5.

On the first question the Commission maintains that the abuse of the mechanism of the assignment to the detriment of one's own creditors falls within the scope óf non-contractual liability and thus within the ambit of Article 215 of the EEC Treaty. That proposition contains a grain of truth, but it must be more closely defined by reference to the features of the particular case. It is worth recalling that in this case the claim which is relevant to the determination of the law applicable to the validity (or to the effectiveness) of the assignment is that raised by way of set-off by the defendant and not that raised against it by-the applicant. We must ask ourselves (a) whether the assignment of the claim for compensation has jeopardized the recoverability of the debt relating to the recovery of the refunds which was assigned to the Commission by the German customs authorities and (b) whether, and if so under what conditions, this has a bearing upon the fate of the contract by which the claim for compensation was transferred. Now, in order to determine the law, Community or national, under which the validity (or effectiveness) of the contract is to be ascertained, it is necessary to establish whether the claim for the recovery of the refund which was paid wrongly or irregularly is subject to the Community system. I think that it has a Community basis and, consequently, that the grounds which invalidate an assignment are to be sought in the principles of the Community system. The Commission's argument must therefore be rectified in the light of these considerations. As I was saying, the subject-matter of the claim raised by way of setoff by the defendant is the recovery of export refunds. Its Community origin can be traced in the provisions of the regulations on the basis of which the payments were made (albeit erroneously) by the national authorities and, as far as the recovery is concerned, in Article 8 of Regulation No 729 of the Council of 21 April 1970. Let us examine that provision. In the first sentence of paragraph (1) it is provided that “The Member States in accordance with national provisions Jaid: down by law, regulation or administrative action shall take the measures necessary to ... recover sums lost as a result of irregularities or negligence”. In this case, the customs authorities of the Federal Republic, after paying export refunds to Contifex in the period 1976 to 1977 because they had been misled as regards the nature of the product by the fraudulent conduct of the recipient, decided to recover them by applying that provision. Now according to the firmly established case-law of this Court, the authorities of the Member States which, in administering the Community agricultural intervention systems, have the task of recovering sums wrongly paid, must have regard to their respective national laws “only in so far as it is necessary for the implementation of provisions of Community law and in so far as the application of those rules of a national law does not jeopardize the scope and effectiveness of that Community law”: see the judgment of 6 May 1982 in Joined Cases 146, 192 and 193/81 BayWa AG and Others v Bundesanstalt für landwirtschaftliche Marktordnung [1982] ECR 1503. In that case the Court had to decide whether the Community provisions on the recovery of sums wrongly paid under the common agricultural policy (see Article 8, already mentioned) imposed upon Member States the duty to carry out such a recovery, or whether they simply give the option “[making] it possible for the laws of the Member States to leave individual cases to the appropriate national authorities” (paragraph 27 of the decision). The Court held that the Community rule “expressly requires the national authorities ... to recover sums unduly or irregularly paid” and that they could not “exercise a discretion as to the expediency of demanding repayment of Community funds ... ”(paragraph 30 of the decision). Underlying this view is the principle of equality and the rule requiring that Community law be applied in a uniform manner. The Court explained that “The opposite interpretation would lead to an erosion both of the principle of equal treatment between undertakings from different Member States and of the application of Community law which must, so far as possible, remain uniform throughout the Community” (last sentence of paragraph 30 of the decision). Those words are clear and they represent the most recent expression of what is by now a firmly established line of approach; I would recall, amongst others, the earlier judgments of 5 March 1980 in Case 265/78, Ferwerda v Produktschap voor Vee en Vlees [1980] ECR 617; 12 June 1980 in Case 130/79, Express Dairy Foods v Intervention Board for Agricultural Produce [1980] ECR 1887; 12 June 1980 in Joined Cases 119 and 126/79, Lippische Hauptgenossenschaft [1980] ECR 1863. However, in its judgment of 28 June 1977 in Case 118/76 Balkan-Import-Export GmbH v Hauptzollamt Berlin-Packhof [1977] ECR 1117 the Court offered a further argument in support of my reading of Article 8. Ruling on the division of functions between the Community and Member States concerning the passing on of monetary compensatory amounts, the Court stated that a national administration could not apply a domestic rule when “its effect would be to modify the scope of the provisions of Community law” (paragraph 5 of the decision). The Advocate General expressed himself in like terms in his opinion in the BayWa case, pointing out that the application of a national rule is forbidden when it “would alter the effect of the Community rules”. It may therefore be inferred from all these indications, taken as a whole, that the claim raised by way of setoff is, in part, governed by Community rules, that is to say by a set of rules which, as is generally known, takes priority over national provisions which are inconsistent with it. The rules which are relevant in this case and which may be summarized as the expression of the duty of national authorities to recover sums wrongly or irregularly paid answer the objective of ensuring equal implementation of Community claims in all the Member States. In brief, they seek — as I have already said with reference to the Court's thinking on the subject — to guarantee equality of treatment of all traders concerned by means of the uniform application of the law. So what is the effect of these principles so far as the problem before us is concerned? It seems to me that they require that a claim arising under Community law should be endowed with the same degree of recoverability throughout the common market. It is well known that a person who is under an obligation to make a monetary payment offers his creditors a kind of general guarantee in the form of his assets. The same concept is commonly expressed by saying that the debtor is in a subordinate position in regard to his own assets, in the sense that, if he does not pay, he must submit to their expropriation by the creditor. This is a general rule common to the systems of the various Member States; in principle therefore it must also be applied in relation to claims which have their basis in Community law. If it were not so applied, and not so applied uniformly throughout the Community, the very substance of the claim would be jeopardized. However, one thing is certain: the recoverability of a claim can be jeopardized by disposals made by the debtor. And this is what has happened in the case before the Court. By assigning the claim for compensation against the Commission, Contifex has deprived itself of one of its own assets and has rendered it more difficult, if not actually impossible, for the Commission to recover the sum in respect of which it, Contifex, was in its turn the debtor. Having said that, however, it is necessary to stress the effect upon the enforcement of claims which have their basis in Community law resulting from the differences which may exist between the national systems as regards the protection afforded to those entitled to such claims in the face of disposals made by the debtor. For it is conceivable that such differences may give rise to inequalities in the treatment of debtors and on the other hand prevent the uniform application of the Community rules on the recovery of sums wrongly or irregularly paid. Now, in the case of one particular kind of disposal, namely the assignment of a claim, the discrepancies which have been referred to appear to be especially clear and telling. It is well known that, while some legal systems (for example those of Italy and France) require that the assignment be notified to the debtor under the original claim for it to be effective against him, others (such as that of the Federal Republic) consider it valid as against the debtor without providing for any form of notice. Under systems of the first kind, therefore, the debtor under the transferred claim may raise the same objections against the assignee that he could have raised against the assignor, as long as those objections are based on rights acquired after the assignment but before he received notice of it. Under the second kind, on the contrary, the debtor under the transferred claim may not, at least as a general rule, raise any objection based upon rights acquired after the transfer. The conclusion is obvious: the debtor under the assigned claim who is at the same time a creditor of the assignor is not protected in the same way in Germany as he is in Italy and in France. If, then, the claim vested in him is of Community origin, it is equally obvious that this different form of protection ultimately affects the very enforceability of his right. It therefore seems to me to be essential to ask ourselves whether the Community system lays down a limit to the application of national laws, derived from the general principles common to them and such as to avoid the difficulties which I have pointed out. The case-law of this Court has provided a pointer in this direction in the judgment of 4 October 1979 (Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955). The applicant in that case was asserting a claim for compensation against the Commission and the Council (a claim deriving, like the one raised in this case, from export refunds owed but not paid), which had been assigned to it by another party. The Commission challenged the admissibility of the application, maintaining that such an assignment was not permitted in view of the abuses to which it could give rise. The objection was rejected because it emerged that the assignment had been executed in favour of a company belonging to the same group and “following a measure of reorganization within the group”; but the Court declared, and did so in general terms, that “there is no reason to prevent a right to compensation from being claimed and enforced by the assignee [when there is no] cause to believe that the assignment may have led to an abuse” (paragraph 5 of the decision). For the purposes of our point of view, it is of great significance that the Court has seen in the risk of abuse a limit to the assignment of claims, without deriving that principle from the system of one particular Member State based upon the connecting factors proper to private international law. In my opinion, it must be concluded that, in formulating the passage which I have cited, the Court intended to refer to a “Community” concept of abuse, inferable from the principles common to the systems of the Member States. In this way the Ireks-Arkady judgment confirms the connection between the Community basis of the claim and the other Community principles intended to guarantee its recoverability. It is advisable however to make it clear that to draw up a Community system for the assignment of claims from those premises is too great a step. It is necessary to distinguish between specific rules applicable to assignments (requirements as to form and substantive provisions) and general rules designed to ensure the satisfaction of a claim arising under the Community system. The former can only be sought in the domestic law of each State. On this point I would recall what Mr Advocate General Capotorti had to say in his Opinion in the Ireks-Arkady case (see in particular pages 2986 and 2987): the fact that the subject-matter of the assignment is the right to a claim originating in an unlawful act of the Community, is not sufficient, he stated, “ to establish such a close and direct relationship between the assignment ... and the unlawful act ... as to bring the contractual act of disposing of the right between individuals within the provisions on the non-contractual liability of the Community”, (ibid, foot of page 2986). As I was saying, however, the situation is different in this case: our problem is to identify the fundamental principles which ensure the recoverability of claims in the Member States and in particular those which protect the creditor from disposals by which the debtor reduces his own assets. Finally I would like to add that there is another argument of a general nature which supports the Community solution adopted here. The contrary solution, which relies on national law alone to ascertain the validity (or effectiveness) of an assignment, would in fact oblige the institutions to have recourse, for the purpose of such determinations, to the courts of the various States, thus preventing the exercise of the jurisdiction of this Court. And in my opinion this is a view which should not be favourably considered, not only because of the well-known principle of the avoidance of a multiplicity of actions, but also because the national courts would be called upon to consider definitively a subject which has, as I have already pointed out, a twofold basis in Community law: by reference to the claim brought before the Court (based upon Article 215 of the EEC Treaty) and also in regard to the larger claim raised by way of set-off.