OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 30 NOVEMBER 1976

My Lords,

Of these two cases, one, Case 33/76, which I shall for convenience call ‘the German case’, comes to the Court by way of a reference for a preliminary ruling under Article 177 of the EEC Treaty by the Bundesverwaltungsgericht; the other, Case 45/76, which I shall call ‘the Dutch case’, comes to the Court by way of a reference for such a ruling by the College van Beroep voor het Bedrijfsleven. Essentially the two cases raise the same question: where a Member State has, in breach of Community law, exacted from a trader a charge having an effect equivalent to a customs duty, either on imports from or on exports to another Member State, may that State, in proceedings brought in its own Courts by that trader for recovery of the amount unlawfully charged, plead a limitation period prescribed by its own national law?

The plaintiffs in the German case are Rewe-Zentralfinanz eG and Rewe-Zentral AG (which I shall call collectively ‘Rewe’); the defendant is the Landwirtschaftskammer (Chamber of Agriculture) of the Saar. The charge in question in the case is that for phyto-sanitary examination of imported apples with which the Court was concerned in Case 39/73 Rewe-Zentralfinanz v. Landwirtschaftskammer Westfalen-Lippe [1973] 2 ECR 1039. Your Lordships will remember that that case was about importations from Italy effected by Rewe in March 1970. The present proceedings concern earlier importations effected by Rewe from France. In respect of those importations Rewe received from the Landwirtschaftskammer of the Saar notices of assessment to the charge in question in October and November 1968 and January 1969. By the combined effect of paragraphs 58, 68 to 70 and 79 of the Verwaltungsgerichtsordnung (the German rules of procedure applicable in administrative Courts) such assessments become final and binding unless challenged by way of ‘protest’ to the authority making them within one month or, in certain circumstances, within one year. Here Rewe did not lodge protests against the assessments in question until February 1973, that is to say well after the expiry of either limitation period. These tardy protests having been rejected by the Landwirtschaftskammer in March 1973, Rewe initiated proceedings in the Verwaltungsgericht of the Saar claiming (1) annulment of the notices of assessment in question and of the decisions of March 1973 rejecting its protests and (2) reimbursement of the charges that it had paid pursuant to the assessments.

By a Judgment dated 29 March 1974 the Verwaltungsgericht dismissed Rewe's action. Against that Judgment Rewe appealed to the Oberverwaltungsgericht of the Saar, which, by a Judgment dated 7 October 1974, dismissed the appeal. Rewe now appeals to the Bundesverwaltungsgericht.

The Landwirtschaftskammer has throughout conceded that the imposition of the charges in question was unlawful. It was indeed unlawful, but not, as was suggested in argument, by virtue of Article 13 (2) of the Treaty. This had no direct effect until after the end of the transitional period, that is to say after 31 December 1969 (see Case 94/74 IGAV v ENCC [1975] ECR at p. 711, paragraph 26 of the Judgment and Case 87/75 Bresciani v AIDF [1976] ECR at p. 139, paragraph 14 of the Judgment). The imposition of those charges was unlawful by virtue of Article 13 (1) of Council Regulation No 159/66/EEC of 25 October 1966‘laying down additional provisions for the common organization of the market in fruit and vegetables’. That Article was, so far as material, in these terms:

‘As regards the products set out in Annex I [which included apples other than cider apples], customs duties and charges having equivalent effect, together with any quantitative restrictions or measures having equivalent effect as applied to trade between Member States shall be abolished as from 1 January 1967.’

The contention of the Landwirtschaftskammer has throughout been that Rewe's right to the annulment of the notices of assessment in question and to reimbursement of the charges levied thereunder was barred by the provisions of the Verwaltungsgerichtsordnung to which I have referred. It was that contention that was upheld by the Verwaltungsgericht and subsequently by the Oberverwaltungsgericht. Both those Courts rejected the contrary argument of Rewe that Community law conferred on it a right to restitution of the sums unlawfully levied, which right could not be barred by any provision of national law.

The Bundesverwaltungsgericht, in its Order for Reference, says that it too considers that Rewe's argument ought to be rejected. As a Court ‘against whose decisions there is no judicial remedy under national law’, it felt bound, however, by the third paragraph of Article 177, to refer the matter to this Court, in particular because views expressed by some German legal writers support that argument.

The first and main question referred to the Court by the Bundesverwaltungsgericht is as follows:

‘Where an administrative body in one State has infringed the prohibition on charges having an effect equivalent to customs duties (Articles 5, 9 and 13 (2) of the EEC Treaty) has the Community citizen concerned a right under Community law

(a) to the annulment or revocation of the administrative measure

(b) and/or to a refund of the amount paid

even if under the rules of procedure of the national law the time-limit for contesting the validity of the administrative measure is past?’

The Bundesverwaltungsgericht adds two subsidiary questions in these terms:

‘2. Is this the case at least if the European Court of Justice has already ruled that there does exist an infringement of the prohibition contained in Community law?

3. If a right to a refund is held to exist under Community law: Is interest to be paid on the amount and if so from what date and at what rate?’

In the Dutch case the plaintiff is Comet BV (which I shall call ‘Comet’); the defendant is the Produktschap voor Siergewassen (Product Board for Ornamental Plants). The charge in question in the case is a levy imposed by a Regulation made in 1956 by the Produtkschap on exports of bulbs and corms of flowering plants to Germany. This levy was designed to finance publicity in Germany for Dutch bulbs and corms. It is common ground that the imposition of the levy became unlawful on 1 July 1968, when Council Regulation (EEC) No 234/68 of 27 February 1968‘on the establishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage’ became applicable. Article 10 (1) of that Regulation is, so far as material, in these terms:

‘The following shall be prohibited in the internal trade of the Community:

— the levying of any customs duty or charge having equivalent effect;

Notwithstanding that provision, the Produktschap, by notices of assessment addressed to Comet in July and September 1969 required Comet to pay levy in respect of exports to Germany effected in the Autumn of 1968 and Spring of 1969. By virtue of Article 33 of the Wet administratieve rechtspraak bedrijfsorganisatie (the Dutch statute on administrative juridiction over . trade organizations — known for short as the Wet ARBO) the time-limit for lodging appeals against such assessments is 30 days. Comet, however, did not appeal the assessments within that period. It paid the levy charged by them. It was not until 1975 that it took steps to have it recognized that it was not liable to pay such levy. These steps have culminated in the action now pending before the College van Beroep voor het Bedrijfsleven, where of course the Produktschap has pleaded Article 33 of the Wet ARBO as a bar to the action. In an endeavour to overcome that plea, Comet put forward an argument on the same lines as that put forward by Rewe in the German case.

It seems that such an argument was rejected by the College in an earlier case before it (van Haaster v Produktschap voor Siergewassen NJAB 1975, No 149, p. 373 et seq.) and I infer from its Order for Reference that it would have rejected it in the present case also had its attention not been drawn to the reference to this Court made by the Bundesverwaltungsgericht in the German case.

The question referred to the Court by the College is in these terms:

‘Does any provision or any principle of Community law prohibit the raising of an objection against a litigant who is challenging before the national courts a decision of a national body for incompatibility with Community law on the ground that he has allowed the period for lodging an appeal under national law to elapse, either in the sense that the action of the litigant may be declared inadmissible by the court for failure to observe the time-limit or in the further sense that the administration may derive from the failure to comply with the time-limit a right to refuse to reconsider its decision?’

I do not doubt, my Lords, that provisions such as those of Article 13 (1) of Regulation No 159/66 and Article 10 (1) of Regulation No 234/68, which abolished or prohibited charges having an effect equivalent to customs duties as from a certain date, invalidated national legislation purporting to impose such charges after that date. Nor do I doubt that such provisions had direct effect in the legal systems of the Member States in the sense of conferring on private persons rights that the national Courts must uphold.

I am, however,: of the opinion, that is is for the national law of each Member State to determine the nature and extent of the remedies available in the Courts of that State to give effect to those rights. There is. ample authority in this Court for that proposition. As long ago as 1960, in Case 6/60 Humblet v Belgium (Rec. 1960 at p. 1147), the Court held that, where a Member State had exacted income tax from an ECSC official in an amount incompatible with the Protocol on the Privileges and Immunities of that Community, it was for the internal legislation of that State to say whether or not he was entitled to have the excess tax refunded to him with interest. In Case 28/67 Molkerei-Zentrale Westfalen v Hauptzollamt Paderborn [1968] ECR 148, at p. 154, and in Case 34/67 Luck v Hauptzollamt Köln, ibid. p. 245, the Court held that it was for the competent Court in each Member State to decide, according to the rules of its national law, what remedies were appropriate for the purpose of upholding the rights conferred on private persons by Article 95 of the EEC Treaty. In Case 13/68 Salgoil v. Italy, ibid. p. 453, the Court held that the rights conferred on private persons by the direct effect of Articles 31 and 32 of the Treaty must be classified in accordance with national law for the purpose of determining which Courts of a Member State had jurisdiction in the matter of their enforcement. In Cases 120/73 Lorenz v Germany [1973] 2 ECR 1471, 121/73 Markmann v Germany, ibid. p. 1495 and 141/73 Lohrey v Germany, ibid. p. 1527, the Court held that it was for the internal legal system of each Member State to determine the legal process whereby the direct effect of the last sentence of Article 93 of the Treaty was to be secured. Lastly, in Case 60/75 Russo v. AIMA [1976] ECR 45 the Court held that, where an individual farmer had suffered damage as a result of action by a Member State incompatible with the common organization of agricultural markets, the consequences, as regards the liability to him of that Member State, were to be determined according to its national law.

It seems to me, if I may say so, that those decisions accord with common sense. Where Community law confines itself to forbidding this or that kind of act on the part of a Member State and to saying that private persons are entitled to rely on the prohibition in their national Courts, without prescribing the remedies or procedures available to them for that purpose, there is really no alternative to the application of the remedies and procedures prescribed by national law. The plaintiffs submitted that to allow national law to apply in such circumstances was to allow it to override Community law. I do not think, that that is a correct description of the situation. I see it as a situation in which Community law and national law operate in combination, the latter taking over where the former leaves off, and working out its consequences.

There are other fields where such a situation is familiar. An example is afforded by Case 35/74 Mutualités Chrétiennes v Rzepa [1974] ECR 1241, where a right of recovery conferred by a Community Regulation on social security was held to be subject in each Member State to such period of limitation as was prescribed by the national law of that State. Another example is afforded by Case 26/74 Roquette v Commission [1976] ECR 677. In that case it was held that, where a trader had been wrongfully assessed to levies imposed by Community Regulations, the question whether he was entitled to reimbursement of them with or without interest must, in the absence of any relevant provisions of Community law, be settled in accordance with national law. In a way the present cases are a fortiori, for we are here concerned, not with levies imposed by Community law, but with levies imposed by national laws.

A large number of decisions of this Court were cited on behalf of the plaintiffs. It does not seem to me, however, that any of them go further than to affirm the twin principles of the primacy of Community law and of its direct effect in appropriate circumstances. Neither of those principles is, in my opinion, in question here. A decision that was particularly relied on was that in Case 166/73 Rheinmüblen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1947] ECR 33. It was submitted that that decision showed that Community law was capable of overriding national procedural law. So indeed it is. But the crux of that case was that the provision of national law there in question was held to be overridden in so far as it was incompatible with an express provision of Community procedural law, namely Article 177. In order to found their argument that there is a similar incompatibility here, the plaintiffs were, as I have indicated, driven to say that Community law not only invalidated the national legislation imposing the levies to which they were assessed, but itself conferred upon them a right of action for restitution of those levies, which right could not be limited by any provision of national law. For the reasons that I have already given, I do not think that any such independent right of action was conferred on the plaintiffs by Community law: I think that it was for their national laws to lay down the remedies to which they were entitled in consequence of the invalidity of the fiscal legislation in question. But, even if there were such an independent right of action created by Community law, the fact remains that there is no Community procedural law applicable to the exercise of such a right, and therefore no provision of Community law with which national procedural law could be held to be incompatible. Indeed the logical result of the plaintiffs' argument would be that no limitation period at all was applicable to their right of action. This would be inconsistent with the common tradition of the legal systems of the Member States, which is to give effect to the maxim ‘Interest reinpublicae ut sit finis litium’ by, among other things, prescribing limitation periods for rights of action (albeit, as the Commission has pointed out, widely divergent ones), and also with the general approach of Community law, as exemplified in Article 173 of the EEC Treaty, Article 43 of the Statute of the Court and many other provisions. The reductio ad absurdum of the plaintiffs' argument is that an action brought by them for restitution of the levies in question could not be dismissed by the competent national Court on any procedural ground whatever, not even, for instance, want of prosecution.

The plaintiffs also relied on two famous decisions of national Courts, namely the decision of the Cour de Cassation of Belgium in Etat Belge v SA. Fromagerie Franco-Suisse Le Ski (J. T. 1971, p. 460) and the decision of the Cour de Cassation of France in Administration des Douanes v Société Cafes Jacques Vabre (D. 1975 J. 497). Both of these, of course, affirmed the primacy of Community law over national law, even where the latter is enacted by a statute later in date than the Treaty, and both recognized the direct effect of Community law. But I cannot see that, in either case, the question at issue here was ever broached. Indeed in the French case it was accepted that the respondent's claim must be limited to restitution of sums paid within the period of limitation prescribed by French law. In the Belgian case the claim for restitution was expressly founded on Article 1235 of the Belgian Civil Code, the main question being whether a subsequent statute could abrogate the rights conferred on the respondent by that Article. Of course, when I say that, in circumstances such as those of these cases, the remedies and procedures that must be invoked are those presicribed by national law, I do not mean that it is open to the legislature of a Member State specifically to deprive of their remedies under such law persons who have been the victims of a breach by that State of Community law.

In the result I am of the opinion that Your Lordships should answer the first question referred to the Court by the Bundesverwaltungsgericht and the sole question referred to it by the College van Beroep voor het Bedrijfsleven in the negative.

On that view the third question asked by the Bundesverwaltungsgericht does not arise. I must however deal briefly with the second.

In my opinion the rights of private persons to be reimbursed charges exacted from them in breach of Community law cannot depend upon the existence or absence of a ruling of this Court (whether given under Article 169 or Article 170 or Article 177 of the Treaty) concerning the particular charges in question. A ruling of this Court declares the law; it does not make it. Your Lordships were pressed by the Italian Government to say, on the analogy of Case 43/75 Defrenne v SABENA [1976] ECR 455, that the direct effect of provisions of Community law forbidding the imposition of charges equivalent to customs duties could not be relied upon in any particular case until the charges in question in that case had been identified as falling within the prohibition either by a directive of the Commission or by a ruling of this Court. I hope I shall be acquitted of any discourtesy to the Italian Government or to its Counsel if I refrain from analysing in detail the argument put forward on its behalf on this part of the case. Your Lordships know it well. I think it enough to say that, in my opinion, the Defrenne case is distinguishable. The reason why in that case the Court limited the retrospective effect of its Judgment was that innumerable people in the Community, particularly private employers, had been misled as to their obligations by the behaviour of the Community Institutions and of the Governments of the Member States. There was good reason to fear that a reopening of their past transactions would lead to widespread financial difficulties and even to bankruptcies. The situation here, where we are concerned only with the refunding by Member States of charges that they should never have levied, is not comparable.