Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

This request for a preliminary ruling on the interpretation of Article 27 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties comes to the Court by way of a reference from the Finanzgericht Berlin.

The facts are as follows:

Otto Reichelt GmbH, Berlin, runs a chain of retail grocery shops. It imports raw coffee which it stores in its approved unbonded customs warehouse (offenes Zollager) and puts into free circulation in accordance with the needs of its shops. Under the relevant German legislation, every month et declares to the customs authorities the quantity of coffee which it has withdrawn from the warehouse, calculates the impon duty chargeable thereon and pays the duty to the Hauptzollamt Berlin-Süd (Principal Customs Office, Berlin South), the defendant in the main action, provided that the defendant does not fix a different amount.

For two years, between 1 January 1977 and 31 December 1978. Ŕeichelt calculated the duty at the rate of 7% and paid the defendant the corresponding amount, although at the time the rate was only 5o/:. It was not until January 1979 that the customs authorities realized that they were charging an amount greater than the sum actually due and int'ormed Reichek. On 9 February 1979. the latter lodged a claim for the repavmem of DM 255027.63. The claim aas partially met by a payment of DM 103240.54. The defendant refused to refund the sum declared and paid in respect of the period from Februarv 1977 to January 1978, amounting to ĎM 151792.30, on the ground that under the relevant provisions of national legislation, claims submitted more than one year after the removal of the goods from the warehouse were time-barred (Articles 164 (2), 169 (1) and 170 of the Abgabenordnung).

On 28 March 1979, Reichelt lodged a fresh claim for repayment based on equitable grounds under Article 227 of the Abgabenordnung. That claim was rejected by the customs office on 6 April 1979 in reliance upon the Court's judgment of 28 June 1977 in Case 118/76 Balkan v Hauptzollamt Berlin Packbof[1977] ECR 1177.

Reichelt took the view that the Balkan judgment had been relied upon wrongly in relation to it and brought an action before the Finanzgericht Berlin. As it stated in the grounds for the order making the reference, the Finanzgericht also considered the principles laid down by the Court of Justice in the aforementioned judgment to be inapplicable as such. However, it questioned whether a national rule providing for remission on equitable grounds could still be applied in vie of the entry into force, between the event giving rise to the customs duty and the delivery of its ludgment. of a Community legal measure which henceforth governed the matter, namelv Council Regulation (EEC) No 1430/79 of 2 Julv 1979 on the repavmem or remission of import or expon dunes.

That is why the Finanzgericht is asking the Court whether Community law, in particular Article 27 of Regulation No 1430/79, prohibits the repayment under national revenue law of customs duties paid in excess of the amount due, where the overpayment has not been challenged within the statutory period, in cases entered into the accounts before 1 Julv 1980.

Article 27 of Regulation No 1430/79 provided for the entry into force of the regulation on 1 July 1980. Moreover, the provision in that measure which comes closest to the German rule on equitable refunds, namely Article 227 of the Abgabenordnung, is Article 13, which was implemented bv Commission Regulation (EEC) No 1575/80 of 20 June 1980. In those circumstances it is my opinion that in order to give an answer which is helpful to the national court it would be useful to consider the following two points in turn:

I would observe that this action should be seen against the background of the Court's decisions concerning the difficulties raised by the enactment of Communitv legislation in an area in which hitherto the laws of the various Member States were obliged to intervene in a supportive role. It raises the question of whether or not the new Community legislation is retroactive in scope and, if not, whether the application of rules of national law is subject to any restrictions.

Regulations Nos 1430/79 and 1575/80 do not contain any express provisions relating to the time at which they take effect unlike other Community regulations such as those adopted in the field of social security for migrant workers. Therefore reference must be made to the general rules used in the legal systems of all the Member States to determine the time at which rules take effect, as applied in the decisions of the Court, in particular in the judgment of the Third Chamber of 12 November 1981 in Joined Cases 212 to 217/80 (Amministrazione delle Finanze dello Stato v Salumi and Others [1981] ECR 2735).

1. In support of the view that the regulations in question should be applied retroactively, it may be argued that Regulation No 1575/80 is essentially a procedural measure since it lays down detailed rules for the implementation of Article 13 of Regulation No 1430/79, which permits infer alia the repayment of import duties on equitable grounds. As the Court recalled in the first sentence of paragraph 9 of its decision in the abovementioned Salumi judgment, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force.

2. Thus, as in the case of Regulation No 1697/79, the provisions of Regulations Nos 1430/79 and 1575/80 may not be accorded retroactive effect unless sufficientlv clear indications lead to such a conclusion (first sentence of paragraph 12 of the decision). Once again, as in the case of Regulation No 1697/79, far from indicating any retroactive effect, both the wording and the general scheme of [Regulation No 143C/79] lead to the conclusion that the regulation provides only for the future (second sentence of paragraph 12 of the decision).

III — Although Community law, in particular Regulation No 1430/79, does not therefore preclude the application of national law to the facts of this case, it nonetheless imposes certain limits and conditions on the application thereof.

In conclusion, I propose that the Court should reply to the Finanzgericht Berlin in the following terms:

1 Translated from the french

2 Articir lös o: tnr Anüjrcnoranun:: fRrvenu/Coüfj