Willy Kempter KG v Hauptzollamt Hamburg-Jonas.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Tizzano
• ECLI: ECLI:EU:C:2008:78
• Date: 12 February 2008
• Docket Number: C-2/06
• Procedure Type: Reference for a preliminary ruling

Case C-2/06

Willy Kempter KG

v

Hauptzollamt Hamburg-Jonas

(Reference for a preliminary ruling from the Finanzgericht Hamburg)

(Export of cattle – Export refunds – Final administrative decision – Interpretation of a judgment of the Court – Effect of a preliminary ruling given by the Court after that decision – Review and withdrawal – Time-limits – Legal certainty – Principle of cooperation – Article 10 EC)

Summary of the Judgment

1. Member States – Obligations – Obligation of cooperation – Obligation on an administrative body to review a final administrative decision in order to take account of the interpretation of the relevant provision given in the meantime by the Court

(Art. 10 EC)

2. Member States – Obligations – Obligation of cooperation – Obligation on an administrative body to review a final administrative decision in order to take account of the interpretation of the relevant provision given in the meantime by the Court

(Art. 10 EC)

1. In the context of a procedure before an administrative body for review of an administrative decision that became final by virtue of a judgment, delivered by a court of final instance, which, in the light of a decision given by the Court subsequent to it, was based on a misinterpretation of Community law, Community law does not require the claimant to have relied on Community law in the legal action under domestic law which he brought against the administrative decision. While Community law does not require that administrative bodies be placed under an obligation, in principle, to reopen an administrative decision which has become final, specific circumstances may nevertheless be capable, by virtue of the principle of cooperation arising from Article 10 EC, of requiring such a body to review an administrative decision that has become final in order to take account of the interpretation of a relevant provision of Community law given subsequently by the Court. The condition – which is among those capable of providing the basis for such an obligation of review – that the judgment of the court of final instance by virtue of which the contested administrative decision became final was, in the light of a subsequent decision of the Court, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling cannot be interpreted as requiring the parties to have raised before the national court the point of Community law in question. It is sufficient in that regard if either the point of Community law the interpretation of which proved to be incorrect in light of a subsequent judgment of the Court was considered by the national court ruling at final instance or it could have been raised by the latter of its own motion. While Community law does not require national courts to raise of their own motion a plea alleging infringement of Community provisions where examination of that plea would oblige them to go beyond the ambit of the dispute as defined by the parties, they are obliged to raise of their own motion points of law based on binding Community rules where, under national law, they must or may do so in relation to a binding rule of national law.

(see paras 37-39, 44-46, operative part 1)

2. Community law does not impose any limit in time for making an application for review of an administrative decision that has become final. The Member States nevertheless remain free to set reasonable time-limits for seeking remedies, in a manner consistent with the Community principles of effectiveness and equivalence.

(see para. 60, operative part 2)

JUDGMENT OF THE COURT (Grand Chamber)

12 February 2008 (*)

(Export of cattle – Export refunds – Final administrative decision – Interpretation of a judgment of the Court – Effect of a preliminary ruling given by the Court after that decision – Review and withdrawal – Time-limits – Legal certainty – Principle of cooperation – Article 10 EC)

In Case C‑2/06,

REFERENCE for a preliminary ruling under Article 234 EC from the Finanzgericht Hamburg (Germany), made by decision of 21 November 2005, received at the Court on 4 January 2006, in the proceedings

Willy Kempter KG

v

Hauptzollamt Hamburg-Jonas,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts and A. Tizzano (Rapporteur), Presidents of Chambers, J.N. Cunha Rodrigues, A. Borg Barthet, M. Ilešič, P. Lindh and J.-C. Bonichot, Judges,

Advocate General: Y. Bot,

Registrar: J. Swedenborg, Administrator,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Willy Kempter KG, by K. Makowe, Rechtsanwalt,

– the Czech Republic, by T. Boček, acting as Agent,

– the Republic of Finland, by E. Bygglin, acting as Agent,

– the Commission of the European Communities, by F. Erlbacher and T. van Rijn, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 April 2007,

gives the following

Judgment

1 This reference for a preliminary ruling relates to the interpretation of the principle of cooperation arising from Article 10 EC, construed in the light of the judgment in Case C-453/00 Kühne & Heitz [2004] ECR I‑837.

2 The reference was made in proceedings between Willy Kempter KG (‘Kempter’) and the Hauptzollamt Hamburg-Jonas (Principal Customs Office Hamburg-Jonas; ‘the Hauptzollamt’) concerning the application of Paragraphs 48 and 51 of the Law on Administrative Procedure (Verwaltungsverfahrensgesetz) of 25 May 1976 (BGBl. 1976 I, p. 1253; ‘the VwVfG’).

Legal context

Community legislation

3 Article 4(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) is worded as follows:

‘Without prejudice to the provisions of Articles 5 and 16, the refund shall be paid only upon proof being furnished [that] the products for which the export declaration was accepted have, within 60 days from the date of such acceptance of the export declaration, left the customs territory of the Community in the unaltered state.’

4 Article 5(1) of Regulation No 3665/87 states:

‘Payment of the differentiated or non-differentiated refund shall be conditional not only on the product having left the customs territory of the Community but also – save where it has perished in transit as a result of force majeure – on its having been imported into a non-member country and, where appropriate, into a specific non-member country within 12 months following the date of acceptance of the export declaration:

(a) where there is serious doubt as to the true destination of the product …

…’

National legislation

5 The first sentence of Paragraph 48(1) of the VwVfG provides that an unlawful administrative act may, even after it has become unchallengeable, be withdrawn wholly or in part, with prospective or retroactive effect.

6 Paragraph 51 of the VwVfG concerns the reopening of a procedure closed by an administrative act that has become unchallengeable. Paragraph 51(1) provides that the relevant authority must, on application by the person concerned, decide whether to set aside or amend an unchallengeable administrative act:

1. if the factual or legal situation on which the act was based has changed, following its adoption, in favour of the person concerned ;

2. if there is new evidence which would have led to a decision more favourable to the person concerned;

3. if there are grounds for reopening the procedure in accordance with Paragraph 580 of the Code of Civil Procedure (Zivilprozessordnung).

7 Paragraph 51(3) states that such an application must be made within a period of three months from the day on which the person concerned became aware of the ground for reopening the procedure.

The facts of the main proceedings and the questions referred for a preliminary ruling

8 According to the order for reference, Kempter exported cattle in the years 1990 to 1992 to a number of Arab countries and countries of the former Yugoslavia. It applied for and received export refunds from the Hauptzollamt on this basis, in accordance with Regulation No 3665/87 which was in force at the time.

9 On conduct of an inquiry, the Betriebsprüfungsstelle Zoll (Customs Inspectorate) of the Oberfinanzdirektion...