Landbrugsministeriet - EF-Direktoratet v Steff-Houlberg Export I/S, Nowaco A/S, Nowaco Holding A/S and SMC af 31/12-1989 A/S.
Date: 1998-05-12
14 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 (Deutsche Milchkontor, paragraph 17). Likewise, 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 (I), p. 218), that Member States must take the measures necessary to recover sums lost as a result of irregularities or negligence (Deutsche Milchkontor, paragraph 18). 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, paragraph 22).
15 It follows from the case-law of the Court that, in the absence of provisions of Community law, disputes concerning the recovery of amounts paid but not due 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 or excessively difficult to implement Community rules and national legislation must be applied in a manner which is not discriminatory compared to procedures for deciding similar national disputes (see, in particular, Deutsche Milchkontor, paragraph 19, 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).  Although national 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).
16 In that judgment the Court held, with reference to those factors, that Community law does not prevent national law from having regard, in excluding the recovery of Community aid paid but not due, to the protection of legitimate expectations (Deutsche Milchkontor, paragraph 33).
22 In the present case, in contrast to Plange, cited above (see, in particular, paragraph 10), there is no Community provision governing the recovery of refunds paid on the basis of documents subsequently shown to be inaccurate. Regulation No 2945/94, upon which the Commission relied in support of its argument, does not apply ratione temporis to the refunds in question.  Accordingly, if an exporter draws up and submits a declaration with a view to obtaining export refunds, the mere fact of having prepared that document cannot deprive him of the right to plead his good faith when the declaration is based exclusively on information which was provided by the other party to a contract and the accuracy of which he was unable to establish.
28 The Court considered in Boterlux, paragraph 35, that in the context of an application for export refunds governed by Community law, fraudulent behaviour by a third party does not amount to force majeure but constitutes an ordinary commercial risk.  Although, in contrast to the present case, that judgment was not given in the context of repayment governed by national law, it is none the less the case that, when a balance must be struck between the interests of the Community and those of the trader, the national court must take into account the fact that fault on the part of the third party with whom the recipient of the aid has entered into a contract concerns more closely the sphere of the recipient of the aid than that of the Community.
Negligence on the part of the national authorities
31 The Court has already held in Deutsche Milchkontor, paragraph 31, that in the case of a demand for repayment of sums unduly granted, Community law does not preclude grounds for excluding repayment from being taken into account where these are related to the administration's own conduct and it can therefore prevent them from occurring.
32 It follows from the principle of cooperation laid down in Article 5 of the Treaty, but also from provisions such as Article 8 of Regulation No 729/70, that the national authorities must verify by means of appropriate controls that products in respect of which Community aid has been sought comply with the relevant Community rules so as to ensure that Community aids are not paid in respect of products for which they ought not to be granted (Deutsche Milchkontor, paragraph 43). It is for the national court to determine the controls necessary for this purpose, having regard to the circumstances of the case and the technical methods available at the time for the product in question and, therefore, the existence and degree of negligence, if any. If the circumstances referred to by the national court are established, there is no apparent reason why the conduct of the national authorities should not be treated as negligence which may exclude repayment.  Likewise, the identification of negligent conduct on the part of the national authorities by a Community body such as the Court of Auditors is a specific indication in that respect.
Grounds of equity
33 Finally, the national court asks whether the fact that 5 to 10 years have elapsed since the payment of the aid, and hence that any repayment would be particularly onerous for the recipients, can be taken into account at the time of repayment.
35 In this case, it follows from the explanations given by the national court that, under Danish law, the national authorities have a discretion to refuse or to grant recovery of aid paid but not due, having regard to the period of time which has elapsed since the refunds were paid.  Community law does not preclude that ground of equity from being taken into account provided, however, that it satisfies the conditions set out in Deutsche Milchkontor.