Ze Fu Fleischhandel GmbH (C-201/10) and Vion Trading GmbH (C-202/10) v Hauptzollamt Hamburg-Jonas.
Date: 2011-05-05
23. In situations such as those at issue in the main proceedings, in which the irregularities were allegedly committed by the operators in 1993 when a national rule provided for a 30-year limitation period, an action by the national authorities for recovery of the sums wrongly received as a result of such irregularities was liable, in the absence of a suspensory act, to be time-barred in the course of 1997 pursuant to the four-year limitation rule provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95, provided, however, that the Member State in which the irregularities were committed did not make use of the possibility offered to it under Article 3(3) of that regulation (see Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraphs 36 and 38).
24. It is true that, by adopting Regulation No 2988/95, and in particular the first subparagraph of Article 3(1) thereof, the European Union legislature intended to establish a general limitation rule which was applicable in the area and by which it intended, first, to define a minimum period applied in all the Member States and, secondly, to waive the possibility of recovering sums wrongly received from the European Union budget after the expiry of a four-year period after the irregularity affecting the payments at issue was committed ( Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraph 27).
25. However, since the European Union legislature expressly provided that the Member States may apply limitation periods which are longer than that minimum period of four years, it is clear that it did not intend to standardise the periods applicable in the area and that, consequently, the entry into force of Regulation No 2988/95 cannot have had the effect of compelling the Member States to reduce to four years the limitation periods which, in the absence of rules of European Union law previously in the area, they applied in the past.
26. In the context of the possibility provided for in Article 3(3) of Regulation No 2988/95, Member States retain wide discretion in fixing longer limitation periods which they intend to apply in cases involving an irregularity that is detrimental to the European Union’s financial interests (Case C-131/10 Corman  [2010] ECR I‑0000, paragraph 54).
27. Regulation No 2988/95 does not provide for any information or notification process relating to the use made by Member States of their possibility of providing for longer limitation periods, in accordance with Article 3(3) thereof. Thus, no form of monitoring has been provided for at European Union level as regards either the longer limitation periods applied by Member States under that provision or the sectors in which Member States have decided to apply those periods ( Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraph 45, and Corman , paragraph 55).
29. In replying to the third question referred for a preliminary ruling by the Bundesfinanzhof in Joined Cases C-278/07 to C-280/07 that the longer limitation periods which Member States retain the possibility of applying under Article 3(3) of Regulation No 2988/95 may result from general provisions of law predating the adoption of that regulation, the Court implicitly but necessarily confirmed to the Bundesfinanzhof that Member States can apply such longer periods by means of application determined by case-law of a provision of general purport laying down a limitation period of more than four years to the recovery of wrongly received advantages, a practice which the German courts refer to as application ‘by analogy’.
30. Such a practice is, in principle, permissible in the light of European Union law and, in particular, Article 3(3) of Regulation No 2988/95 (see, to this effect, Josef Vosding Schlacht‑, Kühl- und Zerlegebetrieb and Others , paragraph 47). However, that practice must still comply with the general principles of European Union law, which include the principle of legal certainty (see, to this effect, Case C-367/09 SGS Belgium and Others  [2010] ECR I-0000, paragraph 40).
32. It is to be observed that, in the context of proceedings in respect of an irregularity that is detrimental to the European Union’s financial interests and leads to an administrative measure such as an obligation for the operator to repay refunds which have been wrongly received, the principle of legal certainty requires in particular that the position of that operator, having regard to his rights and obligations vis-à-vis the national authority, not be open to challenge indefinitely (see, by analogy, Case C-472/08 Alstom Power Hydro  [2010] ECR I-0000, paragraph 16); consequently, a limitation period must be applicable to proceedings in respect of such an irregularity and, in order to fulfil its function of ensuring legal certainty, that period must be fixed in advance (see Case 41/69 ACF Chemiefarma  v Commission  [1970] ECR 661, paragraph 19, and Case C‑62/00 Marks & Spencer  [2002] ECR I‑6325, paragraph 39). Therefore, any application ‘by analogy’ of a limitation period must be sufficiently foreseeable for a person (see, by analogy, Case C-445/06 Danske Slagterier  [2009] ECR I‑2119, paragraph 34).
33. It is admittedly easier for such an operator to determine the limitation period applicable to proceedings in respect of an irregularity which he has committed when that period and its application to the field within which the irregularity falls are established by the national legislature in a provision specifically applicable to the field concerned. Nevertheless, where, as seems to be the position in the cases in the main proceedings, the national legislature did not adopt a specific provision applicable to a field such as that of repayment of export refunds that have been wrongly received to the detriment of the European Union budget, the principle of legal certainty does not preclude, in principle, the administrative and judicial authorities from continuing, in accordance with their past judicially determined practice known to such an operator, to apply ‘by analogy’ a limitation period of a general nature that is laid down in a provision of civil law and exceeds the four-year period provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95.
34. However, such application complies with the principle of legal certainty only if it results from a judicially determined practice that was sufficiently foreseeable. In this regard, it need only be noted that it is not for the Court to establish, in the present proceedings for a preliminary ruling, whether such a judicially determined practice existed.
38. Thus, a ‘longer’ national limitation period within the meaning of Article 3(3) of Regulation No 2988/95 must, inter alia, not go clearly beyond what is necessary to achieve the objective of protecting the European Union’s financial interests (see, to this effect, Case C-221/09 AJD Tuna [2011] ECR I-0000, paragraph 79 and the case-law cited).
40. Furthermore, the fact that, in the context of the possibility provided for by that provision, one Member State imposes shorter limitation periods than another Member State does not mean that the latter’s limitation periods are disproportionate (see, by analogy, Case C-141/07 Commission  v Germany  [2008] ECR I‑6935, paragraph 51, and Case C-562/08 Müller Fleisch  [2010] ECR I‑0000, paragraph 45).
41. It is also to be observed that it is possible that a 30-year limitation rule arising from a provision of civil law may appear necessary and proportionate, in particular in the context of disputes between private persons, in light of the objective pursued by that rule and defined by the national legislature.
43. In this regard, in light of the objective of protecting the European Union’s financial interests, an objective for which the European Union legislature considered that a limitation period of four, or indeed even three, years was already in itself sufficient to enable the national authorities to bring proceedings in respect of an irregularity detrimental to those financial interests and capable of leading to the adoption of a measure such as recovery of a wrongly received advantage, it is apparent that to grant those authorities a period of 30 years goes beyond what is necessary for a diligent public service.
44. That service owes a general obligation of diligence when verifying the legality of payments made by it that are borne by the European Union budget, given that the Member States must observe the obligation of general diligence under Article 4(3) EU, an obligation which entails that they must take steps to rectify irregularities promptly (see, by analogy, Case C-277/98 France  v Commission  [2001] ECR I‑8453, paragraph 40).
45. In those circumstances, acceptance that it is possible for Member States to grant the public service a period within which to act as long as that conferred by a 30-year limitation rule could, in a certain way, encourage inertia on the part of the national authorities in bringing proceedings in respect of ‘irregularities’ within the meaning of Article 1 of Regulation No 2988/95, whilst exposing operators, first, to a long period of legal uncertainty and, secondly, to the risk of no longer being in a position to prove at the end of such a period that the transactions in question were lawful.
46. In any event, if a four-year limitation period such as that provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95 were to appear, from the national authorities’ point of view, too short to enable them to bring proceedings in respect of irregularities displaying a certain complexity, it would always be open to the national legislature, within the framework of the possibility provided for in Article 3(3), to adopt a longer limitation rule suited to irregularities of that type.
50. Nevertheless, in a situation such as that at issue in the cases in the main proceedings falling within the scope of Regulation No 2988/95, it must be stated that, in any event, in the absence of legally applicable national legislation laying down a longer limitation period, Article 3(1) of Regulation No 2988/95 provides for a four-year limitation period and remains directly applicable in the Member States, including in the field of export refunds on agricultural products (see Case C-278/02 Handlbauer  [2004] ECR I-6171, paragraph 35).
51. Thus, in circumstances where application of a limitation period under the general law to proceedings relating to repayment of refunds wrongly received before the entry into force of Regulation No 2988/95 proves disproportionate in light of the objective of protecting the European Union’s financial interests, that rule must be disregarded and, as is apparent from Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraph 34, the general limitation period provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95 is applicable inasmuch as it also covers irregularities committed before the entry into force of that regulation and starts to run from the date on which the irregularity at issue was committed.
52. In such a situation, if a national court were to be allowed, in the context of Regulation No 2988/95, to reduce a given limitation period applied hitherto down to a level capable of complying with the principle of proportionality when a limitation rule derived from European Union law and directly applicable in its legal system is in any event available to it, this would run specifically counter to the principles that, first, in order to fulfil its function of ensuring legal certainty, a limitation period must be fixed in advance (see ACF Chemiefarma  v Commission , paragraph 19, and Marks & Spencer , paragraph 39) and, secondly, any application ‘by analogy’ of a limitation period must be sufficiently foreseeable for a person (see, by analogy, Danske Slagterier , paragraph 34).