CJEC, December 16, 1976, No 45-76

1 By order of 25 may 1976, received at the Court registry on 26 may 1976, the college van beroep voor het bedrijfsleven referred the following question to the Court under article 177 of the EEC treaty: ' does any provision or any principle of community law prohibit the raising of an objection against a litigant who is challenging before the national Courts a decision of a national body for incompatibility with community law on the ground that he has allowed the period for lodging an appeal under national law to elapse, either in the sense that the action of the litigant may be declared inadmissible by the Court for failure to observe the time-limit or in the further sense that the administration may derive from the failure to comply with the time-limit a right to refuse to reconsider its decision?

'

2 The question was submitted in connexion with proceedings brought before that Court by the plaintiff in the main action for a declaration that, on exports of bulbs and corms of flowering plants to west Germany effected during the concluding months of 1968 and the early months of 1969, it made an undue payment to the Produktschap voor Siergewassen (hereinafter referred to as ' the Produktschap '), the defendant in the main action, of levies constituting charges having an effect equivalent to customs duties on exports which are contrary to article 16 of the treaty and are, moreover, prohibited by article 10 of regulation (EEC) No 234-68 of the council of 27 February 1968 on the establishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage, which was applicable with effect from 1 July 1968.

3 The plaintiff in the main action asks the national Court to recognize that it is entitled to set off the undue payments made against amounts being claimed from it by the Produktschap under a different head.

4 The Produktschap does not dispute that the contested levy constitutes a charge having an effect equivalent to a customs duty on exports and concedes that the national provisions for its imposition had, with effect from 1 July 1968, the date of entry into force of regulation No 234-68, become incompatible with article 10 of the regulation which, in the internal trade of the community in the horticultural products covered by the regulation, prohibited the levying of any customs duty or charge having equivalent effect.

5 It must, however, be observed that this incompatibility came into being on 1 January 1962 by virtue of article 16 of the treaty, under which the member states are enjoined to abolish between themselves customs duties on exports and charges having equivalent effect by the end of the first stage at the latest.

6 There can, therefore, be No doubt that the levies imposed on the plaintiff in the main action by the levy notices and by the reminder sent to it on 7 July 1969, 19 September 1969 and on 8 July 1971 were in breach of the prohibition in article 16 of the treaty.

7 Nevertheless these levies were paid by the plaintiff in the main action which, on the ground that it paid them in error, is claiming reimbursement by way of set-off before the national Court.

8 The Produktschap contends that the plaintiff in the main action can No longer impugn the contested levies or claim their reimbursement because it failed to bring proceedings against the levy notices and the reminder which had been sent to it within the period prescribed by national law for such proceedings.

9 The applicant in the main action contends, on the other hand, that the primacy of community law means that it overrules any decision which constitutes an infringement of it and that, before the national Courts, which are bound to protect the rights conferred on it by article 16, it possesses, in consequence, an independent right of action which is unaffected by limitations provided for under national law which are liable to weaken the impact of the direct effect of that article in the legal order of the member states.

10 Thus, the question referred seeks to establish whether the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire as the result of the direct effect of a community provision, in the present case article 16 of the treaty and article 10 of regulation No 234-68, especially the rules concerning the period within which an action must be brougt are governed by the national law of the member state where the action is brought or whether, on the other hand, they are independent and fall to be determined only by community law itself.

11 The prohibition laid down in article 16 of the treaty and that contained in article 10 of regulation No 234-68 have direct effect and confer on individuals rights which the national Courts must protect.

12 Thus, in application of the principle of cooperation laid down in article 5 of the treaty, the national Courts are entrusted with ensuring the legal protection conferred on individuals by the direct effect of the provisions of community law.

13 Consequently, in the absence of any relevant community rules, it is for the national legal order of each member state to designate the competent Courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of community law, provided that such rules are not less favourable than those governing the same right of action on an internal matter.

14 Articles 100 to 102 and 235 of the treaty enable the appropriate steps to be taken as necessary, to eleminate differences between the provisions laid down in such matters by law, regulation or administrative action in member states if these differences are found to be such as to cause distortion or to affect the functioning of the common market.

15 In default of such harmonization measures, the rights conferred by community law must be exerciced before the national Courts in accordance with the rules of procedure laid down by national law.

16 The position would be different only if those rules and time-limits made it impossible in practice to exercise rights which the national Courts have a duty to protect.

17 This does not apply to the fixing of a reasonable period of limitation within which an action must be brought.

18 The fixing, as regards fiscal proceedings, of such a period is in fact an application of a fundamental principle of legal certainty which protects both the authority concerned and the party from whom payment is claimed.

19 The answer must therefore be that, in the case of a litigant who is challenging before the national Courts a decision of a national body for incompatibility with community law, that law, in its present state, does not prevent the expiry of the period within which proceedings must be brought under national law from being raised against him, provided that the procedural rules applicable to his case are not less favourable than those governing the same right of action on an internal matter.

Costs

20 The costs incurred by the government of the federal Republic of Germany and the Commission of the European Communities, which have submitted their observations to the Court, are not recoverable.

21 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings pending before the national Court, the decision as to costs is a matter for that Court.

On those grounds,

The Court

In answer to the question referred to it by the college van beroep voor het bedrijfsleven by order of 25 may 1976, hereby rules:

In the case of a litigant who is challenging before the national Courts a decision of a national body for incompatibility with community law, that law, in its present state, does not prevent the expiry of the period within which proceedings must be brought under national law from being raised against him, provided that the procedural rules applicable in his case are not less favourable than those governing the same right of action on an internal matter.