1.

Already in the first few months of this year the Court has had occasion to consider more than once questions connected with the reimbursement of sums wrongly received or paid by the Member States pursuant to the common agricultural policy. Two days ago I delivered my opinion in Case 130/79, Express Dairy Foods. That was concerned with a claim for the refund of monetary compensatory amounts by a company which had been required to pay them on the basis of Commission regulations which should be declared invalid. Today the issue with which I am concerned is the claim by the national authorities for the recovery of sums paid some years ago to two undertakings by way of premiums for the denaturing of common wheat, it having been ascertained that those undertakings failed to comply with the conditions for receiving the premiums. The immediate precedent on this subject is the judgment of 5 March 1980 in Case 265/78, Ferwerda. There again the particular problem was the recovery of sums wrongly paid (by way of export refunds) by the responsible national authority to a private undertaking pursuant to the agricultural policy. Again, as for the question of principle, it is basically to establish whether it is Community law or national law which governs the conditions for the refund of sums unduly paid. The most delicate aspect concerns limitation periods. Let me summarize the facts. By measures adopted on 30 July 1976 and 20 January 1977 the Federal institution which is charged with managing the common agricultural policy in Germany (the Bundesanstalt für landwirtschaftliche Marktordnung, hereinafter referred to as “the Bundesanstalt”) claimed from two co-operative undertakings (the Lippische Hauptgenossenschaft and the Westfälische Central-Genossenschaft) repayment of the amounts received by them by way of denaturing premiums for operations carried out respectively during the periods November 1968 to February 1974 and November 1968 to July 1970. It appeared from inspections carried out that the two undertakings had not complied with the Community rules relating to the percentage of colouring matter to be used in denaturing grain. In this respect it should also be recalled that in Article 8 (1) of Regulation No 729/70 of 21 April 1970 the Council required the Member States “in accordance with national provisions laid down by law, regulation or administrative action” to take the measures necessary to “prevent and deal with irregularities” and “recover sums lost as a result of irregularities or negligence”: that is to say the sums paid to undertakings in pursuance of the common agricultural policy but not due because the applicable rules were not observed. The two above-mentioned co-operatives objected to the claims and brought the matter before the Verwaltungsgericht Frankfurt am Main where they sought to rely inter alia on the five-year period of prescription which they claimed was to be inferred from the system of the EEC Treaty. The plaintiffs claimed that since payment of the denaturing premiums is made on the basis of Community law it is on the basis of that same law that problems relating to the extinction and lapse of the right to repayment of premiums wrongly paid should be resolved. In the absence of express Community rules governing prescription the plaintiffs maintain that it is possible to have recourse to analogy and they refer to Article 43 of the Statute of the Court of Justice of the EEC which, in relation to actions against the Community in matters of non-contractual liability, provides a period of limitation of five years from the occurrence of the event giving rise to liability. According to the plaintiffs, since that is the period fixed for the prescription of the rights which individuals may assert against the Community, the rights of the Community as against individuals should similarly be extinguished after the same period of time. On the other hand the Bundesanstalt maintains that prescription is governed by national law and not by Community law. By two orders dated 12 July 1979 the Verwaltungsgericht Frankfurt am Main referred to this Court three questions for a preliminary ruling, asking: (a) Whether the question of the period within which claims for repayment of denaturing premiums may be made is to be decided in accordance with Community law; (b) If that is the case, whether the claim for repayment is subject to a limitation period, and if so what period; (c) Whether there is in Community law a principle according to which, after the lapse of the period provided for in the national law for the preservation of documents relating to denaturing, it is no longer possible to rely on records still available or other documents to prove that the denaturing processes were irregular and to claim repayment of the premiums paid. In the grounds of the orders making the reference the national court voiced its doubts concerning the applicability of the national provisions on prescription, especially having regard to the fact that the diversity of the laws in force in the Member States would cause disparity in treatment as between the citizens of the Community. Further, to clarify the object of the third question, the national court stressed that the German law implementing the Community regulations on denaturing premiums requires the undertakings to preserve documents relating to deanturing operations for seven years. That is why it wondered whether there ought not at least to be some realtionship between the said period and that within which it is possible to claim repayment of premiums wrongly paid; in this respect it referred to the principles of the protection of legitimate expectation and of proportionality recognized by Community law.