law://eu/cjeu/1976/c-45-76/hd_1_1_2_2@2026-11-13While noting that it is common ground between the parties in the main action that the contested levies are charges having an effect equivalent to duties on exports, which are prohibited by Article 16 of the EEC Treaty as from the end of the first stage (1 January 1962), the Commission points out that this does not mean that when such a charge has been levied, the undertaking concerned must be recognized as having an independent right of action whereby the latter may claim reimbursement of the charge imposed regardless of any principle of national law.There can be no doubt about the direct applicability of Article 16 but the mere fact that the accountable party is recognized as being able, on its own account, to claim the illegality of the charge in the light of the Treaty is insufficient indication in what circumstances, in what manner and on what legal basis that party can claim repayment of a charge collected contrary to the Treaty.Article 16 of the Treaty first confers on a person called upon to pay a charge the right not to pay it, or if he has paid it, the right to have it repaid to him. The Court of Justice has in any case laid down that a claim for repayment of charges, whether national or Community, which have been paid without lawful cause must be submitted on the basis of the provisions made for such actions under national law. In this connexion the Commission quotes the judgment of 19 December 1968 in Case 13/68 Salgoil v Italy [1968] ECR 453 at p. 463 in which it was held that ‘in so far as the provisions in question [Articles 31 and 32 of the EEC Treaty] confer on persons subject to the jurisdiction rights which national courts must protect, those courts must ensure that the said rights are indeed protected, but that it is for the legal system of each Member State to decide which court has jurisdiction and for this purpose to classify those rights with reference to the criteria of national law’.Similarly, in its judgment of 16 December 1960 in Case 6/60 (Humblet, Rec, p. 1131) the Court held that it was for the national legislature to determine whether an unlawful imposition of tax gave rise to a claim for compensatory interest, while it is clear from the judgment of 21 May 1976 in Case 26/74 (Roquette [1976] ECR 677) that actions brought in connexion with the common agricultural policy for reimbursement of levies improperly collected on imports must first be brought, in accordance with the rules of national law, against the Member State which collected them, before proceedings may be brought against the Community under Article 215 of the EEC Treaty.Undoubtedly, the need to base applications for a refund on the provisions of national law has the effect of making repayment dependent on rules which vary from one Member State to another, but this is the position at the present stage of harmonization on the subject of the protection of individual rights.It fully accords with the system of legal protection provided for by the Treaty under which Community and national guarantees of legal protection shall be complementary and interdependent instead of being in conflict with each other by being mutually exclusive, to appraise the legality or otherwise of the collection of a charge having equivalent effect on the basis of criteria supplied by the Treaty while at the same referring the. party concerned to the provisions of national law for the protection of its right to repayment.The right to be repaid provided for under national law may be asserted by the party concerned only to the extent and under the conditions laid down by that national law. This applies to the actual conditions for the right to repayment as it does to questions of jurisdiction and procedure and the question remains whether a single legal basis is adequate in the case of an application for refund of a payment made or whether, in addition to an action for repayment properly so-called, a separate action should be brought for annulment of the payment notices issued to the party concerned.In this connexion it would be reasonable to accept the principle that while substantive national law continues to apply this does not rule out the possibility of considering in a particular case, whether certain provisions of national law, which, a priori, make full and unconditional repayment of the amounts collected out of the question, may be incompatible with the guarantee of legal protection given by Article 16 of the EEC Treaty and, if the answer is in the affirmative, to what extent.Taken by itself, the statement that Article 16 of the EEC Treaty creates rights for the benefit of individuals which national courts must protect could imply that this article provides not only a means for reviewing the legality of a particular charge but also the substantive foundation for an independent and individual right to repayment. The conditions for repayment would thus be based on a single legal foundation and would be freed from the conditions, variations and fortunes of national legal systems. In this way the legal protection of individuals against action taken contrary to the Treaty would be standardized in one important respect. In these circumstances, the Member States could not make repayment of improperly collected charges subject to different conditions laid down under national law but the consequence would be that the individuals concerned could not avail themselves of the legal remedies provided by their national law. In the Commission's view, this notion would obviously be alien to the precedence established by the Court of Justice concerning the direct effect of Articles 13 (2) and 16, failing acceptance of the concept of parallel actions which gives a litigant the choice between national and Community means of legal redress. Apart from the fact that this would involve something totally new in Community law it is likely that, because it would be stricter, the less advantageous means of redress would be replaced by the other.As regards the applicability of national rules of procedure the Commission considers that, whether the action is based on national or Community law, proceedings for recovery of the overpayment must be brought before the Netherlands court in accordance with rules of procedure applicable in the Netherlands.In respect of procedural matters, there are no Community provisions which explicitly or by their nature take precedence over the provisions of national law. The question remains, however, whether and to what extent Article 16 of the EEC Treaty prevents the application of the provisions of the Netherlands ARBO Law (Law concerning administrative jurisdiction over trade organizations).If Article 16 of the Treaty is interpreted as a straightforward statement that charges on exports are illegal, the national rules of procedure continue to apply unconditionally, there being no conflict with the paramountcy of Community law.If, on the other hand, Article 16 is interpreted as conferring on the applicant a right to recovery of the overpayment, there may, in the Commission's view, be a conflict between the purpose of the rule laid down in Article 16 and the conditions for exercise of the right of action laid down by the Netherlands Law.If, on the one hand, an action brought under Article 16 is fully discharged only after all the overpayments have been reimbursed and, on the other, the effect of the provisions of the ARBO Law is in fact to make recovery impossible after a certain period, the conditions laid down by the ARBO Law cannot be pleaded against the applicant. A consideration which argues in favour of this solution is that, for individuals, as a result of direct applicability, the object and the effect of legal protection would, as far as individuals are concerned, be to make repayment subject to uniform conditions in all the Member States.It must, however, be emphasized that adoption of this solution implies, in the present state of the law, a straightforward abandonment of any rules governing time-limits and the conditions under which proceedings can be brought in view of, first, the lack of any relevant Community rules and, secondly, the possible non-application of national rules.Such a fundamental and comprehensive abandonment of national rules of procedure cannot easily be reconciled with the principle hitherto recognized by the Court of Justice that national courts must take their decisions in accordance with national rules of procedure.In the Commission's view, the declared precedence of Article 16 of the EEC Treaty over national law does not absolutely preclude the application of national rules of procedure.The principle on which the provisions of the ARBO Law are based and which makes the protection of the right of individuals subject to the requirements of legal certainty is recognized in the legal systems of all the Member States. In this connexion the Commission refers to the judgment of the Court of 8 April 1976 in Case 43/75 Defrenne, [1976] ECR 455 in which it was held that the individual rights of private parties arising directly out of a provision of the EEC Treaty may, for considerations of legal certainty, be exercised only within prescribed time-limits, even if none have been expressly laid down by Community law.Nevertheless, rules of procedure which, a priori, make it impossible for an applicant to assert his right to repayment in the courts or which make this subject to conditions which cannot be fulfilled are illegal. But the application of Article 33 of the ARBO Law gives rise to no criticism on that account.The Commission concludes with the statement that, until uniform Community regulations have been adopted, a right to repayment based either on national or Community law is subject to the national rules of procedure relating to the conditions of admissibility and time-limits.
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