JUDGMENT OF THE COURT (Sixth Chamber) 5 October 1988 * In Case 210/87 REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunale civile e penale (Civil and Criminal District Court), Venice, for a preliminary ruling in the proceedings pending before that court between Remo Padovani and the successors of Otello Mantovani and Amministrazione delle finanze dello Stato (State Finance Administration) on the applicability of the Community principle of the protection of legitimate expectations to the post-clearance recovery by a national authority of an additional agricultural levy not previously charged on the importation of cereals, THE COURT (Sixth Chamber) composed of: O. Due, President of Chamber, T. Koopmans, K. Bahlmann, C. N. Kakouris and T. F. O'Higgins, Judges, Advocate General: M. Darmon Registrar: B. Pastor, Administrator after considering the observations submitted on behalf of the plaintiffs in the main proceedings, by G. M. Ubertazzi, F. Capelli and G. Simeone, lawyers, the Commission of the European Communities, by M. A. Prozzillo, Agent, * Language of the Case: Italian. 6201
JUDGMENT OF 5. 10. 1988 CASE 210/87 having regard to the Report for the Hearing and further to the hearing on 21 April 1988 at which the Commission of the European Communities was represented by G. Marenco, Agent, after hearing the Opinion of the Advocate General delivered at the sitting on 14 June 1988, gives the following Judgment 1 By order of 27 May 1987, which was received at the Court on 9 July 1987, the tribunale civile e penale, Venice, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions asking whether the Community principles of legal certainty and the protection of legitimate expectations may be invoked by a person in order to resist the post-clearance recovery of an additional Community agricultural levy by the Italian authorities pursuant to national law. 2 The questions arose in legal proceedings commenced by Remo Padovani and the successors of Otello Mantovani against the Amministrazione delle finanze dello Stato concerning the rectification by that authority of an insufficient settlement of agricultural levies charged on imports of cereals made in 1972. 3 Under Article 15 (1) of Regulation No 120/ 67/ EEC of the Council of 13 June 1967 on the common organization of the market in cereals (Official Journal, English Special Edition 1967, p. 2269) applicable to the imports at issue the levies to be charged in respect of those imports were those applicable on the day of importation. Pursuant to national law the Italian authorities charged the levies at issue according to their interpretation of the day of importation, which at that time was consistent and undisputed. According to that interpretation, in the event of a 6202
change in the rate of levy after acceptance of the import declaration by the customs office, the authorities could, upon request by the importer, apply the more favourable rate, provided that the goods had not been released to the importer. 4 Later, in the case of Frecassetti v Amministrazione delle finanze dello Stato G'udgment of 15 June 1976 in Case 113/75 [1976] ECR 983), the Court ruled that that interpretation was invalid and that the day of importation was the day on which the import declaration for the goods was accepted by the customs authorities, the levy due therefore being that applicable on that date, to the exclusion of the more favourable levy in force on a later date. 5 Pursuant to that judgment, Decree No 695 of the President of the Italian Republic of 22 September 1978 excluded the application of the more favourable rate for Community agricultural levies, but provided that the new rule should only take effect from 11 September 1976, the date on which the operative part of the judgment in the abovementioned Case 113/75 was published in the Official Journal of the European Communities (Official Journal 1976, C 214, p. 14). 6 The Council later adopted Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (Official Journal 1979, L 197, p. 1). The purpose of that regulation is, inter alia, to limit, for reasons of legal certainty, the possibility for the national authorities to take legal action to recover Community duties after clearance. 7 In the mean time, the Italian authorities had commenced the recovery from the plaintiffs in the main proceedings of the difference between the amount based on the levy applicable on the date on which the import declaration was accepted and the amount based on the more favourable rate initially applied. To that end, in December 1977 it served on the plaintiffs in the main action its first demand for payment. Subsequently, it interrupted the limitation period by serving fresh demands, the last of which was made in 1986. 6203
JUDGMENT OF 5. 10. 1988 CASE 210/87 8 The plaintiffs in the main proceedings then challenged the demand for payment before the court which made the reference, submitting that the calculation and the charging of the additional levy pursuant to the new rule were incompatible with the Community principle of legal certainty and the protection of traders' legitimate expectations. 9 The national court considered that the plaintiffs in the main proceedings could not rely on a principle of the protection of legitimate expectations based on national law and that the limits which Regulation No 1697/79 set to the recovery by national authorities of duties which have not been required of the person liable for payment did not apply. However, the national court did not exclude the possibility that in Community law a general principle of protection, capable of being relied on in this case, might be recognized in any event. Consequently, the national court decided to stay the proceedings and to submit the following questions to the Court for a preliminary ruling: '(1) Can there be held to exist in the Community legal order, independently of the specific and express provisions laid down in Council Regulation (EEC) No 1697/79 of 24 July 1979, a legal principle concerning the protection of legitimate expectations of traders with regard to charges governed by Community law which is applicable notwithstanding the absence of any corresponding principle in the national legal order? (2) If so, can the principle of the protection of legitimate expectations apply where the imports of agricultural products were made prior to 1 July 1980 and were therefore not covered by the rules laid down in Article 5 of Regulation (EEC) No 1697/79 so as to free from the obligation to pay a higher levy importers who, acting in good faith, paid Community agricultural levies at a lower rate than that legally due, in accordance with the rate as consistently and uniformly fixed at that time by the national administrative authorities on the basis of an interpretative approach for which support was to be found in official Community measures and which was followed by the national courts but was subsequently held to be incorrect by the Court of Justice?' 10 Reference is made to the Report for the Hearing for a fuller accounts of the facts, the course of the procedure and the written observations submitted to the Court, 6204
which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. 1 1 In its questions, which should be examined together, the national court asks in essence whether Community law contains, independently of the specific provisions of Council Regulation No 1697/79, a principle of legitimate expectation which requires the national authorities to refrain from post-clearance recovery, pursuant to national law, of an additional agricultural levy which those authorities, following an established and unchallenged.practice which was subsequently held unlawful by the Court, had not originally charged, whereas owing to that practice traders had believed in good faith that they had to pay only the amount of the levy originally charged. 12 It must be observed first of all that the Court has held (see the judgment of 27 March 1980 in Joined Cases 66, 127 and 128/79 Amministrazione delle finanze v Srl Meridionale Industria Salumi and Others [1980] ECR 1237, Salumi (No 1)) that the interpretation which, in the exercise of its jurisdiction to give a preliminary ruling, the Court gives to a rule of Community law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, except in exceptional cases, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation. 13 In this request it must be stated that the abovementioned judgment of 15 June 1976 in the Frecasseti case did not include in the interpretation given of 'day of importation' any temporal limitation which would have been justified by mandatory considerations relating to legal certainty. 14 It should also be pointed out that the limits which the abovementioned Regulation No 1697/79 sets to the national authorities' possibilities of post-clearance recovery do not apply to payments of duties made before 1 July 1980 (judgment of 12 November 1981 in Joined Cases 212 to 217/80 Amministrazione delle finanze dello Stato v Srl Meridionale Industria Salumi and Others [1981] ECR 2735, Salumi (No 2)). 6205
JUDGMENT OF 5. 10. 1988 CASE 210/87 15 It follows that in principle the national authorities were required under Community law to recover the difference between the sum of the levies actually charged and the sum which should have been claimed. 16 In so far as the Community rules did not fix the detailed rules and conditions for the collection of the agricultural levies at issue in the main proceedings, it is for the national legal system to define the rules which apply in the matter, subject to the limits on the application of national law imposed by Community law. 17 The detailed rules and conditions for collection comprehend the problem of the protection of legitimate expectations. Consequently, the question arises whether that problem is governed by Community law or whether it is silent on the point. 18 In this respect it must be stated that the principle of the protection of legitimate expectations recognized in Community law, independently of the specific provisions of the abovementioned Council Regulation No 1697/79, is not applicable in the case of the recovery of debts in circumstances such as those in the main proceedings. 19 It is apparent from a comparative examination of the relevant provisions of national law that it is not possible to identify principles common to the laws of the Member States or generally recognized by those laws from which a general principle of Community law requiring national authorities to refrain from rectifying an insufficient payment of Community levies after the expiry of a uniform period of time or in the event of an error attributable to the national authorities could be deduced. 20 In those circumstances it cannot be considered that the restrictions which Regulation No 1697/79 places on the post-clearance recovery by national authorities of debts arising under Community law may reflect a Community principle of protection of legitimate expectations which already existed when that regulation came into force. 6206
21 Since Community law does not govern the condition of recovery concerning the protection of legitimate expectations of traders, that question is governed by national law. 22 In cases where national law, which is applicable as regards the detailed rules and conditions for recovery, contained a principle protecting the legitimate expectations of traders, the Court has taken the view that Community law does not preclude the application of such a principle of national law to prevent the recovery of such debts with regard to traders acting in good faith, provided, however, that the application of national law does not affect the scope and effectiveness of Community law and is not discriminatory in relation to procedures for dealing with similar but purely national disputes (judgments of 5 March 1980 in Case 265/78 H. Ferwerda BVv Produktschap voor Vee en Vlees [1980] ECR 617 and of 21 September 1983 in Joined Cases 205 to 215/82 Deutsche Milchkontor GmbH and Others v Germany [1983] ECR 2633). 23 In this respect the Court has stated that special national rules relating to the collection of debts arising under Community law which restrict the powers granted to the national authorities to ensure the collection of those debts as compared with the powers granted to those same authorities in respect of national charges or dues of the same kind are not in accordance with Community law (see the abovementióned judgment in Joined Cases 66, 127 and 128/79 Salumi, cited above). 24 Conversely, if the conditions and detailed rules of national law applied by the national authorities for the recovery of Community debts are the same as those applied by those authorities in comparable cases concerning purely national debts, it may not in principle be considered that those conditions and rules are contrary to the obligations of the national authorities to implement Community rules within their territory and therefore impair the effectiveness of Community law (see the judgment in Joined Cases 205 to 215/82 Deutsche Milchkontor, cited above). 25 On the other hand, should the national law applicable as regards the detailed rules and conditions for recovery not contain a principle of protection of legitimate expectations, Community law does not preclude the application of national law in that form, provided always that comparable and purely national debts are not governed by a different principle. 6207
JUDGMENT OF 5. 10. 1988 CASE 210/87 26 As the plaintiffs in the main proceedings have pointed out, the absence of Community rules governing the modes and conditions of recovery may indeed entail unequal treatment for traders in the different Member States. 27 However, as the Court considered in the Deutsche Milchkontor case cited above, such differences were inevitable at the stage of development which Community law had reached at that time. On that occasion the Court pointed out that if disparities between the legislation of Member States were of such a nature as to compromise the equal treatment of producers or traders in different Member States or distort or impair the functioning of the common market, it would be for the competent Community institutions to adopt the provisions needed to remedy such disparities. Since that time those provisions have actually been put into concrete form in Regulation No 1697/79. However, the Community legislature did not consider it necessary to give retroactive effect to that regulation. 28 In the light of the foregoing, the reply to be given to the national court must be that the principle of the protection of legitimate expectations enshrined in Community law, independently of the specific provisions of Council Regulation No 1697/79, does not require the national authorities to refrain from postclearance recovery, pursuant to national law, of an additional agricultural levy which those authorities, following an established and unchallenged practice which was subsequently held unlawful by the Court, had not originally charged, whereas owing to that practice traders had believed in good faith that they had to pay only the amount of the levy originally charged. Costs 29 The costs incurred by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the action pending before the national court, costs are a matter for that court. 6208
On those grounds, THE COURT (Sixth Chamber), in answer to the questions submitted to it by the tribunale civile e penale, Venice, by order of 27 May 1977, hereby rules: The principle of the protection of legitimate expectations enshrined in Community law, independently of the specific provisions of Council Regulation No 1697/79 of 24 July 1979, does not require the national authorities to refrain from postclearance recovery, pursuant to national law, of an additional agricultural levy which those authorities, following an established and unchallenged practice which was subsequently held unlawful by the Court, had not originally charged, whereas owing to that practice traders had believed in good faith that they had to pay only the amount of the levy originally charged. Due Koopmans Bahlmann Kakouris O'Higgins Delivered in open court in Luxembourg on 5 October 1988. J-G. Giraud Registrar O. Due President of the Sixth Chamber 6209