61979J0119

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - DENATURING PREMIUM FOR COMMON WHEAT - GRANT - COMMON RULES - NATIONAL INTERVENTION AGENCIES RESPONSIBLE FOR MANAGEMENT - SUPERVISORY FUNCTION

( REGULATIONS NOS 956/68 , 2086/68 AND 1403/68 OF THE COMMISSION )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - DENATURING PREMIUM FOR COMMON WHEAT - REPAYMENT OF PREMIUMS PAID IN ERROR - LIMITATION PERIOD - APPLICATION OF NATIONAL LAW - CONDITIONS

1 . ACCORDING TO THE GENERAL CONCEPTION UNDERLYING THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS THE GRANTING OF DENATURING PREMIUMS PROVIDED FOR IN REGULATIONS NOS 956/68 , 2086/68 AND 1403/69 ON THE DENATURING OF COMMON WHEAT IS SUBJECT TO A SET OF COMMON RULES WHICH ARE APPLICABLE UNIFORMLY THROUGHOUT THE COMMUNITY . HOWEVER , MANAGEMENT OF THAT INTERVENTION MECHANISM IS THE TASK OF THE NATIONAL INTERVENTION AGENCIES , WHICH ARE REQUIRED TO PERFORM ALL THE SUPERVISORY DUTIES NECESSARY IN ORDER TO ENSURE THAT DENATURING PREMIUMS ARE GRANTED ONLY IN ACCORDANCE WITH THE CONDITIONS LAID DOWN BY THE COMMUNITY RULES AND THAT ANY INFRINGEMENT OF THE RULES OF COMMUNITY LAW BY THOSE OPERATING ON THE MARKET IS APPROPRIATELY PENALIZED .

2 . THE QUESTION WITHIN WHAT PERIOD A NATIONAL INTERVENTION AGENCY MAY CLAIM FROM RECIPIENTS REPAYMENT OF PREMIUMS WRONGLY PAID IN RESPECT OF THE DENATURING OF COMMON WHEAT MUST , AT THE PRESENT STAGE IN THE DEVELOPMENT OF COMMUNITY LAW , BE DECIDED IN ACCORDANCE WITH THE NATIONAL LAW OF THE INTERVENTION AGENCY RESPONSIBLE FOR THE RELEVANT SECTOR OF THE MARKET .

COMMUNITY LAW DOES NOT PREVENT THE APPLICATION OF PROVISIONS OR PRINCIPLES OF NATIONAL LAW THE EFFECT OF WHICH MAY BE TO RESTRICT THE PERIOD DURING WHICH SUCH REPAYMENT MAY BE CLAIMED , PROVIDED ALWAYS THAT THAT QUESTION IS SETTLED IN ACCORDANCE WITH THE SAME RULES AS THOSE WHICH APPLY TO THE PERFORMANCE OF SIMILAR SUPERVISORY DUTIES CARRIED OUT BY THE NATIONAL ADMINISTRATIVE AUTHORITIES IN THE SPHERES IN WHICH THEY HAVE SOLE RESPONSIBILITY .

IN JOINED CASES 119 AND 126/79

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

LIPPISCHE HAUPTGENOSSENSCHAFT E.G ., A CO-OPERATIVE SOCIETY WITH REGISTERED OFFICES IN LAGE , LIPPE ,

AND

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

AND ON THE OTHER HAND ,

WESTFALISCHE CENTRAL-GENOSSENSCHAFT E.G ., A CO-OPERATIVE SOCIETY WITH REGISTERED OFFICES IN MUNSTER ( WESTPHALIA ),

AND

BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ,

ON THE DETERMINATION OF THE SYSTEM OF TIME-LIMITS AND LIMITATION PERIODS APPLICABLE TO CLAIMS FOR THE REPAYMENT OF PREMIUMS GRANTED UNDER COMMUNITY RULES FOR THE DENATURING OF COMMON WHEAT ,

1 BY TWO ORDERS OF 12 JULY 1979 , RECEIVED AT THE COURT ON 30 JULY AND 7 AUGUST RESPECTIVELY , THE VERWALTUNGSGERICHT FRANKFURT AM MAIN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS CONCERNING THE INTERPRETATION OF THREE REGULATIONS OF THE COMMISSION , NO 956/68 OF 12 JULY 1968 , NO 2086/68 OF 20 DECEMBER 1968 AND NO 1403/69 OF 19 JULY 1969 ON THE DENATURING OF COMMON WHEAT ( JOURNAL OFFICIEL L 164 , P . 9 AND L 307 , P . 13 ; OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 345 ), IN RELATION TO ACTIONS BROUGHT AGAINST THE DECISIONS ADOPTED BY THE GERMAN INTERVENTION AGENCY , THE BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG , ON THE REPAYMENT OF DENATURING PREMIUMS WHICH HAD BEEN PAID WHEN THEY WERE NOT DUE . THE QUESTIONS ARE WORDED AS FOLLOWS :

( A ) IS THE QUESTION WITHIN WHAT PERIOD CLAIMS FOR REPAYMENT IN CONNEXION WITH THE GRANT OF DENATURING PREMIUMS WHICH HAVE BEEN PAID ON THE BASIS OF REGULATION ( EEC ) NO 956/68 OF 12 JULY 1968 , REGULATION ( EEC ) NO 2086/68 OF 20 DECEMBER 1968 AND REGULATION ( EEC ) NO 1403/69 OF 18 JULY 1969 MAY BE MADE TO BE DECIDED IN ACCORDANCE WITH THE LAW OF THE EUROPEAN COMMUNITIES?

( B ) IF QUESTION ( A ) MUST BE ANSWERED IN THE AFFIRMATIVE : ARE SUCH CLAIMS FOR REPAYMENT SUBJECT TO A LIMITATION PERIOD AT ALL AND , IF SO , WHAT PERIOD OF LIMITATION MUST BE TAKEN AS THE BASIS IN THIS INSTANCE?

( C)DOES EUROPEAN LAW RECOGNIZE THE PRINCIPLE ACCORDING TO WHICH CLAIMS FOR REPAYMENT OF THESE DENATURING PREMIUMS MADE AFTER THE EXPIRY OF THE PERIOD PRESCRIBED BY NATIONAL LAW FOR WHICH THE RECORDS RELATING TO THE DENATURING PROCESSES MUST BE PRESERVED ( SEVEN YEARS IN THIS CASE ) CAN NO LONGER BE FOUNDED ON THE GROUND THAT IT IS CLEAR FROM THE RECORDS OR OTHER DOCUMENTS STILL EXISTING THAT THE DENATURING PROCESSES WERE NOT CARRIED OUT PROPERLY?

2 ACCORDING TO THE FILE ON THE CASE THE PLAINTIFFS IN THE MAIN PROCEEDINGS , TWO AGRICULTURAL CO-OPERATIVES WITH REGISTERED PREMISES IN LAGE AND MUNSTER RESPECTIVELY , CARRIED OUT DENATURING PROCEDURES DURING A PERIOD FROM 1968 TO 1970 AND 1974 , AND ON THE BASIS THEREOF THEY OBTAINED THE DENATURING PREMIUMS PROVIDED FOR IN THE ABOVE-MENTIONED REGULATIONS . FOLLOWING INVESTIGATIONS CARRIED OUT IN RESPECT OF THE RECIPIENT UNDERTAKINGS THE INTERVENTION AGENCY FOUND THAT A NUMBER OF THE DENATURING PROCEDURES HAD NOT BEEN CARRIED OUT IN THE MANNER PRESCRIBED BY THE COMMUNITY REGULATIONS , AND IT ISSUED CLAIMS IN 1976 AND 1977 FOR REPAYMENT OF THE DENATURING PREMIUMS WHICH SHOULD NOT HAVE BEEN GRANTED . THE OBJECTIONS TO THOSE CLAIMS RAISED BY THE PLAINTIFFS IN THE MAIN ACTION HAVING BEEN UNSUCCESSFUL , THE PLAINTIFFS BROUGHT ACTIONS BEFORE THE VERWALTUNGSGERICHT .

3 IT APPEARS FROM THE SUBMISSIONS OF THE PLAINTIFFS THAT THE FACT THAT THE DENATURING PROCEDURES WERE IMPROPERLY CARRIED OUT IS NOT CONTESTED . HOWEVER , THE PLAINTIFFS ' ASSERTION BEFORE THE VERWALTUNGSGERICHT IS THAT BECAUSE OF THE RELATIVELY LENGTHY PERIOD OF TIME WHICH HAS ELAPSED BETWEEN PAYMENT OF THE PREMIUMS IN QUESTION AND THE CLAIMS INSTITUTED BY THE GERMAN ADMINISTRATIVE AUTHORITIES RECOVERY OF THE PREMIUMS IS NO LONGER PERMISSIBLE , EITHER BECAUSE THE CLAIMS ARE OUT OF TIME , OR OWING TO CERTAIN GENERAL PRINCIPLES SUCH AS THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATIONS OR THE PRINCIPLE OF PROPORTIONALITY . THEY CONSIDER THAT AS THE CASE CONCERNS THE RECOVERY OF PAYMENTS GRANTED BY VIRTUE OF COMMUNITY LAW , THE RULES AND PRINCIPLES ON THE BASIS OF WHICH THE PROBLEM WHICH HAS ARISEN MAY BE RESOLVED SHOULD BE DRAWN FROM COMMUNITY LAW ITSELF . ON THAT BASIS THEY POINT , ON THE ONE HAND , TO THE FIVE-YEAR LIMITATION PERIOD LAID DOWN BY ARTICLE 43 OF THE STATUTE OF THE COURT IN MATTERS ARISING FROM LIABILITY ON THE PART OF THE COMMUNITY AND TO THE SPECIFIC LIMITATION PERIODS LAID DOWN IN CERTAIN PROVISIONS OF SECONDARY LEGISLATION , AND , ON THE OTHER HAND , TO THE TENDENCY WHICH MAY BE SEEN IN THE LAWS OF THE VARIOUS MEMBER STATES TO MAKE THE LIMITATION PERIODS APPLICABLE IN RESPECT OF CLAIMS BY THE ADMINISTRATION SHORTER , AS A RULE , THAN THE LIMITATION PERIOD IN CIVIL LAW .

4 THE INTERVENTION AGENCY CONTENDS , HOWEVER , THAT AS THERE EXISTS NO SPECIFIC LIMITATION PERIOD ON THIS CONNEXION EITHER IN COMMUNITY LAW OR IN NATIONAL LAW , AT THE VERY MOST THE GENERAL LIMITATION PERIOD OF 30 YEARS FIXED BY CIVIL LAW MAY APPLY .

5 THE COMMISSION , FOR ITS PART , OBSERVES THAT IN GENERAL THE ASCERTAINMENT AND IMPLEMENTATION OF RIGHTS AND OBLIGATIONS DERIVED FROM THE COMMON ORGANIZATIONS OF THE MARKET ARE LARGELY THE RESPONSIBILITY OF THE MEMBER STATES . IT REFERS IN THAT RESPECT TO ARTICLE 8 OF REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ) ACCORDING TO WHICH ' ' THE MEMBER STATES IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION SHALL TAKE ' ' THE MEASURES NECESSARY , INTER ALIA , TO PREVENT AND DEAL WITH IRREGULARITIES OR NEGLIGENCE . IT RECALLS THAT THE COURT HAS CONSISTENTLY ACKNOWLEDGED IN ITS CASE-LAW THAT THE COMMUNITY LEGISLATURE HAS LEFT TO THE MEMBER STATES ' ' THE POWER TO REGULATE THE DETAILED RULES OF SUPERVISION UNDER THEIR OWN LEGAL SYSTEMS AND ON THEIR OWN RESPONSIBILITY ' ' ( JUDGMENT OF 11 JULY 1973 , CASE 3/73 , HESSISCHE MEHLINDUSTRIE , ( 1973 ) ECR 745 ; SEE ALSO THE JUDGMENTS OF 16 DECEMBER 1976 , CASES 33/76 , REWE , AND 45/76 , COMET , ( 1976 ) ECR 1989 AND 2043 ).

6 THE QUESTIONS RAISED BY THE VERWALTUNGSGERICHT CALL FOR THE FOLLOWING OBSERVATIONS .

7 ACCORDING TO THE GENERAL CONCEPTION UNDERLYING THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS THE GRANTING OF DENATURING PREMIUMS PROVIDED FOR IN THE REGULATIONS WHICH HAVE BEEN REFERRED TO IS SUBJECT TO A SET OF COMMON RULES WHICH ARE APPLICABLE UNIFORMLY THROUGHOUT THE COMMUNITY . HOWEVER , MANAGEMENT OF THAT INTERVENTION MECHANISM IS THE TASK OF THE NATIONAL INTERVENTION AGENCIES , WHICH ARE REQUIRED , AS A RESULT , TO PERFORM ALL THE SUPERVISORY DUTIES NECESSARY IN ORDER TO ENSURE THAT DENATURING PREMIUMS ARE GRANTED ONLY IN ACCORDANCE WITH THE CONDITIONS LAID DOWN BY THE COMMUNITY RULES AND THAT ANY INFRINGEMENT OF THE RULES OF COMMUNITY LAW BY THOSE OPERATING ON THE MARKET IS APPROPRIATELY PENALIZED . THEREFORE IN THE PRESENT CASE IT IS UNDOUBTEDLY THE DUTY OF THE GERMAN INTERVENTION AGENCY TO CONTROL DENATURING PROCEDURES , TO UNDERTAKE THE REQUISITE INVESTIGATIONS AND TO REQUIRE THE REPAYMENT OF ANY PREMIUM THE PAYMENT OF WHICH APPEARS TO HAVE BEEN WITHOUT JUSTIFICATION UNDER THE RULES AND REGULATIONS APPLICABLE .

8 AT THE PRESENT STAGE OF ITS DEVELOPMENT COMMUNITY LAW DOES NOT INCLUDE ANY SPECIFIC PROVISIONS RELATING TO THE PERFORMANCE OF THAT SUPERVISORY DUTY ON THE PART OF THE APPROPRIATE NATIONAL ADMINISTRATIVE AUTHORITIES . THE ONLY REQUIREMENT WHICH MUST BE IMPOSED IN THAT RESPECT , FROM THE COMMUNITY POINT OF VIEW , IS THAT IN SUCH MATTERS THE NATIONAL AUTHORITIES MUST PROCEED WITH THE SAME CARE AND ATTENTION AS THEY EXERCISE IN IMPLEMENTING CORRESPONDING NATIONAL LAWS , IN ORDER TO PREVENT ANY WEAKENING OF THE EFFECTIVENESS OF COMMUNITY LAW .

9 AS REGARDS , IN PARTICULAR , THE LIMITATION PERIODS OR TIME-LIMITS WHICH MAY BE DERIVED FROM THE APPLICATION OF CERTAIN GENERAL PRINCIPLES OF ADMINISTRATIVE LAW RELATING TO THE RECOVERY OF PAYMENTS MADE IN ERROR , COMMUNITY LAW AS IT STANDS AT PRESENT CONTAINS NO APPROPRIATE PROVISION . THE LIMITATION PERIOD LAID DOWN IN ARTICLE 43 OF THE STATUTE OF THE COURT OF JUSTICE APPLIES EXCLUSIVELY TO ACTIONS AGAINST THE COMMUNITY ITSELF IN MATTERS OF NON-CONTRACTUAL LIABILITY , AND IT IS THEREFORE NOT RELEVANT TO THE PRESENT SUBJECT-MATTER . THE SAME COMMENT MAY BE APPLIED TO THE OTHER PROVISIONS WHICH HAVE BEEN REFERRED TO BY THE PLAINTIFFS .

10 ACCORDINGLY , IT IS FOR THE NATIONAL AUTHORITIES TO ASSESS A SITUATION SUCH AS THAT WHICH HAS BEEN BROUGHT BEFORE THE VERWALTUNGSGERICHT ON THE BASIS OF THE RULES AND PRINCIPLES OF THEIR NATIONAL LAWS , PROVIDED THAT THEY DO NOT MAKE A DISTINCTION BETWEEN SITUATIONS GOVERNED BY COMMUNITY LAW AND SIMILAR SITUATIONS SUBJECT TO THE APPLICATION OF NATIONAL LAW ALONE . FURTHERMORE , AS REGARDS MORE ESPECIALLY THE PROBLEM WHICH HAS BEEN RAISED IN THE THIRD QUESTION , IT FOLLOWS THAT COMMUNITY LAW DOES NOT RESTRICT THE FREEDOM OF THE NATIONAL AUTHORITIES COMPETENT IN THE MATTER TO APPLY , WHEN RECOVERING BENEFITS WHICH HAVE BEEN MISTAKENLY GRANTED UNDER THE COMMUNITY RULES AND IN THE ABSENCE OF ANY SPECIFIC RULE CONCERNING LIMITATION PERIODS , SUCH LIMITATION PERIODS AS MAY BE DRAWN FROM THE APPLICATION OF GENERAL PRINCIPLES RECOGNIZED IN THE LAW OF THE COUNTRY CONCERNED . IT IS SUFFICIENT ON THIS POINT TO REFER TO THE GROUNDS FOR THE DECISION OF THE COURT OF 5 MARCH 1980 ( CASE 265/78 , FERWERDA V PRODUKTSCHAP VOOR VEE EN VLEES ), WHICH CONCERNS A PROBLEM SIMILAR TO THAT BEFORE THE VERWALTUNGSGERICHT .

11 THE REPLY TO BE GIVEN TO THE VERWALTUNGSGERICHT IS THEREFORE THAT THE QUESTION WITHIN WHAT PERIOD ADMINISTRATIVE AUTHORITIES MAY CLAIM REPAYMENT OF THE DENATURING PREMIUMS PROVIDED FOR IN REGULATIONS NO 956/68 OF THE COMMISSION OF 12 JULY 1968 , NO 2086/68 OF THE COMMISSION OF 20 DECEMBER 1968 AND NO 1403/69 OF THE COMMISSION OF 18 JULY 1969 WHICH WERE WRONGLY PAID TO THE RECIPIENTS MUST , AT THE PRESENT STAGE IN THE DEVELOPMENT OF COMMUNITY LAW , BE DECIDED IN ACCORDANCE WITH THE NATIONAL LAW OF THE INTERVENTION AGENCY RESPONSIBLE FOR THE RELEVANT SECTOR OF THE MARKET . COMMUNITY LAW DOES NOT PREVENT THE APPLICATION OF PROVISIONS OR PRINCIPLES OF NATIONAL LAW THE EFFECT OF WHICH MAY BE TO RESTRICT THE PERIOD DURING WHICH SUCH REPAYMENT MAY BE CLAIMED , PROVIDED ALWAYS THAT THAT QUESTION IS SETTLED IN ACCORDANCE WITH THE SAME RULES AS THOSE WHICH APPLY TO THE PERFORMANCE OF SIMILAR SUPERVISORY DUTIES CARRIED OUT BY THE NATIONAL ADMINISTRATIVE AUTHORITIES IN THE SPHERES IN WHICH THEY HAVE SOLE RESPONSIBILITY .

12 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE VERWALTUNGSGERICHT FRANKFURT AM MAIN BY ORDERS OF 12 JULY 1979 , HEREBY RULES :

THE QUESTION WITHIN WHAT PERIOD A NATIONAL INTERVENTION AGENCY MAY CLAIM REPAYMENT OF THE DENATURING PREMIUMS PROVIDED FOR IN REGULATIONS NO 956/68 OF THE COMMISSION OF 12 JULY 1968 , NO 2086/68 OF THE COMMISSION OF 20 DECEMBER 1968 AND NO 1403/69 OF THE COMMISSION OF 18 JULY 1969 ON THE DENATURING OF COMMON WHEAT WHICH WERE WRONGLY PAID TO THE RECIPIENTS MUST , AT THE PRESENT STAGE IN THE DEVELOPMENT OF COMMUNITY LAW , BE DECIDED IN ACCORDANCE WITH THE NATIONAL LAW OF THE INTERVENTION AGENCY RESPONSIBLE FOR THE RELEVANT SECTOR OF THE MARKET .

COMMUNITY LAW DOES NOT PREVENT THE APPLICATION OF PROVISIONS OR PRINCIPLES OF NATIONAL LAW THE EFFECT OF WHICH MAY BE TO RESTRICT THE PERIOD DURING WHICH SUCH REPAYMENT MAY BE CLAIMED , PROVIDED ALWAYS THAT THAT QUESTION IS SETTLED IN ACCORDANCE WITH THE SAME RULES AS THOSE WHICH APPLY TO THE PERFORMANCE OF SIMILAR SUPERVISORY DUTIES CARRIED OUT BY THE NATIONAL ADMINISTRATIVE AUTHORITIES IN THE SPHERES IN WHICH THEY HAVE SOLE RESPONSIBILITY .