Deutsche Milchkontor GmbH and others v Federal Republic of Germany.
Date: 1983-09-21
17 ACCORDING TO THE GENERAL PRINCIPLES ON WHICH THE INSTITUTIONAL SYSTEM OF THE COMMUNITY IS BASED AND WHICH GOVERN THE RELATIONS BETWEEN THE COMMUNITY AND THE MEMBER STATES , IT IS FOR THE MEMBER STATES , BY VIRTUE OF ARTICLE 5 OF THE TREATY , TO ENSURE THAT COMMUNITY REGULATIONS , PARTICULARLY THOSE CONCERNING THE COMMON AGRICULTURAL POLICY , ARE IMPLEMENTED WITHIN THEIR TERRITORY . IN SO FAR AS COMMUNITY LAW , INCLUDING ITS GENERAL PRINCIPLES , DOES NOT INCLUDE COMMON RULES TO THIS EFFECT , THE NATIONAL AUTHORITIES WHEN IMPLEMENTING COMMUNITY REGULATIONS ACT IN ACCORDANCE WITH THE PROCEDURAL AND SUBSTANTIVE RULES OF THEIR OWN NATIONAL LAW ; HOWEVER , AS THE COURT STATED IN ITS JUDGMENT OF 6 JUNE 1972 IN CASE 94/71 ( SCHLUTER & MAACK V HAUPTZOLLAMT HAMBURG-JONAS ( 1972 ) ECR 307 ), THIS RULE MUST BE RECONCILED WITH THE NEED TO APPLY COMMUNITY LAW UNIFORMLY SO AS TO AVOID UNEQUAL TREATMENT OF PRODUCERS AND TRADERS .
18 IT IS IN THIS CONTEXT , THEN , THAT ARTICLE 8 ( 1 ) OF REGULATION NO 729/70 OF THE COUNCIL PROVIDES THAT ' ' IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION ' '  MEMBER STATES MUST TAKE THE MEASURES NECESSARY TO PREVENT AND DEAL WITH IRREGULARITIES AFFECTING THE OPERATIONS OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND AND TO RECOVER SUMS LOST AS A RESULT OF IRREGULARITIES OR NEGLIGENCE . CONSEQUENTLY THE COMPETENT NATIONAL AUTHORITIES ARE BOUND TO EXERCISE ALL THE SUPERVISION NECESSARY TO ENSURE THAT AIDS ARE GRANTED ONLY UPON THE CONDITIONS LAID DOWN BY THE COMMUNITY REGULATIONS AND THAT ANY INFRINGEMENT OF THE RULES OF COMMUNITY LAW IS APPROPRIATELY PENALIZED . AT ITS PRESENT STAGE OF DEVELOPMENT COMMUNITY LAW DOES NOT INCLUDE ANY SPECIFIC PROVISIONS RELATING TO THE EXERCISE OF THAT SUPERVISION BY THE COMPETENT NATIONAL AUTHORITIES .
19 IN ACCORDANCE WITH THOSE PRINCIPLES THE COURT HAS REPEATEDLY HELD ( ON 5 MARCH 1980 IN CASE 265/78 H . FERWERDA BV V PRODUKTSCHAP VOOR VEE EN VLEES ( 1980 ) ECR 617 , ON 12 JUNE 1980 IN JOINED CASES 119 AND 126/79 LIPPISCHE HAUPTGENOSSENSCHAFT EG AND ANOTHER V BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( 1980 ) ECR 1863 AND ON 6 MAY 1982 IN CASE 54/81 FIRMA WILHELM FROMME V BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( 1982 ) ECR 1449 AND JOINED CASE 146 , 192 AND 193/81 BAYWA AG AND OTHERS V BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( 1982 ) ECR 1503 ) 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 PURSUANT TO THEIR OWN NATIONAL LAW SUBJECT TO THE     LIMITS IMPOSED BY COMMUNITY LAW INASMUCH AS THE RULES AND PROCEDURES LAID DOWN BY NATIONAL LAW MUST NOT HAVE THE EFFECT OF MAKING IT VIRTUALLY IMPOSSIBLE TO IMPLEMENT COMMUNITY REGULATIONS AND NATIONAL LEGISLATION MUST BE APPLIED IN A MANNER WHICH IS NOT DISCRIMINATORY COMPARED TO PROCEDURES FOR DECIDING SIMILAR BUT PURELY NATIONAL DISPUTES .
20 IF FOLLOWS THAT ARTICLE 8 ( 1 ) OF REGULATION NO 729/70 DOES NOT GOVERN THE RELATIONS BETWEEN THE INTERVENTION AGENCIES AND THE TRADERS CONCERNED AND IN PARTICULAR IT DOES NOT CONSTITUTE A LEGAL BASIS AUTHORIZING THE NATIONAL AUTHORITIES TO BRING ACTIONS TO RECOVER UNDULY-PAID AIDS FROM THEIR RECIPIENTS ; SUCH ACTIONS ARE GOVERNED BY NATIONAL LAW .
21 ALTHOUGH AS A RESULT OF SUCH RELIANCE ON NATIONAL LAW THE CONDITIONS FOR THE RECOVERY OF UNDULY-PAID AIDS MAY VARY TO SOME EXTENT FROM ONE MEMBER STATE TO ANOTHER , THE EFFECT OF SUCH DIFFERENCES , WHICH MOREOVER IN THE PRESENT STATE OF DEVELOPMENT OF COMMUNITY LAW ARE INEVITABLE , IS REDUCED BY THE LIMITS TO WHICH THE COURT HAS SUBJECTED THE APPLICATION OF NATIONAL LAW IN THE DECISIONS CITED ABOVE .
22 IN THE FIRST PLACE THE APPLICATION OF NATIONAL LAW MUST NOT AFFECT THE SCOPE AND EFFECTIVENESS OF COMMUNITY LAW . THAT WOULD BE THE CASE IN PARTICULAR IF THE APPLICATION OF NATIONAL LAW MADE IT IMPOSSIBLE IN PRACTICE TO RECOVER SUMS IRREGULARLY GRANTED . FURTHERMORE , 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 THE DUTY TO RECOVER SUCH SUMS WHICH ARTICLE 8 ( 1 ) OF REGULATION NO 729/70 IMPOSES ON THE NATIONAL ADMINISTRATION .
23 SECONDLY , NATIONAL LAW MUST BE APPLIED IN A MANNER WHICH IS NOT DISCRIMINATORY COMPARED TO PROCEDURES FOR DECIDING SIMILAR BUT PURELY NATIONAL DISPUTES . THIS MEANS FIRST THAT IN SUCH CASES THE NATIONAL AUTHORITIES MUST ACT WITH THE SAME DEGREE OF CARE AS IN COMPARABLE CASES CONCERNING SOLELY THE APPLICATION OF CORRESPONDING NATIONAL LEGISLATION AND IN ACCORDANCE WITH RULES AND PROCEDURES WHICH DO NOT MAKE THE RECOVERY OF THE SUMS IN     QUESTION MORE DIFFICULT . SECONDLY , NOTWITHSTANDING THE PRINCIPLE REFERRED TO ABOVE THAT THE EXERCISE OF ANY DISCRETION TO DECIDE WHETHER OR NOT IT IS EXPEDIENT TO DEMAND REPAYMENT IS RULED OUT , THE OBLIGATIONS IMPOSED BY NATIONAL LEGISLATION ON UNDERTAKINGS WRONGLY GRANTED PECUNIARY ADVANTAGES BASED ON COMMUNITY LAW MUST BE NO MORE STRINGENT THAN THOSE IMPOSED ON UNDERTAKINGS WHICH HAVE WRONGLY RECEIVED SIMILAR ADVANTAGES BASED ON NATIONAL LAW , PROVIDED THAT THE TWO GROUPS OF RECIPIENTS ARE IN COMPARABLE SITUATIONS AND THEREFORE DIFFERENT TREATMENT IS OBJECTIVELY UNJUSTIFIABLE .
24 HOWEVER , IF DISPARITIES IN THE LEGISLATION OF MEMBER STATES PROVED TO BE SUCH AS TO COMPROMISE THE EQUAL TREATMENT OF PRODUCERS AND TRADERS IN DIFFERENT MEMBER STATES OR DISTORT OR IMPAIR THE FUNCTIONING OF THE COMMON MARKET , IT WOULD BE FOR THE COMPETENT COMMUNITY INSTITUTIONS TO ADOPT THE PROVISIONS NEEDED TO REMEDY SUCH DISPARITIES .
25 THE ANSWER TO THE FIFTH QUESTION OF THE VERWALTUNGSGERICHT FRANKFURT AM MAIN MUST THEREFORE BE THAT IN THE PRESENT STATE OF COMMUNITY LAW SUMS UNDULY PAID BY WAY OF AIDS UNDER THE COMMUNITY REGULATIONS ARE RECOVERED BY THE NATIONAL AUTHORITIES ACCORDING TO THE RULES AND PROCEDURES LAID DOWN BY NATIONAL LEGISLATION SUBJECT TO THE LIMITS IMPOSED BY COMMUNITY LAW ON SUCH AN APPLICATION OF NATIONAL LAW .
30 THE FIRST POINT TO BE MADE IN THIS REGARD IS THAT THE PRINCIPLES OF THE PROTECTION OF LEGITIMATE EXPECTATION AND ASSURANCE OF LEGAL CERTAINTY ARE PART OF THE LEGAL ORDER OF THE COMMUNITY . THE FACT THAT NATIONAL LEGISLATION PROVIDES FOR THE SAME PRINCIPLES TO BE OBSERVED IN A MATTER SUCH AS THE RECOVERY OF UNDULY-PAID COMMUNITY AIDS CANNOT , THEREFORE , BE CONSIDERED CONTRARY TO THAT SAME LEGAL ORDER . MOREOVER , IT IS CLEAR FROM A STUDY OF THE NATIONAL LAWS OF THE MEMBER STATES REGARDING THE REVOCATION OF ADMINISTRATIVE DECISIONS AND THE RECOVERY OF FINANCIAL BENEFITS WHICH HAVE BEEN UNDULY PAID BY PUBLIC AUTHORITIES THAT THE CONCERN TO STRIKE A BALANCE , ALBEIT IN DIFFERENT WAYS , BETWEEN THE PRINCIPLE OF LEGALITY ON THE ONE HAND AND THE PRINCIPLES OF LEGAL CERTAINTY AND THE PROTECTION OF LEGITIMATE EXPECTATION ON THE OTHER IS COMMON THE LAWS OF THE MEMBER STATES .
31 WHERE THE RULES AND PROCEDURES APPLIED BY THE NATIONAL AUTHORITIES IN THE RECOVERY OF COMMUNITY AIDS ARE THE SAME AS THOSE WHICH THEY APPLY IN COMPARABLE CASES CONCERNING PURELY NATIONAL FINANCIAL BENEFITS , THERE IS IN PRINCIPLE NO REASON TO ASSUME THAT THOSE RULES AND PROCEDURES ARE CONTRARY TO THE NATIONAL AUTHORITIES '  DUTY UNDER ARTICLE 8 OF REGULATION NO 729/70 TO RECOVER SUMS IRREGULARLY GRANTED AND THAT CONSEQUENTLY THEY REDUCE THE EFFECTIVENESS OF COMMUNITY LAW . THIS APPLIES IN PARTICULAR TO GROUNDS FOR EXCLUDING RECOVERY WHERE THESE ARE RELATED TO THE ADMINISTRATION ' S OWN CONDUCT AND IT CAN THEREFORE PREVENT THEM FROM OCCURRING .
32 IT SHOULD BE ADDED , HOWEVER , THAT THE PRINCIPLE THAT NATIONAL LEGISLATION MUST BE APPLIED WITHOUT DISCRIMINATION COMPARED TO PURELY NATIONAL PROCEDURES OF THE SAME KIND REQUIRES THE INTERESTS OF THE COMMUNITY TO BE TAKEN FULLY INTO CONSIDERATION IN THE APPLICATION OF A PROVISION WHICH , LIKE THE FIRST SENTENCE OF PARAGRAPH 48 ( 2 ) OF THE VERWALTUNGSVERFAHRENSGESETZ , REQUIRES THE VARIOUS INTERESTS IN QUESTION , NAMELY ON THE ONE HAND THE PUBLIC INTEREST IN THE REVOCATION OF THE MEASURE AND ON THE OTHER HAND THE PROTECTION OF THE LEGITIMATE EXPECTATION OF THE PERSON TO WHOM IT IS ADDRESSED , TO BE WEIGHED UP AGAINST ONE ANOTHER BEFORE THE DECISION IS REVOKED .
33 THE ANSWER TO THE SEVENTH QUESTION MUST THEREFORE BE THAT COMMUNITY LAW DOES NOT PREVENT NATIONAL LAW FROM HAVING REGARD , IN EXLUDING THE RECOVERY OF UNDULY-PAID AIDS , TO SUCH CONSIDERATIONS AS THE PROTECTION OF LEGITIMATE     EXPECTATION , THE LOSS OF UNJUSTIFIED ENRICHMENT , THE PASSING OF A TIME-LIMIT OR THE FACT THAT THE ADMINISTRATION KNEW , OR WAS UNAWARE OWING TO GROSS NEGLIGENCE ON ITS PART , THAT IT WAS WRONG IN GRANTING THE AIDS IN QUESTION , PROVIDED HOWEVER THAT THE CONDITIONS LAID DOWN ARE THE SAME AS FOR THE RECOVERY OF PURELY NATIONAL FINANCIAL BENEFITS AND THE INTERESTS OF THE COMMUNITY ARE TAKEN FULLY INTO ACCOUNT .

THE BURDEN OF PROOF IN THE RECOVERY OF UNDULY-PAID AIDS
35 AS THE COMMISSION POINTS OUT IN ITS OBSERVATIONS IN A CONTEXT SUCH AS THE PRESENT CASE THE QUESTION OF THE BURDEN OF PROOF ARISES ONLY TO A LIMITED EXTENT . FIRST , IT IS FOR THE NATIONAL AUTHORITIES TO EXHAUST AS A MATTER OF COURSE ALL THE POSSIBLE MEANS OF ESTABLISHING THE FACTS ON WHICH THE APPLICATION OF THE COMMUNITY PROVISIONS DEPENDS IN ANY SPECIFIC CASE . ONLY WHERE IT IS IMPOSSIBLE TO VERIFY THOSE FACTS MAY THE QUESTION ARISE AS TO WHO BEARS THE BURDEN OF THAT CIRCUMSTANCE , AND WHETHER THE NATIONAL AUTHORITIES MAY STILL BRING PROCEEDINGS AGAINST THE UNDERTAKING CONCERNED .
36 AS REGARDS THE LAW APPLICABLE FOR THIS PURPOSE , IT MUST BE OBSERVED THAT IN REFERRING TO NATIONAL LAW AS REGARDS THE RECOVERY , OF AIDS UNDULY PAID ARTICLE 8 ( 1 ) OF REGULATION NO 729/70 MAKES NO DISTINCTION BETWEEN THE SUBSTANTIVE CONDITIONS FOR THEIR RECOVERY AND THE RULES OF PROCEDURE AND FORM WHICH MUST BE FOLLOWED IN RECOVERING THEM . THOSE CONDITIONS AND RULES , INCLUDING THOSE ALLOCATING THE BURDEN OF PROOF , ARE THEREFORE ALL DETERMINED BY NATIONAL LAW , SUBJECT TO THE RESTRICTIONS REFERRED TO ABOVE WHICH MAY DERIVE FROM COMMUNITY LAW IN THIS REGARD . THE INFORMATION GIVEN IN THE ORDERS FOR REFERENCE AS TO THE EXACT TERMS OF THE RELEVANT RULES OF NATIONAL LAW DOES NOT ENABLE THE COURT TO FORMULATE ANY FURTHER GUIDELINES FOR THE INTERPRETATION OF COMMUNITY LAW IN THIS REGARD .
37 HOWEVER , THE PLAINTIFFS DEUTSCHE MILCHKONTOR GMBH , FIRMA E . KAMPFFMEYER , SCHWARZWALDMILCH GMBH AND INNTALER MISCHFUTTER GMBH & CO . KG FURTHER CONTEND THAT COMMUNITY LAW IS APPLICABLE , IN THE CASE OF EXPORTS OF SKIMMED-MILK POWDER TO ITALY UNDER THE PROVISIONS OF COMMISSION REGULATION NO 1624/76 , AS REGARDS THE PROOF THAT THE EXPORTED PRODUCT MET THE REQUIREMENTS OF THE COMMUNITY REGULATIONS . THEY ARGUE THAT SUCH PROOF IS PROVIDED BY THE FACT THAT THE ITALIAN CONSIGNEES SUBMITTED THE NECESSARY EVIDENCE TO THE ITALIAN AUTHORITIES IN ORDER TO OBTAIN THE RELEASE OF THE SECURITY REQUIRED BY THAT REGULATION .
38 THE POINT TO BE MADE WITH REGARD TO THAT ARGUMENT IS THAT THE EVIDENCE SUBMITTED IN ACCORDANCE WITH REGULATION NO 1624/76 TO THE AUTHORITIES IN THE MEMBER STATES OF DESTINATION RELATES TO THE DENATURING OR PROCESSING OF THE SKIMMED-MILK POWDER BY THE IMPORTER , ITS PURPOSE BEING TO OBTAIN THE RELEASE OF THE SECURITY HELD BY THE AUTHORITIES OF THAT MEMBER STATE . IT DOES NOT RELATE TO THE QUESTION WHETHER THE SKIMMED-MILK POWDER EXPORTED FOR THE PURPOSES OF DENATURING OR PROCESSING MET THE CONDITIONS LAID DOWN BY REGULATION NO 986/68 FOR THE GRANT OF AIDS IN THE EXPORTING MEMBER STATE .
39 THE ANSWER TO THE FOURTH QUESTION ASKED BY THE VERWALTUNGSGERICHT FRANKFURT AM MAIN MUST THEREFORE BE THAT THE BURDEN OF PROOF IN THE RECOVERY OF AIDS UNDULY PAID IS DETERMINED BY NATIONAL LAW SUBJECT TO ANY RESTRICTIONS WHICH DERIVE FROM COMMUNITY LAW IN THIS REGARD .

THE OBLIGATION TO MONITOR THE MANUFACTURE OF SKIMMED-MILK POWDER AT THE MANUFACTURER ' S PREMISES