61987J0386

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Own resources of the European Communities - Repayment or remission of import or export duties - Regulation No 1430/79 - Temporary application - Inapplicability to an application for repayment submitted after the entry into force of the regulation in respect of duties paid prior thereto - Absence of Community rules - Application of national law - Limits - General principles of Community law - National rules imposing a mandatory time-limit of three years for the submission of applications for repayment - Whether permissible

( Council Regulation No 1430/79, Art . 27 )

The provisions of Regulation No 1430/79 on the repayment or remission of import or export duties do not apply in a case where an application for repayment of import duties was submitted to the competent authorities of a Member State by an importer after that regulation had entered into force in respect of duties paid prior thereto .

In the absence of applicable Community rules, it is not contrary to the general principles of Community law for the national legislation of a Member State to provide for a mandatory time-limit of three years, where there are no grounds of force majeure to be taken into account, for the submission of all applications for repayment of duties unduly levied .

In Case 386/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal d' instance ( District Court ), Paris, ( first arrondissement ), for a preliminary ruling in the proceedings pending before that court between

Société Bessin et Salson,

and

Administration des douanes et droits indirects,

on the interpretation of Council Regulation ( EEC ) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties ( Official Journal 1979, L 175, p . 1 ),

THE COURT ( Fourth Chamber )

composed of : C . N . Kakouris, President of Chamber, T . Koopmans and M . Diez de Velasco, Judges,

Advocate General : F . G . Jacobs

Registrar : H . A . Ruehl, Principal Administrator

after considering the observations submitted on behalf of

the plaintiff in the main proceedings by E . Didier and J . Letang, of the Paris Bar,

the Government of the French Republic, by E . Belliard and G . de Bergues, acting as Agents,

the Commission of the European Communities, by P . Hetsch, a member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 29 June 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 26 September 1989,

gives the following

Judgment

1 By judgment of 14 October 1986, which was received at the Court on 28 December 1987, the tribunal d' instance, Paris, ( first arrondissement ), referred to the Court pursuant to Article 177 of the EEC Treaty a number of questions on the interpretation of Council Regulation No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties ( Official Journal 1979, L 175, p . 1 ).

2 Those questions were raised in a dispute between Bessin et Salson SA and the French customs authorities . In its main action, the plaintiff seeks the repayment of import duties amounting to FF 1 125 545, paid in respect of made-up goods imported from Morocco between 25 February 1974 and 29 April 1978 . Those products qualified for total exemption from import duties under the preferential agreements in force at the time between the Community and Morocco .

3 The application for repayment made on 29 April 1981 had been rejected on the ground that the three-year period prescribed by the French Customs Code for the submission of applications had expired . At the time of the importation of the goods in question, the plaintiff had been unable to produce the certificates of origin needed in order to secure preferential treatment since the Moroccan authorities had neither issued nor countersigned them . The certificates in question were not countersigned by the Moroccan authorities until 1981 .

4 In the proceedings before the national court, Bessin et Salson SA maintained that Regulation No 1430/79 was applicable in this case since the contested decision had been adopted by the French authorities after the entry into force of that regulation . The plaintiff relied, in particular, on Article 19 of that regulation, according to which the three-year period for the submission of an application for the repayment of import duties unduly paid may be extended if the person concerned can prove that he was prevented by unforeseen circumstances or force majeure from submitting his application within the prescribed period . Bessin et Salson SA also argued that the relevant national rules on the barring of claims were inapplicable to it, since its failure to produce the requisite certificates within the prescribed period was attributable solely to the default of the Moroccan authorities .

5 The customs authorities considered that Regulation No 1430/79 was applicable only to the duties entered in the accounts after its entry into force on 1 July 1980, so that before that date only the national rules on the periods for submitting claims were applicable . They contended that the provisions of that regulation did not allow the circumstances referred to by the plaintiff in the main proceedings to be taken into account .

6 In order to resolve the dispute in the proceedings before it, the tribunal d' instance, Paris, referred the following questions to the Court of Justice for a preliminary ruling :

"( 1 ) Do the provisions of Council Regulation ( EEC ) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties apply in a case where an application for reimbursement of customs duties was submitted to the competent authorities of a Member State by an importer after that regulation had entered into force in respect of duties paid prior to its entry into force?

( 2 ) If the answer to Question 1 is in the affirmative, may that importer rely on the provisions of Article 19 of the regulation, under which the period laid down in Article 2(2 ) thereof for submission of an application for the repayment or remission of import duties may be extended if the person concerned can prove that he was prevented by unforeseen circumstances or force majeure from submitting his application within that period, in so far as in this case it was absolutely impossible for the importer to obtain EUR 1 forms from the competent authorities of a non-member country?

( 3 ) If the answer to Question 1, and consequently also to Question 2, is in the negative, is it contrary to the general principles of Community law for the national legislation of a Member State to provide for a mandatory time-limit of three years for the submission of all applications for reimbursement of customs duties wrongfully charged when the importer was actually prevented from submitting such an application within the period laid down by that national legislation not by virtue of his own act but as a result of the complete failure of the competent authorities of a non-member country to provide the EUR 1 forms which are necessary for such an application and when the importer has repeatedly explained to the competent authorities of the Member State that it was absolutely impossible for him to submit the said forms which the competent authorities of the non-member country had to send to him but which he received, countersigned retroactively, only 10 years after the imports in question had commenced?

( 4 ) In so far as the answer to to Questions 1 and 2 or to Question 3 is in the affirmative, may the importer claim interest on the amount of the customs duties which he is seeking to have repaid and, if so, from what date?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far is necessary for the reasoning of the Court .

First question

8 It must be borne in mind, in the first place, that the aim of Regulation No 1430/79 is to establish a Community system for the repayment of import or export duties, which is designed to replace the corresponding rules under national legislation . According to Article 27, that regulation entered into force on 1 July 1980 . It does not contain any transitional provisions or any provisions giving it retroactive effect . It therefore applies to operations carried out after that date .

9 In order to ascertain which operations fall within the scope of the new system, it must be pointed out that the event which gives rise to any application for the repayment or remission of import or export duties is the entry of those duties in the accounts, that is to say the administrative act whereby the amount of the duties to be collected by the competent authorities is determined . In principle, the regulation in question does not apply to administrative acts of that kind which were adopted before the date of its entry into force .

10 The national court asks whether the same holds true where entry in the accounts took place prior to the date of the entry into force of Regulation No 1430/79 but the application for the repayment of import duties was not submitted until after that date .

11 In that regard, it must be pointed out in the first place that, in a comparable situation concerning the adoption of a Community regulation on the post-clearance recovery of import or export duties, the Court has already held that the new system did not apply to payments of such duties made before the date of the entry into force of that regulation ( judgment of 12 November 1981 in Joined Cases 212 to 217/80 Amministrazione delle Finanze dello Stato v Salumi (( 1981 )) ECR 2735 ).

12 A similar solution must be adopted in a case such as that in the main proceedings . The date of the application for repayment cannot constitute an objective criterion for determining whether Regulation No 1430/79 is applicable . To take that date into consideration could undermine the principle of legal certainty, inasmuch as it would make the application of the new system depend on individual circumstances . It is otherwise, however, with regard to the date of the entry in the accounts of import duties, which precludes any divergences in the temporal application of that regulation .

13 The answer to the first question must therefore be that the provisions of Council Regulation No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties do not apply in a case where an application for repayment of import duties was submitted to the competent authorities of a Member State by an importer after that regulation had entered into force in respect of duties paid prior to its entry into force .

The other questions

14 In view of the answer given to the first question, it is unnecessary to answer the second question submitted for a preliminary ruling .

15 The third question submitted for a preliminary ruling seeks in substance to ascertain the extent to which it is contrary to the general principles of Community law for national rules to provide for a mandatory time-limit of three years for the submission of all applications for reimbursement of duties unduly paid, where there are no grounds of force majeure justifying an exception .

16 In that regard, it is appropriate to recall that, as the Court held in its judgment of 12 June 1980 in Case 130/79 Express Dairy Foods v Intervention Board for Agricultural Produce (( 1980 )) ECR 1887, the application of national legislation must be effected in a non-discriminatory manner having regard to the procedural rules relating to disputes of the same type, but purely national, and the procedural rules cannot have the result of making impossible in practice the exercise of rights conferred by Community law . In this case, it is necessary to ascertain whether the national law in question satisfies the latter requirement .

17 In that regard, it must be stated that a three-year period for the submission of applications laid down by the legislation of a Member State and the exclusion, by such legislation, of any possibility of an extension on grounds of force majeure reflect a legislative choice which does not have the effect of undermining the aforesaid requirement .

18 Accordingly, the answer to the third question must be that, in the absence of Community rules on the repayment or remission of import or export duties, it is not contrary to the general principles of Community law for the national legislation of a Member State to provide for a mandatory time-limit of three years for the submission of all applications for the repayment of duties unduly levied .

19 In view of that answer to the third question, it is unnecessary to answer the fourth question submitted for a preliminary ruling .

Costs

20 The costs incurred by the French Government and by 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 proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( Fourth Chamber ),

in answer to the questions referred to it by the tribunal d' instance, Paris, by judgment of 14 October 1986, hereby rules :

( 1)The provisions of Council Regulation ( EEC ) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties do not apply in a case where an application for repayment of import duties was submitted to the competent authorities of a Member State by an importer after that regulation had entered into force in respect of duties paid prior to its entry into force .

( 2)In the absence of Community rules on the repayment or remission of import or export duties, it is not contrary to the general principles of Community law for the national legislation of a Member State to provide for a mandatory time-limit of three years for the submission of all applications for the repayment of duties unduly levied .