61981J0054

1 . EUROPEAN COMMUNITIES - OWN RESOURCES - SUMS WRONGLY PAID - RECOVERY - APPLICATION OF NATIONAL LAW - CONDITIONS AND LIMITS

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - DENATURING PREMIUMS WRONGLY PAID - RECOVERY - INTEREST - APPLICATION OF NATIONAL LAW - CONDITIONS

1 . IN SO FAR AS COMMUNITY LAW HAS NOT PROVIDED OTHERWISE ACTIONS FOR THE RECOVERY OF SUMS WHICH HAVE BEEN WRONGLY PAID UNDER COMMUNITY LAW MUST BE DECIDED BY NATIONAL COURTS . IN PARTICULAR , IT IS FOR THE NATIONAL AUTHORITIES TO SETTLE ALL ANCILLARY QUESTIONS RELATING TO SUCH RECOVERY , SUCH AS THE QUESTION OF PAYMENT OF INTEREST .

HOWEVER , THE APPLICATION OF NATIONAL LAW MUST NOT ADVERSELY AFFECT THE SCOPE OR IMPAIR THE EFFECTIVENESS OF COMMUNITY LAW BY MAKING THE RECOVERY OF SUMS WRONGLY PAID IMPOSSIBLE IN PRACTICE . NOR MAY IT MAKE THE RECOVERY OF SUCH SUMS SUBJECT TO CONDITIONS OR DETAILED RULES LESS FAVOURABLE THAN THOSE WHICH APPLY TO SIMILAR PROCEDURES GOVERNED BY NATIONAL LAW ALONE . IN SUCH MATTERS THE NATIONAL AUTHORITIES MUST PROCEED WITH THE SAME CARE AS THEY EXERCISE IN IMPLEMENTING CORRESPONDING NATIONAL LAWS SO AS NOT TO IMPAIR , IN ANY WAY , THE EFFECTIVENESS OF COMMUNITY LAW .

2 . IT IS COMPATIBLE WITH COMMUNITY LAW IN ITS PRESENT STATE FOR A MEMBER STATE TO CHARGE , IN ACCORDANCE WITH THE RULES OF ITS OWN NATIONAL LAW , INTEREST ON WRONGLY-PAID COMMUNITY DE NATURING PREMIUMS PROVIDED THAT THOSE RULES DO NOT GIVE RISE TO ANY DIFFERENCE IN TREATMENT WHICH IS NOT OBJECTIVELY JUSTIFIED BETWEEN TRADERS RECEIVING SUCH PREMIUMS AND THOSE WHO , AS THE CASE MAY BE , OBTAIN SIMILAR BENEFITS OF A PURELY NATIONAL NATURE .

IN CASE 54/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT AM MAIN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FIRMA WILHELM FROMME , SALZGITTER ,

AND

BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS ), FRANKFURT AM MAIN ,

ON THE INTERPRETATION OF A NUMBER OF PROVISIONS OF THE EEC TREATY AND PRINCIPLES OF COMMUNITY LAW TO ENABLE THE NATIONAL COURT TO DECIDE WHETHER ARTICLE 11 ( 1 ) OF THE ORDER OF THE FEDERAL MINISTER OF FOOD , AGRICULTURE AND FORESTRY OF 8 AUGUST 1968 CONCERNING PREMIUMS FOR THE DENATURING OF CEREALS ( BUNDESANZEIGER NO 148 OF 10 AUGUST 1968 , P . 1 ) IS COMPATIBLE WITH THOSE PROVISIONS AND PRINCIPLES ,

1 BY ORDER OF 5 FEBRUARY 1981 , WHICH WAS RECEIVED AT THE COURT ON 11 MARCH 1981 , THE VERWALTUNGSGERICHT ( ADMINISTRATIVE COURT ) FRANKFURT AM MAIN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS AS TO THE INTERPRETATION OF VARIOUS PROVISIONS OF THE EEC TREATY , CERTAIN PRINCIPLES OF COMMUNITY LAW AND ARTICLE 8 ( 1 ) OF REGULATION ( EEC ) NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ) TO ENABLE IT TO DECIDE WHETHER ARTICLE 11 ( 1 ) OF THE ORDER OF THE FEDERAL MINISTER OF FOOD , AGRICULTURE AND FORESTRY OF 8 AUGUST 1968 CONCERNING PREMIUMS FOR THE DENATURING OF CEREALS ( BUNDESANZEIGER NO 148 OF 19 AUGUST 1968 ), AS AMENDED BY THE ORDER OF 14 FEBRUARY 1973 CONCERNING THE ADJUSTMENT OF THE RULES ON INTEREST LAID DOWN IN ORDERS IMPLEMENTING THE COMMON ORGANIZATIONS OF THE MARKETS ( BUNDESANZEIGER NO 34 OF 17 FEBRUARY 1973 ), WHICH MAKES PROVISION FOR INTEREST , WHICH ACCRUES TO THE FEDERAL BUDGET , TO BE CHARGED ON WRONGLY-PAID DENATURING PREMIUMS , IS COMPATIBLE WITH THE ABOVE-MENTIONED PROVISIONS AND PRINCIPLES .

2 THOSE QUESTIONS WERE RAISED IN AN ACTION BETWEEN A GERMAN DEALER IN AGRICULTURAL PRODUCTS , THE UNDERTAKING WILHELM FROMME , AND THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( FEDERAL OFFICE FOR THE ORGANIZATION OF AGRICULTURAL MARKETS , HEREINAFTER REFERRED TO AS ' ' THE BUNDESANSTALT ' ' ) WHICH CLAIMED FROM THAT UNDERTAKING THE REPAYMENT OF PREMIUMS FOR THE DENATURING OF COMMON WHEAT , WHICH ARE PROVIDED FOR BY REGULATION NO 172/67/EEC OF THE COUNCIL OF 27 JUNE 1967 ON GENERAL RULES GOVERNING THE DENATURING OF WHEAT AND RYE OF BREAD-MAKING QUALITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 139 ). BOTH PARTIES AGREE THAT THOSE PREMIUMS WERE WRONGLY PAID . BY SEPARATE DECISIONS AND PURSUANT TO THE AFORESAID ORDERS THE BUNDESANSTALT CLAIMED FROM THE UNDERTAKING FROMME INTERESTED CALCULATED FROM THE DATE OF PAYMENT OF THE PREMIUM UNTIL THE DATE OF ITS REPAYMENT AT A RATE OF 3 % ABOVE THE DISCOUNT RATE OF THE FEDERAL GERMAN BANK AND IN ANY EVENT AT A RATE NOT LESS THAN 6 % . FROMME ' S OBJECTION TO THOSE DECISIONS WAS REJECTED AND IT THEN BROUGHT AN ACTION CONTESTING THEM BEFORE THE VERWALTUNGSGERICHT .

3 THE QUESTIONS REFERRED TO THE COURT OF JUSTICE BY THAT COURT WERE WORDED AS FOLLOWS :

' ' 1 . IS IT COMPATIBLE WITH THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY FOR THE FEDERAL REPUBLIC OF GERMANY TO CHARGE ON UNDUE PAYMENTS OF DENATURING PREMIUMS INTEREST CALCULATED FROM THE DAY OF PAYMENT AT 3 % ABOVE THE PREVAILING DISCOUNT RATE OF THE GERMAN FEDERAL BANK BUT IN ANY EVENT AT NOT LESS THAN 65 % , WITHOUT BEING AUTHORIZED TO DO SO BY ANY PROVISION OF COMMUNITY LAW?

2.IF THE ANSWER TO THE FOREGOING IS IN THE NEGATIVE : DOES ARTICLE 8 ( 1 ) OF REGULATION ( EEC ) NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ) CONFER ANY AUTHORITY ENTITLING THE FEDERAL REPUBLIC TO CHARGE INTEREST OF THE KIND MENTIONED IN QUESTION 1?

3.IF THE ANSWER TO THE FOREGOING IS IN THE NEGATIVE :

IS THERE ANY OTHER PROVISION OR GENERAL PRINCIPLE OF COMMUNITY LAW FROM WHICH SUCH AUTHORITY MAY BE DEDUCED?

' '

4 IN ORDER TO ANSWER THOSE QUESTIONS , WHICH SHOULD BE CONSIDERED TOGETHER , IT MUST BE RECALLED THAT THE COURT , WHILST REGRETTING THE DIFFERENCE IN TREATMENT WHICH SUCH A SOLUTION MAY CAUSE BETWEEN TRADERS IN THE VARIOUS MEMBER STATES , HAS REPEATEDLY HELD IN ITS DECISIONS THAT ACTIONS FOR THE RECOVERY OF SUMS WHICH HAVE BEEN WRONGLY PAID UNDER COMMUNITY LAW MUST BE DECIDED BY NATIONAL COURTS IN ACCORDANCE WITH THEIR OWN NATIONAL LAW IN SO FAR AS COMMUNITY LAW HAS NOT PROVIDED OTHERWISE . IN PARTICULAR , IT IS FOR THE NATIONAL AUTHORITIES TO SETTLE ALL ANCILLARY QUESTIONS RELATING TO SUCH RECOVERY , SUCH AS THE QUESTION OF PAYMENT OF INTEREST .

5 THEREFORE , BY PROVIDING THAT MEMBER STATES ARE , IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION , TO TAKE THE MEASURES NECESSARY TO RECOVER SUMS LOST AS THE RESULT OF IRREGULARITIES OR NEGLIGENCE , ARTICLE 8 OF REGULATION NO 729/70 DOES NO MORE THAN CONFIRM EXPRESSLY AN OBLIGATION ALREADY INCUMBENT ON THE MEMBER STATES BY VIRTUE OF THE PRINCIPLE OF COOPERATION ENUNCIATED IN ARTICLE 5 OF THE TREATY .

6 HOWEVER , IN ITS ABOVE-MENTIONED DECISIONS THE COURT HAS PLACED LIMITS ON BOTH THE EXPRESS REFERENCE TO NATIONAL LAWS CONTAINED IN ARTICLE 8 OF REGULATION NO 729/70 AND THE IMPLIED REFERENCE WHICH HAS BEEN ACKNOWLEDGED TO BE NECESSARY IN THE ABSENCE OF COMMUNITY RULES . THUS THE APPLICATION OF NATIONAL LAW MUST NOT ADVERSELY AFFECT THE SCOPE OR IMPAIR THE EFFECTIVENESS OF COMMUNITY LAW BY MAKING THE RECOVERY OF SUMS WRONGLY PAID IMPOSSIBLE IN PRACTICE . NOR MAY IT MAKE THE RECOVERY OF SUCH SUMS SUBJECT TO CONDITIONS OR DETAILED RULES LESS FAVOURABLE THAN THOSE WHICH APPLY TO SIMILAR PROCEDURES GOVERNED BY NATIONAL LAW ALONE . IN SUCH MATTERS THE NATIONAL AUTHORITIES MUST PROCEED WITH THE SAME CARE AS THEY EXERCISE IN IMPLEMENTING CORRESPONDING NATIONAL LAWS SO AS NOT TO IMPAIR , IN ANY WAY , THE EFFECTIVENESS OF COMMUNITY LAW .

7 IN ESTABLISHING THOSE LIMITS ON THE REFERENCE TO NATIONAL LAW THE COURT HAS HELD WITH REGARD TO THE RELATIONSHIP TO PROCEDURES FOR DETERMINING SIMILAR , BUT PURELY NATIONAL , DISPUTES THAT THE APPLICATION OF NATIONAL LAW ON THE BASIS OF THAT REFERENCE MUST BE EFFECTED IN A NON-DISCRIMINATORY MANNER AS COMPARED WITH THOSE PROCEDURES . THE RULE AGAINST DISCRIMINATION SO ENUNCIATED ALSO IMPLIES THAT THE OBLIGATIONS IMPOSED BY NATIONAL LEGISLATION ON UNDERTAKINGS WHICH HAVE BEEN WRONGLY GRANTED PECUNIARY ADVANTAGES BASED ON COMMUNITY LAW MUST NOT BE MORE STRINGENT THAN THOSE IMPOSED ON UNDERTAKINGS WHICH HAVE WRONGLY RECEIVED SIMILAR ADVANTAGES BASED ON NATIONAL LAW , ASSUMING , HOWEVER , THAT THE TWO GROUPS OF RECIPIENTS ARE IN COMPARABLE SITUATIONS AND THEREFORE THAT THAT DIFFERENT TREATMENT IS NOT OBJECTIVELY JUSTIFIABLE .

8 SINCE AT ITS PRESENT STAGE OF DEVELOPMENT COMMUNITY LAW HAS NO RULES GOVERNING THE PROCEDURE FOR THE RECOVERY OF WRONGLY-PAID DENATURING PREMIUMS AND PARTICULARLY AS TO WHETHER INTEREST SHOULD BE CHARGED ON THEIR RECOVERY , IT FOLLOWS FROM THE FOREGOING THAT , WITHIN THE LIMITS INDICATED ABOVE , IT IS COMPATIBLE WITH COMMUNITY LAW FOR A MEMBER STATE TO CHARGE , IN ACCORDANCE WITH ITS NATIONAL LAW , INTEREST WHICH , IN THE ABSENCE OF RULES REQUIRING IT TO BE PAID TO THE COMMUNITY , ACCRUES TO ITS OWN BUDGET .

9 EVEN IF THE CHARGING OF INTEREST OF THE KIND DESCRIBED BY THE VERWALTUNGSGERICHT CANNOT BE CONSIDERED AS ADVERSELY AFFECTING THE SCOPE OR IMPAIRING EFFECTIVENESS OF COMMUNITY LAW THERE MAY BE GROUNDS FOR THE NATIONAL COURT TO CONSIDER , WHERE APPROPRIATE , WHETHER THE CHARGING OF THE INTEREST IS IN CONFORMITY WITH THE PRINCIPLE OF NON-DISCRIMINATION MENTIONED ABOVE .

10 THEREFORE THE ANSWER TO THE QUESTIONS PUT TO THE COURT SHOULD BE THAT IT IS COMPATIBLE WITH COMMUNITY LAW IN ITS PRESENT STATE FOR A MEMBER STATE TO CHARGE , IN ACCORDANCE WITH THE RULES OF ITS OWN NATIONAL LAW , INTEREST ON WRONGLY-PAID COMMUNITY DENATURING PREMIUMS PROVIDED THAT THOSE RULES DO NOT GIVE RISE TO ANY DIFFERENCE IN TREATMENT WHICH IS NOT OBJECTIVELY JUSTIFIED BETWEEN TRADERS RECEIVING SUCH PREMIUMS AND THOSE WHO , AS THE CASE MAY BE , OBTAIN SIMILAR BENEFITS OF A PURELY NATIONAL NATURE .

COSTS

11 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE VERWALTUNGSGERICHT FRANKFURT AM MAIN BY ORDER OF 5 FEBRUARY 1981 , HEREBY RULES :

IT IS COMPATIBLE WITH COMMUNITY LAW IN ITS PRESENT STATE FOR A MEMBER STATE TO CHARGE , IN ACCORDANCE WITH THE RULES OF ITS OWN NATIONAL LAW , INTEREST ON WRONGLY-PAID COMMUNITY DENATURING PREMIUMS PROVIDED THAT THOSE RULES DO NOT GIVE RISE TO ANY DIFFERENCE IN TREATMENT WHICH IS NOT OBJECTIVELY JUSTIFIED BETWEEN TRADERS RECEIVING SUCH PREMIUMS AND THOSE WHO , AS THE CASE MAY BE , OBTAIN SIMILAR BENEFITS OF A PURELY NATIONAL NATURE .