6.

The arguments put forward by the Commission relating to Article 13 (that is to say, the original version thereof, since the present version entered into force after the facts of this case occurred and governs the repayment of duties entered in the accounts on or after 1 July 1982) do not entirely convince me. By that I mean that I do not believe that Article 13 deals only with situations other than those envisaged in the preceding articles. A number of factors lead me to that conclusion. The first is the expression which is at the heart of the rule. To say that it applies in “special circumstances” does not mean that its scope is defined by reference to the circumstances envisaged by the other provisions. Then it should be noted that the article appears at the end of Title I, which contains the rules for “repayment or remission of import duties”. It seems to me that that confirms the impression created by a literal interpretation: namely, that Article 13, rather than being just a residual provision, is an equitable or, better still, “catch-all” provision on the basis of which may be assessed cases which, although perhaps provided for elsewhere in so far as they are typical, have become anomalous as a result of unforeseeable circumstances or unusual events. Finally, what is even more significant is the preparatory work for Regulation No 1430/79: when submitting the draft thereof to the Council, the Commission stated that Article 14 (subsequently 13) was to deal with “specific situations justifying measures inspired by equitable considerations”. Now, as we know, the Commission relies on the changes made to Article 13 by Regulation No 1672/82. Let us examine them closely. Apart from the procedural rules in the second paragraph, the old text confined itself as I have already pointed out, to allowing for the possibility of repayment “in situations resulting from special circumstances in which no negligence or deception may be attributed to the person concerned”. The new version consists of three paragraphs. The first provides that repayments may be effected in the same situations (that is to say resulting from special circumstances, etc.), but — and this is the point — in so far as they are “other than those referred to in Sections A to D”. The meaning of that addition is obvious: the rule is now clearly residual; that is, it applies only to circumstances which are not governed by the rest of the regulation. The second paragraph seems to change course. A refund, it says, may be granted even “in cases where [it] could not be granted under Sections B to D because of the failure of the person concerned to comply with procedural requirements”. Does that constitute a return to the “catch-all” approach of the old Article 13? Perhaps. In any case, a return qualified by too many precautions to be really significant. In addition to the existing condition regarding the absence of negligence or deception, the legislature in 1982 required that it be established whether the “other conditions required for repayment” mentioned in Sections B, C and D were satisfied; and, as if that were not enough, paragraph (3) provides that “The repayment or remission may be made subject to special conditions”. At this point, the picture seems to me clear. The new Article 13 retains very little of the old: cautious, rigid, restricted to specific circumstances, it is perhaps doubtful whether it can be defined as a general provision. And, if that is the case, the Commission's view ceases to be valid. It is in fact overturned. In other words, the fact that noncompliance with procedural requirements is now explicitly included among the circumstances enabling a repayment to be made does not imply that such noncompliance was not covered by the previous text. If anything it leads to the opposite conclusion: pursuing its intention to limit the scope of the provision, in 1982 the legislature merely redefined and circumscribed a hypothesis which, from the equitable viewpoint of the previous legislature, could be brought within the extremely broad expression “special circumstances”. The Commission's view, it is true, is supported by a textual argument: the second recital in the preamble to Regulation No 1672/82 states that the 1979 Regulation “does not... provide for... repayment” where procedural requirements have not been observed. But does that invalidate my reading of the old Article 13? Certainly not. I will explain myself. The second recital would have the meaning attributed to it by the Commission if the new rule was interpretative and if, in addition, it was wider in scope than the old one. However, that is not the case. As I have said, by comparison with the old provision, its approach is legalistic and its scope is limited: to apply it retroactively, even if only for the purpose of interpretation, is therefore impossible. The old maxim odiosa sunt restringendo, is still relevant.