption in the non-member country, if any, mentioned in the export declaration, have been completed.
40.
According to Article 47(2) of that regulation, the exporter has, except in cases of
force majeure
, a period of 12 months following the date on which the export declaration was accepted to submit to the competent national authorities the application for refund and all the other documents necessary for the payment thereof.
Such a time-limit takes account of the interest of the Member States' authorities in closing export refund files within a reasonable time, in particular where advances on the amount of refunds have been paid in accordance with Article 22 of Regulation No 3665/87 (see, to that effect, in respect of the equivalent provisions in Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1), which applied before the entry into force of Regulation No 3665/87, Case C-155/89
Philipp Brothers
[1990] ECR I-3265, paragraph 39).
41.
However, the Community legislation also takes into consideration the fact that exporters may encounter difficulties in obtaining the customs documents from the authorities of the non-member country of importation, upon whom they have no means of exerting pressure (Philipp Brothers
, cited above, paragraph 27).
42.
In that context, Article 47(4) of Regulation No 3665/87 enables the competent national authorities to grant the exporters concerned extensions of time, on condition that they have acted with diligence in obtaining and forwarding the required documentation within the time-limit of 12 months fixed by paragraph 2 of that article.
As the Court held in paragraph 148 of the judgment in
Germany
v
Commission
, cited above, the purpose of that rule is to ensure that exporters who, despite having made every effort required of them, have been prevented, as a result of circumstances beyond their control, from producing the requisite documents within the 12-month period, are not automatically deprived of the refunds provided for under the Community rules.
43.
Furthermore, it is appropriate to observe that, according to the penultimate recital in the preamble to Regulation No 3665/87, administrative delays beyond the exporter's control may amount to
force majeure
capable of justifying non-compliance with the time-limit of 12 months fixed by Article 47(2) of that regulation.
44.
In addition, it follows expressly from Article 48(2)(a) of Regulation No 3665/87 that, even if the exporter does not claim
force majeure
within the meaning of that regulation, non-compliance with the said time-limit of 12 months does not necessarily involve the total loss of the refund which he can claim.
Indeed, that provision requires that, if all the documentation required by the Community rules is produced to the competent national authorities within six months of expiry of the period set,
inter alia
, in Article 47(2), the refund paid is to be 85% of the sum which would have been paid if all the requirements had been complied with.
45.
With regard to the question whether the said Article 48(2)(a) of Regulation No 3665/87 nevertheless precludes the grant of extensions of time which could exceed a total period of 18 months from the date of acceptance of the export declaration, it is necessary to point out that the wording of that provision contains no restriction on the length of the extensions of time which may be granted by virtue of Article 47(4) of that regulation.
On the contrary, it is clear from the express reference to the time-limits set by Article 47(2), (4) and (5) that, if an extension of time has been granted to the exporter, in accordance with the said paragraph 4, the exporter has a further period of six months following the expiry of that time-limit to complete his file and thus obtain the payment of 85% of the refund which would have been due to be paid if all the requirements had been satisfied.
46.
The reduction of 15%, applied in such a case to the total amount of the refund, is intended precisely to penalise the fact that the exporter is not in a position to show that the delay in excess of the extension of time provided for the forwarding of the documents is beyond his control.
Therefore, it must be noted that, if the exporter shows that he has acted with all the diligence required to obtain and forward the required documents, the Community rules do not provide for any penalty to be imposed on him.
47.
It must be pointed out, further, that the fixing of maximum time-limits to the extensions of time which may be granted to diligent exporters, in particular, if it were impossible to exceed a total period of 18 months from the date of acceptance of the export declaration, would considerably reduce the discretion accorded to the national authorities and would be contrary to the objective of Article 47(4) of Regulation No 3665/87.
That provision itself enables the requirement to protect the interest of exporters in obtaining all the refunds to which they are entitled to be reconciled with that of the authorities which do not wish to keep open indefinitely the files relating to export operations.
48.
It must therefore be concluded that it does not follow from Articles 47 and 48 of Regulation No 3665/87 that extensions of time which can be granted to exporters by virtue of Article 47(4) are subject to maximum time-limits which are binding on the competent national authorities.
49.
Consequently, the first three questions must be answered to the effect that Regulation No 3665/87 does not fix any limit to the length of the extensions of time which may be granted to exporters by virtue of Article 47(4) of that regulation.
It is for the competent national authorities to fix the length of those periods in relation to the specific circumstances of each case, taking into account, in particular, the diligence shown by the exporter seeking an extension of time, the nature of the objective difficulties confronting him and the period of time reasonably necessary to overcome those difficulties.
The fourth and fifth questions referred
50.
By its fourth and fifth questions, which it is also convenient to consider together, the referring court is asking the Court of Justice about the extent of the judicial protection which should be given to exporters where the competent national authorities wrongly refuse to grant them an extension of time under Article 47(4) of Regulation No 3665/87.
It is asking, in essence, whether the national court may recognise the exporter's right to obtain an extension of a certain duration and itself fix that duration on the basis of the time actually taken to obtain and forward the prescribed documentation.
Observations submitted to the Court
51.
According to Eribrand, it follows from the Court's case-law that, where the authorities have wrongly failed to grant extensions of time referred to in Article 47(4) of Regulation No 3665/87, the national court may recognise an exporter's right to obtain them and determine their duration on the basis of the time actually taken to obtain and submit the prescribed documentation.
It cites in that context, Case 222/86
Heylens and Others
[1987] ECR 4097; Case C-213/89
Factortame and Others
[1990] ECR I-2433; and Case C-97/91
Oleificio Borelli
v
Commission
[1992] ECR I-6313.
52.
The French Government submits that, if all the factors justifying the grant of an extension of time are present, the national authorities are bound to grant such an extension to diligent exporters.
To accept that the national authorities are entitled, in such circumstances, to refuse to grant an extension of time would, according to that government, result in conceding an arbitrary power to those authorities.
53.
Consequently, a diligent exporter who considers that the competent national authorities have refused him the benefit of extensions of time in breach of Article 47(4) of Regulation No 3665/87 should be able to rely on that provision before the national court.
Within the framework of rules of national law, an exporter must be in a position to obtain the annulment of the decision by which those authorities have wrongly refused him an extension of time.
Those authorities would then be bound to adopt a new decision complying with the requirements of Community law.
54.
Conversely, the French Government argues that neither Regulation No 3665/87 nor, more generally, Community law requires national courts themselves to fix the duration of extensions of time necessary to obtain and submit the required documentation.
Indeed, in accordance with consistent case-law, in the absence of Community rules governing a matter, 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 Community law, it being understood that such rules cannot be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law.
55.
According to the French Government, the fact that a Member State's legal system does not allow national courts to act in place of the authorities by themselves fixing the duration of an extension of time cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights to which diligent exporters are entitled under Article 47(4) of Regulation No 3665/87.
56.
The Commission submits, for its part, that, on the basis of Article 47(4) of Regulation No 3665/87, exporters cannot assert an actual right to obtain extensions of time.
It emphasises that the said provision makes clear that such extensions
"may be granted to them"
.
57.
According to the Commission, the competent national authorities have a discretion in considering applications for extensions of time, in accordance with the administrative traditions of the Member States.
It is their responsibility, in particular, to check the actual existence and the relevance of
force majeure
claims by exporters in support of applications, to evaluate whether they have actually been diligent in trying to obtain and forward the necessary documents as well as to determine the possible duration of the extensions of time which may be granted.
58.
If the exporter brings an action before the competent national court against a decision refusing him an extension of time, the Commission considers, on the basis of settled case-law, that that court has the same power of review, including, in particular, the possibility of substitution, as that which is accorded by the national legal system in similar cases of refusal by the said authorities to grant extensions of time to national economic operators.
Such procedure must not therefore be less favourable to exporters than that which applies to comparable domestic cases.
The Court's reply
59.
It is appropriate, in the first place, to state that Article 47(4) of Regulation No 3665/87 does not confer on exporters the right to obtain an extension of time of a certain duration, upon which they can rely before national courts.
As the Commission correctly observed, that provision provides that
"extensions of time may be granted to them"
and therefore leaves to the competent national authorities a discretion as regards the grant of an extension of time and its duration.
60.
None the less, the Court has already held that the exercise of the discretion thus conferred on the competent national authorities cannot exceed the limits dictated by the purpose of Article 47(4) of Regulation No 3665/87, which is to ensure that diligent exporters are not automatically deprived of the refunds provided for under Community legislation (Germany
v
Commission
, cited above, paragraph 148).
In addition, it follows from paragraph 49 of this judgment that those authorities are bound, in fixing the duration of the extension which they allow, to take into consideration the specific circumstances of each case, in particular the diligence shown by an exporter claiming an extension of time, the nature of the objective difficulties confronting him and the period of time reasonably necessary to overcome those difficulties.
61.
It is appropriate, secondly, to point out that the principle of effective judicial protection, which is a general principle of Community law (see, among others, Case 222/84
Johnston
[1986] ECR 1651, paragraph 18;
Heylens and Others
, cited above, paragraph 14; and Case C-226/99
Siples
[2001] ECR I-277, paragraph 17), requires that exporters have a legal remedy against decisions taken by competent national authorities under Article 47(4) of Regulation No 3665/87.
It is for the Member States to ensure effective judicial scrutiny of the observance of the applicable provisions of Community law (Johnston
, cited above, paragraph 19).
62.
According to the Court's settled case-law, in the absence of provisions of Community law, such judicial scrutiny is subject to the rules of national law, providing the limits imposed by Community law are complied with, in so far as the detailed rules laid down must not render it virtually impossible or excessively difficult to implement the Community rules (principle of effectiveness) and that the national legislation must be applied in a manner which is not discriminatory as compared to procedures for deciding national disputes of the same type (principle of equivalence) (see, in particular, Joined Cases 205/82 to 215/82
Deutsche Milchkontor and Others
[1983] ECR 2633, paragraph 19; Case C-298/96
Oelmühle and Schmidt Söhne
[1998] ECR I-4767, paragraph 24; and Case C-255/00
Grundig Italiana
[2002] ECR I-8003, paragraph 33).
63.
It follows that the question whether national courts must confine themselves to reviewing decisions taken by the competent national authorities or whether they may, on the other hand, themselves fix the duration of extensions of time which those authorities have wrongly refused the exporter must be determined according to the rules of national law applicable to comparable disputes under purely national law, it being understood that effective scrutiny of such decisions must, in any event, be ensured.
64.
The answer to the fourth and fifth questions must therefore be that exporters cannot rely directly before national courts on the right to obtain an extension of time of a certain duration.
They must however have a legal remedy against decisions taken by the competent national authorities under Article 47(4) of Regulation No 3665/87.
It is for each Member State's legal system to determine the conditions and detailed rules governing such legal remedies, in compliance with the principles of effectiveness and equivalence as defined by Community law.
Decision on costs
Costs
65.
The costs incurred by the French Government and by the Commission, which have submitted observations to the Court, are not recoverable.
Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the referring court, the decision on costs is a matter for that court.
Operative part
On those grounds,
THE COURT (First Chamber),
in answer to the questions referred to it by the Corte d'appello di Genova by order of 15 November 2001, hereby rules:
1.
Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 1829/94 of 26 July 1994, does not fix any limit to the length of the extensions of time which may be granted to exporters by virtue of Article 47(4) of that regulation.
It is for the competent national authorities to fix the length of those periods in relation to the specific circumstances of each case, taking into account, in particular, the diligence shown by the exporter seeking an extension of time, the nature of the objective difficulties confronting him and the period of time reasonably necessary to overcome those difficulties.
2.
Exporters cannot rely directly before national courts on the right to obtain an extension of time of a certain duration.
They must however have a legal remedy against decisions taken by the competent national authorities under Article 47(4) of Regulation No 3665/87.
It is for each Member State's legal system to determine the conditions and detailed rules governing such legal remedies, in compliance with the principles of effectiveness and equivalence as defined by Community law.