Opinion of the Advocate-General

Opinion of the Advocate-General

I – Introduction

1. The present reference for a preliminary ruling follows on from the reference which led to the judgment in Kühne & Heitz . (2) The Finanzgericht Hamburg (Finance Court, Hamburg, Germany) has now asked the Court to clarify the meaning and the implications of that judgment.

2. The national court wishes to establish whether review and amendment of a final administrative decision which are intended to take account of the interpretation of a provision of Community law made by the Court in the meantime require the claimant to have relied on Community law in his action before the national court.

3. The national court then asks the Court to rule whether an application for the review and amendment of a final administrative decision which is contrary to Community law is subject to a time-limit.

4. I shall examine those two questions in turn after summarising the present state of the Court’s case-law relating to the problem of reviewing administrative and judicial decisions which have become final and prove to be contrary to Community law as subsequently interpreted by the Court.

5. First, I shall propose that the Court’s reply to the first question referred should be that, in order to be fulfilled, the condition laid down in Kühne & Heitz that the decision of a national court ruling at final instance is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC does not presuppose that the claimant in the main proceedings relied on Community law in the legal action under national law brought by him against the disputed administrative decision.

6. Second, I propose that the Court should rule that Community law does not preclude an application for the review and withdrawal of an administrative decision which has become final after the exhaustion of domestic remedies and which proves to be contrary to Community law as subsequently interpreted by the Court, without the national court ruling at final instance having referred a question to the Court for a preliminary ruling, from being made subject to a time-limit pursuant to the principle of legal certainty. It is for the Member States to set, in accordance with the Community principles of equivalence and effectiveness, the period within which such an application must be submitted.

II – The legal context

A – Community law

1. Article 10 EC

7. Article 10 EC provides as follows:

‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.

They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’

8. In Kühne & Heitz , which will be discussed in more detail below, the Court held that ‘the principle of cooperation arising from Article 10 EC imposes on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court where:

– under national law, it has the power to reopen that decision;

– the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance;

– that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under [the third paragraph of Article 234] EC; and

– the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court’.

2. The relevant provisions of Regulation No 3665/87

9. Article 4(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (3) is worded as follows:

‘Without prejudice to the provisions of Articles 5 and 16, the refund shall be paid only upon proof being furnished [that] the products for which the export declaration was accepted have, within 60 days from the date of such acceptance of the export declaration, left the customs territory of the Community in the unaltered state.’

10. Article 5(1) of the regulation provides:

‘Payment of the differentiated or non-differentiated refund shall be conditional not only on the product having left the customs territory of the Community but also – save where it has perished in transit as a result of force majeure – on its having been imported into a non-member country and, where appropriate, into a specific non-member country within 12 months following the date of acceptance of the export declaration:

(a) where there is serious doubt as to the true destination of the product

…’

11. The wording of the latter article is analogous to that of its predecessor, namely Article 10(1) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products, (4) which the Court has been required to interpret.

12. In Emsland-Stärke (5) the Court held that the conditions laid down by Article 10(1) of Regulation No 2730/79 could be imposed only prior to the grant of the export refund. According to the Court, that was sufficiently clear from the wording of that paragraph, which states that payment is ‘conditional ... on the [product’s] having been imported into a non-member country’, and from the ninth recital in the preamble to that regulation, which is in the same terms. (6)

B – National law

13. In German law, the first sentence of Paragraph 48(1) of the Verwaltungsverfahrensgesetz (Law on Administrative Procedure; ‘the VwVfG’) of 25 May 1976 (7) provides that an unlawful administrative act may, even after it has become unchallengeable, be withdrawn wholly or in part, with prospective or retroactive effect.

14. According to German case-law, the administrative authority in principle has a discretion to withdraw an unlawful administrative act which has become final. According to that case-law, the first sentence of Paragraph 48(1) of the VwVfG confers a right to withdrawal of such an act only exceptionally, where it is ‘outright intolerable’ for it to stand having regard to the concepts of public policy, good faith, fairness, equal treatment or manifest unlawfulness.

15. In addition, Paragraph 51 of the VwVfG deals with the reopening of a procedure closed by an administrative act which has become unchallengeable. Paragraph 51(1) provides that the relevant authority must, on application by the person concerned, decide whether to set aside or amend an administrative act which is no longer open to challenge:

– if the factual or legal situation on which the act was based has changed, following its adoption, in favour of the person concerned;

– if there is new evidence which would have led to a decision more favourable to the person concerned;

– if there are grounds for reopening the procedure pursuant to Paragraph 580 of the Zivilprozessordnung (Code of Civil Procedure).

III – The facts and procedure of the main proceedings

16. In the years 1990 to 1992 Willy Kempter KG (‘Kempter’ or ‘the applicant’) exported cattle to a number of Arab countries and to the former Yugoslavia. On that basis it applied for and received export refunds from the Hauptzollamt Hamburg-Jonas (Principal Customs Office Hamburg-Jonas; ‘the Hauptzollamt’).

17. On conduct of an inquiry, the Betriebsprüfungsstelle Zoll (Customs Inspectorate) of the Oberfinanzdirektion (Principal Revenue Office), Freiburg, established that some animals had died or been slaughtered out of necessity during transport or in the course of quarantine in the countries of destination.

18. By decision of 10 August 1995, the Hauptzollamt therefore demanded the repayment by Kempter of the export refunds totalling DEM 360 022.62 which it had received.

19. By judgment of 16 June 1999, the Finanzgericht Hamburg dismissed the applicant’s action against that decision, on the ground that the applicant had not proved that the animals were imported into a non-member country, in conformity with Article 5(1)(a) of Regulation No 3665/87.

20. Kempter’s appeal against the judgment was dismissed by order of the Bundesfinanzhof (Federal Finance Court) of 11 May 2000.

21. On 14 December 2000 the Court of Justice delivered the judgment in Emsland-Stärke , in which, as will be recalled, the Court found that the condition for payment of the differentiated or non-­differentiated refund under which the product – save where it has perished in transit as a result of force majeure – must have been imported into a non-member country and, where appropriate, into a specified non‑member country could be imposed only prior to the grant of the refund.

22. In a judgment of 21 March 2002 the Bundesfinanzhof applied the foregoing interpretation of the Court, mentioning the judgment in Emsland-Stärke .

23. By letter of 16 September 2002, Kempter requested that the Hauptzollamt reopen the procedure and revoke the decision on repayment of the export refunds. In support of this application, Kempter claimed that the legal situation had changed in the meantime. In that connection Kempter relied on the judgment delivered by the Bundesfinanzhof on 21 March 2002, of which it states that it was informed on 1 July 2002 by a fax from the company SAB.

24. The Hauptzollamt refused the application by decision of 5 November 2002, stating that this alteration in case-law did not mean any change in the legal situation, which alone would justify reopening the procedure under Paragraph 51(1)(1) of the VwVfG. The applicant’s administrative appeal against that decision was rejected by decision of 25 March 2003.

25. Kempter then brought an action before the Finanzgericht Hamburg on 26 April 2004, submitting in particular that in the case in point the conditions for review of a final administrative decision set out by the Court in Kühne & Heitz were fulfilled and that consequently the repayment decision of 10 August 1995 should be withdrawn.

IV – The reference for a preliminary ruling

26. In the order for reference, the Finanzgericht Hamburg observes, first, that the parties agree that, in the light of Emsland-Stärke , the repayment decision of 10 August 1995 must be considered unlawful. However, they are in dispute as to whether, so as to take account of the Court’s interpretation in that judgment, the Hauptzollamt is obliged to review its decision, which became final before the judgment was delivered.

27. With regard to the four conditions set out by the Court in Kühne & Heitz , (8) the national court considers that the first two are fulfilled. Indeed, the Hauptzollamt does have power, on the basis of the first sentence of Paragraph 48(1) of the VwVfG, to reopen the repayment decision. In addition, the decision has become final as a result of a judicial decision of a national court ruling at final instance. (9)

28. On the other hand, the national court is uncertain as to whether the third condition in Kühne & Heitz has been fulfilled. The third condition is that the judgment of the national court ruling at final instance must, in the light of a decision given by the Court subsequent to it, be based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC.

29. According to the national court, if the condition were to be understood as meaning that a claimant must have relied on Community law when he contested the administrative decision in court and that the national court must have dismissed the action without seeking a preliminary ruling from the Court of Justice, the action brought by the applicant should be dismissed. The applicant did not plead misinterpretation of Community law, namely of Article 5(1) of Regulation No 3665/87, either before the Finanzgericht Hamburg or before the Bundesfinanzhof.

30. The national court considers, however, that it can be seen from the judgment in Kühne & Heitz that, in the case which gave rise to that judgment, the claimant likewise did not request that a preliminary ruling be sought from the Court of Justice. Furthermore, the national court is inclined to the view that the fact that national courts have overlooked the significance of a question of interpretation of Community law should not be held against the individual concerned.

31. In addition, the national court is uncertain as to the implications of the fourth condition laid down by the Court of Justice in Kühne & Heitz , namely that the person concerned must have complained to the administrative body immediately after becoming aware of the Court’s decision.

32. On that point the national court explains that a special feature of the case before it is that Kempter applied to the Hauptzollamt for withdrawal of the repayment decision of 10 August 1995 by letter of 16 September 2002, that is to say, 21 months after the Court delivered judgment in Emsland-Stärke on 14 December 2000.

33. The national court then observes that, in its opinion, the time-limit as regards an application for the review of a final administrative decision should depend on positive awareness of the Court’s decision on the part of the person concerned. It adds that, with regard to the interpretation of the adverb ‘immediately’ used by the Court in Kühne & Heitz , the word in question is used in relation to the assessment of issues of causality in German law. (10) The national court is inclined to understand the word as meaning ‘without delay’ or ‘without culpable delay’. From that viewpoint, according to the national court, an application for review lodged three months after the person in question becomes aware of the Court’s interpretation should be regarded as meeting the fourth condition laid down by the Court in Kühne & Heitz .

34. However, the national court is uncertain, more generally, whether the possibility of amending a final administrative decision which is contrary to Community law is subject to a time‑limit on grounds of legal certainty or whether, on the contrary, it is not subject to a limit in time.

35. Inasmuch as administrative authorities must apply the interpretation of a provision of Community law supplied by the Court in a preliminary ruling to legal relationships which have arisen before the Court’s judgment, the national court does not see why an application, on the basis of Emsland-Stärke , for the revocation of an administrative decision that is final and infringes Community law should, exceptionally, be subject to a limit in time.

36. Consequently it has decided to stay proceedings pending the Court’s reply to the following two questions referred by it for a preliminary ruling:

‘(1) Are the review and amendment of a final administrative decision in order to take account of the interpretation of the relevant Community law carried out in the meantime by the Court of Justice of the European Communities subject to the requirement that the party concerned relied on Community law when contesting the administrative decision before the national courts?

(2) Is an application for the review and amendment of a final administrative decision which is contrary to Community law subject to a limit in time for overriding reasons of Community law, apart from the conditions set out in [ Kühne & Heitz ]?’

V – Analysis

A – Preliminary remarks on the present line of case-law

37. Before examining the two questions referred to the Court, it seems to me necessary to review the current case-law of the Court relating to the issue of reviewing administrative and judicial decisions which have become final and which prove to be contrary to Community law as subsequently interpreted by the Court. It will thus be possible to identify the different situations which have been referred to the Court, the way in which they have been dealt with by it and the particular characteristics of the situation covered by Kühne & Heitz .

38. Let me begin by pointing out that, beyond the small differences in the various situations involving the review of final national decisions, the main thread of the relevant case-law is constituted by the importance attached by the Court to the principle of legal certainty.

39. Accepted long ago by the Court as a general principle of Community law, (11) the principle of legal certainty is ambivalent in so far as it aims to safeguard the quality and integrity of the rule as well as the stability of legal situations. (12)

40. The need for the stability of legal situations lies at the heart of the concerns expressed by the Court in several of its recent judgments.

41. The Court is particularly vigilant with regard to the principle of res judicata , inasmuch as it contributes to the requirement for stability of legal situations.

42. Thus in Köbler , (13) in response to the arguments of certain governments citing the principle of res judicata in support of the proposition that the principle of State liability for damage caused to individuals by infringements of Community law could not be applied to decisions of a national court adjudicating at final instance, the Court strongly asserted the importance of the principle of res judicata. The Court observed that ‘in order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time‑limits provided for in that connection can no longer be called in question’. (14) The Court added that ‘recognition of the principle of State liability for a decision of a court adjudicating at last instance does not in itself have the consequence of calling in question that decision as res judicata [because] proceedings seeking to render the State liable do not have the same purpose and do not necessarily involve the same parties as the proceedings resulting in the decision which has acquired the status of res judicata ’ (15) and because, in any case, they do not entail a review of the judicial decision which caused the damage.

43. In Kapferer , (16) the Court once again stressed the need for stability of judicial decisions which have become final and the importance, to that end, of the principle of res judicata both for the Community legal order and for national legal systems. (17) It inferred from this, referring also to its judgment in Eco Swiss , (18) the principle that ‘Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue’. (19)

44. In the same line of case-law, this time in relation to final administrative decisions, Kühne & Heitz gave the Court an opportunity to set out the way in which it seeks to reconcile the requirements arising from the primacy of Community law and from the retrospective effect of judgments giving a preliminary ruling with the requirements deriving from the principle of legal certainty in conjunction with the principle of res judicata .

45. Kühne & Heitz concerned in particular whether a national authority’s obligation to apply a rule of Community law as interpreted by the Court even to legal relationships which arose or were formed before the Court’s preliminary ruling on a question of interpretation could prevail notwithstanding that an administrative decision had become final before an application was made for its review to take account of the Court’s judgment.

46. Observing that legal certainty is one of a number of general principles of Community law and that the finality of an administrative decision, which is acquired upon expiry of reasonable time-limits for legal remedies or by exhaustion of those remedies, contributes to such legal certainty, the Court concluded that ‘Community law does not require that administrative bodies be placed under an obligation, in principle, to reopen an administrative decision which has become final in that way’. (20)

47. The direction of the approach sought by the Court was accordingly set: having regard to the requirements of the principle of legal certainty, the rule is that a national authority is not obliged, under Community law, to reopen an administrative decision that has become final. It will be obliged to review such a decision and, as the case may be, to reopen it only exceptionally, in circumstances which the Court tried to set out exhaustively.

48. In so doing, the Court drew heavily on the particular context of the case before it. Thus it lists four ‘circumstances’ characterising the main proceedings which, taken together, will give rise, through Article 10 EC, to an obligation of review on the part of the administrative body to which an application to that effect is addressed. The circumstances to which the Court refers in the grounds and in the operative part of the judgment should be recalled:

– national law grants the administrative body the power to reopen the final administrative decision;

– that decision has become final as a result of a judgment of a national court ruling at final instance;

– the judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC; and

– the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court.

49. According to the Court, ‘in such circumstances, the administrative body concerned is, in accordance with the principle of cooperation arising from Article 10 EC, under an obligation to review [a final administrative decision] in order to take account of the interpretation of the relevant provision of Community law given in the meantime by the Court. [In addition, that] body will have to determine on the basis of the outcome of that review to what extent it is under an obligation to reopen, without adversely affecting the interests of third parties, the decision in question’. (21)

50. The conclusion thereby reached by the Court in Kühne & Heitz has given rise to a number of questions.

51. Thus, the distinction made by the Court between review and withdrawal of the final administrative decision has prompted the Court’s conclusion to be understood as meaning that the obligation which it lays down relates only to a review of the decision and that the competent administrative body must comply in full with the procedural rules governing the withdrawal of such a decision in national law. According to this reading of Kühne & Heitz , the competent administrative body would certainly be required, pursuant to Article 10 EC, to review a final administrative decision, but – even if it is clear from the review that the decision is contrary to the subsequent interpretation of Community law laid down by the Court and although the other circumstances mentioned in that judgment are present – could refuse to withdraw the decision if national law confers upon it a discretion in that respect.

52. I do not think the judgment in Kühne & Heitz can be interpreted in that way. In this regard I agree with the opinion of the Commission of the European Communities that the judgment must be interpreted as meaning that, where domestic law authorises the competent administrative body to withdraw a final administrative decision, that body is, in the circumstances specifically described in the judgment, required, by virtue of Article 10 EC, to withdraw the decision if the review of the decision shows that it has become incompatible with the interpretation of Community law given by the Court in the meantime. (22)

53. It seems to me that, by wording paragraph 27 of the judgment in that way, the Court intended to make it clear that while, by virtue of Article 10 EC and in the circumstances mentioned, a review becomes obligatory for the competent administrative body, the contested final administrative decision is not, however, withdrawn automatically because withdrawal depends specifically on the outcome of the review.

54. In the factual context of Kühne & Heitz I understand the Court’s differentiation between the review and the withdrawal of such a decision. Pursuant to that judgment, the competent administrative body must, when reviewing the administrative decision requiring the repayment of export refunds, determine whether there was a right to export refunds for each product exported, in the case in point poultrymeat parts, and, if so, in what amount. In practical terms, therefore, the review consists in applying to the facts of the case the interpretation given by the Court in Voogd Vleesimport en -export , (23) namely that ‘a leg to which a piece of back remains attached must … be described as a leg, within the meaning of tariff subheadings 02.02 B II e) 3 of the old nomenclature and 0207 41 51 000 of the new, if that piece of back is not sufficiently large to give the product its essential character’, (24) and in drawing the appropriate conclusions in relation to all the exported goods.

55. In a situation of that kind I think that Article 10 EC requires the administrative body to withdraw its administrative decision to the full extent necessary to take account of the outcome of the review. In my view, that is what was meant by the Court in specifying, in Kühne & Heitz , the purpose of the obligation of review, namely ‘to take account of the interpretation of the relevant provision of Community law given in the meantime by the Court’. (25)

56. In addition, the approach chosen by the Court in that judgment, consisting in giving an interpretation of Article 10 EC in close conjunction with the circumstances of the main proceedings, has given rise to doubts as to the scope of the judgment. Some commentators are uncertain as to whether the judgment establishes a principle or is only a sui generis decision, as could be suggested by the express, and repeated, reference to the circumstances of the main proceedings.

57. Some of those doubts can be removed, to a certain extent, by the Court’s subsequent case‑law. In referring to Kühne & Heitz on several occasions and in raising the ‘circumstances’ listed in it to the status of ‘conditions’, the Court appears to intend to mark the judgment as a reference point in its case‑law, which can be detached from the factual details and the national law of that particular case.

58. Thus, in Kapferer , the Court refers to the ‘condition’ that the body concerned should be empowered to reopen a final decision. (26) In addition, in i‑21 Germany and Arcor (27) the Court states that it follows from paragraph 28 of Kühne & Heitz that ‘the administrative body responsible for the adoption of an administrative decision is, in accordance with the principle of cooperation arising from Article 10 EC, under an obligation to review and possibly to reopen that decision if four conditions are fulfilled ’. (28)

59. Nevertheless, Kühne & Heitz seems mainly intended to govern a specific case, namely that of an application for the review of an administrative decision which has become final after the exhaustion of domestic remedies and which proves to be contrary to Community law as subsequently interpreted by the Court, without the national court ruling at final instance having sought a preliminary ruling from the Court, contrary to the third paragraph of Article 234 EC. (29) Kapferer and i‑21 Germany and Arcor bear witness to this categorisation as, in those cases, the Court refers to Kühne & Heitz in order to distinguish them from it, in a more or less clear‑cut way. (30)

60. Accordingly, in Kapferer the Court appears to be at the very least cautious with regard to the possibility of transposing the principles developed in Kühne & Heitz in relation to a final administrative decision to the context of a final judicial decision. (31) Whilst the Court refers cautiously to the first condition laid down by that judgment, namely that the body concerned should be empowered under national law to reopen the decision it has previously adopted, the Court states immediately that that condition is not satisfied in the context of Kapferer .

61. As regards i‑21 Germany and Arcor , that judgment clearly expresses the Court’s intention not to transpose the principles of Kühne & Heitz to a situation where the party seeking the withdrawal of a final administrative decision did not exercise his right to bring an action against that decision. The factual and legal context of the abovementioned judgment must be briefly set out in order to grasp the difference in approach as compared with Kühne & Heitz . An account of the context is all the more necessary as the relevant national provision in i‑21 Germany and Arcor , as in the present case, is Paragraph 48(1) of the VwVfG.

62. Two telecommunications undertakings, i‑21 and Arcor, were charged fees for their individual telecommunications licences. They paid the fees without objection and did not appeal within the time‑limit of one month from the date of notification of the fee assessments. The amount of the fees was based on the anticipated general administrative costs of the regulatory authority over a period of 30 years.

63. In proceedings for the annulment of a fee assessment notice which was challenged within the permitted time‑limit, the Bundesverwaltungsgericht (Federal Administrative Court) held that the Regulation on Telecommunications Licence Fees was contrary to the Law on Telecommunications and German constitutional law and upheld the annulment of the assessment in question. Following that judgment, i‑21 and Arcor unsuccessfully sought repayment of the fees which they had paid. Each of them therefore brought proceedings before the Verwaltungsgericht (Administrative Court), which dismissed their actions on the ground that their fee notices had become final and that in the case in point there were no grounds for challenging the administrative body’s refusal to withdraw those assessments.

64. Since i‑21 and Arcor took the view that the Verwaltungsgericht had erred in law in relation not only to national law but also to Community law, they brought appeals on a point of law before the Bundesverwaltungsgericht.

65. The Bundesverwaltungsgericht wished to ask the Court two questions. First, it asked whether Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (32) precluded the imposition of a fee for individual licences calculated by taking into account the regulatory authority’s general administrative costs connected with the implementation of those licences over a period of 30 years, to which the Court replied in the affirmative.

66. The second question from the Bundesverwaltungsgericht was whether Article 10 EC and Article 11(1) of Directive 97/13 were to be interpreted as meaning that fee assessments which had not been contested within the time‑limit laid down by national law had to be set aside where it was permissible, but not mandatory, under national law to set them aside.

67. It is clear from the orders for reference that the national court wished the Court to state its position on the question whether Article 10 EC and Article 11(1) of Directive 97/13 had the effect of limiting the national regulatory authority’s discretion with regard to the withdrawal of assessment notices, (33) having regard in particular to the Court’s decision in Kühne & Heitz . (34)

68. With regard to the possible application of the judgment in Kühne & Heitz in such situations, the Court’s words are unambiguous:

‘53 The case giving rise to the judgment in Kühne & Heitz … was entirely different from those in the main proceedings. Whilst the undertaking Kühne & Heitz NV had exhausted all legal remedies available to it, i‑21 and Arcor did not avail themselves of their right to appeal against the fee assessments issued to them.

54 Accordingly, contrary to the arguments advanced by i‑21, the judgment in Kühne & Heitz is not relevant for the purposes of determining whether, in a situation such as that in the main proceedings, an administrative body is under an obligation to review decisions which have become final.’

69. As the outcome reached in Kühne & Heitz is therefore not applicable where the administrative decision whose withdrawal is sought was not appealed against within the time-limit laid down by national law, the question whether or not the competent administrative body was required to withdraw it rests entirely on the relevant national provisions, namely Paragraph 48(1) of the VwVfG. In such a situation, the principle of procedural autonomy of the Member States is fully preserved, even if it remains restricted by the principle of effectiveness and the principle of equivalence. It is indeed the latter principle that will play a decisive part here.

70. The principle of equivalence requires that all the national procedural rules ‘apply without distinction to appeals on the ground of infringement of Community law and to appeals on the ground of disregard of national law’. (35) It follows, according to the Court, that ‘if the national rules applicable to appeals impose an obligation to withdraw an administrative act that is unlawful under domestic law, even though that act has become final, where to uphold that act would be “outright intolerable”, the same obligation to withdraw must exist under equivalent conditions in the case of an administrative act which does not comply with Community law’. (36) The Court will therefore guide the national court for the purpose of verifying that the criteria derived from German case‑law for assessing the term ‘outright intolerable’ are not applied differently, depending on whether national or Community law is in issue.

71. Manifest unlawfulness of the administrative act in relation to rules of higher‑ranking law is one of those criteria. Still referring to the principle of equivalence, the Court adds that ‘where, pursuant to rules of national law, the administration is required to withdraw an administrative decision which has become final if that decision is manifestly incompatible with domestic law, that same obligation must exist if the decision is manifestly incompatible with Community law’. (37) After giving the national court some guidance, (38) the Court leaves it to the latter ‘to ascertain whether legislation which is clearly incompatible with Community law, such as that on which the fee assessments at issue in the main proceedings is based, constitutes manifest unlawfulness within the meaning of the national law concerned’. (39)

72. Consequently the Court’s reply to the referring court is worded as follows:

‘Article 10 EC, read in conjunction with Article 11(1) of Directive 97/13, requires the national court to ascertain whether legislation which is clearly incompatible with the Community law … constitutes manifest unlawfulness within the meaning of the national law concerned. If that is the case, it is for the national court to draw the necessary conclusions under its national law with regard to the withdrawal of [the fee assessments].’ (40)

73. The recent case-law concerning the review of final administrative and judicial decisions may, in my view, be summarised as follows.

74. Having regard to the importance of the principles of legal certainty and res judicata in the Community and national legal systems, the rule is that Community law does not require a national authority to reopen a final decision which it has adopted, even if the decision is incompatible with Community law as subsequently interpreted by the Court.

75. Therefore national procedural law is to apply fully in accordance with the principle of procedural autonomy of the Member States.

76. However, if it is shown that a national procedural rule preventing the review of a final decision is contrary to the principle of equivalence and/or the principle of effectiveness, that rule should be disregarded by the national court.

77. Regarding the specific issue of the review of final administrative decisions, Article 10 EC produces effects the nature and intensity of which vary, depending on the situation.

78. Thus it is clear from i‑21 Germany and Arcor that, in the case of a final administrative decision which has not been the subject of an appeal to a court, Article 10 EC, in conjunction with the Community provision which is alleged to have been infringed, requires at the very least the national court to which the matter has been referred by reason of the competent national authority’s refusal to review the decision to verify that the procedural rules of national law do not result, through the principle of equivalence, in it being necessary to review and, where appropriate, withdraw the decision.

79. Here Article 10 EC requires every means potentially available in national procedural law to be used to bring about, if national procedural law so authorises, the review and, as the case may be, the withdrawal of the final administrative decision which is contrary to Community law.

80. As regards the situation to which Kühne & Heitz relates, the Court itself has laid down the conditions in which an administrative body is required to review such a decision. It is true that, among those conditions, the first to be mentioned is that the body in question has power under national law to reopen the decision. The existence of an obligation of review does therefore depend, above all, on the existence of a national procedural rule conferring such a power upon the competent administrative body.

81. However, this concession to the procedural autonomy of the Member States stops there, a fact which in my view can be explained by the special nature of the situation in question. Where Community law is misinterpreted by a national court against whose decisions there is no judicial remedy under national law and that court infringes its obligation under the third paragraph of Article 234 EC to seek a preliminary ruling, Article 10 EC has the effect of converting the power conferred upon an administrative body by national law into an obligation to review a final administrative decision contrary to Community law and, depending on the outcome of the review, to withdraw that decision.

82. The approach taken in Kühne & Heitz therefore provides a means of mitigating, through Article 10 EC, the negative effects of the lack of a reference for a preliminary ruling in the situation referred to in the third paragraph of Article 234 EC, by offering individuals who have exhausted the remedies available under domestic law a further opportunity to assert the rights conferred upon them by Community law.

83. As the Finnish Government observes, (41) correctly in my view taking account of the present case-law, Kühne & Heitz laid down the conditions in which an obligation of review exists in any event. However, Community law does not preclude a review in other circumstances too, when that is permitted by the national procedural rules.

84. As the factual and legal context of the present case is similar to that in Kühne & Heitz , the present reference for a preliminary ruling should be approached from the same viewpoint as that chosen by the Court in Kühne & Heitz .

B – The first question referred

85. The national court’s first question is, in substance, whether, in order to be fulfilled, the condition laid down in Kühne & Heitz that the decision of a national court ruling at final instance is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC presupposes that the claimant in the main proceedings relied on Community law in the legal action under national law brought by him against the disputed administrative decision.

86. Kempter, the Finnish Government and the Commission consider that the reply to that question should be in the negative.

87. First of all, the Commission observes that neither the grounds nor the operative part of Kühne & Heitz indicate that it is a condition that the person concerned should have contested the administrative act in question before the national courts by relying on Community law.

88. The Finnish Government considers, moreover, that such a condition could make it impossible in practice to exercise rights conferred by Community law and could thus run counter to the principle of effectiveness. The Finnish Government also agrees with the referring court’s opinion that, if a national court has failed to recognise the significance of a question of Community law, that should not be held against the citizen affected.

89. In addition, Kempter and the Commission observe that the obligation of national courts ruling at last instance to seek a preliminary ruling under the third paragraph of Article 234 EC cannot depend on the parties so requesting the court in question or their pleading an infringement of Community law.

90. The Czech Government takes the view that review and amendment of a final administrative decision presuppose that the person concerned challenged the decision before the national courts in reliance on Community law only if those courts have, under domestic law, neither the power nor an obligation to apply that law of their own motion and that does not at the same time impede observance of the principles of equivalence and effectiveness.

91. Like Kempter, the Finnish Government and the Commission, I think that, in the situation referred to in Kühne & Heitz , the review and, as the case may be, the withdrawal of a final administrative decision which are intended to take account of the interpretation of a provision of Community law given by the Court in the meantime do not require the claimant to have relied on Community law in the context of the legal action under domestic law brought by him against such a decision, for the following reasons.

92. First, a requirement that the claimant must have relied on Community law in the legal action brought by him under domestic law does not follow at all from the wording of the third condition laid down by the Court in Kühne & Heitz with a view to giving rise to an obligation on the part of the competent administrative authority to carry out a review. It is appropriate once more to cite the words used by the Court when laying down the third condition: the judgment of the national court ruling at final instance ‘is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under [the third paragraph of Article 234] EC’. (42)

93. Worded in that way, the third condition of Kühne & Heitz is founded on two factors which are closely connected. First, the decision of the court ruling at final instance is based on a misinterpretation of Community law. Second, that court did not refer a question to the Court for a preliminary ruling, contrary to the third paragraph of Article 234 EC.

94. On the other hand, the Court does not expressly require the claimant in the main proceedings to have relied on Community law before the abovementioned court. (43) It is therefore of no consequence whether the court against whose decisions there is no judicial remedy under national law applied Community law on the initiative of the parties to the main proceedings or of its own motion. What is important, having regard to the wording used by the Court, is that the judicial decision in question is based on a misinterpretation of Community law and therefore shows that it has been misapplied, without the court in question having considered it necessary to seek a preliminary ruling on a question of interpretation from the Court of Justice.

95. That does appear to have happened in the present case. According to the order for reference, although Kempter did not plead Article 5(1) of Regulation No 3665/87 either before the Finanzgericht Hamburg or before the Bundesfinanzhof, both those courts based their decisions, at least in part, on that regulation and misinterpreted it. (44)

96. Second, it must be borne in mind that the approach adopted by the Court in Kühne & Heitz is, in accordance with the wording of the third condition, closely bound up with the obligation of national courts against whose decisions there is no judicial remedy under national law to seek a preliminary ruling under the third paragraph of Article 234 EC. I agree with Kempter and the Commission that that obligation does not depend on the claimant in the main proceedings having requested the court concerned to refer a question to the Court of Justice or on a requirement that he has based the pleas in support of his action on Community law.

97. To interpret the third condition laid down by the Court in Kühne & Heitz as meaning that the claimant in the main proceedings must have relied on Community law before the national court ruling at final instance would, in my view, have the major drawback of creating indirectly a new exemption from the obligation, under the third paragraph of Article 234 EC as hitherto interpreted by the Court, requiring a court of that kind to seek a preliminary ruling.

98. It should be remembered that the main reason for the existence of the obligation to seek a preliminary ruling is to prevent the establishment and consolidation of a body of national case-law containing errors of interpretation or misapplying Community law. (45) That obligation is commensurate with the strategic position of supreme courts in national legal systems. In accordance with their traditional function of unifying the law, they are responsible for ensuring that the other national courts apply Community law correctly and effectively. In addition, they deal with final appeals intended to safeguard the rights derived by individuals from Community law.

99. Pursuant to the case‑law originating from Cilfit and Others , (46) national courts against whose decisions there is no judicial remedy under national law ‘are required, where a question of Community law is raised before them, to comply with their obligation to make a reference, unless they have established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt’. (47)

100. On the other hand, it does not follow from that case‑law that a national court against whose decisions there is no judicial remedy under national law might be exempt from the obligation to seek a preliminary ruling on a question of interpretation where the parties to the main proceedings have not raised before it a plea based on Community law. On the contrary, it is clear from the case-law relating to the conditions for applying Article 234 EC that the making of any reference for a preliminary ruling depends entirely on that court’s assessment as to whether a reference is appropriate and necessary and that it in no way depends on the nature of the pleas relied on before it by the parties to the main proceedings.

101. Establishing a procedure for direct cooperation between the Court of Justice and the national courts, the system of references for a preliminary ruling is based on a dialogue between one court and another. In the course of that procedure, the parties to the main proceedings are merely invited to submit observations within the legal framework set out by the court making the reference. (48) According to the Court of Justice, ‘within the limits established by Article [234 EC], it is thus for the national courts alone to decide on the principle and purpose of any reference to the Court of Justice and it is also for those courts alone to judge whether they have obtained sufficient guidance from the preliminary ruling delivered in response to their reference or whether it appears to them necessary to refer the matter once more to the Court’. (49)

102. It is also to be observed that, in Cilfit and Others , the Court explained the meaning of the phrase ‘where [such a/any such] question is raised’ for the purposes of the second and third paragraphs of Article 234 EC, in order to determine the circumstances in which a national court against whose decisions there is no judicial remedy under national law is required to bring the matter before the Court of Justice.

103. On that occasion the Court observed that a reference for a preliminary ruling does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. According to the Court, ‘therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article [234 EC]. On the other hand, a national court or tribunal may, in an appropriate case, refer a matter to the Court of Justice of its own motion’. (50)

104. Also, in another judgment the Court pointed out, first, that ‘the fact that the parties to the main action failed to raise a point of Community law before the national court does not preclude the latter from bringing the matter before the Court of Justice’ and, second, that ‘in providing that reference for a preliminary ruling may be submitted to the Court where “a question is raised before any court or tribunal of a Member State”, the second and third paragraphs of Article [234 EC] are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of Community law, but also extend to cases where a question of this kind is raised by the national court or tribunal itself which considers that a decision thereon by the Court of Justice is “necessary to enable it to give judgment”’. (51)

105. It follows from this case‑law that, where the application of Community law appears necessary to a national court against whose decisions there is no judicial remedy under national law in order to determine a dispute before it, the third paragraph of Article 234 EC requires that court to refer to the Court of Justice any question of interpretation that arises, even if the claimant in the main proceedings has not raised a plea based on Community law, subject however to the qualifications accepted by the Court in Cilfit and Others and recently referred to by it in Intermodal Transports .

106. This analysis does not mean that a national court against whose decisions there is no judicial remedy under national law would be obliged, by virtue of Community law, to raise a plea based on Community law of its own motion. It means merely that in a situation where the parties to the main proceedings have not relied on Community law, and provided that the national court has power, by virtue of national law, to examine of its own motion the legality of an administrative act in the light of Community law and it considers that Community law must be applied in order for judgment to be given, it is required in principle to seek a preliminary ruling on a question of interpretation from the Court of Justice. If it fails to discharge that obligation and its judgment is based on a misinterpretation of Community law, the third condition set out in Kühne & Heitz will have been fulfilled.

107. Third, I consider that an interpretation under which fulfilment of the third condition would require the claimant in the main proceedings to have relied on Community law would be difficult to understand in circumstances such as those of the main proceedings.

108. It appears from the order for reference that the requirement which proved to be contrary to Community law, namely, it may remembered, that in the case of a non‑differentiated refund proof that the product in question was indeed imported into a non-member country within 12 months following the date of acceptance of the export declaration could be demanded even after payment of the aid, was in accordance with a long-established practice of the Hauptzollamt that was supported by the case-law of both the Finanzgericht Hamburg and the Bundesfinanzhof. (52)

109. In those circumstances, can a person really be blamed for having failed to base the action he brought before a national court ruling at final instance on Community law, in this case Article 5(1)(a) of Regulation No 3665/87, where that provision, as interpreted and applied consistently by the national courts before Emsland-Stärke , would not have enabled him to win his case? The reply to that question seems obvious and it is understandable that, in such a context, a person would base his legal strategy on arguments other than pleas based on Community law. (53)

110. That is why, having regard to all the foregoing considerations, I propose that the Court’s reply to the first question referred should be that, in order to be fulfilled, the condition laid down in Kühne & Heitz that the decision of a national court ruling at final instance is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC does not presuppose that the claimant in the main proceedings relied on Community law in the legal action under national law brought by him against the disputed administrative decision.

C – The second question referred

111. The national court’s second question to the Court is whether, apart from the conditions set out in Kühne & Heitz , an application for the review and amendment of a final administrative decision which is contrary to Community law is subject to a limit in time for overriding reasons of Community law.

112. It may be recalled that this question arises from the particular context of the main proceedings, namely the fact that Kempter did not apply to the Hauptzollamt for the withdrawal of the repayment decision of 10 August 1995 until it sent its letter of 16 September 2002, that is to say, 21 months after judgment was delivered in Emsland-Stärke .

113. It is apparent from the grounds of the order for reference that the second question, which is formulated in general terms by the Finanzgericht Hamburg, has two aspects. (54)

114. First, the national court is uncertain as to the implications of the fourth condition laid down by the Court of Justice in Kühne & Heitz , namely that the person concerned must have complained to the administrative body immediately after becoming aware of the Court’s decision.

115. Second, the national court is uncertain, more generally, whether, apart from the fourth condition, the view should also be taken that an application for the review and withdrawal of a final administrative decision which is contrary to Community law is subject to a time-limit on grounds of legal certainty or whether, on the contrary, it is not subject to a limit in time. Inasmuch as the national administrative authorities must apply the interpretation of a provision of Community law supplied by the Court in a preliminary ruling to legal relationships which have arisen before the Court’s judgment, the national court expresses doubts as to whether it is compatible with Community law to impose a limit in time on an application, on the basis of Emsland‑Stärke , for the review and withdrawal of an administrative decision which has become final and is contrary to Community law.

116. Thus, in substance, the national court seeks a ruling as to whether Community law precludes a limit in time for an application for the review and withdrawal of an administrative decision which has become final after the exhaustion of domestic remedies and which proves to be contrary to Community law as subsequently interpreted by the Court, without the national court ruling at final instance having referred a question to the Court for a preliminary ruling.

117. In its written observations, Kempter notes first that there is no specific provision in Community law relating to a time-limit or limitation period for an application for review. Kempter adds that, in accordance with Kühne & Heitz , the person concerned can assert his right to review of an administrative decision only if that is permitted under national law. Therefore, in order to decide whether or not that right is subject to a time-limit, the national provisions on limitation periods should be referred to.

118. Kempter also claims that, if the Community rules on time-limits or limitation periods were to be applied by analogy, its application should still not be regarded as out of time. It puts forward a number of arguments in this regard. In particular, it observes that a certain period of time was necessary for the Court’s interpretation in Emsland‑Stärke to give rise to a new administrative practice and to a change in the case-law in Germany. Kempter points out that Emsland‑Stärke was not taken into account in national case‑law until a Bundesfinanzhof judgment of 21 March 2002.

119. In any case, Kempter considers that, as an application for the withdrawal of the repayment decision had no chance of succeeding on the basis of national law alone, any Community limitation period could not have begun to run before the date when the Opinion of Advocate General Léger in Kühne & Heitz was delivered, that is to say, 17 June 2003. In that Opinion, Article 10 EC was interpreted for the first time as meaning that such a decision had to be open to review. Therefore, as Kempter’s application was submitted before that date, it could not be described as out of time. (55)

120. With regard to the fourth condition set out by the Court in Kühne & Heitz , which states that ‘the person concerned complained to the administrative body immediately after becoming aware of [the] decision of the Court’ causing the final administrative decision to be unlawful, the Czech and Finnish Governments share the view expressed by the national court that the subjective time-limit thus created by the Court for applying for review of such a decision should be linked to positive awareness of that case-law on the part of the person concerned. Therefore, an application for review submitted three months after the date when Kempter actually became aware of the Court’s interpretation fulfils that condition.

121. Besides the condition set out by the Court in Kühne & Heitz , the Czech and Finnish Governments consider that Community law does not prevent the right to apply for review of an unlawful administrative decision from being limited in time. Consequently national procedural rules may legitimately provide that an application of this type must be submitted within certain time-limits. The compatibility of those time-limits with Community law must be assessed in the light of the principle of equivalence (which requires time-limits to be not less favourable than those laid down by the rules relating to similar domestic claims) and the principle of effectiveness (which requires time-limits not to make it impossible in practice to exercise rights conferred by Community law).

122. The Commission states that, in its opinion, the national court’s second question relates only to the interval between the delivery of the Court’s judgment causing the administrative decision to be unlawful and Kempter’s application for the review and withdrawal of the decision, that is to say, more than 19 months. In the Commission’s view, the national court does not appear to be referring to the period of time between that application and either the adoption of the original administrative decision (that is to say, the repayment decision of 10 August 1995) or the date when the applicant became aware of the judgment of the Court rendering that decision unlawful (that is to say, 1 July 2002, when the Bundesfinanzhof’s judgment of 21 March 2002 was sent to the applicant by fax).

123. The Commission further states that, because of the principle of procedural autonomy of the Member States, it is not in favour of setting a time-limit at Community level. The Commission suggests that, for reasons of legal certainty, an addition should be made to the fourth condition in Kühne & Heitz , so as to require the person concerned to have complained to the administrative body immediately after becoming aware of the Court’s judgment giving a preliminary ruling, and within a period after the delivery of that judgment which appears to be reasonable in the light of the principles of national law and consistent with the principles of equivalence and effectiveness.

124. In view of those arguments, it is necessary first of all to examine the implications of the fourth condition, which states that ‘the person concerned complained to the administrative body immediately after becoming aware of [the] decision of the Court’.

125. On going back to the origin of that condition, namely the circumstances of Kühne & Heitz , it will be found that the claimant undertaking wrote letters on 13 December 1994 and 3 January 1995 demanding payment of the export refunds which had been claimed back from it, whereas the judgment in Voogd Vleesimport en -export had been delivered by the Court between two and three months previously, on 5 October 1994. The national court was then uncertain as to whether ‘the finality of an administrative decision must be disregarded in a case [where, among other circumstances,] the person complained to the administrative body immediately after becoming aware of [the] judgment of the Court’. (56)

126. In taking this circumstance into account in the grounds of its judgment and mentioning it in the operative part, it is probable that, having regard to the context of the main proceedings, the Court in reality wished to attach importance to the fact that the claimant had complained to the administrative body immediately after the delivery of the judgment of the Court revealing that the disputed administrative decision was unlawful.

127. However, when changing that ‘circumstance’ into a ‘condition’ in i‑21 Germany and Arcor , the Court retained the same wording and did not make it clear whether that condition should be understood as relating to actually becoming aware of the judgment giving a preliminary ruling or whether it was to be interpreted as referring to the date when the judgment was delivered.

128. In view of the words used by the Court, I understand the interpretation proposed by the national court and supported by the Czech and Finnish Governments, to the effect that the phrase ‘becoming aware of that decision of the Court’ relates to the date when the applicant was actually informed of the decision, and not the date of delivery of the Court’s judgment.

129. However, bearing in mind the importance that should be attached to the principle of legal certainty and, in particular, to the requirement for certainty in legal situations, I am not in favour of accepting that interpretation.

130. It would give preference to the subjective dimension of the condition set out by the Court, which could entail difficulties regarding proof of the date when the person concerned actually became aware of the Court’s decision. On the other hand, it seems to me to be more in accordance with the requirements arising from the principle of legal certainty, such as the requirement for certainty in legal situations, to take into account the date of delivery of the Court’s judgment.

131. However, the objection could be raised, and rightly, that, in a context such as that of the main proceedings, it is excessive to require the person concerned to complain to the administrative body immediately after the Court has made a preliminary ruling showing that the contested administrative decision is unlawful. It may be recalled that the documents in the file show that a certain period of time was necessary for the Court’s interpretation in Emsland‑Stärke to give rise to new administrative practice and a change in the case-law in Germany. That judgment of the Court was not taken into account in national case-law until a Bundesfinanzhof judgment of 21 March 2002. Furthermore, as Kempter suggests in its written observations, account should be taken of the fact that, first, the judgment in Emsland‑Stärke did not relate to Regulation No 3665/87, but to its predecessor, Regulation No 2730/79, and second, the interpretation to the effect that the production of additional evidence can be required only prior to the grant of the export refund does not appear in the operative part of the judgment, but at paragraph 48 of the grounds. In those circumstances, it could appear unjust to object that Kempter did not submit an application for review to the Hauptzollamt immediately after the Court’s preliminary ruling.

132. These observations show the drawbacks inherent in a strict interpretation of the condition that ‘the person concerned complained to the administrative body immediately after becoming aware of [the] decision of the Court’. In my view, therefore, the very existence of that condition must be called into question.

133. However, having regard to the importance of the principle of legal certainty, it appears legitimate to seek a time frame for applications for the review and withdrawal of administrative decisions which have become final after the exhaustion of national remedies and which prove to be contrary to Community law as subsequently interpreted by the Court, without the national court ruling at final instance having referred a question to the Court for a preliminary ruling. Community law therefore does not preclude such applications from being subject to a time-limit. It thus remains to determine the method whereby such a time frame can be established.

134. From this viewpoint, it does not seem to me satisfactory that such a time frame should be conceived as a condition for the creation of an obligation of review by virtue of Article 10 EC, like the other conditions set out by the Court in Kühne & Heitz.

135. In addition, a time-limit for submitting applications for the review and withdrawal of final administrative decisions which are contrary to Community law, such as that at issue in the main proceedings, should not, in my opinion, be set directly by the Court, as it constitutes a procedural arrangement for giving effect to the obligation of review arising from Article 10 EC.

136. Therefore it would, in my view, be consistent with the principle of procedural autonomy of the Member States if the latter were left to set the period within which such applications must be submitted. This seems to me to be more in accordance with the Court’s approach in Kühne & Heitz seeking to reconcile the principle of the primacy of Community law with the principle of procedural autonomy of the Member States and that of legal certainty.

137. A reference of that kind to the national procedural rules of the Member States which would, of course, have to comply with the principles of equivalence and effectiveness would also be consistent with the Court’s settled case-law which recognises that the setting by Member States of reasonable time-limits within which an action must be brought is compatible with Community law. That case‑law originates from, and is applied most frequently in, disputes relating to the refund of national charges which have been levied contrary to Community law.

138. It is clear from that case-law that, in the absence of Community rules governing the refund of national charges levied though not due, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, however, that such rules are not less favourable than those governing similar domestic actions and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law. (57) The Court has thus recognised that it is compatible with Community law for national procedural rules to set reasonable periods of limitation within which an action must be brought, the laying-down of such time-limits being ‘an application of the fundamental principle of legal certainty protecting both the taxpayer and the administration concerned’. (58) Indeed, ‘such time-limits are not liable to render virtually impossible or excessively difficult the exercise of rights conferred by Community law’. (59) Furthermore, the fact that the Court has given a preliminary ruling on the interpretation of the provision of Community law in question does not affect the fact that it is compatible with Community law to set, in national procedural rules, reasonable periods of limitation within which an action must be brought. (60)

139. The Court has also transposed this reasoning to liability of Member States for failure to observe Community law, on the basis of logic comparable to that which I propose the Court should adopt here. Whilst the conditions under which a Member State is obliged to make reparation for the damage caused to individuals by infringements of Community law that are attributable to that State have been laid down directly by the Court, (61) it is, on the other hand, indeed on the basis of the rules of national law on liability that the State must make reparation for the consequences of the damage caused, provided that the conditions, particularly relating to time‑limits, laid down by national law concerning reparation for damage respect the principles of equivalence and effectiveness. (62) Here also the Court has found that ‘the setting of reasonable limitation periods for bringing proceedings satisfies [the requirement arising from the principle of the effectiveness of Community law] in principle, inasmuch as it constitutes an application of the fundamental principle of legal certainty’. (63)

140. In accordance with this settled case‑law of the Court, which respects the procedural autonomy of the Member States, I consider that, on the basis of the principle of legal certainty, Member States may require an application for the review and withdrawal of an administrative decision which has become final and is contrary to Community law as subsequently interpreted by the Court to be submitted to the competent authority within a reasonable period.

141. It will therefore be incumbent on the Finanzgericht Hamburg to ascertain whether German procedural law lays down a time-limit for lodging an application for the review and withdrawal of an administrative decision which has become final, such as that in issue in the main proceedings. If that is the case, it must ensure that the procedural rule setting that time‑limit is consistent with the Community principles of equivalence and effectiveness.

142. Consequently I propose that the Court’s reply to the national court should be that Community law does not preclude an application for the review and withdrawal of an administrative decision which has become final after the exhaustion of domestic remedies and which proves to be contrary to Community law as subsequently interpreted by the Court, without the national court ruling at final instance having referred a question to the Court for a preliminary ruling, from being made subject to a time-limit pursuant to the principle of legal certainty. It is for the Member States to set, in accordance with the Community principles of equivalence and effectiveness, the period within which such an application must be submitted.

143. Finally, if the Court, contrary to the approach that I have proposed, does not wish to reopen the fourth condition laid down in Kühne & Heitz , it will have to clarify its meaning and also provide that it is a supplementary condition, that is to say, it applies only where the procedural rules of a Member State have not set a time-limit for the submission of applications for the review and withdrawal of final administrative decisions.

V – Conclusion

144. I therefore propose that the Court reply as follows to the questions referred by the Finanzgericht Hamburg:

(1) In order to be fulfilled, the condition laid down in the judgment of the Court in Case C–453/00 Kühne & Heitz that the decision of a national court ruling at final instance is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC does not presuppose that the claimant in the main proceedings relied on Community law in the legal action under national law brought by him against the disputed administrative decision.

(2) Community law does not preclude an application for the review and withdrawal of an administrative decision which has become final after the exhaustion of domestic remedies and which proves to be contrary to Community law as subsequently interpreted by the Court, without the national court ruling at final instance having referred a question to the Court for a preliminary ruling, from being made subject to a time-limit pursuant to the principle of legal certainty. It is for the Member States to set, in accordance with the Community principles of equivalence and effectiveness, the period within which such an application must be submitted.

(1) .

(2)  – Case C-453/00 [2004] ECR I‑837.

(3)  – OJ 1987 L 351, p. 1. This regulation was repealed and replaced by Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11).

(4)  – OJ 1979 L 317, p. 1, amended by Commission Regulation (EEC) No 568/85 of 4 March 1985 (OJ 1985 L 65, p. 5) (‘Regulation No 2730/79’).

(5)  – Case C-110/99 [2000] ECR I‑11569.

(6)  – Paragraph 48. This also applies, by analogy, to the fourth recital in the preamble to Regulation No 3665/87, which should be compared with Article 5(1) of that regulation.

(7)  – BGBl. 1976 I, p. 1253.

(8)  – Here the national court refers only to the four indents of the operative part of the judgment, and not to what could be regarded as constituting the first condition, namely that an application for review must be made to the administrative body.

(9)  – In the eyes of the Finanzgericht Hamburg, the fact that, owing to the particular characteristics of the national rules of procedure, the Bundesfinanzhof decided the case by means of an order and not a judgment is not germane. The form of the judicial decision is irrelevant provided that the claimant has exhausted all the judicial remedies available to him under national law.

(10)  – The German word is ‘unmittelbar’, which means ‘immediately’ or ‘directly’.

(11)  – See Joined Cases 42/59 and 49/59 Snupat v High Authority [1961] ECR 53 and Case 13/61 De Geus [1962] ECR 45.

(12)  – Mehdi, R., Variations sur le principe de sécurité juridique , Liber Amicorum Jean Raux, Apogée, Rennes, 2006, p. 177, at 178.

(13)  – Case C-224/01 [2003] ECR I‑10239.

(14)  – Paragraph 38.

(15)  – Paragraph 39.

(16)  – Case C-234/04 [2006] ECR I‑2585.

(17)  – Paragraph 20.

(18)  – Case C-126/97 [1999] ECR I‑3055, paragraphs 46 and 47.

(19)  – Kapferer , paragraph 21. The implications of the principle of res judicata are also at the heart of Case C-119/05 Lucchini , pending before the Court, in which Advocate General Geelhoed delivered his Opinion on 14 September 2006.

(20)  – Kühne & Heitz , paragraph 24.

(21)  – Ibidem, paragraph 27.

(22)  – See the Commission’s observations, paragraph 40.

(23)  – Case C‑151/93 [1994] ECR I‑4915.

(24)  – Paragraph 20.

(25)  – Paragraphs 27 and 28.

(26)  – Paragraph 23.

(27)  – Joined Cases C-392/04 and C-422/04 [2006] ECR I‑8559.

(28)  – Paragraph 52 (emphasis added).

(29)  – As the Commission notes in paragraph 21 of its observations, it is possible to take the view that, in Kühne & Heitz , the Court instituted in favour of individuals, in addition to the State’s obligation to make reparation for the infringement of Community law by a national court ruling at final instance (which derives from Köbler ), a second remedy to enable individuals to assert – in spite of the interpretation contrary to Community law of the relevant provisions and the breach of the obligation to seek a preliminary ruling – a right which they are guaranteed by Community law.

(30)  – I would also mention that the second question from the Finanzgericht Hamburg in the reference for a preliminary ruling in Case C‑274/04 ED & F Man Sugar [2006] ECR I‑3269 could have led the Court to set out its position in relation to Kühne & Heitz . However, in view of its reply to the first question, the Court found it unnecessary to reply to the second.

(31)  – That caution is expressed in the following passage from the judgment: ‘even assuming that the principles laid down in [ Kühne & Heitz ] could be transposed into a context which, like that of the main proceedings, relates to a final judicial decision’ (paragraph 23).

(32)  – OJ 1997 L 117, p. 15.

(33)  – It should be borne in mind that, according to German case‑law, the administrative authority in principle has a discretion, under Paragraph 48(1) of the VwVfG, to withdraw an unlawful administrative act that has become final. However, such discretion may be extinguished if upholding the act in question is ‘outright intolerable’ by reference to the concepts of public policy, good faith, fairness, equal treatment or manifest unlawfulness.

(34)  – In this connection the Bundesverwaltungsgericht observed that the appeals on a point of law could not succeed on the basis of national law alone. According to that court, those were not cases in which to uphold the assessments would have been ‘outright intolerable’ and in which the administration’s discretion would have been reduced to such a degree that it had no choice other than to withdraw the notices.

(35) – i‑21 Germany and Arcor , paragraph 62.

(36)  – Ibidem, paragraph 63.

(37)  – Ibidem, paragraph 69.

(38)  – Ibidem, paragraph 70.

(39)  – Ibidem, paragraph 71.

(40)  – Ibidem, paragraph 72.

(41)  – Observations of the Finnish Government, paragraph 15.

(42)  – Kühne & Heitz , paragraph 28( emphasis added).

(43)  – The mere fact that the claimant undertaking in Kühne & Heitz does appear to have relied on Community law before the national court ruling at final instance does not seem to me such as to prove that, in formulating the third condition, the Court implicitly required Community law to be relied upon before the national court ruling at final instance. On this point, see the observations of Kühne & Heitz in that case, paragraph 22. More precisely, the undertaking states that, in the course of the proceedings which led to the judgment of the College van Beroep voor het bedrijfsleven (Administrative Court of Trade and Industry, Netherlands) of 22 November 1991, it relied on the judgment in Case 327/82 Ekro [1984] ECR 107.

(44)  – See the order for reference, English version, p. 7, paragraph (b), and Kempter’s observations, paragraphs 1 and 2.

(45)  – See in particular, to that effect, Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 29, and the case‑law cited.

(46)  – Case 283/81 [1982] ECR 3415.

(47)  – Intermodal Transports , paragraph 33.

(48)  – Order in Case C‑116/96 REV Reisebüro Binder [1998] ECR I‑1889, paragraph 7.

(49)  – Ibidem, paragraph 8.

(50)  – Cilfit and Others , paragraph 9.

(51)  – Case 126/80 Salonia [1981] ECR 1563, paragraph 7. I would also mention that, in Cilfit and Others , the Court observed that ‘it follows from the relationship between the second and third paragraphs of Article [234 EC] that the courts or tribunals referred to in the third paragraph have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment’ (paragraph 10).

(52)  – See the order for reference, English version, p. 9.

(53)  – Any different reply could encourage the pleading of Community law solely as a precaution against the eventuality that, at some time in the future, the judgment given by a national court ruling at final instance may be contradicted by a judgment of the Court of Justice, which does not seem to me to be the primary aim of the direct effect of Community law.

(54)  – See points 31 to 35 of this Opinion.

(55)  – Kempter bases this argument on Case C-208/90 Emmott [1991] ECR I‑4269, where the Court held that ‘Community law precludes the competent authorities of a Member State from relying, in proceedings brought against them by an individual before the national courts in order to protect rights directly conferred upon him by Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, on national procedural rules relating to time-limits for bringing proceedings so long as that Member State has not properly transposed that directive into its domestic legal system’.

(56)  – Kühne & Heitz , paragraph 17.

(57)  – See, in particular, Case 33/76 Rewe [1976] ECR 1989, paragraph 5; Case 45/76 Comet [1976] ECR 2043, paragraphs 13 and 16; Case C‑90/94 Haahr Petroleum [1997] ECR I‑4085, paragraph 46; Case C‑231/96 Edis [1998] ECR I-4951, paragraphs 19 and 34; and Case C-30/02 Recheio – Cash & Carry [2004] ECR I‑6051, paragraph 17.

(58)  – Rewe , paragraph 5, and Comet , paragraph 18. See also, to the same effect, Haahr Petroleum , paragraph 48, Edis , paragraph 20, and Recheio – Cash and Carry , paragraph 18.

(59)  – Edis , paragraph 35.

(60)  – Rewe , paragraph 7, and Edis , paragraph 20. In the latter judgment it was held that ‘the fact that the Court has given a preliminary ruling interpreting a provision of Community law without limiting the temporal effects of its judgment does not affect the right of a Member State to impose a time‑limit under national law within which, on penalty of being barred, proceedings for repayment of charges levied in breach of that provision must be commenced’ (paragraph 26).

(61)  – The case‑law shows that those conditions are threefold: the rule of Community law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation incumbent on the State and the loss or damage sustained by the injured parties ( Köbler , paragraph 51). The Court has added that these three conditions are ‘necessary and sufficient to found a right in favour of individuals to obtain redress, although this does not mean that the State cannot incur liability under less strict conditions on the basis of national law’ ( Köbler , paragraph 57).

(62)  – See, in particular, Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357, paragraphs 41 to 43; Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraph 27; and Köbler , paragraph 58.

(63)  – Palmisani , paragraph 28.