Otto Reichelt GmbH v Hauptzollamt Berlin-Süd (113/81)

As to Point (b)

As to the conditions governing the application of a national equitable rule the Commission refers first to the recent case-law of the Court of Justice to the effect that the application of national rules is permissible where there are no appropriate provisions of Community law provided that for claims based on Community law the national rules are not less favourable than for similar claims based on infringements of national provisions (see for instance, inter alia, Case 130/79, Express Dairy Foods[l9iC] ECR 18S7).However, the application of national law cannot result in altering the scope of anv provision of Communitv law see Case 40/69, Bollmann [1970] ECR 69 and Case 74/69, Krohn [197C] ECR 451). In Case 18/72 (Granano [1972] ECR 1163) and Case 118/76 (Balkan [1977] ECR 1177) the Court followed that principle precisely in the case of national equitable rules, although those rules were relied upon in both cases in respect of duties which had been determined by the proper application of Community law. To grant a remission of such duties on the basis of a national equitable rule would therefore have amounted to an arbitran intervention directly affecting the scope of Community law.In the present case, by contrast, the application for remission of duty on equitable grounds concerns solely payments which may be objectively considered as overpayments which would not have been made had Community law been correctly applied. The independent nature and the supremacy of Community law are therefore in no way placed at issue.In consequence, the Commission takes the view that there is nothing in Community law to prevent application of a national rule allowing for the remission of duties on equitable grounds in the case of customs duties fixed at a rate which was objectively too high and which were collected prior to 1 July 1980.It points out, however, that the conditions governing the remission of such duties on equitable grounds under national law must not be more generous than those governing similiar applications for repayment of duties imposed by national law.In the same context, the Commission observes that the amounts claimed by the plaintiff in the main action, the calculation of which is not technically open to obiection. form pan of the Community's own resources by virtue of Regulation No 2/71 of the Council of 2 January 1971 implementing the Decision of 21 April 1970 on the replacement or financial contributions from Member States by the Community's own resources (Official Journal. English Special Edition 1971 (I). p. 3). replaced with effect from 1 January 1978 bv Council Regulation No 2891/77 of 19 December 1977 (Official Journal, L 336, p. 1). That does not prevent the competent department of the Member State in question from revising, pursuant to Articles 1 and 2 of each of the abovementioned regulations, the own resources established in accordance with the relevant national provisions laid down by law, regulation or administrative action. In the present case, the rectification may be accomplished by-applying a national equitable rule.The conclusion reached by the Commission on the basis of the foregoing is that whilst Community law does not prevent the remission of customs duties which may be considered objectively too high and which were determined prior to 1 July 1980, pursuant to a national equitable rule, the conditions governing such a remission must be applied as strictly as in comparable instances involving national law. It draws attention in that regard to the fact that the national authorities are prohibited, in the case of individual rights derived from Community law, from applying to the detriment of their citizens national rules more stringent than those applied by them to corresponding rights based on provisions of national law.That aspect may call for consideration of whether the plaintiff has been able to pass on to its customers the customs duties overpaid by it, in which case it will have suffered no damage.