Keywords

Summary



Keywords

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1. Agriculture ° Common organization of the markets ° Sheepmeat and goatmeat ° Variable slaughter premium ° Equivalent amount charged on export to another Member State ("clawback") ° Method of calculation ° Amount equivalent to the premium actually granted ° Burden of proof on exporters ° Amount equal to the average amount of the premiums fixed for the week of departure of the products and the three previous weeks ° Validity

(Council Regulations No 1837/89, Art. 9(3), and No 3013/89, Art. 24(5); Commission Regulation No 1922/92)

2. Agriculture ° Common organization of the markets ° Sheepmeat and goatmeat ° Variable slaughter premium ° Equivalent amount charged on export to another Member State ("clawback") ° Method of calculation ° Amount equivalent to the premium actually granted ° Proof required of traders by the competent authorities of the Member State concerned ° Application of national rules ° Conditions

(EC Treaty, Art. 5; Commission Regulations No 1633/84, Art. 4(1), and No 1922/92, Arts 1 and 2)

3. Preliminary rulings ° Assessment of validity ° Declaration that a regulation is invalid ° Effects ° Temporal limitation ° Exception in favour of traders who have already initiated proceedings or made an equivalent complaint under the applicable national law ° Scope of the exception made by the Court in its judgment in Joined Cases C-38/90 and C-151/90 ° Possibility for traders eligible for the exception to rely on the invalidity of the regulation at issue as from the date of its entry into force in support of their claims for reimbursement of sums unduly paid ° Limits

(Council Regulation No 1633/84, Art. 4(1) and (2))

4. Agriculture ° Common organization of the markets ° Sheepmeat and goatmeat ° Variable slaughter premium ° Equivalent amount charged on export to another Member State ("clawback") ° Claim for reimbursement of clawback unduly paid ° Application of national law ° Conditions

(Commission Regulation No 1922/92, Art. 2(1))

Summary

1. Since, under the common organization of the markets in sheepmeat and goatmeat, the purpose of charging clawback is to avoid disruption of intra-Community trade arising from the application of the variable slaughter premium, it must be charged in such a way that it neutralizes the effect of the premium on departure from the region concerned of the products which benefited from it, without working to the advantage of producers in that region, as would be the case if the amount charged by way of clawback were lower than that of the premium granted, or affecting their competitive position, as would be the case if the clawback were higher than the premium.

There is no doubt that the first of the two options provided for by Regulation No 1922/92 relating to methods of calculating the clawback to be charged or to be reimbursed in the case of undue payment, which is available to traders who are in a position to supply proof to the competent authorities of the Member State concerned of the amount of the premium actually granted for products subject to clawback, is consistent with the objective pursued by the system of charging clawback, since it fixes the amount thereof at the same level as the premium granted.

As regards the proof that must be adduced in connection with the first option, it does not seem to be manifestly inappropriate for exporters to bear the burden of proof. Article 9(3) of Regulation No 1837/80 and Article 24(5) of Regulation No 3013/89, both establishing a common organization of the markets in sheepmeat and goatmeat, clearly laid down that the amount of the clawback was to be equal to that of the premium, so that a prudent trader, aware that he was liable to pay the clawback, had to take proper steps to obtain the necessary evidence attesting to the equivalence of the amounts in question. Furthermore, the exporter knows the identity of the trader from whom he bought the products on which he is required to repay the clawback, so that he is best placed to adduce the requisite proof. Moreover, where it is impossible for the exporter to adduce such proof, Regulation No 1922/92 has by means of the second option provided for a different method of calculating the clawback.

The second option, which is based on the average value of the premium rates in force over a period of four weeks which must perforce include both the time when the product was first placed on the market and the time when it was exported, is likewise consistent with the purpose of clawback. On the one hand, it enables the fluctuations in clawback to be reduced significantly compared with those occurring under the old system of calculation, which was declared invalid, according to which the clawback was equal to the amount of the premium fixed solely for the week of export of the products concerned, and, on the other, the use of an average calculated over four weeks ensures that the amount of the clawback is as close as possible to that of the premium.

2. The requirement of proof laid down in Article 4(1) of Regulation No 1633/84, concerning the system for charging clawback within the common organization of the markets in sheepmeat and goatmeat, as amended by Article 1 of Regulation No 1922/92, and in Article 2 of the latter regulation, laying down the conditions for reimbursement of clawback unduly charged, is to be interpreted as meaning that traders are required to supply proof to the satisfaction of the competent authorities of the Member State concerned, in accordance with national law and within the period prescribed by Regulation No 1922/92, of the amount of the premium actually granted for products subject to clawback, provided that the applicable national rules do not affect the scope or effectiveness of Community law.

In that regard, and taking into account the duty of cooperation in good faith imposed on national authorities by Article 5 of the EC Treaty which forbids them to undermine either the effect or the effectiveness of Community law, the detailed procedural rules laid down by the applicable national law cannot be less favourable than those governing similar domestic procedures nor render virtually impossible or excessively difficult the implementation of Community legislation and thereby affect the exercise of rights conferred by the Community legal system.

3. As regards claims for repayment of clawback unduly paid prior to 10 March 1992, paragraph 30 of the judgment in Joined Cases C-38/90 and C-151/90 Lomas and Others [1992] ECR I-1781 is to be interpreted as meaning that traders or those entitled through them who prior to that date initiated proceedings or made an equivalent complaint under the applicable national law may rely on the invalidity of Article 4(1) and (2) of Regulation No 1633/84 concerning the system for charging clawback within the common organization of the markets in sheepmeat and goatmeat, as from the date of its entry into force, subject to the application, within the limits set by Community law, of any national rules limiting the period prior to the submission of a claim in respect of which repayment of a sum unduly paid may be obtained.

4. With regard to matters not governed by Article 2 of Regulation No 1922/92, amending Regulation No 1633/84 laying down detailed rules for applying the variable slaughter premium and determining the conditions for the reimbursement of clawback unduly charged, national courts called upon to give judgment on a claim for reimbursement of clawback unduly charged must apply their national law, provided the detailed rules laid down therein are not less favourable than those governing similar domestic actions and are not so framed as to render virtually impossible or excessively difficult the exercise of rights conferred by the Community legal system.

In that respect, a rule of national law, by virtue of which a sum paid to a public authority under a mistake of law may be recovered only if it was paid under protest, manifestly fails to satisfy those conditions, in that it is liable to prejudice effective protection of the rights conferred on the traders in question by Community law. Moreover, Article 2(1) of Regulation No 1922/92 expressly specifies the persons entitled to claim reimbursement without making the claim conditional on their conduct at the time of payment.

On the other hand, Community law does not prevent a national legal system from refusing to allow recovery of sums unduly charged where that would involve the unjust enrichment of those entitled.