Judgment of the Court of 5 March 1980. - H. Ferwerda BV v Produktschap voor Vee en Vlees. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Refunds wrongly made. - Case 265/78.



European Court reports 1980 Page 00617

Greek special edition Page 00313

Swedish special edition Page 00045

Finnish special edition Page 00045



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . EUROPEAN COMMUNITIES - OWN RESOURCES - SYSTEM - PRINCIPLES - EQUALITY OF TREATMENT

( EEC TREATY , ART . 201 ; COUNCIL DECISION OF 21 APRIL 1970 )

2 . EUROPEAN COMMUNITIES - OWN RESOURCES - EXPORT REFUNDS WRONGLY MADE - REPAYMENT - DISPUTES - JURISDICTION OF THE NATIONAL COURTS - REQUIREMENT OF CO-OPERATION

( EEC TREATY , ART . 5 ; REGULATION NO 729/70 OF THE COUNCIL , ART . 8 )

3 . EUROPEAN COMMUNITIES - OWN RESOURCES - EXPORT REFUNDS WRONGLY MADE - REPAYMENT - APPLICATION OF NATIONAL LAW - PRINCIPLE OF LEGAL CERTAINTY - APPLICABILITY - CONDITIONS

( REGULATION NO 1957/69 OF THE COMMISSION , ART . 6 ( 5 ))

Summary

1 . THE GENERAL ARRANGEMENTS REGARDING THE FINANCIAL PROVISIONS OF THE TREATY ARE GOVERNED BY THE GENERAL PRINCIPLE OF EQUALITY WHICH REQUIRES THAT COMPARABLE SITUATIONS MAY NOT BE TREATED DIFFERENTLY UNLESS DIFFERENCE OF TREATMENT IS OBJECTIVELY JUSTIFIED .

IT FOLLOWS THAT THE REVENUES WHICH ARE CONTRIBUTED TO THE COMMUNITY BUDGET AND THE FINANCIAL ADVANTAGES CHARGED THERETO MUST BE SO ARRANGED AND APPLIED AS TO CONSTITUTE A UNIFORM BURDEN OR CONFER UNIFORM BENEFITS ON ALL PERSONS WHO MEET THE CONDITIONS SPECIFIED IN THE COMMUNITY PROVISIONS ON SUCH BURDENS OR ADVANTAGES .

2 . DISPUTES IN CONNEXION WITH THE REIMBURSEMENT OF AMOUNTS COLLECTED FOR THE COMMUNITY ARE THUS A MATTER FOR THE NATIONAL COURTS AND MUST BE SETTLED BY THEM UNDER NATIONAL LAW IN SO FAR AS NO PROVISIONS OF COMMUNITY LAW ARE RELEVANT . IN THOSE CIRCUMSTANCES IT IS FOR THE COURTS OF THE MEMBER STATES TO PROVIDE , IN PURSUANCE OF THE REQUIREMENT OF CO-OPERATION EMBODIED IN ARTICLE 5 OF THE DIRECT EFFECT OF THE COMMUNITY PROVISIONS BOTH WHEN SUCH PROVISIONS CREATE OBLIGATIONS FOR THE SUBJECT AND WHEN THEY CONFER RIGHTS ON HIM . IT IS THUS FOR THE NATIONAL LEGAL SYSTEM OF EACH MEMBER STATE TO DETERMINE THE COURTS HAVING JURISDICTION AND TO FIX THE PROCEDURES FOR APPLICATIONS TO THE COURTS INTENDED TO PROTECT THE RIGHTS WHICH THE SUBJECT OBTAINS THROUGH THE DIRECT EFFECT OF COMMUNITY LAW BUT SUCH PROCEDURES MAY NOT BE LESS FAVOURABLE THAN THOSE IN SIMILAR PROCEDURES CONCERNING INTERNAL MATTERS AND MAY IN NO CASE BE LAID DOWN IN SUCH A WAY AS TO RENDER IMPOSSIBLE IN PRACTICE THE EXERCISE OF THE RIGHTS WHICH THE NATIONAL COURTS MUST PROTECT .

SUCH CONSIDERATIONS APPLY BOTH WHERE THERE IS AN EXPRESS REFERENCE TO NATIONAL LAWS AS THERE IS IN ARTICLE 8 OF REGULATION NO 729/70 , AND WHERE AN IMPLIED REFERENCE IS MADE TO SUCH LAWS .

3 . COMMUNITY LAW IN ITS PRESENT STATE AND ARTICLE 6 ( 5 ) OF REGULATION NO 1957/69 IN PARTICULAR DO NOT PRECLUDE THE APPLICATION , IN PROCEEDINGS CONCERNING THE RECOVERY BY THE AUTHORITIES OF THE MEMBER STATES OF SUMS PAID IN ERROR AS EXPORT REFUNDS TO TRADERS , OF A PRINCIPLE OF LEGAL CERTAINTY BASED ON NATIONAL LAW WHEREBY FINANCIAL BENEFITS GRANTED IN ERROR BY THE PUBLIC AUTHORITIES MAY NOT BE RECOVERED IF THE ERROR COMMITTED WAS NOT DUE TO INCORRECT INFORMATION SUPPLIED BY THE BENEFICIARY OR IF SUCH ERROR , DESPITE THE FACT THAT THE INFORMATION SUPPLIED WAS INCORRECT THOUGH SUPPLIED IN GOOD FAITH , COULD EASILY HAVE BEEN AVOIDED .

Parties

IN CASE 265/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ), THE HAGUE , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

H . FERWERDA B.V ., ROTTERDAM ,

AND

PRODUKTSCHAP VOOR VEE EN VLEES ( BOARD FOR CATTLE AND MEAT ), RIJSWIJK ,

Subject of the case

ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1957/69 OF THE COMMISSION OF 30 SEPTEMBER 1969 ON ADDITIONAL DETAILED RULES FOR GRANTING EXPORT REFUNDS ON PRODUCTS SUBJECT TO AN SINGLE PRICE SYSTEM ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 417 ),

Grounds

1 BY A JUDGMENT OF 15 DECEMBER 1978 WHICH WAS RECEIVED AT THE COURT ON 21 DECEMBER 1978 , THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED THREE QUESTIONS TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF ARTICLE 6 ( 5 ) OF REGULATION ( EEC ) NO 1957/69 OF THE COMMISSION OF 30 SEPTEMBER 1969 ON ADDITIONAL DETAILED RULES FOR GRANTING EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 417 ).

2 THOSE QUESTIONS ARE WORDED AS FOLLOWS :

' ' 1 . PROPERLY INTERPRETED , DOES ARTICLE 6 ( 5 ) OF REGULATION ( EEC ) NO 1957/69 SIGNIFY THAT RELIANCE ON THE PRINCIPLE OF LEGAL CERTAINTY LAID DOWN IN , OR APPLIED PURSUANT TO , A NATIONAL LAW IS PRECLUDED IN RESPECT OF A CLAIM FOR REPAYMENT OF A REFUND?

2 . DOES IT FOLLOW FROM A PROPER INTERPRETATION OF ARTICLE 6 ( 5 ) OF REGULATION ( EEC ) NO 1957/69 THAT A DECISION TO SEEK REPAYMENT OF A REFUND IS NOT SUBJECT TO THE PRINCIPLE OF LEGAL CERTAINTY DERIVED FROM COMMUNITY LAW?

3 . IF THE ANSWER TO QUESTIONS 1 AND 2 MUST BE THAT IT IS NOT POSSIBLE IN THOSE CASES TO RELY ON A NATIONAL OR COMMUNITY PRINCIPLE OF LEGAL CERTAINTY , DOES ARTICLE 6 ( 5 ) OF REGULATION ( EEC ) NO 1957/69 ALSO PRECLUDE A CLAIM FOR DAMAGES BY THE EXPORTER AGAINST THE ADMINISTRATION WHICH HAS SOUGHT REPAYMENT OF THE REFUND , BASED ON THE SAME FACTS AND CIRCUMSTANCES WHICH MIGHT JUSTIFY RELIANCE ON THE PRINCIPLE OF LEGAL CERTAINTY IF THIS WERE NOT PRECLUDED BY THE SAID ARTICLE 6 ( 5)?

' '

3 THE QUESTIONS WERE PUT IN THE COURSE OF AN ACTION BETWEEN FERWERDA B.V ., A NETHERLANDS EXPORTER OF MEAT , AND THE COMPETENT AUTHORITY IN THE NETHERLANDS WHICH CLAIMS THAT THE FORMER SHOULD REIMBURSE IT THE EXPORT REFUNDS WHICH THE PARTIES AGREE WERE WRONGLY GRANTED AND PAID FOLLOWING A MISTAKEN APPLICATION OF ARTICLE 3 OF REGULATION ( EEC ) NO 192/75 OF THE COMMISSION ( OFFICIAL JOURNAL 1975 , L 25 , P . 1 ) LAYING DOWN DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS IN RESPECT OF AGRICULTURAL PRODUCTS . ACCORDING TO THE SAID ARTICLE 3 FOR THE PURPOSES OF ENTITLEMENT TO A REFUND , SUPPLIES FOR VICTUALLING WITHIN THE COMMUNITY SEA-GOING VESSELS OR AIRCRAFT SERVING ON INTERNATIONAL ROUTES , INCLUDING INTRA-COMMUNITY ROUTES , SHALL BE TREATED AS EXPORTS FROM THE COMMUNITY AND CONFER ENTITLEMENT TO AN EXPORT REFUND . THE FILE OF THE NATIONAL COURT ESTABLISHES THAT THE MEAT EXPORTED WAS INTENDED FOR VICTUALLING SHIPS FLYING THE NETHERLANDS FLAG SAILING IN BERMUDAN WATERS SO THAT THE CONDITION THAT VICTUALLING MUST TAKE PLACE WITHIN THE COMMUNITY IF IT IS TO BE TREATED AS AN EXPORT QUALIFYING FOR A REFUND WAS NOT FULFILLED SINCE BERMUDA DOES NOT APPEAR IN THE LIST OF NON-MEMBER COUNTRIES CONSTITUTING DESTINATIONS IN RESPECT OF WHICH EXPORTS QUALIFY FOR REFUNDS . THE CIRCUMSTANCES OF THAT MISTAKEN APPLICATION WERE SUCH THAT THE NATIONAL COURT CONSIDERED IT MUST GIVE A RULING ON THE POINT WHETHER THE MISTAKEN APPLICATION WAS THE WORK OF THE NETHERLANDS ADMINISTRATION OR OF FERWERDA AND DECIDE ON WHAT CONDITIONS THE AMOUNTS IN QUESTION ARE RECOVERABLE FROM THE LATTER .

4 THE NATIONAL COURT RAISES THE POINT WHETHER THE OBLIGATION TO EFFECT A REPAYMENT LAID DOWN IN ARTICLE 6 ( 5 ) OF REGULATION NO 1957/69 , AN OBLIGATION WHICH HAS DIRECT EFFECT IN THE LEGAL SYSTEMS OF THE MEMBER STATES , MAY BE NULLIFIED OR LIMITED IN ITS EFFECTS BY A NATIONAL PROVISION BASED ON A GENERAL PRINCIPLE OF LAW . FERWERDA HAS IN FACT MAINTAINED THAT THE CLAIM MADE ON IT TO REPAY THE EXPORT REFUNDS WHICH IT HAD WRONGLY RECEIVED IS CONTRARY TO THE PRINCIPLE OF LEGAL CERTAINTY . ACCORDING TO THE NATIONAL COURT THAT PRINCIPLE IS RECOGNIZED IN THE LEGAL SYSTEM OF THE NETHERLANDS AS CONSTITUTING A VALID DEFENCE IN THE CONTEXT OF PROCEEDINGS FOR THE RECOVERY OF MONEYS BY THE ADMINISTRATION , AS IS ESTABLISHED IN PARTICULAR BY A PROVISION OF THE NETHERLANDS IN- ON UITVOERWET ( IMPORT AND EXPORT LAW ) OF 5 JULY 1962 AND THE INFORMATION GIVEN BY THE NETHERLANDS GOVERNMENT IN THE RECITALS THERETO .

5 IN THOSE CIRCUMSTANCES THE NATIONAL COURT IN FACT WISHES TO KNOW WHETHER COMMUNITY LAW IN GENERAL AND ARTICLE 6 ( 5 ) OF REGULATION NO 1957/69 IN PARTICULAR RULE OUT THE APPLICATION OF SUCH A PRINCIPLE OF NATIONAL LAW . IF IT DOES THE NATIONAL COURT WISHES TO KNOW WHETHER SUCH A PRINCIPLE IS TO BE FOUND IN COMMUNITY LAW WHICH IT MUST THEN APPLY .

6 THE EXPORT REFUND OBTAINED BY FERWERDA CONSTITUTES A FINANCIAL BENEFIT ACCORDED IN PURSUANCE OF THE COMMUNITY PROVISIONS AND FINANCED BY THE COMMUNITY FROM ITS OWN RESOURCES WITHIN THE GENERAL FRAMEWORK OF THE BUDGETARY ARRANGEMENTS MADE BY ARTICLES 199 TO 209 WHICH CONSTITUTE THE FINANCIAL PROVISIONS OF THE EEC TREATY .

7 THE ARRANGEMENTS FOR THE FIXING AND THE CONDITIONS OF COLLECTION OF THE FINANCIAL CHARGES WHICH THE COMMUNITY IS EMPOWERED TO LEVY AND WHICH SPECIFICALLY CONSTITUTE ITS OWN RESOURCES , SUCH AS CUSTOMS DUTIES , AGRICULTURAL LEVIES AND MONETARY COMPENSATORY AMOUNTS , AND THE ARRANGEMENTS CONCERNING THE CONDITIONS FOR THE GRANTING AND PAYMENT OF FINANCIAL BENEFITS TO TRADERS FROM THE COMMUNITY BUDGET ARE LAID DOWN BY THE COUNCIL DECISION OF 21 APRIL 1970 ON THE REPLACEMENT OF FINANCIAL CONTRIBUTIONS FROM MEMBER STATES BY THE COMMUNITIES ' OWN RESOURCES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 224 ) AND THE REGULATIONS IN IMPLEMENTATION THEREOF , TOGETHER WITH REGULATION ( EEC ) NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ) THE PROVISIONS OF WHICH WERE EXTENDED TO MONETARY COMPENSATORY AMOUNTS BY ARTICLE 2 OF REGULATION NO 2746/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 28-30 DECEMBER ), P . 64 ). THESE PROVISIONS MUST BE CONSIDERED WITHIN THE FRAMEWORK OF THE GENERAL ARRANGEMENTS REGARDING THE FINANCIAL PROVISIONS OF THE TREATY WHICH , LIKE THE CORRESPONDING ARRANGEMENTS IN THE MEMBER STATES , ARE GOVERNED BY THE GENERAL PRINCIPLE OF EQUALITY WHICH REQUIRES THAT COMPARABLE SITUATIONS MAY NOT BE TREATED DIFFERENTLY UNLESS DIFFERENCE OF TREATMENT IS OBJECTIVELY JUSTIFIED .

8 IT FOLLOWS THAT THE REVENUES WHICH ARE CONTRIBUTED TO THE COMMUNITY BUDGET AND THE FINANCIAL ADVANTAGES CHARGED THERETO MUST BE SO ARRANGED AND APPLIED AS TO CONSTITUTE A UNIFORM BURDEN OR TO CONFER UNIFORM BENEFITS ON ALL PERSONS WHO MEET THE CONDITIONS SPECIFIED IN THE COMMUNITY PROVISIONS ON SUCH BURDENS OR ADVANTAGES . THAT REQUIREMENT IMPLIES THAT THERE MUST BE NO DISCRIMINATION IN RESPECT OF THE PROCEDURAL AND SUBSTANTIVE CONDITIONS ON WHICH , ON THE ONE HAND , TRADERS MAY CHALLENGE COMMUNITY CHARGES IMPOSED UPON THEM BY DEMANDING A REFUND WHERE PAYMENT WAS WRONGLY MADE OR CLAIMING THE FINANCIAL BENEFIT OF A COMMUNITY NATURE TO WHICH THEY ARE ENTITLED , AND ON WHICH ON THE OTHER , THE AUTHORITIES OF THE MEMBER STATES , ACTING ON BEHALF OF THE COMMUNITY , MAY COLLECT THE SAID CHARGES AND , IF NECESSARY , RECOVER FINANCIAL BENEFITS WHICH WERE WRONGLY GRANTED .

9 THE COUNCIL HAS ADOPTED THIS APPROACH IN PARTICULAR BY ENACTING REGULATION ( EEC ) NO 1697/79 OF 24 JULY 1979 ON THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES WHICH HAVE NOT BEEN REQUIRED OF THE PERSON LIABLE FOR PAYMENT ON GOODS ENTERED FOR A CUSTOMS PROCEDURE INVOLVING THE OBLIGATION TO PAY SUCH DUTIES ( OFFICIAL JOURNAL 1979 , L 197 , P . 1 ) AND REGULATION ( EEC ) NO 1430/79 OF 2 JULY 1979 ON THE REPAYMENT OR REMISSION OF IMPORT OR EXPORT DUTIES ( OFFICIAL JOURNAL 1979 , L 175 , P . 1 ) WHICH , HOWEVER , ARE ONLY TO ENTER INTO FORCE ON 1 JULY 1980 . THE ARRANGEMENTS ALREADY IN EXISTENCE AND THE ABOVE-MENTIONED PROVISIONS NEVERTHELESS PROVIDE ONLY A PARTIAL SOLUTION TO THE PROBLEMS CONCERNING THE EQUALITY OF PERSONS IN THIS SPHERE AND THE NECESSARILY TECHNICAL AND DETAILED NATURE OF SUCH PROVISIONS MEANS THAT A JUDICIAL INTERPRETATION CAN ONLY PROVIDE A PARTIAL REMEDY .

10 IT FOLLOWS , AS THE COURT HELD IN ITS JUDGMENT OF 21 MAY 1976 IN CASE 26/74 ROQUETTE ( 1976 ) ECR 677 ), THAT DISPUTES IN CONNEXION WITH THE REIMBURSEMENT OF AMOUNTS COLLECTED FOR THE COMMUNITY ARE THUS A MATTER FOR THE NATIONAL COURTS AND MUST BE SETTLED BY THEM UNDER NATIONAL LAW IN SO FAR AS NO PROVISIONS OF COMMUNITY LAW ARE RELEVANT . IN THOSE CIRCUMSTANCES IT IS FOR THE COURTS OF THE MEMBER STATES TO PROVIDE , IN PURSUANCE OF THE REQUIREMENT OF CO-OPERATION EMBODIED IN ARTICLE 5 OF THE TREATY , THE LEGAL PROTECTION MADE AVAILABLE AS A RESULT OF THE DIRECT EFFECT OF THE COMMUNITY PROVISIONS BOTH WHEN SUCH PROVISIONS CREATE OBLIGATIONS FOR THE SUBJECT AND WHEN THEY CONFER RIGHTS ON HIM . IT IS , HOWEVER , FOR THE NATIONAL LEGAL SYSTEM OF EACH MEMBER STATE TO DETERMINE THE COURTS HAVING JURISDICTION AND TO FIX THE PROCEDURES FOR APPLICATIONS TO THE COURTS INTENDED TO PROTECT THE RIGHTS WHICH THE SUBJECT OBTAINS THROUGH THE DIRECT EFFECT OF COMMUNITY LAW BUT SUCH PROCEDURES MAY NOT BE LESS FAVOURABLE THAN THOSE IN SIMILAR PROCEDURES CONCERNING INTERNAL MATTERS AND MAY IN NO CASE BE LAID DOWN IN SUCH A WAY AS TO RENDER IMPOSSIBLE IN PRACTICE THE EXERCISE OF THE RIGHTS WHICH THE NATIONAL COURTS MUST PROTECT .

11 THE CONSIDERATIONS SET OUT ABOVE HAVE BEEN STATED INTER ALIA IN THE SAID REGULATION NO 729/70 OF THE COUNCIL , ARTICLE 8 OF WHICH EXPRESSLY REQUIRES THE MEMBER STATES ACTING ON BEHALF OF THE COMMUNITY TO RECOVER FINANCIAL BENEFITS WHICH HAVE BEEN IMPROPERLY GRANTED BUT ADDS THAT SUCH RECOVERY SHALL BE ' ' IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION ' ' .

12 IT FOLLOWS NEVERTHELESS FROM THOSE CONSIDERATIONS THAT THE EXPRESS REFERENCE TO NATIONAL LAWS IS SUBJECT TO THE SAME LIMITS AS THOSE AFFECTING THE IMPLIED REFERENCE , THE NEED FOR WHICH HAS BEEN ACKNOWLEDGED IN THE ABSENCE OF COMMUNITY PROVISIONS , INASMUCH AS THE APPLICATION OF NATIONAL LEGISLATION MUST BE EFFECTED IN A NON-DISCRIMINATORY MANNER HAVING REGARD TO THE PROCEDURAL RULES RELATING TO DISPUTES OF THE SAME TYPE , BUT PURELY NATIONAL , AND IN SO FAR AS PROCEDURAL RULES CANNOT HAVE THE RESULT OF MAKING IMPOSSIBLE IN PRACTICE THE EXERCISE OF RIGHTS CONFERRED BY COMMUNITY LAW .

13 PURSUANT TO THOSE PROVISIONS THE COURT OF JUSTICE RULED IN ITS JUDGMENT OF 28 JUNE 1977 ( CASE 118/76 BALKAN ( 1977 ) ECR 1177 ) THAT EVEN THOUGH ALL THE FORMALITIES CONCERNING THE RECOVERY OF COMMUNITY CHARGES ARE ENTRUSTED TO THE COMPETENT AUTHORITIES IN THE MEMBER STATES THE APPLICATION OF A NATIONAL RULE OF NATURAL JUSTICE ( HARTEKLAUSEL ) PERMITTING THE ADMINISTRATION TO PROVIDE EXEMPTION FROM CHARGES DUE UNDER COMMUNITY LAW IS PRECLUDED ' ' IN SO FAR AS ITS EFFECT WOULD BE TO MODIFY THE SCOPE OF THE PROVISIONS OF COMMUNITY LAW CONCERNING THE BASIS OF ASSESSMENT , THE MANNER OF IMPOSITION OR THE AMOUNT OF A CHARGE INTRODUCED BY THAT LAW ' ' .

14 IT MUST THEREFORE BE CONSIDERED WHETHER A GENERAL PRINCIPLE OR SPECIFIC PROVISION OF COMMUNITY LAW PRECLUDES THE APPLICATION OF THE NATIONAL RULE REFERRED TO BY THE COURT MAKING THE REFERENCE . CONSIDERATION OF THAT POINT SHOWS THAT THIS IS NOT SO .

15 IN THIS CONNEXION IT MUST BE OBSERVED THAT NO CONSIDERATION WHATEVER WHICH UNDER ONE OF THE NATIONAL LEGAL SYSTEMS OF THE MEMBER STATES IS OR MAY BE BASED ON A PRINCIPLE OF LEGAL CERTAINTY CAN IN ALL CASES CONSTITUTE A DEFENCE AGAINST A CLAIM FOR THE RECOVERY OF COMMUNITY FINANCIAL BENEFITS WRONGLY GRANTED . IT MUST IN EACH CASE BE CONSIDERED WHETHER SUCH APPLICATION DOES NOT JEOPARDIZE THE VERY BASIS OF THE RULE PROVIDING FOR SUCH RECOVERY AND WHETHER IT DOES NOT RESULT IN PRACTICE IN FRUSTRATING SUCH RECOVERY .

16 THE CONSIDERATIONS OF THE NATIONAL COURT SHOW THAT THE PRINCIPLE OF LEGAL CERTAINTY TO WHICH IT REFERS IS EMBODIED , WITH REGARD TO THE RECOVERY BY THE PUBLIC AUTHORITIES OF EXPORT REFUNDS WRONGLY PAID , IN ARTICLE 9 ( 1 ) OF THE IN- EN UITVOERWET IN ACCORDANCE WITH WHICH ' ' A REFUND MAY BE WITHDRAWN IF THE INFORMATION GIVEN IN ORDER TO OBTAIN IT APPEARS INCORRECT OR INCOMPLETE WITH THE RESULT THAT A DIFFERENT DECISION WOULD HAVE BEEN TAKEN ON THE APPLICATION IF THE TRUE POSITION HAD BEEN FULLY KNOWN AT THE TIME WHEN IT WAS CONSIDERED ' ' .

17 ALTHOUGH IN THE CONTEXT OF AN APPLICATION FOR A PRELIMINARY RULING IT IS NOT FOR THE COURT OF JUSTICE TO INTERPRET THE NATIONAL PROVISION IN QUESTION OR DETERMINE ITS PRECISE SCOPE IT MUST NEVERTHELESS BE FOUND THAT AN APPLICATION OF A PRINCIPLE OF LEGAL CERTAINTY BASED ON NATIONAL LAW , WHEREBY FINANCIAL BENEFITS WRONGLY CONFERRED ON A TRADER MAY NOT BE RECOVERED IF THE ERROR COMMITTED WAS NOT DUE TO INCORRECT INFORMATION SUPPLIED BY THE RECIPIENT OR IF , DESPITE THE FACT THAT THE INFORMATION WAS INCORRECT THOUGH SUPPLIED IN GOOD FAITH , THE ERROR COULD EASILY HAVE BEEN AVOIDED , DOES NOT IN THE PRESENT STATE OF COMMUNITY LAW CONFLICT WITH A GENERAL PRINCIPLE THEREOF .

18 IT MUST NEVERTHELESS BE CONSIDERED WHETHER ARTICLE 6 OF REGULATION NO 1957/69 , AND IN PARTICULAR PARAGRAPH ( 5 ) THEREOF , THE INTERPRETATION OF WHICH HAS BEEN REQUESTED , CONSTITUTES A SPECIAL PROVISION WHICH FORMS AN EXCEPTION TO THE REFERENCE TO NATIONAL LAW AND SUBSTITUTES FOR IT A COMMUNITY RULE UNCONDITIONALLY REQUIRING THE TRADER IN QUESTION TO REIMBURSE THE REFUND GRANTED IN ERROR .

19 REGULATION NO 1957/69 LAYS DOWN DETAILED RULES IN ADDITION TO THOSE ALREADY PRESCRIBED IN OTHER REGULATIONS OF THE COUNCIL AND OF THE COMMISSION AND IN PARTICULAR IN REGULATION NO 441/69 OF THE COUNCIL OF 4 MARCH 1969 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 91 ) WITH REGARD TO THE GRANTING OF EXPORT REFUNDS . IT REFERS TO A CERTAIN NUMBER OF SPECIFIC SITUATIONS SUCH AS THE CASE WHERE PRODUCTS QUALIFYING FOR EXPORT REFUNDS ARE PROCESSED BEFORE THEIR EXPORTATION AND IN THAT CASE , IN CONJUNCTION WITH THE PROVISIONS OF REGULATION NO 441/69 OF THE COUNCIL AND OF REGULATION NO 1041/67 OF THE COMMISSION OF 21 DECEMBER 1967 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 323 ), SUBSEQUENTLY REPLACED BY REGULATION NO 192/75 OF THE COMMISSION OF 17 JANUARY 1975 ( OFFICIAL JOURNAL 1975 L 25 , P . 1 ) REPLACED BY REGULATION NO 2730/79 OF 29 NOVEMBER 1979 ( OFFICIAL JOURNAL 1979 , L 317 , P . 1 ) AUTHORIZES THE GRANTING IN ADVANCE OF ALL OR PART OF THE REFUND . ACCORDING TO ARTICLE 6 ( 1 ) OF REGULATION NO 1957/69 THE APPLICATION OF THE PROCEDURES LAID DOWN IN ARTICLES 2 AND 3 OF REGULATION NO 441/69 - THAT IS TO SAY THE GRANTING IN ADVANCE OF THE REFUND - SHALL , AS HAS BEEN STATED ABOVE , BE CONDITIONAL ON THE LODGING OF A DEPOSIT . THAT DEPOSIT IS INTENDED TO PROVIDE A GUARANTEE THAT WITHIN CERTAIN TIME-LIMITS PROOF WILL BE FURNISHED THAT THE PRODUCTS OR GOODS HAVE REACHED THE DESTINATION IN RESPECT OF WHICH THE REFUND WAS GRANTED .

ARTICLE 6 ( 5 ) PROVIDES THAT ' ' THE AMOUNT OF THE REFUND PAID , PLUS ANY INCREASE , SHALL BE REPAID IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE IF THE PROOFS REFERRED TO IN PARAGRAPH ( 1 ) ARE NOT FURNISHED WITHIN THE TIME-LIMITS LAID DOWN . IN SUCH CASE , IF REPAYMENT HAS BEEN CLAIMED BUT IS NOT RECEIVED THE DEPOSIT WHICH WAS LODGED SHALL BE FORFEITED ' ' .

20 IT IS UNNECESSARY TO DECIDE WHETHER THE SAID ARTICLE 6 ( 5 ) COVERS SITUATIONS SUCH AS THOSE AT ISSUE IN THIS CASE AND IT IS SUFFICIENT TO FIND THAT IT IS IMPOSSIBLE TO ESTABLISH FROM THE WORDING OF PARAGRAPH ( 5 ), AND IN PARTICULAR FROM THE WORDS ' ' IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE ' ' ALONE THAT IT WAS INTENDED BY THAT PROVISION TO MAKE , FOR PROCEEDINGS WHICH MIGHT ARISE FROM THE PARTICULAR SITUATIONS GOVERNED BY REGULATION NO 441/69 OF THE COUNCIL AND OF THE ABOVE-MENTIONED REGULATIONS NOS 1041/67 , 192/75 AND 2730/79 OF THE COMMISSION , SPECIFIC COMMUNITY ARRANGEMENTS CONCERNING THE RECOVERY OF PAYMENTS WRONGLY MADE WHILST IN ALL OTHER DISPUTES CONCERNING THE RECOVERY OF REFUNDS NATIONAL LAW IS TO BE APPLIED WHERE NO COMMUNITY PROVISIONS ARE APPLICABLE .

21 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE REPLY TO THE FIRST QUESTION MUST BE THAT COMMUNITY LAW IN ITS PRESENT STATE AND IN PARTICULAR ARTICLE 6 ( 5 ) OF REGULATION NO 1957/69 OF THE COMMISSION DO NOT PRECLUDE THE APPLICATION IN PROCEEDINGS CONCERNING THE RECOVERY BY THE AUTHORITIES OF THE MEMBER STATES OF SUMS PAID IN ERROR AS EXPORT REFUNDS TO TRADERS , OF A PRINCIPLE OF LEGAL CERTAINTY BASED ON NATIONAL LAW WHEREBY FINANCIAL BENEFITS GRANTED IN ERROR BY THE PUBLIC AUTHORITIES MAY NOT BE RECOVERED IF THE ERROR COMMITTED WAS NOT DUE TO INCORRECT INFORMATION SUPPLIED BY THE BENEFICIARY OR IF SUCH ERROR , DESPITE THE FACT THAT THE INFORMATION SUPPLIED WAS INCORRECT THOUGH PROVIDED IN GOOD FAITH , COULD EASILY HAVE BEEN AVOIDED .

22 IT FOLLOWS FROM THE WORDING OF THE SECOND AND THIRD QUESTIONS THAT , IN VIEW OF THE REPLY WHICH HAS BEEN GIVEN TO THE FIRST QUESTION , THE FORMER ARE DEVOID OF PURPOSE .

Decision on costs

23 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN , BY A JUDGMENT OF 15 DECEMBER 1978 , AND RECEIVED AT THE COURT REGISTRY ON 21 DECEMBER 1978 , HEREBY RULES :

COMMUNITY LAW IN ITS PRESENT STATE AND ARTICLE 6 ( 5 ) OF REGULATION NO 1957/69 OF THE COMMISSION OF 30 SEPTEMBER 1969 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1969 ( II ), P . 417 ) IN PARTICULAR DO NOT PRECLUDE THE APPLICATION , IN PROCEEDINGS CONCERNING THE RECOVERY BY THE AUTHORITIES OF THE MEMBER STATES OF SUMS PAID IN ERROR AS EXPORT REFUNDS TO TRADERS , OF A PRINCIPLE OF LEGAL CERTAINTY BASED ON NATIONAL LAW WHEREBY FINANCIAL BENEFITS GRANTED IN ERROR BY THE PUBLIC AUTHORITIES MAY NOT BE RECOVERED IF THE ERROR COMMITTED WAS NOT DUE TO INCORRECT INFORMATION SUPPLIED BY THE BENEFICIARY OR IF SUCH ERROR , DESPITE THE FACT THAT THE INFORMATION SUPPLIED WAS INCORRECT THOUGH SUPPLIED IN GOOD FAITH , COULD EASILY HAVE BEEN AVOIDED .