3.

The second question submitted for a preliminary ruling is concerned with whether a duty to make repayment is incumbent upon national bodies which have levied monetary compensatory amounts on the basis of Community rules subsequently declared invalid, and if so , with the scope of that duty. In order to answer that question it is necessary to clarify at the outset the nature of the personal right which is claimed by the party seeking repayment of those amounts. Indeed, no right to compensation for loss or damage caused by the charge may be claimed as against the national bodies which imposed it — and correspondingly no obligation to pay compensation may be considered as incumbent on them — for the simple reason that the levying of the amount, which took place on the basis of Community regulations in force, is a wholly lawful, or rather, mandatory act, since those regulations are binding until declared invalid. It is to be observed that liability may attach to a State in consequence of acts or behaviour provided for under Community rules in so far as the national authorities have not applied or have misapplied those rules. But — as I observed in my opinion of 23 January 1979 in Case 101/78, Granaria v Hoofdproduktschap voor Akkerbouwprodukten [1979] ECR 623 — the situation is wholly different where a Member State has correctly applied Community regulations, which are in force, albeit defective, from the moment when a Community measure, vitiated by an irregularity such as to give rise to its annulment or to a declaration of its invalidity in a preliminary ruling, comes into effect with regard to the persons concerned until this Court delivers its judgment. For that reason, had this case taken the form of an action for damages having as its basis an alleged liability for an unlawful act on the part of the national authority, it would undoubtedly be necessary to regard such a claim as unfounded and it would only remain to ascertain whether, and if so, subject to what conditions, liability might attach to the Commission. But in truth one who seeks repayment of sums paid to national bodies by virtue of Community rules which are subsequently declared invalid is claiming only the right to restitution of undue payment. The corresponding duty of the body which received the sum does not in the least presuppose that its collection was illegal and that is different from what occurs in a case of extra-contractual liability for damages. That duty is connected with the mere fact that, failing restitution, there would be an unjust enrichment of the party subject to the duty. That said, it remains to be seen whether relevance attaches to the fact that a State body has unduly levied certain sums, not in the interest of the State itself, but for the account of the Community, to which the sums had to be credited. It might be thought that, in cases of that kind, there is an unjustified enrichment of the Community inasmuch as the Member State, acting in the exercise of powers binding upon it, has performed a mere executive function linking the body imposing the charge and the passive subject of the charge. If that point of view were accepted there could be no talk of a duty of restitution being incumbent upon the State. Those having a right to reimbursement would have to seek it directly from the Commission by asserting its liability for having adopted the provision, subsequently recognized as invalid, which provided the basis for the imposition of the charge by the Member State. And that, in substance, is the defence of the defendant body in the present case. In practice, a system permitting reimbursement to be claimed from a Community body would offer the advantage of avoiding differences in treatment between citizens, who may be nationals of different Member States, when they seek to remove the adverse effects on them of invalid Community rules. It would, moreover, avoid disputes between national intervention bodies and the Commission in relation to the satisfaction of the credits which the former claim as against the latter after reimbursing individuals sums which, in the time intervening, have already been credited or paid to the Commission. However, the case-law of the Court has made clear that it is not open to persons concerned to claim directly from the Community reimbursement of sums paid on the basis of Community regulations the application of which is called in question. In its judgment of 25 October 1972 in Case 96/71, Haegeman ν Commission [1972] ECR 1005 the Court decided an application by an undertaking which sought, inter alia, restitution of sums which it considered the national authorities had wrongly levied on the basis of regulations of the Commission (concerning the Community's “own resources”) which the applicant maintained did not apply in its case. The Court held that not only disputes regarding the interpretation and validity of the said regulations but also claims for repayment of charges which the national authority had collected for the account of the Community on the basis of those regulations came within the jurisdiction of the national courts. The Court accordingly dismissed the application brought by the undertaking concerned against the Commission with a view to obtaining both the annulment of the decision refusing to exempt it from a given charge, in the event of the Court's declaring the regulations in question to be inapplicable, and also restitution of the sums paid. For the purposes of the present dispute, it is of no moment that in the Haegeman case it was the interpretation given to a regulation by the national authorities and by the Commission which was in question and not the validity of the regulation. The claim was similarly for reimbursement of sums collected by the national authority for the account of the Community and the preliminary issue in every case is that of establishing whether the Community regulation presents a proper basis for the making of that charge. In short, what is important is the reason which led the Court to lay down that national courts have exclusive jurisdiction in claims for repayment of the kind indicated. The reason is to be discerned in the fact that the collection is carried out by national bodies under detailed rules governed by national laws, regulations and administrative provisions and subsequently the sums are put at the Commission's disposal. That observation applies also as regards the collection of the monetary compensatory amounts with which the present proceedings are concerned. Another precedent which it is worth recalling is that contained in the judgment of 27 January 1976 in Case 46/75, IBC ν Commission [1976] ECR 65. In it, the Court, accepting (for different reasons) what was suggested by Mr Advocate General Warner, regarded as inadmissible an action for compensation for the damage which the applicant claimed to have suffered as the result of the application by the Italian customs authorities of a regulation of the Commission on monetary compensatory amounts which it claimed to be unlawful. The Court held that the action concerned essentially the legality of the imposition of the sums in dispute by the Italian national authorities — who were responsible for the implementation of the Community provisions concerning monetary compensatory amounts — and sought reimbursement by the Community, instead of by the national authorities, of the sums which were said to have been improperly charged. As in the Haegeman judgment, here also the Court stated that under the Community rules in question “the actual assessment and imposition of the sums due are matters for the national authorities”. The question of the legality of such implementing measures under Community law was, therefore, a matter for the competent national courts or tribunals to decide, using the procedures laid down under national law and after application, where appropriate, of Article 177 of the Treaty, in particular on questions concerning the validity of the Community provisions applied. That judgment thus confirms the test laid down in the Haegeman judgment. And still to the same effect may be cited the judgment of 21 May 1976 in Case 26/74, Roquette Frères ν Commission [1976] ECR 677. I would add that Mr Advocate General Trabucchi, in his opinion of 31 March 1976 in that case, had already deduced from the case-law of the Court that “disputes concerning the relationship created between a State authority and a national as a result of an undue payment claimed by the authority when carrying out its duty to apply Community rules must first be resolved at national level, before the competent national court” (at p. 690). That does not, of course, mean that the burden resulting from the reimbursement of charges which it has collected and already credited or paid to the Community may be placed upon the finances of the Member State. It must thus be considered that in making the repayment, just as in collecting the charge, the national authorities continue to act on behalf of the Community, which, logically, will have to bear the pecuniary burden mentioned above. But that concerns relations between Member States and the Commission at a stage which, logically, comes after the act of repayment.