2.

Consideration must first be given to the application for interest on the sum unlawfully levied by the French authorities. Under the case-law of this Court, 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 Comunity rules must first be resolved at national level, before the competent national court. It was laid down in the judgment of 27 January last in Case 46/75 (I.B.C. v Commission), which confirmed the previous decision to the same effect in the judgment of 25 October 1972 in Case 96/71 (Haegemann v Commission, Rec. 1972, p. 1014), that even if the imposition of the undue payment was based on a specific Community provision, an application for repayment must be brought exclusively against the authority which imposed it. In the light of these precedents there can be no question of the Community authorities' being asked to repay sums which a national authority has improperly levied in application of a Community rule, even if the latter were illegal. This principle applies with even greater force when a national authority has improperly collected payments on the basis of an erroneous application of a valid Community rule, as occurred in the present case. The clear distinction drawn by the Court between actions for payment due from a Member State under Community law and actions for damages under Article 215 of the EEC Treaty (Judgment of 26 November 1975 in Case 99/74, Grands Moulins des Antilles [1975] ECR 1531) may be taken as also applying to actions for repayment of sums improperly levied by States when applying Community rules. Although the fact that the Commission was partly to blame for the mistake made by the national authority may be important in establishing the Community's liability for any subsequent damage, this has no relevance in determining to which authority the application for reimbursement of the undue payment should be submitted. Payment of the interest on a capital sum unduly paid is strictly dependent upon the right to repayment of the principal itself. The determination of the amount due as interest on a contract or as default interest directly and necessarily depends on the amount of the sum unduly paid and on the period which has elapsed between the undue payment, or at least the final notice served by the body collecting the payment, and its repayment. The right to receive such interest is not subject to proof of damage. These considerations lead to the conclusion that an application for interest is subject to the same criteria as those laid down by the case-law of the Court in respect of the claim for repayment of the capital on which the interest is based. An application for interest must, therefore, be made in accordance with the same procedure as that applicable to recovery of the capital sum. If, therefore, it was a matter for the competent national court to rule on the validity of the application of Community law by the French administration and, consequently, to decide whether there is any right to reimbursement of the sums unduly paid by the applicant, the same must apply to the secondary debt of the sums claimed as interest on the improper levy. If the applicant had confined itself to seeking the enforcement of its right to repayment of the undue payment within the framework of the present proceedings the Court, in conformity with the above-mentioned case-law, would have had to declare inadmissible an application for repayment submitted in the form of an action for damages against the Commission. This must also apply to the concomitant application for the appropriate interest. It is true that, in the proceedings before the national court of first instance, the applicant was unsuccessful in the claim which it brought against the French administration for this interest. Nevertheless, it has voluntarily waived its right of appeal against that judgment although it expressed the view that the judgment was in serveral respects impugnable. Again, as regards the fact, which the applicant declares to have been decisive in inducing it not to lodge an appeal, that the sums improperly levied by the French customs administration were forthwith paid by the latter into the funds of the EAGGF, it does not seem to me that this development, which did not constitute an obstacle to repayment of the capital sum, should necessarily constitute an obstacle to payment of interest on the part of the body which collected it. If, as undoubtedly occurs in the case of the capital, the EAGGF must in the end defray the amount of the interest, this is a question concerning the relationship between the State and the Community. It ought not to be taken into account as a factor affecting the relationship which the improper levy has created between the undertaking concerned and the customs administration and is therefore of no relevance in the present proceedings. In any case, even if, in circumstances such as those in the present case, it had to be recognized that there was subsidiary liability on the part of the Community, as was decided in the judgment in Joined Cases 5, 7 and 13 to 24/66 (Firma E. Kampffmeyer and others [1967] ECR 246 et seq.), such liability could only be taken into consideration after the applicant had exhausted all available methods under national law of obtaining satisfaction for his claim which, as has been seen, must be pursued primarily against the authority which imposed the levy and which is also involved in the question of interest. Accordingly, the application for an order that the Commission should pay interest was submitted too soon. The subsequent waiver, on its own initiative, by the applicant of all the methods of redress available to it under national law whereby it could obtain this payment from the authority against whom, in accordance with the case-law of this Court, the applicant had first to apply for it, forthwith removes all possibility of its claiming from the Community. The application for interest must therefore be dismissed as inadmissible.