Opinion of Advocate General Gulmann delivered on 24 June 1992

1 Original language: Danish.

2 OJ 1988 L 331, p. 1.

3 Regulation (EEC) No 2771/75 of the Council of 29 October 1975, OJ 1975 L 282, p. 49.

4 It appears from the documents relating to the main proceedings that the contract was finally concluded between 4 and 8 September 1989 and that in any event two of the import licences under which the eggs were imported were not issued until 20 and 21 September 1989.

5 So far as concerns the remaining five licences, it can be confirmed that three of these were used for imports prior to revocation and that the last two, which were covered by the revocation, were not used.

6 I do not intend to attach any major importance in what follows to this last argument, which the Belgian Government bases on the Court's judgment in Case 17/67 Neumann v Hauptzollamt Hof [1967] ECR 441. It is obvious that advance fixing can be of immense significance to traders when making their arrangements and that a failure to comply with advance fixing can have far-reaching economic consequences for traders. In this context it would appear incorrect to claim on the basis of an analysis of the nature of advance fixing and import levies that it can never be justified on grounds of legal certainty to protect the rights of traders in cases where it is established that advance fixing certificates have been wrongly issued.

7 OJ 1979 L 197, p. 1.

8 This view is supported to some extent by the 17th recital in the preamble to the regulation, according to which: ... in the interest of sound administration, licences or certificates and extracts therefrom may not be amended after issue; ..., however, in cases of doubt relating to an error attributable to the issuing agency or to obvious inaccuracies and concerning the items appearing on the Učence or certificate or extract, a procedure should be introduced whereby inaccurate licences or certificates or extracts may be withdrawn and corrected documents issued.

9 See the judgment of the Court in Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005, at paragraph 10 or which the Court stated that:With regard to the arguments that the decision ... is nonexistent, it is necessary to point out that under Community law, as under the national laws of the various Member States, an administrative measure, even though it may be irregular, is presumed to be valid until it has been properly repealed or withdrawn by the institution which adopted it. If a measure is deemed to be nonexistent, the finding may be made, even after the period for instituting proceedings has expired, that the measure has not produced any legal effects. For reasons of legal certainty which are evident, that classification must conscquendy be restricted under Community law, as under the national legal systems which provide for it, to measures which exhibit particularly serious and manifest defects. Reference is also made to the Opinion delivered in that case, in which Advocate General Mischo stressed the limited scope of nonexistence (see in particular p. 1019).

10 See paragraph 6 of the Court's judgment in Case 210/87 Padovani and Others v Amministrazione delle Finanze dello Stato [1988] ECR 6177 and also the second recital in the preamble to Regulation No 1697/79, according to which the post-clearance recovery of import duties or export duties involves some degree of prejudice to the certainty which persons liable for payment have the right to expect from official acts having financial consequences; ... it is therefore appropriate to limit the possible scope of action of the competent authorities in this field ....

11 [1988] ECR 2213.

12 The Court also ruled at paragraph 23 of that judgment that a wrongful act on the part of the Commission or its officials, and likewise a practice of a Member State which does not conform with Community rules, is not capable of giving rise to legitimate expectations on the part of an economic operator who benefits from the situation thereby created (see judgments of 16 November 1983 in Case 188/82 Thyssen [1983] ECR 3721 and of 15 December 1982 in Case 5/82 Maizena [1982] ECR 4601. I wish only to point out here that I find this too far-reaching.

13 The Court stated as follows at paragraph 19:It is apparent from a comparative examination of the relevant provisions of national law that it is not possible to identify principles common to the laws of the Member States or generally recognized by those laws from which a general principle of Community law requiring national authorities to refrain from rectifying an insufficient payment of Community levies after the expiry of a uniform period of time or in the event of an error attributable to the national authorities could be deduced.

14 The Court defined this in the following manner at paragraphs 22 and 24 of its judgment in Padovani:In cases where national law, which is applicable as regards the detailed rules and condiûons for recovery, contained a principle protecting the legitimate expectations of traders, the Court has taken the view that Community law does not preclude the application of such a principle of national law to prevent the recovery of such debts with regard to traders acting in good faith, provided, however, that the application of national law does not affect the scope and effectiveness of Community law and is not discriminatory in relation to procedures for dealing with similar but purely national disputes (Case 265/78 Ferwerda v Produktschap voor Vee en Vlees [1980] ECR 617 and Joined Cases 205/82 to 215/82 Deutsche Milckkontor and Others v Germany [1983] ECR 2633). Conversely, if the conditions and detailed rules of national law applied by the national authorities for the recovery of Community debts are the same as those applied by those authorities in comparable cases concerning purely national debts, it may not in principle be considered that those conditions and rules are contrary to the obligations of the naúonal authorities to implement Community rules within their territory and therefore impair the effectiveness of Community law (see Cases 205/82 to 215/82 Deutsche Milchkontor, cited above).

15 See Case C-348/89 Mecanarte v Chefe do Serviço da Conferência Fina! da Alfândega, Oporto [1991] ECR I-3277, particularly paragraphs 20 and 22.

16 See Case C-371/90 Beirafrio v Alfândega äo Pono [1992] ECR I-2715.

17 [1987] ECR 4199, paragraph 22.

18 [1990] ECR I-2535.

19 Sec Regulation (EEC) No 2771/75 of the Council of 29 Ocrober 1975 (OJ 1975 L 282, p. 49), Articles 3 and 8 of which contain provisions on fixed and variable import levies respectively. As already pointed out, it is clear that the regulation does not make it possible for these to be fixed in advance.