Apple and Pear Development Council v K.J. Lewis Ltd and others (222/82)

Third question

The Development Council accepts that Articles 30 and 34 of the Treaty and Regulation No 1035/72 are of direct effect so as to confer upon individuals rights which are enforceable in the courts of a Member State and refers by way of example to the Pigs Marketing Board case, cited above. However, if and in so far as the defendants seek to rely upon the principle of nondiscrimination contained in Article 40 (3) of the Treaty, the Development Council submits, without prejudice to its primary contention, that that article does not have direct effect. In this connection it refers to the judgment in Geddo, cited above, and to the opinion of the Advocate General on that point (in particular at pp. 886 to 889).The United Kingdom points out that if the levy were considered incompatible with Articles 30 or 34 or with the provisions of Regulation No 1035/72 such incompatibility would be capable of being raised before the national courts as a defence against any claim to recover that levy.The Danish Government has not submitted any observations on the third question.The Commission considers that the failure of a Member State to notify the alteration of an aid prior to putting it into effect may be relied upon by individuals before the national courts. The same applies to the incompatibility of a national measure with a common organization of the market. It could be relied upon by a grower in an action for recovery of the levy. The Commission goes on to observe that the same answers must be given to the other parts of the question except that a decision on the basis of Article 93 (3) would make the charge wholly unlawful whereas a ruling confined to the compatibility of such measures with a common organization of the market may render the levy unlawful only in part.The Development Council takes the view, on the basis of the judgments of the Court of 8 April 1976 in Case 43/75 Defrenne [1976] ECR 455 and of 27 March 1980 in Case 61/79 Denkavit Italiana [1980] ECR 1205, and also of 27 March 1980 in Joined Cases 66, 127 and 128/79 Salumi, Vasanelli and Ultrocchi [1980] ECR 1237, that if the Court were to declare that all or part of the levy in question were incompatible with Community law it should also rule that the effects of the judgment are restricted to the financial years after the date thereof.In any case it is clear from the Pigs and Bacon Commission case that repayment of the levy may be claimed only in respect of that part of it which is incompatible with Community law or which is earmarked for activities which are incompatible.According to the Development Council it is the duty of the national court to decide in each particular case, in accordance with national law and procedure whether, and to what extent, the charge may be recovered by the grower and to decide what, if any, sums paid to the grower or for his benefit should be taken into account. The Council also refers to the Denkavit Italiana case, cited above, drawing attention to the principle of unjust enrichment which might justify a refusal to permit recovery, for example, where the charges in question have already been passed on to the claimant's customers or where the claimant has received some benefit in return for the charges.The United Kingdom considers that paragraphs (ii) and (iii) of the third question are matters of national law and refers more generally to the judgment of the Court of 10 July 1980 in Case 811/79 Ariete [1980] ECR 2545.The Commission considers that the direct applicability of the provisions in question means that a charge which is incompatible with those provisions may not properly be imposed on a grower (see the Pigs and Bacon Commission case). A producer is entitled to claim the refund of any sums paid in contravention of those provisions.Furthermore, if a charge is found to be partly lawful and partly unlawful the national court must determine what proportion of the charge must be recovered or reimbursed. The Commission refers to the Pigs and Bacon Commission case, cited above, and proposes that the Court follow that decision which, in its view, establishes that the matter of the calculation of the refund or restitution must be settled by the national court in accordance with the national system of law. Community law may thus take account of the benefit which the grower has or might have derived from the money raised by such annual charges.With regard to the question whether a judgment of the Court of Justice also applies in this case to events prior to :he date of the judgment the Commission refers to the Denkavit Italiana and De/renne cases, cited above, and emphasizes that the present case displays no features of such a nature as to show that it is appropriate or necessary for :he Court to restrict the retroactive effect of its judgment, as it may do in higily exceptional circumstances.