Opinion Of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. Already in the first few months of this year the Court has had occasion to consider more than once questions connected with the reimbursement of sums wrongly received or paid by the Member States pursuant to the common agricultural policy. Two days ago I delivered my opinion in Case 130/79, Express Dairy Foods. That was concerned with a claim for the refund of monetary compensatory amounts by a company which had been required to pay them on the basis of Commission regulations which should be declared invalid. Today the issue with which I am concerned is the claim by the national authorities for the recovery of sums paid some years ago to two undertakings by way of premiums for the denaturing of common wheat, it having been ascertained that those undertakings failed to comply with the conditions for receiving the premiums. The immediate precedent on this subject is the judgment of 5 March 1980 in Case 265/78, Ferwerda. There again the particular problem was the recovery of sums wrongly paid (by way of export refunds) by the responsible national authority to a private undertaking pursuant to the agricultural policy. Again, as for the question of principle, it is basically to establish whether it is Community law or national law which governs the conditions for the refund of sums unduly paid. The most delicate aspect concerns limitation periods.

2. The answer to the first question is facilitated by the aforesaid judgment given by the Court on 5 March 1980 in Case 265/78, Ferwerda. In that case the Court recalled that the general principle of equality plays a dominant role in the general system of the financial provisions of the Treaty (to which may also be traced back the rules on the conditions for the granting and payment of financial benefits to traders from the Community budget). In consequence there ought not to be any discrimination as to the substantive and procedural conditions upon which inter alia the authorities of the Member States, acting on behalf of the Community, may claim reimbursement of financial benefits wrongly received by undertakings: the judgment in Ferwerda thereby recognized a requirement strictly connected with the principle of equality. The same judgment, however, had to recognize that that requirement has only recently begun to find expression in Community rules (it cited Council Regulations Nos 1430/79 of 2 July 1979 and 1697/79 of 24 July 1979, which are due to enter into force on 1 July 1980 and are applicable respectively to the repayment of import or export duties and to the recovery of such duties if they were not paid at the time by the undertakings liable). Those regulations are only a first step towards the aim of non-discrimination in the field which we are considering. On the other hand, however, the necessarily technical and detailed nature of that type of rules means that their absence may be remedied only partially by means of interpretation by the Court, as the latter has expressly recognized. It follows that cases in which a claim is made for the reimbursement of sums paid or received by national administrative authorities on behalf of the Community fall within the jurisdiction of the national courts and must be decided under national law in so far as no provisions of Community law are relevant.

3. Once it is found that the prescription of the right of national authorities to claim repayment of denaturing premiums is governed by national law the second question loses its purpose.

4. My opinion is therefore that the Court, in answer to the questions referred to it for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order dated 12 July 1979, should declare as follows:

1 Translated from the Italian.