JUDGMENT OF THE COURT (Sixth Chamber)

17 July 1997 (1)

(Maritime transport — Goods duty — Import surcharge)

In Joined Cases C-114/95 and C-115/95,

REFERENCES to the Court under Article 177 of the EC Treaty by the ØstreLandsret (Denmark) for a preliminary ruling in the proceedings pending beforethat court between

Texaco A/S

and

Middelfart Havn,

Århus Havn,

Struer Havn,

Ålborg Havn,

Fredericia Havn,

Nørre Sundby Havn,

Hobro Havn,

Randers Havn,

Åbenrå Havn,

Esbjerg Havn,

Skagen Havn,

Thyborøn Havn,

and between

Olieselskabet Danmark a.m.b.a.

and

Trafikministeriet,

Fredericia Kommune,

Køge Havn,

Odense Havnevæsen,

Holstebro-Struer Havn,

Vejle Havn,

Åbenrå Havn,

Ålborg Havnevæsen,

Århus Havnevæsen,

Frederikshavn Havn,

Esbjerg Havn,

on the interpretation of Articles 9 to 13, 18 to 29, 84, 86, 90 and 95 of the EECTreaty, of Council Regulation (EEC) No 4055/86 of 22 December 1986 applyingthe principle of freedom to provide services to maritime transport betweenMember States and between Member States and third countries (OJ 1986 L 378,p. 1), and of Council Regulation (EEC) No 4056/86 of 22 December 1986 layingdown detailed rules for the application of Articles 85 and 86 of the Treaty to

maritime transport (OJ 1986 L 378, p. 4), and of Articles 6 and 18 of theAgreement between the European Economic Community and the Kingdom ofSweden, signed in Brussels on 22 July 1972, concluded and approved on behalf ofthe Community by Council Regulation (EEC) No 2838/72 of 19 December 1972(OJ, English Special Edition 1972 (31 December), p. 98),

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, J.L. Murray andP.J.G. Kapteyn (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

—    Texaco A/S, by Jan-Erik Svensson, of the Copenhagen Bar,

—    Middelfart Havn, Århus Havn, Struer Havn, Ålborg Havn, Fredericia Havn,Nørre Sundby Havn, Hobro Havn, Randers Havn, Åbenrå Havn, and forFredericia Kommune, Køge Havn, Odense Havnevæsen, Holstebro-StruerHavn, Vejle Havn, Ålborg Havnevæsen, Århus Havnevæsen, by Per Magid,of the Copenhagen Bar,

—    Olieselskabet Danmark a.m.b.a., by Andreas Fischer, of the CopenhagenBar,

—    the Trafikministeriet (Danish Ministry of Transport), Esbjerg Havn, SkagenHavn, Thyborøn Havn and Frederikshavn Havn, by Karsten Hagel-Sørensen, of the Copenhagen Bar,

—    the Commission of the European Communities, by Hans Peter Hartvig,Legal Adviser, Anders Christian Jessen and Enrico Traversa, of its LegalService, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Texaco A/S, represented by Jan-ErikSvensson; of Olieselskabet Danmark a.m.b.a., represented by Andreas Fischer; ofMiddelfart Havn, Århus Havn, Struer Havn, Ålborg Havn, Fredericia Havn, NørreSundby Havn, Hobro Havn, Randers Havn, Åbenrå Havn, Fredericia Kommune,Køge Havn, Odense Havnevæsen, Holstebro-Struer Havn, Vejle Havn, ÅlborgHavnevæsen and Århus Havnevæsen, by Per Magid and Jeppe Skadhauge, of the

Copenhagen Bar; of the Trafikministeriet, Esbjerg Havn, Skagen Havn, ThyborønHavn and Frederikshavn Havn, by Karsten Hagel-Sørensen; and of theCommission, represented by Hans Peter Hartvig, Anders Christian Jessen, EnricoTraversa and Richard Lyal, of its Legal Service, acting as Agent, at the hearing on9 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 27 February1997,

gives the following

Judgment

1.

    By two orders of 24 March 1995, received at the Court on 3 April 1995, the ØstreLandsret referred to the Court for a preliminary ruling under Article 177 of the ECTreaty various questions on the interpretation of Articles 9 to 13, 18 to 29, 84, 86,90 and 95 of the EEC Treaty, of Council Regulation (EEC) No 4055/86 of 22December 1986 applying the principle of freedom to provide services to maritimetransport between Member States and between Member States and third countries(OJ 1986 L 378, p. 1), and of Council Regulation (EEC) No 4056/86 of 22December 1986 laying down detailed rules for the application of Articles 85 and86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4), and of Articles 6 and18 of the Agreement between the European Economic Community and theKingdom of Sweden, signed in Brussels on 22 July 1972, concluded and approvedon behalf of the Community by Council Regulation (EEC) No 2838/72 of 19December 1972 (OJ, English Special Edition 1972 (31 December), p. 98, 'theEEC/Sweden Agreement‘).

2.

    Those questions were raised in proceedings between Texaco A/S and OlieselskabetDanmark a.m.b.a. ('Olieselskabet‘) respectively, two limited companies registeredin Denmark which import refined petroleum products such as diesel and petroland, in Texaco's case, solid fuel into a number of commercial ports concerning thecharging by those ports of an import surcharge of 40% which until 31 March 1990was levied in Denmark in addition to goods duties on all imported goods loaded,unloaded, or otherwise taken on board or landed within Danish commercial portsor in the deep-water approach channels to those ports.

3.

    In Denmark, authorization to establish a commercial port, that is to say, a harbourused for the commercial transport of goods, vehicles and persons, is granted by the

Minister for Transport. In accordance with the system of ownership and control,a distinction may be drawn between ports under local authority control, which areindependent bodies answerable to the local authority, the port of Copenhagen,which has its own special legal status, the State-owned ports, operated by the

Ministry of Transport, and private ports, which are operated by their owners inaccordance with the conditions laid down in the relevant authorization.

4.

    Part of the ports' revenue comes from duties paid for their use by users. Thusshipping and goods duties must be paid for berthing, and for embarking anddisembarking goods, vehicles or persons. Special duties are charged for the use ofcranes, warehouses and storage facilities.

5.

    Under Law No 239 of 12 May 1976 on commercial ports (Lovtidende A of 1976,p. 587, 'the 1976 Law‘), which applied until 31 December 1990, the competentminister, now the Minister for Transport, was responsible for setting the rate ofshipping and goods duties after negotiations with the management of thecommercial ports. It was ministerial practice to calculate the rates on the basis ofthe economic conditions obtaining in the 22 provincial ports regarded as being themost important in terms of commercial traffic volume and to set them so as toenable the ports to cover their operating and maintenance expenditure and toensure a reasonable degree of self-financing for necessary extensions andmodernization.

6.

    The shipping and goods duties were set out in regulations for each port drawn upin accordance with the common regulations prepared by the competent minister forall commercial ports.

7.

    Under the regulations applicable at the material time, shipping duty was payableby all ships and craft and all floating installations berthing in the port or in thedeep-water approach channels. It was calculated as a fixed amount according todeadweight tonnage or gross registered tonnage either each time the vessel put intoport or as an amount payable monthly. Vessels of under 100 deadweight or grossregistered tonnes were exempt from payment of shipping duty.

8.

    Goods duty was payable on all goods loaded, unloaded, or otherwise taken onboard or landed within the port or in the deep-water approach channels. Itrepresented a certain amount per tonne. There were exemptions and special ratesfor certain goods. In accordance with the rules, goods duty was to be paid by thevessel or its local agent before the ship's departure, but was ultimately borne by therecipient and sender respectively of the goods from whom reimbursement could beclaimed.

9.

    During the period relevant to the cases in the main proceedings, a surcharge of40% was added to the goods duty levied on goods imported from abroad. It isclear from the orders for reference that that import surcharge of 40% wasintroduced in the context of a general adjustment to the level of port duties madein 1956 in the light of a report by the committee on rates of duty for ports andbridges set up by the Ministry of Public Works in 1954.

10.

    According to that committee, the increase considered necessary in the rates of dutyshould apply to both shipping and goods duties, but had 'to be made in such a waythat its objective (increasing income for the ports) is not jeopardized throughcommercial traffic being totally or partially diverted from the ports with the resultthat goods are instead conveyed by road or rail‘. The committee on rates of dutyfor ports and bridges therefore proposed, so far as goods duty was concerned, 'toconcentrate on the turnover of foreign goods inasmuch as the greater part of thegoods which are imported into Denmark are most naturally transported by sea andthe danger that this business will be diverted from ports merely if the goods dutyis increased can therefore to some extent be discounted‘. The committee alsoconsidered that 'the most appropriate solution [was] that the extra revenue to begenerated through goods duty should be derived exclusively from an increase in theduty on imported goods‘, since the duty on imported goods such as fertilizers andfeedstuffs for agriculture and raw materials for industry was lower than duty onfinished products and an increase in duty on those imports would therefore have a much more limited effect on those sectors than an increase in duty on exports. Finally, the risk of domestic traffic deserting the ports in favour of land transportled the committee on rates of duty for ports and bridges to suggest, on the onehand, exempting small craft from the proposed increase in shipping duty and, onthe other, allowing vessels of up to 100 tonnes the lower rates usually allowed inrespect of vessels of less than 100 tonnes.

11.

    The import surcharge of 40% was abolished by the Minister for Transport witheffect from 1 April 1990.

12.

    The products imported by Texaco and Olieselskabet come essentially from non-member countries with which the Community has concluded free-trade agreements,but also from non-member countries which do not have any free-trade agreementwith the Community. In Texaco's case, those products are imported through theports of Middelfart, Århus, Struer, Esbjerg, Ålborg, Skagen, Fredericia, NørreSundby, Hobro, Randers, Åbenrå and Thyborøn. The ports of Esbjerg, Skagen andThyborøn are State-owned ports and the others are under local authority control. In Olieselskabet's case, the goods are imported through the ports of Fredericia,Køge, Odense, Holstebro-Struer, Vejle, Åbenrå, Ålborg, Århus, Frederikshavn andEsbjerg. The last two are State-owned ports, the other eight being under localauthority control. Texaco and Olieselskabet had to pay the relevant goods duty onall their imports, and in addition the import surcharge of 40%.

13.

    By application lodged on 30 April 1993 at the Østre Landsret, Texaco sought anorder for the defendant ports to repay it the part of the goods duty whichrepresented the import surcharge of 40% levied between 1 May 1988 and 31 March1990, totalling approximately DKR 3.2 million.

14.

    By application lodged on 25 June 1993 at the same court, Olieselskabet sought anorder for the ports, jointly and severally with the Ministry of Transport, to repayit the import surcharges levied between 1 January 1988 and 1 April 1990, totalling

approximately DKR 2.5 million, and sought a declaration that they shouldacknowledge their obligation to repay the surcharges levied from 1 July 1977 to 31December 1987, for which period it had not yet proved possible to quantify thewhole sum levied.

15.

    In support of their applications, Texaco and Olieselskabet put forward variousarguments concerning the incompatibility of the import surcharge with Communitylaw, in particular with Articles 9 to 13, 18 to 29, 86, 90 and 95 of the Treaty andArticles 6 and 18 of the EEC/Sweden Agreement and of the agreement concludedby the Community with the Kingdom of Norway (see Council Regulation (EEC)No 1691/73 of 25 June 1973 concluding an Agreement between the EuropeanEconomic Community and the Kingdom of Norway and adopting provisions for itsimplementation, OJ 1973 L 171, p. 1).

16.

    The defendant ports and the Ministry of Transport denied that the importsurcharge was incompatible with those provisions of Community law and claimed,in particular, that since it was not levied on goods as such but as payment forservices provided by the ports, the surcharge ought to be assessed in the light ofArticle 84(2) of the EEC Treaty, concerning transport, and of RegulationNo 4055/86.

17.

    In the alternative, the ports under local authority control claimed that, if thesurcharge were found to be incompatible with Community law, the Ministry ofTransport, being responsible for setting duties, should be required to indemnifythem for any amount they might be ordered to refund or to pay by way ofcompensation for the duties imposed. Both the State-owned ports and the Ministryof Transport argued that it does not follow directly from Community law that aMember State which has set or approved a duty which is found to be incompatible with Community law is obliged to refund it. In their view, it is for domestic law,and consequently the national court, to decide whether, in the circumstances, theState is required to indemnify the ports under local authority control for any sumwhich they might be ordered to repay.

18.

    Those were the circumstances in which the Østre Landsret decided to stayproceedings and to refer the following questions to the Court for a preliminaryruling:

In Case 114/95:

'1.    Must the compatibility with Community law of a 40% surcharge on ageneral goods duty, which is levied by a Member State when goods areimported by ship from another Member State, be assessed in the light of

    A:    —    Articles 9 to 13 of the EEC Treaty, if necessary in conjunctionwith Articles 18 to 29 and Council Regulation No 2658/87adopted pursuant thereto, or

        —    Article 95 of the Treaty?

             or in so far as it is assumed that the case relates to services inrespect of which consideration is paid, under

    B:    —    Article 84 of the EEC Treaty and Council Regulation No4055/86 on freedom to provide services, or

        —    Articles 90 and 86 of the EEC Treaty on abuse of a dominantposition, in which connection the question arises as to whetherCouncil Regulation No 4056/86 is relevant for determiningwhether the surcharge is compatible with Community law?

2.    Is it consistent with the Community-law provision(s) specified in the replyto Question 1 that a 40% surcharge on a general goods duty should belevied on imports of goods by ship from another Member State?

3.    Will the reply to Question 2 be the same if the goods are imported by shipinto a Member State from a non-member country with which the EuropeanEconomic Community has an agreement containing provisionscorresponding to Articles 6 and 18 of the agreement between the Kingdomof Sweden and the European Economic Community, and the determinationis made in the light of such a (free-trade) agreement?

4.    Will the reply to Question 2 be the same if the goods are imported into aMember State directly from a non-member country with which theEuropean Economic Community does not have a (free-trade) agreement?‘

In Case C-115/95:

'1.    Must the compatibility with Community law of a 40% surcharge on ageneral goods duty, which is levied by a Member State when goods areimported by ship from another Member State, be assessed in the light of

    A:    —    the Treaty rules on the Customs Union, including Articles 9 to13, if necessary in conjunction with Articles 18 to 29 andCouncil Regulations No 950/68 and No 2658/87 adoptedpursuant thereto, or

        —    Article 95 of the Treaty?

    or

    B:    —    Article 84 of the Treaty and Council Regulation No 4055/86 onfreedom to provide services, or

         —    Articles 90 and 86 of the Treaty on abuse of a dominantposition, in which connection the question arises as to whetherCouncil Regulation No 4056/86 is relevant for determiningwhether the surcharge is compatible with Community law?

2.    Is it consistent with the Community-law provision(s) specified in the replyto Question 1 that a 40% surcharge on a general goods duty should belevied on imports of goods by ship from another Member State?

3.    Will the reply to Question 2 be the same if the goods are imported by shipinto a Member State from a non-member country with which the EuropeanEconomic Community has an agreement containing provisionscorresponding to Articles 6 and 18 of the agreement between the Kingdomof Sweden and the European Economic Community, and the determinationis made in the light of such a (free-trade) agreement?

4.    Will the reply to Question 2 be the same if the goods are imported into aMember State directly from a non-member country with which theEuropean Economic Community does not have a (free-trade) agreement?

5.    Does it follow from Community law that a Member State which hasimposed or approved a duty contrary to Community law is liable to repaythe duty, even though the proceeds of the duty have been allocated toindependent operators subject to local authority control?

6.    In view of the fact that it follows from the established case-law of the Courtof Justice that the repayment of duties levied in breach of Community lawmust have regard to the substantive and formal requirements laid down innational legislation, and that the Court of Justice held at paragraph 12 ofits judgment in Case 199/82 Amministrazione delle Finanze dello Stato v SanGiorgio [1983] ECR 3595 that entitlement to the repayment of chargeslevied by a Member State contrary to the rules of Community law is aconsequence of, and an adjunct to, the rights conferred on individuals by theCommunity provisions prohibiting charges having an effect equivalent tocustoms duties or, as the case may be, the discriminatory application ofinternal taxes, the following question arises: must the case-law of the Courtof Justice be understood as meaning that Community law contains anunconditional obligation to repay duties which, according to the replies toQuestions 1 to 4, may be contrary to Community law, but that thisobligation is such that the detailed conditions for the actual processing ofthe claim for repayment are subject, within certain limits laid down in thecase-law of the Court of Justice, to relevant national legislation?

7.    If it is held that the 40% surcharge on the general goods duty is contrary toCommunity law, including (free-trade) agreements entered into, is itcompatible with Community law for a limitation period laid down innational law for repayment claims to run from an earlier point in time thanthat from which the Member State in question discontinued the duty whichwas contrary to Community law?‘

19.

    By order of 11 May 1995, the President of the Court decided to join the two casesfor the purposes of the written and oral procedure and the judgment.

Questions 1 and 2

20.

    By its first two questions, which it is appropriate to consider together, the nationalcourt seeks clarification, first, of the notion of a charge having an effect equivalentto a customs duty contained in Articles 9 to 13 of the Treaty, and of the notion ofdiscriminatory internal taxation referred to in Article 95 of the Treaty, where aMember State levies an import surcharge of 40% on goods imported by ship fromanother Member State in addition to the general goods duty payable on all goodsloaded, unloaded, or otherwise taken on board or landed within the ports of thefirst Member State or in the deep-water approach channels to those ports. Secondly, it asks whether such a surcharge is prohibited by Regulation No 4055/86or by Articles 86 and 90 of the Treaty.

21.

    With regard to the first part of those questions, it is sufficient to note that in itsjudgment of this date in Case C-90/94 Haahr Petroleum [1997] ECR I-0000 theCourt ruled that both the general goods duty and the import surcharge, whichforms an integral part of the duty, are covered by Article 95 of the Treaty whichprecludes the imposition by a Member State of such a surcharge on goodsimported by ship from another Member State.

22.

    Since the import surcharge is contrary to Article 95 of the Treaty, it is unnecessaryto give a ruling on the interpretation of Regulation No 4055/86 or of Articles 86and 90 of the Treaty. mentioned in the second part of the first and secondquestions.

23.

    That being so, the answer to be given to the first two questions must be that it iscontrary to Article 95 of the Treaty for a Member State to impose a 40% importsurcharge on a general duty levied on goods loaded, unloaded, or otherwise takenon board or landed within its ports or in the deep-water approach channels to itsports where goods are imported by ship from another Member State.

The third questions

24.

    By its third questions the national court is asking in substance whether an importsurcharge such as that at issue in the main proceedings is also contrary toCommunity law in so far as it is applicable to goods imported from a non-membercountry with which the Community has concluded an agreement containingprovisions similar to those in Articles 6 and 18 of the EEC/Sweden Agreement.

25.

    Article 6(1) of the EEC/Sweden Agreement provides: 'No new charge having aneffect equivalent to a customs duty on imports shall be imposed in trade betweenthe Community and Sweden.‘ Under Article 6(3), existing charges havingequivalent effect were to be abolished by 1 July 1977.

26.

    The first paragraph of Article 18 of the EEC/Sweden Agreement provides: 'TheContracting Parties shall refrain from any measure or practice of an internal fiscalnature establishing, whether directly or indirectly, discrimination between theproducts of one Contracting Party and like products originating in the territory ofthe other Contracting Party.‘

27.

    In order to answer the national court's questions, it should first be noted that CaseC-163/90 Administration des Douanes et Droits Indirects v Legros and Others [1992]ECR I-4625 established that the term 'charge having an effect equivalent to acustoms duty on imports‘ used in Article 6 of the EEC/Sweden Agreement mustbe interpreted in the same way as the same term appearing in Articles 9 to 13 ofthe Treaty.

28.

    Next, in Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641 and CaseC-312/91 Metalsa [1993] ECR I-3751, concerning provisions identical to the firstparagraph of Article 18 of the EEC/Sweden Agreement appearing in agreementsof the same kind concluded with the Portuguese Republic and the AustrianRepublic respectively, the Court stated that interpretations given to Article 95 ofthe Treaty could not be applied by way of simple analogy to an agreement on freetrade, with the result that the relevant provisions in such an agreement had to beinterpreted, not only according to their terms, but also in the light of the objectivewhich they pursued in the system of free trade established by the agreement.

29.

    The purpose of the EEC/Sweden Agreement, like that of the free-trade agreementsat issue in Kupferberg and Metalsa, is to create a system of free trade in whichrestrictive trade rules are eliminated in respect of virtually all trade in productsoriginating in the territory of the contracting parties, in particular by abolishingcustoms duties and charges having equivalent effect and eliminating quantitativerestrictions and measures having equivalent effect.

30.

    Seen in that context, Article 18 seeks to ensure that the liberalization of trade ingoods through the abolition of customs duties and charges having equivalent effectand quantitative restrictions and measures having equivalent effect is not renderednugatory by fiscal practices of the contracting parties. That would be so, as the

Court expressly stated in paragraph 25 of Kupferberg, if the imported products ofone party were taxed more heavily than similar domestic products appearing withthem on the market of the other party.

31.

    In the light of those objectives, and having regard to its terms, Article 18 of theEEC/Sweden Agreement must therefore be interpreted as imposing on thecontracting parties a rule against discrimination in matters of taxation, which isdependent only on a finding that the products affected by a particular system oftaxation are of like nature, and which prohibits discrimination arising from anymeasure or practice having a direct or indirect effect on the way in which taxesimposed on the other contracting party's products are determined, applied orcollected.

32.

    The fact remains that a goods duty which, as the Court held in paragraphs 20 to24 of Haahr, forms part of a general system of internal dues applying systematicallyto categories of products according to objective criteria applied without regard tothe origin of the products, constitutes an internal measure of a fiscal nature withinthe meaning of Article 18 of the EEC/Sweden Agreement, and that application toimported products alone of a surcharge in addition to the duty payable on domesticand imported products is contrary to the prohibition of discrimination laid down inthat provision.

33.

    In the light of the foregoing considerations, the answer to the third questions mustbe that an import surcharge, such as that at issue in the main proceedings, is alsocontrary to Community law where it is applicable to goods imported from a non-member country with which the Community has concluded an agreement containingprovisions similar to those of Article 18 of the EEC/Sweden Agreement.

The fourth questions

34.

    By its fourth questions, the national court asks in essence whether Community lawalso precludes the imposition of that import surcharge where goods are importedinto a Member State directly from a non-member country with which theCommunity has not concluded an agreement.

35.

    The Court has consistently held that Article 95 of the Treaty applies only toproducts from the Member States and, where appropriate, to goods originating innon-member countries which are in free circulation in the Member States. Itfollows that that provision is not applicable to products imported directly from non-member countries (see, in particular, Case C-130/92 OTO v Ministero delle Finanze[1994] ECR I-3281, paragraph 18).

36.

    For trade with non-member countries, as far as internal taxation is concerned, theTreaty does not include any rule analogous to that laid down in Article 95 (Case

148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, paragraph 23, and OTO,paragraph 20).

37.

    Consequently, the answer to the fourth questions must be that Community law doesnot preclude the imposition by a Member State of an import surcharge such as thatat issue in the main proceedings where goods are imported directly from a non-member country with which the Community has not concluded an agreement.

Question 5 in Case C-115/95

38.

    By this question, the national court seeks to ascertain whether Community lawrequires a Member State which has imposed or approved a duty contrary toCommunity law to repay the duty, even where the proceeds of the duty have beenallocated to independent operators subject to local authority control.

39.

    The fact that a tax or levy is collected by a body governed by public law other thanthe State or is collected for its benefit and is a charge which is special orappropriated for a specific purpose cannot prevent its falling within the field ofapplication of Article 95 of the Treaty (see Case 74/76 Iannelli v Meroni [1977]ECR 557, paragraph 19) or, where appropriate, the prohibition laid down in thatprovision.

40.

    Entitlement to the repayment of charges levied by a Member State contrary to therules of Community law is a consequence of, and an adjunct to, the rights conferredon individuals by the Community provisions prohibiting such charges. The MemberState is therefore in principle required to repay charges levied in breach ofCommunity law (Joined Cases C-192/95 to C-218/95 Comateb and Others [1997]ECR I-165, paragraph 20).

41.

    However, the Court has also consistently held that, in the absence of Communityrules governing a matter, it is for the domestic legal system of each Member Stateto designate the courts and tribunals having jurisdiction and to lay down thedetailed procedural rules governing actions for safeguarding rights which individualsderive from the direct effect of Community law; however, such rules must not beless favourable than those governing similar domestic actions or render virtuallyimpossible or excessively difficult the exercise of rights conferred by Community law(see inter alia Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599,paragraph 12, and the cases cited).

42.

    Consequently, in a case such as that before the national court, whether the actionfor recovery of the sum unduly paid should lie against the independent operators subject to local authority control to whom the proceeds of the duty have beenallocated or against the State which has imposed or approved the duty or, where

appropriate, against both, is a matter for national law to determine, subject to thetwo conditions set out above.

43.

    In the circumstances, the answer to the fifth question must be that, where aMember State has imposed or approved a duty contrary to Community law, it isrequired in principle to repay the duty levied in breach of Community law. If theproceeds of the duty have been allocated to independent operators subject to localauthority control, it is not contrary to Community law for the action for repaymentof those duties to lie against such operators, provided that the rules governing suchactions are not less favourable than those governing similar domestic actions andare not so framed as to render virtually impossible or excessively difficult therecovery of duty unduly paid.

Questions 6 and 7 in Case C-115/95

44.

    By its sixth and seventh questions, which it is appropriate to consider together, thenational court asks in substance whether Community law imposes an unconditionalobligation to repay duty levied in breach of Article 95 of the Treaty or of aprovision corresponding to Article 18 of the EEC/Sweden Agreement and, inparticular, whether it is contrary to Community law for a national limitation periodfor claims for repayment of such duties to run from an earlier point in time thanthat from which the duties were discontinued.

45.

    It follows from the judgment in Case 199/82 Amministrazione delle Finanze delloStato v San Giorgio [1983] ECR 3595, paragraph 12, cited by the national court,that while entitlement to the repayment of charges levied by a Member Statecontrary to the rules of Community law is a consequence of, and an adjunct to, therights conferred on individuals by the Community provisions prohibiting suchcharges, as Community law stands at present repayment may be sought only withinthe framework of the conditions as to both substance and form laid down by thevarious national laws applicable thereto, provided always that those conditions maynot be less favourable than those governing similar domestic actions or rendervirtually impossible or excessively difficult the exercise of rights conferred byCommunity law.

46.

    Next, the Court has held, at paragraph 48 of Haahr, that the laying down ofreasonable limitation periods, which is an application of the fundamental principleof legal certainty, satisfies the two conditions referred to above and, in particular,cannot be regarded as rendering virtually impossible or excessively difficult theexercise of rights conferred by Community law, even if the expiry of those periodsnecessarily entails the dismissal, in whole or in part, of the action brought.

47.

    The judgment in Case C-208/90 Emmott [1991] ECR I-4269 does not invalidate thatconclusion.

48.

    In paragraph 17 of that judgment, the Court expressly recounted the principle thatthe fixing of reasonable time-limits which, if unobserved, bar proceedings, satisfiesthe conditions laid down in the decisions referred to. It was only because of theparticular nature of directives and having regard to the specific circumstances ofthat case that the Court held, in paragraph 23, that until such time as a directivehas been properly transposed into domestic law, a Member State may not rely onan individual's delay in initiating proceedings against it in order to protect rightsconferred upon him by the provisions of the directive and that a period laid downby national law within which proceedings must be initiated cannot begin to runbefore that time.

49.

    Since the claims for repayment referred to in the national court's questions are notbased on the direct effect of a provision of a directive incorrectly transposed intodomestic law, but rather on that of a provision of the Treaty or of a free-tradeagreement such as the EEC/Sweden Agreement, the answer to be given to the sixthand seventh questions must be that it is not contrary to Community law for anational limitation period applicable to claims for repayment of duties levied inbreach of Article 95 of the Treaty or a provision similar to Article 18 of theEEC/Sweden Agreement to start to run from an earlier point in time than thatfrom which the duties were discontinued.

Costs

50.

    The costs incurred by the Commission of the European Communities, which hassubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main proceedings, a step in the proceedings pendingbefore the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Østre Landsret by two orders of 24March 1995, hereby rules:

1.    It is contrary to Article 95 of the EEC Treaty for a Member State to imposea 40% import surcharge on a general duty levied on goods loaded,unloaded, or otherwise taken on board or landed within its ports or in thedeep-water approach channels to its ports where goods are imported by shipfrom another Member State.

2.    Such an import surcharge is also contrary to Community law where it isapplicable to goods imported from a non-member country with which theCommunity has concluded an agreement containing provisions similar to

those of Article 18 of the agreement between the European EconomicCommunity and the Kingdom of Sweden, signed in Brussels on 22 July1972, concluded and approved on behalf of the Community by CouncilRegulation (EEC) No 2838/72 of 19 December 1972.

3.    Community law does not preclude the imposition by a Member State ofsuch an import surcharge on goods imported directly from a non-membercountry with which the Community has not concluded an agreement.

4.    Where a Member State has imposed or approved a duty contrary toCommunity law, it is required in principle to repay the duty levied inbreach of Community law. If the proceeds of the duty have been allocatedto independent operators subject to local authority control, it is notcontrary to Community law for the action for repayment of those duties tolie against such operators, provided that the rules governing such actionsare not less favourable than those governing similar domestic actions andare not so framed as to render virtually impossible or excessively difficultthe recovery of duty unduly paid.

5.    It is not contrary to Community law for a national limitation periodapplicable to claims for repayment of duties levied in breach of Article 95of the Treaty or a provision similar to Article 18 of the agreementconcluded between the European Economic Community and the Kingdomof Sweden to run from an earlier point in time than that from which theduties were discontinued.

ManciniMurray Kapteyn

Delivered in open court in Luxembourg on 17 July 1997.

R. Grass

G.F. Mancini

Registrar

President of the Sixth Chamber

1: Language of the case: Danish.