Oelmühle Hamburg AG and Jb. Schmidt Söhne GmbH & Co. KG v Bundesanstalt für Landwirtschaft und Ernährung.
Date: 1998-07-16
23 First, it should be recalled that it is for the Member States, by virtue of Article 5 of the EC Treaty, to ensure that Community regulations, particularly those concerning the common agricultural policy, are implemented within their territory.  Similarly, it follows from Article 8(1) of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (1), p. 218), that Member States must take the measures necessary to recover sums lost as a result of irregularities or negligence.  The exercise of any discretion to decide whether or not it would be expedient to demand repayment of Community funds unduly or irregularly granted would be inconsistent with that duty (Deutsche Milchkontor, paragraphs 17, 18 and 22).
24 It follows from the case-law of the Court that, in the absence of provisions of Community law, disputes concerning the recovery of amounts unduly paid under Community law must be decided by national courts in application of their own domestic law, subject to the limits imposed by Community law, on the basis that the rules and procedures laid down by domestic law must not have the effect of making it practically impossible or excessively difficult to implement the Community rules and that the national legislation must be applied in a manner which is not discriminatory as compared to procedures for deciding similar national disputes (see, in particular, Deutsche Milchkontor, paragraph 19, and Case C-366/95 Landbrugsministeriet v Steff-Houlberg Export and Others [1998] ECR I-0000 and, as regards national procedural law, Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12, and Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen [1995] ECR I-4705, paragraph 17).  If domestic law requires the various interests in question, namely, on the one hand, the public interest in the revocation of an unlawful administrative measure and, on the other, the protection of the legitimate expectation of the person to whom it is addressed, to be weighed against one another before the measure is revoked, the interests of the Community must be taken fully into account (Deutsche Milchkontor, paragraph 32).
25 In that judgment the Court ruled, in the light of those factors, that Community law does not prevent the domestic legislation concerned from having regard, in barring the recovery of unduly paid Community subsidies, to criteria such as loss of the unjust enrichment.
29 In that respect, it should be noted, first, that oil mills are in a position to challenge a demand for recovery only if they acted in good faith as regards the conformity of the goods with the declaration submitted by them in order to obtain the subsidy in question.  To ascertain whether that is so, it is necessary to consider, first, whether the oil mills may plead good faith even though they themselves drafted the declaration as to the origin of the goods with a view to obtaining the subsidy and, second, whether in order to be in good faith, it was incumbent on them to carry out inspections as to the origin of the goods.
36 Finally, the Commission refers to the judgment in Case C-24/95 Land Rheinland-Pfalz v Alcan Deutschland [1997] ECR I-1591, concerning unlawfully paid State aid, in which the Court held that resisting recovery on the ground that the gain has ceased to exist would render the recovery required by Community law practically impossible (paragraph 50).