61995CC0188_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 The Østre Landsret (Danish Eastern Regional Court) has requested the Court to give a preliminary ruling on the interpretation of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (`the Directive'), (1) as most recently amended by Council Directive 85/303/EEC. (2)
The Directive, which introduces a harmonized duty on the raising of capital by companies, prohibits the charging of any other taxes in respect of company registration of capital companies.
By virtue of Article 12 of the Directive Member States nevertheless retain the power to charge `duties paid by way of fees or dues'.
The Østre Landsret seeks guidance on the scope of that expression and also asks the Court whether, in the light of the ruling in Emmott, (3) a Member State can rely upon a limitation period in proceedings brought against it even though it has failed to implement a directive properly.
Relevant Community rules
2 The Directive has the aim of promoting the free movement of capital by harmonizing the taxation payable on the contribution of capital to companies and firms and by abolishing stamp duty on securities as well as other indirect taxes with the same characteristics as capital duty or stamp duty.
Article 3 of the Directive specifies the companies and firms in respect of which capital duty is payable, which are referred to in the Directive as `capital companies', and Article 4 specifies the transactions which may attract the duty.
By virtue of Article 7 of the Directive, which was most recently amended by Article 1(2) of Council Directive 85/303, Member States must either exempt such transactions from capital duty or charge duty at a single rate not exceeding one per cent.
3 As the eighth recital in the preamble to the Directive states:
`... the retention of other indirect taxes with the same characteristics as ... capital duty or the stamp duty on securities might frustrate the purpose of the measures provided for in this Directive and those should therefore be abolished'.
4 Article 10 of the Directive accordingly provides:
`Apart from capital duty, Member States shall not charge, with regard to companies, firms, associations or legal persons operating for profit, any taxes whatsoever:
...
(c) in respect of registration or any other formality required before the commencement of business to which a company, firm, association or legal person operating for profit may be subject by reason of its legal form.'
5 However, by virtue of Article 12(1):
`Notwithstanding Articles 10 and 11, Member States may charge:
...
(e) duties paid by way of fees or dues:
...'.
6 The Court had occasion to consider the scope of Articles 10 and 12(1)(e) in its judgment in Ponente Carni. (4)
In issue in that case were Italian charges payable on the first registration of a company and annually thereafter. The level and structure of the charges were amended several times during the material period.
The charges were invariably higher for public limited companies than for private limited companies and, during one period, varied according to a public limited company's capital.
The charges were substantial;
for 1988, for example, they were fixed at LIT 15 000 000 for public limited companies and LIT 3 500 000 for private limited companies.
7 The Court held first that charges such as those in issue fell within the scope of Article 10.
That was so even though the revenue from the charge contributed to the financing of the department responsible for keeping the register.
If Member States were able to impose, without any limitation under Community law, a charge other than capital duty on capital companies in respect of one of the essential formalities for their formation, that would run counter to the objectives of the Directive. (5)
8 The Court then went on to consider the scope of Article 12 of the Directive.
Distinguishing its case-law on the Treaty provisions on charges having an equivalent effect to customs duties, the Court held that Article 12 permitted the charging of fees or dues representing `the consideration for a transaction required by law for an object of public interest.
That may be precisely the case with a charge required as consideration for a transaction such as the registration of capital companies which is required by national law, in accordance with Community law, in the interest of both third parties and of the companies themselves.' (6)
9 Turning to the calculation of the fees or dues, the Court observed:
`The distinction between taxes prohibited by Article 10 of the Directive and duties paid by way of fees or dues implies that the latter cover only payments collected on registration or annually, the amount of which is calculated on the basis of the cost of the service rendered.
A payment the amount of which had no link with the cost of the particular service or was calculated not on the basis of the cost of the transaction for which it is a consideration but on the basis of all the running and capital costs of the department responsible for that transaction would have to be regarded as a tax falling solely under the prohibition of Article 10 of the Directive.
For certain transactions such as, for example, the registration of a company, it may be difficult to determine their cost.
In such case the assessment of the cost can only be on a flat-rate basis and must be fixed in a reasonable manner, taking account, in particular, of the number and qualification of the officials, the time they take and the various material costs necessary for carrying out the transaction.' (7)
10 The Court added that Member States were free to fix different amounts for public and private limited companies provided that `none of the amounts required for any of the companies exceeds the cost of the transaction of registration'. (8)
Relevant national rules
11 Law No 468 of 29 September 1917 and, more recently, Law No 370 of 13 June 1973 authorized the competent minister, and later the Danish Trade and Companies Office, to levy certain charges for registering the formation of public limited companies and increases in their capital. Corresponding provisions were introduced for private companies by Law No 371 of 13 June 1973.
12 Until 1 May 1992 the amounts charged comprised a basic fee plus a supplement calculated proportionally at the rate of DKR 1 per DKR 1 000 of the nominal value of the capital raised.
The basic charge was itself variable (on a degressive scale according to capital raised) until 1 January 1974;
from that date it was replaced by fixed basic charges which, during the period from 1 January 1974 to May 1992, ranged from DKR 500 to DKR 1 700 for notification of new public and private limited companies and from DKR 200 to DKR 900 for notification of increases in capital of existing public and private limited companies.
From 1 February 1973 until 1 May 1992 the variable supplement was fixed at DKR 4 per DKR 1 000 of the value of the capital raised.
13 The Danish Audit Board (Danmarks Rigsrevision) published a report on 13 May 1992 concluding that the charges in question were in its experience the most remarkable example of a public authority more than covering its operating costs.
The report questioned the national legal basis for levying the charges.
14 The report, an outline of which was released in advance of the official publication date, led to the abolition of the per mil supplement with effect from 1 May 1992.
On the same date the fixed basic charge for notification of new companies was altered from DKR 1 700, applicable to both public and private companies, to DKR 2 500 for public companies and DKR 1 800 for private companies;
at the same time the charge for increases in capital was reduced from DKR 900 to DKR 600.
The Trade and Companies Office
15 The Danish Companies Registry was set up in 1918 and on 1 January 1988 changed its name to the Trade and Companies Office (`the Office').
The Office comprises six divisions responsible for various matters relating to the administration and drafting of legislation in the fields of company and business law.
16 The order for reference contains two tables showing the operating expenses and income of the Office.
The first table was prepared by the Audit Board and lists total operating expenses, total income and surpluses for the years 1980 to 1990.
The Office considers that the figures in that table do not properly reflect its income and expenditure relating to the field of company law and has produced a different set of figures for the years 1987 to 1991.
The table produced by the Audit Board shows surpluses ranging from DKR 4.9 million (1980) to DKR 139.4 million (1990).
The table produced by the Office shows smaller surpluses ranging from DKR 12.0 million (1987) to DKR 90.2 million (1991).
17 The figures produced by the Office include its direct and indirect expenditure on administration of the company laws and also the Ministry of Trade's staff costs relating to preparation of company legislation and administration of the Office.
The Office's expenditure on administration of the company laws includes the cost of registering company formations, conversions, increases in capital, mergers and other changes and of ensuring compliance with procedures concerning lists of major shareholdings and prospectuses for issue of shares.
It also includes costs connected with matters such as:
preparatory legal work on regulations in the field of company law and on annual accounts;
dealing with complaints before the board of appeal of the Ministry of Trade and complaints to the ombudsman;
administering the rules on loss of capital, loans to shareholders, annual accounts (including examination of accounts) and bookkeeping;
and disseminating information through conferences, articles, leaflets and meetings with professional organizations and groups.
The figures also include a proportion of overheads relating to matters such as financial management and budgeting, staff management, computer development, administration of buildings and equipment, library, messenger services and staff training.
The facts and the national court's questions
18 In total eight sets of proceedings have been brought before the Østre Landsret by Fantask A/S, Norsk Hydro Danmark A/S, Robert Bosch A/S, Uponor A/S and Uponor Holding A/S, the Pen-Sam Group,
Tryg-Baltica Forsikring, Skadeforsikringsselskab A/S and Tryg-Baltica Forsikring, Livsforsikringssselskab A/S, Aalborg Portland A/S and Alka Forsikring A/S.
All the plaintiffs are public limited companies registered in Denmark (although the Pen-Sam group comprises a number of private limited companies).
19 All the cases concern claims for repayment of charges paid in connection with applications for company formation or increases in capital.
All except Fantask limit their claim to recovery of the per mil charge.
The amounts sought range from DKR 2 900 (Fantask) to DKR 4 800 000 (the Tryg group).
20 According to the order for reference the claims of the plaintiffs in the main proceedings are governed by Paragraph 1 of the Danish Law of Limitations of 22 December 1908, which prescribes a limitation period of five years. Paragraph 2 of the Law provides that the period runs in principle from the moment at which payment of the debt could have been demanded by the creditor, normally the moment when the debt fell due.
However, by virtue of Paragraph 3, where the creditor has been unaware of his claim through no fault of his own, the period begins to run only from the moment at which the creditor was, or with normal diligence would have been, in a position to demand payment of his debt.
21 In addition to those statutory rules, the national court refers to a principle, known as the `forest fees' principle, developed by the Danish courts, which precludes a taxpayer from obtaining repayment of overpaid charges if they were levied in accordance with long-standing rules assumed by both the authorities and the taxpayer to be lawful.
The scope and effect of that principle is disputed by the parties to the main proceedings.
22 Against that background the national court decided to put the following questions to the Court:
`Question 1
Does Community law impose requirements upon the Member States' delimitation of the concept of "fees or dues" in Article 12(1)(e) of Directive 69/335/EEC or are the individual Member States free to decide what may be regarded as "fees or dues" for a specific service?
Question 2
May the basis for the calculation of duties charged under Article 12(1)(e) of Directive 69/335/EEC by a Member State for registration of formation or increase in capital of a public limited company or a private limited company include the following types of costs or some of them:
- The cost of salaries and pension contributions for officials not involved in effecting the registration, such as the registration authority's administrative staff or staff of the registration authority or other authorities who are engaged on preparatory legal work in the field of company law.
- The cost of effecting registration of other matters relating to companies, in respect of which the Member State has determined that no specific consideration is to be paid.
- The cost of performing duties, other than registration, required of the registration authority in pursuance of company legislation and legislation related thereto, such as examination of companies' accounts and supervision of companies' bookkeeping.
- Payment of interest and depreciation of all capital costs which are regarded by the registration authority as concerning the field of company law and related fields of law.
- The cost of official journeys not connected with the specific work of registration.
- The cost of the registration authority's external dissemination of information and guidance not connected with the specific work of registration, such as lecturing, preparation of articles and brochures and holding of meetings with trade organizations and other interested groups.
Question 3
(a) Is Article 12(1)(e) of Directive 69/335/EEC to be interpreted as meaning that a Member State is precluded from fixing standardized charges by rules valid without limitation of time?
(b) If that is not possible, is a Member State required to adjust its scale of charges every year or at other fixed intervals?
(c) Is it of any significance for the answer whether charges are fixed in proportion to the amount of the capital to be raised, as notified for registration?
Question 4
Is Article 12(1)(e) in conjunction with Article 10(c) of Directive 69/335/EEC to be interpreted as meaning that the amount charged as consideration for a specific service - such as, for example, registration of the formation or increase in capital of a public limited company or a private limited company - is to be calculated on the basis of the actual cost of the specific service - registration - or can the duty for the individual registration be fixed at, for example, a basic charge together with DKR 4 per DKR 1 000 of the nominal value of the capital subscribed, so that the amount of the duty is independent of the registration authority's time used and other costs necessary for effecting the registration?
Question 5
Is Article 12(1)(e) in conjunction with Article 10(c) of Directive 69/335/EEC to be interpreted as meaning that the Member State in calculating any amount to be recovered must work on the basis that the duty must reflect the cost of the specific service at the time at which the service is performed, or is the Member State entitled to make a comprehensive assessment over a longer period, for example an accounting year or within the period in which it will be possible under national law to assert a claim for recovery?
Question 6
If national law contains a general principle that, in determining claims for recovery of charges made without the requisite authority, importance should be attached to the fact that the charge was made in pursuance of rules which have been in force over a long period without either the authorities or other parties having been aware that the charge was unauthorized, will Community law preclude dismissal on those grounds of an action for recovery of charges levied contrary to Directive 69/335/EEC?
Question 7
Does Community law make it impossible under national law for the authorities of a Member State, in cases of claims for recovery concerning charges made contrary to Directive 69/335/EEC, to contend and establish that national limitation periods start to run from a time at which an unlawful implementation of Directive 69/335/EEC occurred?
Question 8
Does Article 10(c) in conjunction with Article 12(1)(e) of Directive 69/335/EEC as interpreted in the foregoing questions result in rights on which citizens in the individual Member States may rely before the national courts?'
Questions 1 to 5
23 By its first five questions the national court requests guidance concerning the scope of the expression `fees or dues' in Article 12(1)(e) of the Directive.
It wishes to know whether Member States are free to decide the scope of the term themselves (Question 1), whether certain types of cost may be taken into account in fixing the level of such fees or dues (Question 2) and whether fixed charges (including charges varying in proportion to capital raised) not related to the actual cost of specific services may be imposed and the extent to which they must be periodically reviewed (Questions 3 and 4).
The national court's fifth question concerns the calculation of sums to be reimbursed. It asks whether the calculation must be based on the cost of the specific service at the time when the service is performed or whether it can be based on an overall assessment over a longer period such as an accounting year or the period of the claim.
24 The Court has received written or oral argument on those questions from the plaintiffs in the main proceedings, the Danish Ministry of Trade and Industry, the Danish and Swedish Governments and the Commission.
25 The plaintiffs in the main proceedings consider that the supplementary charge varying according to nominal capital raised is prohibited by Article 10 of the Directive and does not fall within the concept of duties paid by way of fees or dues permitted by Article 12(1)(e).
The charge bears no relation to the costs incurred by the administration in effecting the registration.
The plaintiffs in the main proceedings are supported by the Commission.
The latter considers that, while the basic charge appears to be a reasonable remuneration for the registration services concerned, the supplementary ad valorem charge leads to large surpluses and is unrelated to the specific service received by companies in connection with registration.
26 The Danish Government argues that the Directive seeks to harmonize indirect taxes and not fees for services provided in the general interest.
Referring by analogy to the Court's ruling on Article 90 of the Treaty in Corbeau, (9) it argues that it is entitled to fix fees at a level which is sufficient to cover the costs, both direct and indirect, not only of specific registration services but of all the administration's activities in the field of company law. It is also entitled to introduce a degree of solidarity in the charges by imposing a higher burden on larger companies.
The Danish Government considers that its view is in accordance with the judgment in Ponente Carni and also with the principle of subsidiarity, which the Court must take into account even in interpreting legislation existing prior to the entry into force of the Treaty on European Union.
The Danish Government is supported by the Danish Ministry of Trade and Industry and by the Swedish Government, which considers that the Office was entitled to take all the items of expenditure mentioned in the national court's second question into account in fixing the amount of its charges.
27 With reference to the national court's first question I accept the point made by the Danish Ministry and Government that the Directive does not as such harmonize fees and dues charged for services.
It does not specify what services may be supplied to companies in return for a remuneration or what the level of such remuneration should be.
It is nevertheless clear from the judgment in Ponente Carni (10) that a charge connected with the registration of a capital company falls within the prohibition laid down in Article 10 of the Directive and is lawful only if permitted by Article 12.
It is also apparent from that judgment, (11) that the Directive imposes limits on what a Member State may lawfully charge by way of `fees or dues' under Article 12(1)(e).
The reason for that is plain.
If it did not impose such limits the Directive would be ineffective since Member States would be free to circumvent its provisions by imposing taxes other than capital duty in the guise of fees or dues for supposed services.
28 In that regard the Danish Government's reference to the principle of subsidiarity in Article 3b of the Treaty, inserted by Article G(5) of the Treaty on European Union, is inapposite.
Notwithstanding that provision, where the Community has chosen to adopt a directive in an area not falling within its exclusive competence the Court must interpret it in accordance with its wording and aims and in a manner which will ensure that it is effective.
29 As regards the national court's second question concerning the costs which may be taken into account in fixing the charges in question, the following principles flow from the Court's ruling in Ponente Carni:
- A Member State may charge fees for certain individualized services which it performs for companies;
such services include `a transaction such as the registration of capital companies which is required by national law, in accordance with Community law, in the interest of both third parties and of the companies themselves'. (12)
- Any fees or duties charged must be calculated on the basis of the actual cost of the specific services in question.
They may not be fixed so high as to cover `all the running and capital costs of the department responsible'. (13)
- Where it is difficult to determine the cost of certain transactions, such costs may be assessed on a flat-rate basis.
Such assessment must be carried out on a reasonable basis, taking account of the number and qualifications of the staff used, the time taken and the relevant material costs. (14)
- Different fees may be fixed for private and public limited companies provided that `none of the amounts required for any of the companies exceeds the cost' of the service.
30 It seems to me that the present case raises two basic questions:
first, for what activities may the Office charge fees or dues within the meaning of Article 12(1)(e) and secondly, what limits does the Directive place on the manner in which such fees or dues are calculated?
Activities for which charges may lawfully be made
31 It is clear from the judgment in Ponente Carni that Denmark is entitled to charge fees to cover the costs of creating and maintaining files for companies in the companies register.
That service, which is provided to the company in the general interest, is expressly required by Article 3(1) of the First Council Directive on company law, (15) and indeed many of the requirements concerning deposit of documents and disclosure of information in regard to companies now flow from Community law.
Under Article 3(2) of that directive a Member State is obliged to ensure that all the documents and particulars which must be disclosed under Article 2 are kept on the file or entered in the register.
Article 2(1), as amended by the Act of Accession of the Kingdom of Spain and the Portuguese Republic, (16) provides:
`Member States shall take the measures required to ensure compulsory disclosure by companies of at least the following documents and particulars:
(a) The instrument of constitution, and the statutes if they are contained in a separate instrument;
(b) Any amendments to the instruments mentioned in (a), including any extension of the duration of the company;
(c) After every amendment of the instrument of constitution or of the statutes, the complete text of the instrument or statutes as amended to date;
(d) The appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body:
(i) are authorized to represent the company in dealings with third parties and in legal proceedings;
(ii) take part in the administration, supervision or control of the company.
It must appear from the disclosure whether the persons authorized to represent the company may do so alone or must act jointly;
(e) At least once a year, the amount of the capital subscribed, where the instrument of constitution or the statutes mention an authorized capital, unless any increase in the capital subscribed necessitates an amendment of the statutes;
(f) The balance sheet and the profit and loss account for each financial year.
The document containing the balance sheet must give details of the persons who are required by law to certify it.
...
(g) Any transfer of the seat of the company;
(h) The winding up of the company;
(i) Any declaration of nullity of the company by the courts;
(j) The appointment of liquidators, particulars concerning them, and their respective powers, unless such powers are expressly and exclusively derived from law or from the statutes of the company;
(k) The termination of the liquidation and, in Member States where striking off the register entails legal consequences, the fact of any such striking off.'
32 Under Article 3(4) of the First Directive those documents and particulars are to be disclosed by publication in the national gazette appointed for that purpose by the Member State;
disclosure may be limited to publication of a reference to the document deposited.
33 Numerous further requirements flow from later directives.
For example, Article 3 of the Second Directive on company law (17) contains a detailed list of the information which must be contained in a public company's statutes or other documents published in accordance with Article 3 of the First Directive.
The directive also provides for publication of certain transactions such as increases in capital (Article 25(1)), offers of subscription to existing shareholders on a pre-emptive basis and restrictions on pre-emption (Article 29(3) and (4)), reductions in subscribed capital (Article 30), redemption of subscribed capital without reduction (Article 35(a)), compulsory withdrawal of shares (Article 36(1)(e)) and redemption of redeemable shares (Article 39(h)).
The Third Council Directive on company law (18) requires disclosure, in accordance with Article 3 of the First Directive, of various matters connected with proposed mergers and acquisitions:
see Articles 6 and 18.
The Fourth (19) and Seventh (20) Directives require publication of a company's or group's annual accounts and the annual report, together with the auditor's report:
see Article 47 of the Fourth Directive and Article 38 of the Seventh Directive.
Article 16 of the Sixth Directive (21) requires publication of divisions of companies.
The Eleventh Directive (22) lays down disclosure requirements concerning a branch opened in a Member State by a company governed by the law of another Member State.
Article 3 of the Twelfth Directive (23) requires disclosure of single member companies.
34 It seems to me that matters of that kind, prescribed by Community or by national law, come within the statement in Ponente Carni cited at paragraph 8 above.
They may be regarded as entailing services supplied to companies in the general interest by the registration authority.
35 By its second question the national court inquires about three specific activities:
other work of the Office such as preparatory legal work in the field of company law; registration of other matters relating to companies in respect of which no specific charge is made; examination of company accounts and supervision of their bookkeeping.
36 I do not think that the more general activities of the Office or the Ministry of Trade and Industry in the field of company law, such as administration going beyond maintenance of the companies register, monitoring EC developments and preparatory work on new legislation, can be regarded as a service for which fees or dues may be charged under Article 12(1)(e).
Such activities do not entail the provision of specific services to individual companies, as required by the Ponente Carni judgment, but rather form part of the general business of government.
37 On the other hand it is clear that the services provided to individual companies by the Office include a number of tasks for which no specific charge is made.
It appears that the Office makes a charge only for first registration and for registration of increases in capital.
As I have stated above, (24) a registration authority is responsible for ensuring compliance with numerous other registration and disclosure requirements.
As I shall explain below, (25) it is in my view open to a Member State to confine its charges solely to more substantial transactions and to take account of the costs of minor tasks performed in connection with maintenance of the register in the fees or dues charged for such transactions.
38 As regards, more specifically, examination of accounts and accounting records, it must be remembered that Article 51(1) of the Fourth Directive on company law (26) lays down a compulsory audit requirement for companies (other than very small companies).
The Eighth Directive (27) lays down rules governing the qualifications of persons or firms who may be approved by Member States for the purpose of carrying out a statutory audit.
It may be assumed that such an audit, which is also carried out partly in the general interest and for which a fee is charged by the auditor, will include inspection of a company's accounting records and accounts with a view to ensuring that they accurately represent the affairs of the company and comply with accepted accounting practice and with statutory or stock exchange requirements.
39 Against that background it seems to me that it would not be justified for an authority of a Member State to make a further charge to a company for work duplicating the work already carried out by an auditor approved by that State. That applies particularly to checks on the company's underlying accounting records, i.e. its bookkeeping.
I am nevertheless willing to accept that the registration authority, which, as the Danish Government points out, is ultimately responsible for ensuring that registration and disclosure requirements are met, must retain the right to inspect the audited accounts presented to it in order to ensure that they comply with the various disclosure requirements laid down by national and Community law (in particular the Fourth and Seventh Council Directives) and to charge an appropriate fee for that work.
Calculation of the cost of the services
40 It is clear from paragraph 41 of the judgment in Ponente Carni that any fees or duties charged must be calculated on the basis of the actual cost of the specific services in question.
In paragraph 42 the Court added that a Member State could not charge an amount which `had no link with the cost of the particular service or was calculated not on the basis of the cost of the transaction for which it is a consideration but on the basis of all the running and capital costs of the department responsible for that transaction'.
41 That passage makes it clear that the fees must reflect the costs of specific services and cannot be used to finance the general administrative expenditure of the department concerned.
In that regard the Danish Government's reference to the judgment in Corbeau (28) is inapposite.
There the Court accepted, in the context of Article 90 of the Treaty, that it was legitimate to protect an undertaking entrusted with the performance of certain tasks in the general interest, such as the provision of postal services, from competition in profitable sectors of its activity in order to allow it to achieve an economic equilibrium by offsetting less profitable sectors against the profitable sectors. (29)
The rationale for that principle is clear.
In the absence of restrictions on competition private operators not subject to the same obligations as the public-service operator would be able to undercut the latter's prices in the profitable sectors, leaving it solely with the unprofitable sectors. (30)
That ruling, which takes account of the varying cost structures of the different sectors of a public-service undertaking's economic activity, has no relevance to the activities of the Office.
Any profits which the Office makes from company registration will not be used to subsidize other, less profitable sectors of an economic activity but as a source of finance for government expenditure.
In so far as they exceed the costs of registration its charges are therefore more in the nature of a tax than fees or dues for identifiable services.
42 The Court's statement, cited above, in Ponente Carni that the charges should not be based on `all the running and capital costs of the [relevant] department' may have been prompted by the Italian Government's suggestion that the fees could be fixed at a level which would finance the entire machinery for disclosure of documents.
As I noted in my Opinion in that case, the only costs which can be taken into consideration in setting the fees are the administrative costs of effecting the registration (including, I should add, publication in the appointed national gazette).
The other costs of the system, in particular those involved in providing copies of documents to individuals, cannot properly be charged to the companies but must be financed by other means, for instance by means of a fee charged to the recipients of the information as expressly permitted by Article 3(3) of the First Directive. (31)
43 The present case, in particular the national court's second question, requires the Court to go a little further than in Ponente Carni and offer more detailed guidance on the manner in which the costs of a registration authority are to be calculated.
It would in my view be appropriate to base the calculation of the relevant costs on the normal principles of cost or management accounting.
In other words, the fees may reflect the direct costs and overheads of the authority attributable to the services in question. Thus, such costs might include, in addition to direct material costs and the salary and social security costs of the staff carrying out the services, a proportion of the overheads of the authority such as lighting and heating, staff management costs, computer operation and development costs, office rents or depreciation, depreciation of other fixed assets such as furniture and equipment etc.
The proportion of such costs referable to registration services should, where possible, be determined by direct attribution, for example by identifying the rent payable for the offices used specifically for the services in question.
Where costs relate both to registration services and to other activities such as preparatory work on legislation, it will be necessary to make an apportionment on the basis of appropriate criteria such as staff employed on the various types of activity, office space used, computer time used etc.
44 As regards the more specific items referred to by the national court in its second question, the cost of official journeys, interest and depreciation costs and the cost of disseminating information in the field of company law must be left out of account to the extent to which they are not directly connected with the specific work of registration or filing.
On the other hand, the fees charged could, I think, lawfully cover the cost of publications directly linked to the registration and filing services, e.g. guides for directors concerning disclosure requirements.
45 I accept the Danish Government's proposition that in the interests of administrative simplicity the Office should be able to limit its charges to major transactions and pass on the costs of comparatively minor services (e.g. recording changes of registered office or directors) in the registration charges which it does make.
The contrary view would require the Office to make individual charges for every service which it performs, however small.
46 Contrary to the assertion of the plaintiffs in the main proceedings and of the Commission, I do not think, purely as a matter of principle, that the use of a proportionate charge based on capital raised is necessarily any more unrelated to the costs of individual services than a flat-rate charge.
If it were shown that on average the costs of registration did to some degree increase in line with capital raised, the introduction of a proportional element into the total charges could produce a fairer scale of fees.
47 However, while I am willing to accept that registration of the formation of larger public companies and of large share issues, possibly in conjunction with a merger or restructuring, may involve more than the average time required for registrations generally, I doubt that the costs of such transactions and the amount of capital raised increase in direct proportion.
The Danish Government itself implicitly acknowledges that when it suggests that its scale of charges introduces a degree of solidarity between larger and smaller companies.
As Norsk Hydro and Tryg-Baltica Forsikring pointed out at the hearing, such solidarity is difficult to reconcile with the Court's statement in Ponente Carni that, although a Member State might charge different fees for public and private companies, `none of the amounts required for any of the companies [should exceed] the costs of the transaction of registration'.
Contrary to the suggestion of the Danish Ministry, I do not think the Court's ruling in Corbeau, referred to above, has any relevance here.
Unlike, for example, a post office which must provide unprofitable services to the population of outlying districts, there is no particular reason why the Office should not be able to structure its charges to cover its costs for the various services offered to companies of different sizes.
That must however be weighed against the right of a registration office within reason to base its fees on average costs.
48 In any event it is clear in the present case that the proportional charge goes beyond application of a solidarity principle.
The lack of any direct correlation between the costs of registration and the amount of capital raised, the high level of the proportional charge (DKR 4 per DKR 1 000) and the absence of any ceiling on the charge will inevitably have led, during the period in question, to charges which in total exceeded the total costs of the services provided to companies.
Confirmation of that is provided by the surpluses shown by the tables set out in the order for reference.
While I accept that small or isolated surpluses may be necessary to cover future pension commitments (depending on how pensions are funded), to supplement depreciation reserves for replacement of fixed assets or to cover deficits in other years, the large recurring surpluses shown by the Audit Board's figures or even those of the Office are scarcely consistent with the proposition that the Office merely covered its costs. Moreover, it is apparent from the order for reference that the Audit Board came to the view that the Office's charges were substantially in excess of costs (which in fact include the cost of certain activities which cannot be regarded as services provided to the companies).
49 Ultimately, however, it is for the national court, in the light of the criteria set out above, and the figures which are available to it, to determine the amount of the costs of the Office which could lawfully be passed on to the plaintiffs in the main proceedings and the amount of any repayment due.
50 With reference to the national court's third question it is clear from the judgment in Ponente Carni that a Member State is entitled to charge flat-rate fees where the costs of specific services would be difficult to determine.
It seems to me that that will normally be the case since individual costing is unlikely to be practicable in the case of a companies registry responsible for processing large numbers of comparatively small transactions.
A Member State is however obliged to review its fees periodically,
perhaps every few years, in order to ensure that they do reflect the costs of the transactions concerned.
51 By its fifth question the national court asks whether any repayment which falls to be made must be calculated on the basis that the duty should reflect the cost of the specific service at the moment at which the service is performed, or whether the calculation can be based on a comprehensive assessment over a longer period, for example an accounting year or the period within which it is possible under national law to assert a claim for recovery.
52 In my view it is appropriate to leave it to the national court to arrive at the best estimate of any repayment due in the light of the figures available to it.
The national court could base its calculation either on the actual cost to the registration authority of the specific services supplied to each company or, if that is not possible, on the average cost of the services at or about the relevant time or, if necessary, over a longer period.
If the repayment is based on average costs, it may be appropriate for the national court, if it is able to do so, to adjust the figures to take account of the different costs of larger and smaller transactions.
Questions 6 and 7
53 By its sixth question the national court asks whether Community law precludes it from dismissing the claims for reimbursement on the ground that the charges were levied in pursuance of rules which had been in force for a long time and had been assumed by all concerned to be lawful.
The national court's seventh question is designed to establish whether the time-limit for instituting proceedings could begin to run before the Directive was properly implemented.
54 The latter question is prompted by the Court's ruling in Emmott, (32) a case concerning the Equal Treatment Directive. (33)
In that case the Irish authorities failed to grant Mrs Emmott equal benefits pursuant to the directive until 28 January 1988, although the directive should have been implemented by 23 December 1984.
Mrs Emmott instituted judicial review proceedings with a view to obtaining equal benefits from 23 December 1984.
The Irish authorities objected that she had failed to make her application within the three-month period from the date when the grounds arose as required by Irish law.
However, the Court held:
`So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights.
That state of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in question has not fulfilled its obligations under the Directive and even if the Court has held that a particular provision or provisions of the Directive are sufficiently precise and unconditional to be relied upon before a national court.
Only the proper transposition of the Directive will bring that state of uncertainty to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created.
It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the Directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.' (34)
55 The Danish, French, Italian and United Kingdom Governments consider that the principle as formulated above is too broad inasmuch as it has the effect of imposing almost limitless retrospective liability on Member States. Norsk Hydro and Tryg-Baltica, Alka Forsikring and others and the Commission contend that the Court should adhere to its ruling in Emmott, so that the five-year limitation period did not begin to run until 1 May 1992 when Denmark implemented the Directive by abolishing the supplementary charge.
They argue that to allow a Member State to rely on time-limits in a case such as the present would permit it to escape the consequences of its own unlawful conduct and discourage it from taking steps to remedy the defects in its rules.
56 In what follows I shall explain why I consider the Governments' criticisms of Emmott to be justified and show that a broad view of Emmott cannot in any event be reconciled with the Court's subsequent case-law.
I shall however also show that, in the light of other developments in the Court's case-law on remedies in the national courts, the concerns which led the Commission to favour a broad view of Emmott can be accommodated in a coherent system of remedies allowing a proper balance to be struck between the need for effective protection of Community rights, including those under directives, and the principles of respect for national procedural autonomy and legal certainty.
Against that background I shall, finally, turn to the Danish rules in issue here.
The criticisms of the Emmott ruling
57 All the Governments have emphasized the far-reaching financial consequences of the Emmott ruling.
For example, at the hearing the Italian Government stated that, following the Court's judgment in Ponente Carni, the Italian courts, applying the ruling in Emmott, had set aside the three-year time-limit laid down by national law, exposing the Italian State to substantial repayment claims. Similarly the French Government pointed to a judgment of 9 July 1996 in which the French Cour de Cassation, referring to Emmott, held that the tax authorities could not rely on the limitation periods laid down by French law in order to resist claims dating back to the 1970s based on the Court's ruling in Bautiaa, (35) from which it followed that a French registration duty of 1.2% on contributions to companies of movable property made in connection with a merger was unlawful.
58 The French Government noted further that the ruling in Emmott, which is based on the special characteristics of Community directives, has the paradoxical result that greater protection is given to rights under directives than to rights conferred by regulations and by the Treaty itself.
59 Turning to the reasoning underlying the ruling, the French Government noted that the Court's statement that, until a directive had been properly transposed into national law, individuals were unable to ascertain the full extent of their rights was unsupported in the judgment. The French Government referred however to the passage in the Opinion of Advocate General Mischo in which he argued that the very nature of the directive precluded its final date for implementation from being taken as the starting point of the three-month period for applying for judicial review.
He said:
`The principle that "everyone is presumed to know the law" cannot be pleaded against individuals in the case of a directive which has not yet been transposed.
A directive binds only the Member State;
it is not addressed to individuals.
It is therefore not possible to infer obligations for individuals from the directive as such. (36)
It follows that the directive also cannot supply a starting point for a time-limit which could be raised as a bar to claims by individuals.
It may also be borne in mind in this regard that the publication of directives in the Official Journal of the European Communities, which was brought up by the respondents at the hearing, is fundamentally different from the publication in the Official Journal of measures binding on individuals.
That is not publication required by law producing legal effects, as in the case of regulations, but only publication for information.
It is also noteworthy that the text of a directive, once published, does not enable individuals to know precisely the time-limit for its transposition.
It mentions only a period before the expiry of which the Member States to whom the directive is addressed must have transposed it, as well as the fact that the period begins to run from the date of notification of the directive to the Member State. However, that date is not given and there is no reason to suppose that individuals are aware of it.
Furthermore, although it is certainly true that the interpretation given by the Court in a preliminary ruling has retroactive effect in so far as it indicates how the rule which is interpreted should have been understood from the beginning, it is, however, also beyond argument that, before the Court settled the matter, it is not certain that the directive or a particular article thereof has direct effect.' (37)
60 The French Government criticizes the Advocate General's reasoning on a number of grounds.
First, the fact that a directive is not addressed to individuals does not, in the French Government's view, prevent its publication from causing a limitation period to commence to run.
The French Government refers by analogy to Commission decisions in matters of State aid which, although addressed to Member States, must be challenged before the Court of First Instance by the undertaking receiving the aid or by competitors within two months of their publication.
61 Secondly, it argues that it is immaterial whether the publication of a directive satisfies a legal obligation imposed by the Treaty.
What matters is whether it was actually published.
Directives have in practice been published systematically for many years, and Article 191 of the Treaty, as amended by the Treaty on European Union, now requires publication of most directives.
62 Thirdly, the French Government is unimpressed by the argument that it is not always clear from a directive when an implementation period running from the date of notification to a Member State expires.
It contends that in such circumstances, which are rare, the date of the adoption of the directive will provide a reasonably accurate guide and a national court, in applying a limitation period, can take account of any uncertainty existing on that point.
63 Finally, the French Government considers that the fact that it may be uncertain whether a provision has direct effect does not exempt an individual from his obligation to show a degree of diligence and to take the necessary steps to safeguard his rights.
The French Government notes moreover that the same doubt may exist with respect to a Treaty provision.
64 Although, as I shall explain below, I think the result in Emmott can be justified, I share the Governments' reservations about the broad wording of the ruling.
65 As the French Government states, it is not clear from the judgment precisely why the Court took the view that an individual could not be sure of the full extent of his rights before a directive had been properly implemented. For the reasons given by the French Government I do not first of all think that an individual can be considered not to have notice of a directive merely because it has not been transposed into national law.
The anomalies noted by Advocate General Mischo, namely the absence of any publication obligation and the fact that the final date for implementation of a directive was not always completely clear from the directive itself, stemmed from the fact that the relevant Treaty rules and practice of the Community legislature did not at the time reflect the enhanced status which the Court had accorded to directives in its case-law, namely as instruments conferring rights which individuals can assert in the national courts. It would be somewhat paradoxical to rely on such anomalies - which in any event have now been corrected (38) - to support the conclusion - itself paradoxical - that rights flowing from directives should be given greater protection than those arising from the Treaty itself or from measures which have direct application under the Treaty.
66 Moreover, the suggestion that in the absence of correct implementation an individual can never be sure of the full extent of his rights is in my view difficult to reconcile with the conditions for the direct effect of directives. The direct effect of a provision of a directive presupposes that the basic content of the right conferred is sufficiently clear (or, at least, amenable to judicial determination) for it to be protected by the national legal system.
It is inconsistent to recognize that a provision is sufficiently clear to create remedies for individuals in the national courts while at the same time exempting the individual, on the ground that the rights conferred upon him are insufficiently clear, from the limits placed by national law on the exercise of such remedies.
The inevitable and wholly anomalous result is that already mentioned, namely to confer privileged status on directives by comparison with other Community provisions, even those of superior rank.
The recognition of the direct effect of directives was surely intended to ensure that, notwithstanding defective implementation, the rights which they were intended to confer enjoyed the same degree of protection in the national courts as those arising from directly applicable Community law.
67 In any event, I doubt whether an individual is more likely to be uncertain of his rights in the case of an unimplemented directive than in the case of a Treaty provision.
Although not requiring implementation in national law, Treaty provisions, which by nature are broadly worded, often leave considerable scope for uncertainty as to the extent of the rights, if any, which they confer on individuals.
68 The Governments' arguments concerning the financial consequences of Emmott also raise an important point of principle.
As they correctly observe, the Emmott ruling, if read literally, would expose Member States to the risk of claims dating back to the final date for implementing a directive.
For example, it would permit claims based on Directive 69/335, which was to be implemented by 1 January 1972, to be brought in respect of the last 25 years notwithstanding national limitation periods.
69 Moreover, such liability would arise even in the event of a minor or inadvertent breach.
Such a result wholly disregards the balance which must be struck in every legal system between the rights of the individual and the collective interest in providing a degree of legal certainty for the State.
That applies particularly to matters of taxation and social security, where the public authorities have the special responsibility of routinely applying tax and social security legislation to vast numbers of cases.
70 The scope for error in applying such legislation is considerable.
Regrettably that is particularly so in the case of Community legislation, which is often rather loosely drafted.
For example, the provision in issue in Ponente Carni and in the present case is hardly a model of clarity:
the Directive provides no indication of the scope of the term `fees or dues' or how they are to be calculated.
The recent Argos (39) and Elida Gibbs (40) cases provide a further example of how huge repayment claims can arise from a comparatively minor error (41) in implementing a Community tax directive.
In those cases the Court found that the fiscal treatment accorded by the United Kingdom to voucher transactions - used extensively in that Member State as a business promotion technique - was not in accordance with the Sixth VAT Directive.
The resultant repayment claims are reported to be between £200 and £400 million. (42)
71 It might be objected that it is not unreasonable to require Member States to refund overpaid charges given that they were not entitled to collect them in the first place. However, that view disregards the need for States and public bodies to plan their income and expenditure and to ensure that their budgets are not disrupted by huge unforeseen liabilities.
That need was particularly clear in Denkavit, (43) in which repayment was sought of the annual levies imposed by the Netherlands Chambers of Trade and Industry in order to finance their activities.
As I noted in my Opinion in that case, retrospective claims of up to 20 years would have had catastrophic effects on their finances. (44)
72 In short, therefore, my main reservations about a broad view of the Emmott ruling are that it disregards the need, recognized by all legal systems, for a degree of legal certainty for the State, particularly where infringements are comparatively minor or inadvertent;
it goes further than is necessary to give effective protection to directives;
and it places rights under directives in an unduly privileged position by comparison with other Community rights.
Moreover a broad view cannot be reconciled with the Court's subsequent case-law on time-limits.
Subsequent case-law on time-limits
73 It is clear from the rulings in Steenhorst-Neerings (45) and Johnson (46) that Emmott does not preclude reliance on rules limiting the period to which a claim may relate back. It might be thought that such time-limits are distinguishable from time-limits for bringing proceedings, such as the three-month time-limit for applying for judicial review in Emmott;
the latter constitute an absolute bar to a claim whereas the former merely limit the extent of the claim:
see paragraph 21 of the judgment in Steenhorst-Neerings.
74 As I shall explain below, (47) the judgments in Steenhorst-Neerings and in particular Johnson suggest however that in Emmott it was the application of the time-limit in the particular circumstances of the case which denied Mrs Emmott the opportunity to assert her rights under the directive in the courts.
Moreover I doubt whether it is possible to make any general distinction of the kind mentioned above between the two types of time-limit.
For example, a five-year time-limit for instituting proceedings, if applied to recurring taxes or benefits, could equally be viewed as a rule limiting to five years the extent to which a claim may relate back. Conversely a rule, such as that in Johnson, which limits entitlement to benefits to a period not exceeding 12 months prior to a claim, could equally be viewed as a time-limit barring claims in respect of a particular period after 12 months;
although in most cases the application of such a time-limit will merely reduce the amount of benefit paid, it will lead to complete denial of the claim in all cases in which entitlement to benefit has ceased 12 months before the claim is made.
75 Some time-limits are of a hybrid nature.
For example United Kingdom law commonly lays down comparatively short time-limits for appealing against current assessments to tax, while separately allowing a taxpayer to make a claim in respect of previous years on more limited grounds. (48) The latter type of time-limit, although expressed as a time-limit on retrospective claims, might equally be viewed as an extended time-limit for bringing proceedings but on more limited grounds.
76 In any event, as I noted in my Opinion in Denkavit, the Court's reasoning in Emmott, in particular the statement that an individual cannot ascertain his rights until a directive has been properly implemented, would, if it were read without qualification, preclude reliance by Member States on either type of time-limit.
Both permit a Member State, notwithstanding the uncertainty for the individual, to deny claims in respect of periods in which a directive has not been properly implemented.
77 Moreover, BP Supergas (49) concerned a similar type of time-limit to that in issue in Emmott, namely a three-year time-limit for bringing proceedings laid down by Greek law; yet the Court, although referring to Emmott, did not suggest that the ruling precluded reliance on such a time-limit in the absence of proper implementation of the Sixth VAT Directive.
Recent case-law on State liability in damages
78 The issues arising from the Emmott ruling cannot however be considered in isolation.
It is necessary, in assessing the adequacy of the protection of Community rights, in particular those under directives, to have regard also to more recent developments in the case-law, in particular the line of cases beginning with Francovich (50) in which the Court has recognized the right of individuals to seek compensation from a Member State for loss or damage caused by failure to implement a directive.
In the last few months the Court has given two further rulings on the subject of damages claims which are of particular relevance to the present case.
79 In Comateb (51) the Court held that a Member State could, on certain conditions, resist repayment of charges levied in breach of Community law on the ground that repayment would unjustly enrich the trader.
In the framework of repayment proceedings a national court could, where domestic law permitted, take account of damage incurred by the trader by way of loss of business which wholly or partly negated any unjust enrichment on his part. The Court also recognized the right of the trader to bring a separate damages claim subject to the conditions laid down in Brasserie du Pêcheur in the competent courts in accordance with the appropriate procedures of national law in order to obtain reparation of the loss caused by the overpaid charges (irrespective of whether those charges had been passed on).
80 In Sutton (52) the Court held that Article 6 of the Equal Treatment Directive did not require a Member State to pay an individual interest on arrears of a social security benefit such as invalid care allowance where the delay in payment of the benefit was the result of discrimination prohibited by the Directive.
The Court distinguished its judgment in Marshall II, (53) where it had held that compensation for discriminatory dismissal could not leave out of account factors, such as effluxion of time, which could reduce its value;
in such a case the interest was an essential component of the compensation.
By contrast, amounts payable by way of arrears of social security benefits did not in any way constitute reparation for loss or damage of the kind in issue in Marshall II.
However, the Court pointed out that Mrs Sutton might have a claim in damages if the conditions laid down in Brasserie du Pêcheur (54) were met.
It was for the national court to verify whether that was so and to determine the amount of the damages.
81 Thus, in those judgments the Court recognized that repayment or entitlement claims against State authorities and damages claims against the State may co-exist as independent remedies in matters of taxation and social security.
Repayment or entitlement claims and damages claims are claims of a different nature, and what is recoverable under each may differ.
For example, interest on arrears of benefit irrecoverable under an entitlement claim may be recoverable under a damages claim.
82 It seems to me that, in matters of taxation and social security, an individual should be able, where the conditions for a Francovich claim are met, to obtain full compensation for loss or damage incurred, including the amount of the tax overpaid or benefit withheld (subject to the setting off of amounts actually obtained by means of other remedies).
The duty to mitigate loss or damage by using other remedies, recognized by the Court in Brasserie du Pêcheur, (55) has no relevance to the restitutionary or entitlement element of the claim, i.e. the amount of the overpaid tax or benefit denied.
Whereas the duty to mitigate will be relevant in the case of a loss of profits, the loss corresponding to overpaid tax or denial of benefits will not be aggravated by the delay in bringing proceedings. (56)
83 The existence of a wholly independent claim for damages, subject to longer time-limits than the comparatively short ones prescribed for restitutionary and entitlement claims in many Member States, is consistent with the different nature of the claim.
Its basis is not merely the unjust enrichment of the State resulting from simple error in the routine application of technical legislation but a serious violation of individual rights, calling for a re-appraisal of the balance between such rights and the collective interest in a measure of legal certainty for the State.
84 Such an approach has a number of advantages.
It provides comprehensive protection of individual rights within the existing framework of remedies and time-limits, making it unnecessary to set aside national time-limits for repayment or entitlement claims.
It draws a proper balance between individual rights and the collective interest in legal certainty;
in particular it takes proper account of the degree of culpability of the State in failing properly to implement a directive and ensures that claims are properly categorized and brought in the appropriate courts in accordance with appropriate substantive and procedural conditions, in particular time-limits.
Moreover, while not giving unduly privileged treatment to rights under Community directives, such an approach will nevertheless provide a substantial incentive to Member States to implement directives on time and to make every effort to do so properly;
it will also encourage them to repair without delay any inadequacies that become apparent, for example because of a ruling of the Court.
The scope of the Emmott ruling
85 An important factor in Emmott was that it would have seemed unjust in the particular circumstances of the case to permit the Irish authorities to rely on the time-limit laid down by national law.
As I noted in my Opinion in Denkavit, (57) the Court in its rulings in Steenhorst-Neerings and Johnson emphasized the following circumstances:
Mrs Emmott had sought payment of the benefits in question on the basis of the Court's judgment in McDermott and Cotter; (58)
the administrative authorities had declined to adjudicate on her claim until the litigation concerning the directive pending before the national courts had been concluded;
and the authorities sought to rely on the time-limit notwithstanding the failure correctly to implement the directive.
86 Consequently, as the Court stated in Johnson, (59) `the solution adopted in Emmott was justified by the particular circumstances of that case, in which a time-bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under the directive'.
87 Similar rulings based on principles of equity and good faith are to be found in the case-law of national courts. (60)
I do not in fact think it is necessary to develop any new principle of Community law in order to explain the result in Emmott.
As I suggested in my Opinion in Denkavit, the ruling can be seen as an application, albeit a new application, of the well-established principles laid down in Rewe and subsequent cases, (61) in particular the principle that the exercise of Community rights must not be rendered excessively or unduly difficult.
The ruling can be read as standing for the proposition that a Member State cannot rely on a limitation period where it is in default both in failing to implement a directive and in obstructing the exercise of a judicial remedy in reliance upon it, or perhaps where the delay in exercising the remedy is in some other way due to the conduct of the national authorities. In Emmott the Member State's default in obstructing the remedy was compounded by Mrs Emmott's particularly unprotected position as an individual dependent on social welfare.
88 It seems to me that so understood the Emmott principle, although confined to very exceptional circumstances, continues to provide an important safeguard notwithstanding the more recent developments in the case-law which I have discussed above.
An individual must be allowed to make use of all available remedies.
The existence of another claim, for example a claim for damages in the competent courts, cannot justify the obstruction of a repayment or entitlement claim which an individual was seeking to exercise.
The present case
89 With reference to the national court's seventh question, I therefore take the view that a Member State is entitled to rely upon a reasonable limitation period laid down by national law in order to resist claims based on a Community directive notwithstanding the absence of proper implementation.
The five-year limitation period laid down by Danish law for challenges to decisions of the Office seems wholly reasonable and does not appear to make reliance upon the Directive impossible or unduly difficult. Nor do there appear to be any special circumstances in the present case such as those in Emmott.
90 Apparently more objectionable however is the so-called `forest fees' principle referred to in the national court's sixth question, a principle which was developed by the Højesteret (Danish Supreme Court) in its judgment of 17 January 1899 and which takes its name from the fees in issue in the case.
The principle, as described in the order for reference (the parties disagree about its scope and effect), would require the national court, in determining claims for recovery of charges made without the requisite authority, to have regard to the fact that the charge was made in pursuance of rules which had been in force over a long period without either the authorities or other parties having been aware that the charge was unauthorized.
91 In so far as the effect of the principle is to negate the otherwise reasonable period allowed by Danish law for contesting charges, it renders the exercise of rights conferred by the Directive virtually impossible or excessively difficult contrary to the requirements laid down by the Court in Rewe and subsequent cases.
The principle is analogous to the United Kingdom rule which the Court held to be unlawful in FMC. (62)
There the Court held that a rule by virtue of which a sum paid to a public authority under a mistake of law could be recovered only if it was paid under protest was liable to prejudice effective protection of the rights conferred by Community law. (63)
Question 8
92 The final question is whether Article 10(c), in conjunction with Article 12(1)(e), of Directive 69/335 confers rights on which individuals can rely before the national courts.
That question must clearly be given an affirmative answer, the provisions in question being unconditional and sufficiently precise.
That answer is implicit in the judgment in Ponente Carni. (64)
Conclusion
93 Accordingly, I am of the opinion that the questions referred by the Østre Landsret should be answered as follows:
(1) The expression `fees or dues' in Article 12(1)(e) of Council Directive 69/335/EEC means fees or dues charged to defray the cost of specific services supplied to companies by the public authorities of a Member State, including certain mandatory services performed in the public interest.
Such services include maintenance of a file for the company in the statutory companies register and verification of compliance with filing and disclosure requirements laid down by Community and national law.
As regards more particularly examination of accounts and bookkeeping, a Member State is entitled to impose charges for verifying that the accounts filed comply with statutory or stock exchange requirements but is not entitled to charge for further work duplicating that performed by the statutory auditor.
The services for which a charge may be made do not include more general activities, such as preparatory legal work in the field of company law.
(2) In fixing the fees or dues to be charged for such services the Member State is entitled to take into account all costs, including overheads, that are directly related to the services.
The allocation of costs should be made in accordance with the normal principles of commercial cost and management accounting.
In particular, where costs relate only partly to the services in question, a reasonable apportionment must be made on the basis of suitable criteria.
Costs relating to interest and depreciation, official journeys and external dissemination of information may be taken into account only in so far as they are directly related to the abovementioned services. A Member State is entitled to limit its charges to major transactions and pass on in those charges the cost of comparatively minor services.
(3) A Member State is entitled to fix standardized charges where individual costing of services is not practicable. It must however periodically review its charges, whether fixed on a flat-rate basis or containing a proportional element, in order to ensure that they do not exceed the average costs of the services provided.
A Member State is not entitled to levy, in addition to a flat-rate basic charge, a charge with no upper limit increasing in direct proportion to capital raised where that results in total average charges which exceed the average cost of the services provided and in a disproportionately high level of fees for certain companies.
(4) It is appropriate to leave it to the national court to arrive at the best estimate of any repayment due in the light of the figures available to it.
The national court could base its calculation either on the actual cost to the registration authority of the specific services supplied to each company or, if that is not possible, on the average cost of the services at or about the relevant time or, if necessary, over a longer period.
If the repayment is based on average costs, it may be appropriate for the national court, if it is able to do so, to adjust the figures to take account of the different costs of larger and smaller transactions.
(5) Community law precludes dismissal of an action for recovery of charges levied contrary to Directive 69/335 on the ground that the charge was made in pursuance of rules which have been in force over a long period without either the authorities or other parties having been aware that the charge was unauthorized.
(6) Community law does not prevent a limitation period laid down by national law from beginning to run before a directive has been properly implemented by a Member State.
(7) Article 10(c), in conjunction with Article 12(1)(e) of Directive 69/335, confers rights on which individuals may rely before their national courts in the absence of proper implementation of the directive.
(1) - OJ English Special Edition 1969 (II), p. 412.
(2) - OJ 1985 L 156, p. 23.
(3) - Case C-208/90 [1991] ECR I-4269.
(4) - Joined Cases C-71/91 and C-178/91 Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915.
(5) - Paragraph 30 of the judgment.
(6) - Paragraphs 37 and 38 of the judgment.
(7) - Paragraphs 41 to 43 of the judgment.
(8) - Paragraph 44 of the judgment.
(9) - Case C-320/91 Corbeau [1993] ECR I-2533.
(10) - Cited in note 4;
see in particular paragraph 30 of the judgment as summarized at paragraph 7 above.
(11) - See in particular paragraphs 41 to 43 of the judgment, cited in paragraph 9 above.
(12) - Paragraphs 37 and 38 of the judgment.
(13) - Paragraphs 41 and 42 of the judgment.
(14) - Paragraph 43 of the judgment.
(15) - First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, OJ English Special Edition 1968 (I), p. 41.
(16) - OJ 1985 L 302, p. 23.
(17) - Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, OJ 1977 L 26, p. 1.
(18) - Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies, OJ 1978 L 295, p. 36.
(19) - Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies, OJ 1978 L 222, p. 11.
(20) - Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts, OJ 1983 L 193, p. 1.
(21) - Sixth Council Directive 82/891/EEC of 17 December 1982 based on Article 54(3)(g) of the Treaty, concerning the division of public limited liability companies, OJ 1982 L 378, p. 47.
(22) - Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respects of branches opened in a Member State by certain types of company governed by the law of another State, OJ 1989 L 395, p. 36.
(23) - Twelfth Council Company Law Directive 89/667/EEC of 21 December 1989 on single-member private limited-liability companies, OJ 1989 L 395, p. 40.
(24) - At paragraphs 31 to 35.
(25) - At paragraph 45.
(26) - Cited in note 19.
(27) - Eighth Council Directive 84/253/EEC of 10 April 1984 based on Article 54(3)(g) of the Treaty on the approval of persons responsible for carrying out the statutory audits of accounting documents, OJ 1984 L 126, p. 20.
(28) - Cited in note 9.
(29) - See paragraph 17 of the judgment.
(30) - Paragraph 18 of the judgment.
(31) - Paragraph 32 of the Opinion.
(32) - Cited in note 3.
(33) - Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ 1979 L 6, p. 24.
(34) - Paragraphs 21 to 23 of the judgment.
(35) - Joined Cases C-197/94 and C-252/94 Bautiaa and Société Française Maritime [1996] ECR I-505.
(36) - See Case 152/84 Marshall v Southampton and South West Hampshire Area Health Authority [1986] ECR 723.
(37) - Paragraphs 26 to 29 of the Opinion.
(38) - Directives must now generally be published pursuant to Article 191 of the Treaty, as amended by Article G.63 of the Treaty on European Union.
The final date for implementation of directives now seems to be either expressly mentioned or fixed by reference to the publication date.
(39) - Case C-288/94 Argos Distributors v Commissioners of Customs and Excise [1996] ECR I-5311.
(40) - Case C-317/94 Elida Gibbs v Commissioners of Customs and Excise [1996] ECR I-5339.
(41) - It may be noted that in his Opinions of 27 June 1996 in the two cases Advocate General Fennelly took a different view from that taken by the Court.
(42) - The Times, 25 October 1996.
(43) - Case C-2/94 Denkavit Internationaal and Others v Kamer van Koophandel en Fabrieken voor Midden-Gelderland and Others [1996] ECR I-2827.
(44) - Paragraph 64 of my Opinion.
(45) - Case C-338/91 Steenhorst-Neerings [1993] ECR I-5475.
(46) - Case C-410/92 Johnson [1994] ECR I-5483.
(47) - See paragraphs 85 and 86.
(48) - See, for example, section 33 of the Taxes Management Act 1970.
(49) - Case C-63/93 BP Supergas v Greek State [1995] ECR I-1883.
(50) - Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357.
(51) - Joined Cases C-192/95, C-193/95 and C-196/95 to C-218/95 Société Comateb and Others v Directeur Général des Douanes et Droits Indirects, judgment of 14 January 1997.
(52) - Case C-66/95 The Queen v Secretary of State for Social Security, ex parte Sutton, judgment of 22 April 1997.
(53) - Case C-271/91 Marshall v Southampton and South-West Hampshire Area Health Authority [1993] ECR I-4367.
(54) - Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029.
(55) - At paragraph 84 of the judgment.
(56) - Interest accruing on the principal sum merely reflects the fact that the State rather than the individual has had the use of the money during the period in question; it cannot be regarded as an aggravation of the loss.
(57) - Cited in note 43.
(58) - Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453.
(59) - Paragraph 26 of the judgment.
(60) - See, by way of analogy, the judgment of the Baden-Württembergischer Verwaltungsgerichtshof of 21 October 1992 (Verwaltungsblätter für Baden-Württemberg 1993, 220).
There the court, referring to the principle of good faith applicable in German administrative law, set aside the time-limit laid down by national law for challenging an administrative measure because the authority concerned led the individual to believe that it was reconsidering the matter.
See also, for English law, the judgment of the English Court of Appeal in Unilever [1996] C.O.D. 421 (where it was held that it would be an abuse of power for the revenue authorities to rely on a two-year time-limit for claiming losses when they had not done so previously) and Order 53 of the Rules of the Supreme Court, which allow the three-month period for applications for judicial review to be extended if there is `good reason' for the applicant's delay.
(61) - See Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5 of the judgment;
Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, paragraph 13;
Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 12; Case C-208/90 Emmott, cited in note 3, paragraph 16; Joined Cases C-6/90 and C-9/90 Francovich and Others, cited in note 50, paragraph 43;
Case C-338/91 Steenhorst-Neerings, cited in note 45, paragraph 15;
Case C-410/92 Johnson, cited in note 46, paragraph 21;
Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, paragraph 12;
Joined Cases C-430/93 and C-431/93 Van Schijndel [1995] ECR I-4705, paragraph 17;
Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Another [1996] ECR I-389, paragraph 71.
(62) - Cited in note 61.
(63) - Paragraph 72 of the judgment.
(64) - See paragraph 38 of my Opinion in that case, and on Article 4(2)(b) of the Directive see Case C-38/88 Siegen [1990] ECR I-1447.