Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

Like other common organizations of the market the common organization of the market in sugar established by Regulation No 1009/67 of the Council of 18 December 1967 (OJ English Special Edition 1967, p. 304) provides by its common system of prices for a uniformly applicable system of trading at the outer frontiers of the Community. Under this system levies are charged on sugar imports and provision is made for the payment of a refund on sugar exported to third countries. As regards the refund Article 17 of the regulation, so far as is relevant to the present case, reads: To the extent necessary to enable the products listed in Article 1(1) (a), (c) and (d) (including white sugar) to be exported … on the basis of quotations or prices listed in Article 1(1) (a) and (c) on the world market, the difference between those quotations or prices and prices within the Community may be covered by an export refund. The refund shall be the same for the whole Community. It may be varied according to use or destination. The refund shall be granted on application by the person concerned.

Regulation (EEC) No 766/68 of the Council of 18 June 1968 (OJ English Special Edition 1968, p. 155) lays down general rules for granting export refunds on sugar. Under Article 11 of this regulation If the refund is not fixed by tender, the amount of the refund or the basic amount of the refund in force on the day of exportation shall be applied. Article 14(1) states: The refund shall be paid upon proof that the products have been exported from the Community. Further, Article 15 provides inter alia that No export refund shall be granted on the products listed in Article l(l)(a) and (c) of Regulation No 1009/67/ EEC unless they have been produced from sugar beet or sugar cane harvested within the Community.

Furthermore Regulation No 1041/67 of the Commission of 21 December 1967 (OJ English Special Edition 1967, p. 323) on detailed rules for the application of export refunds on products subject to a single price system is relevant. Article 1 (1) of this regulation provides that for the purposes of determining the rate of the refund the date of exportation shall be the day on which the customs authority accepts the document by which the declarant states his intention to export the products in question and qualify for a refund. Paragraph 2 of this article provides that For the purposes of this regulation, acceptance of the document referred to in paragraph 1 shall be considered to be the completion of the customs export formalities. According to Article 3 The refund shall be paid only upon proof that the product in respect of which customs formalities have been completed has left the geographical territory of the Community unaltered, in the case referred to in Article 1, or has reached its destination unaltered, in the cases mentioned in Article 2. If a product for which customs formalities have been completed, before leaving the geographical territory of the Community or before reaching one of the destinations listed in Article 2 of Regulation No 1041/67, crosses Community territory other than that of the Member State in whose territory such formalities took place, Article 5 provides that proof that the product has left the geographical territory of the Community or reached the intended destination shall, pending the introduction of a Community transit system, be furnished in the form of an exit certificate, the model of which is shown in the Annex. Article 5 continues This certificate, bearing a serial number, shall be issued at least in duplicate by the customs office where the customs export formalities are completed. The original of the certificate shall be issued to the exporter and the copy shall be kept by the customs office of exit or sent directly by that office to the authority responsible for paying the refund. The exporter's copy shall accompany the goods. It shall be endorsed by the intermediate customs offices where the goods have to be presented and by the customs office of exit from the Community or by the office certifying that the product has reached its destination in the cases referred to in Article 2. It shall then, within eight days following the last endorsement, be returned by the office concerned to the national authority shown in the certificate heading. The refund — as Article 10 in addition provides—shall be paid by the Member State in whose territory the customs export formalities were concluded. Under Article 10(2) of this Article as amended by Regulation No 499/69 of the Commission of 17 March 1969 (OJ English Special Edition 1969, p. 114) The time-limit for claiming payment of the refund shall be 6 months following the day on which the customs export formalities were completed except in cases of force majeure. Finally mention must be made of the fact that in the Federal Republic of Germany special implementing provisions were adopted under the Verordnung Ausfuhrerstattungen EWG (Regulation relating to EEC export refunds) of 24 January 1968, which was amended by a regulation of 3 August 1968. Paragraph 3 of this regulation provides that the customs offices authorized to pay the refund are those designated by the Federal Minister for Finance. Under an order of 27 August 1968 the only office designated was the Hauptzollamt (Principal Customs Office) Hamburg-Jonas. By virtue of paragraph 6 of the said regulation the application for a refund … must be lodged with the competent customs office in the prescribed form.

These provisions are also of concern to the firm of Schlüter & Maack, the plaintiff in the main action. On 2 October 1968 it asked the Uelzen customs office, a forwarding office, for customs clearance for the export of a quantity of sugar intended for victualling sea-going vessels of an Italian shipping company. The goods were described in the exit certificate issued under Article 5 of Regulation No 1041 as white sugar, solid, not denatured, produced from sugar beet harvested within the Community, sucrose content not less than 99.5 %, tariff heading 17.01 A. In Part A of the exit certificate, which was intended for the Hauptzollamt Hamburg-Jonas, the office responsible for granting the refunds, the exporting firm declared on 30 September 1968 that the goods were the subject of an export licence issued by the Federal Republic of Germany and were to be delivered to Genoa, Italy (free port). The certificate then goes on to say: I certify that these goods qualify for an export refund. On 1 April 1969 a customs office in Genoa certified in Part E of the certificate that the goods left Community territory on 12 February 1969. On 28 May 1969 the Hauptzollamt Hamburg-Jonas, the German office responsible for granting refunds, received an application by the firm Schlüter & Maack, for an export refund on the consignment for export which I have just described. It was dated 9 October 1968, headed 2nd copy and was endorsed duplicate prepared 23/5/69.

This application was, however, refused by a decision of the Hauptzollamt of 20 October 1969. The reasons for the refusal were that it had not received the application dated 9 October 1969 and that the application for a refund prepared on 23 May 1969 only arrived after the expiration of the six months' period prescribed by Article 10 of Regulation No 1041/67 which began to run on completion of the customs export formalities on 2 October 1968.

Schlüter & Maack lodged an objection against this decision. It submitted that the proper construction of Article 7 of Regulation No 499/69 is that the period mentioned by the Hauptzollamt only begins to run from the date when the last customs export formality has been completed, in the present case from the date when the customs office in Genoa completed the endorsement that the sugar in question had left the geographical territory of the Community. It also submitted that there was a case of force majeure within the meaning of Article 7 of Regulation No 499/69, because the application of 9 October had in fact been despatched and must have been mislaid somewhere through no fault of the exporter.

However the objection failed. It was dismissed on the ground that under Article 1 of Regulation No 1041/67 acceptance of the document by which the declarant states his intention to export the products in question and qualify for a refund is treated as completion of the customs export formalities. It is therefore quite clear that the limitation period began to run on 3 October 1968. As under Article 17 of Regulation No 1009/67 the refund shall only be granted on application by the person concerned, the application must be included in the documents which must be lodged in support of the claim for payment of the refund with the competent customs office within the period prescribed by Article 10 of Regulation No 1041. There are no grounds for accepting the existence of force majeure, because it is particularly important to remember that there can only be force majeure if the limitation could not be complied with owing to technical administrative delays for which the person concerned cannot be blamed.

Schlüter & Maack appealed against this decision to the Finanzgericht Hamburg. In the grounds of appeal it pointed out in particular that the national authority empowered to make regulations was not entitled to introduce the requirement of a written application in addition to the requirements laid down by the provisions of Community law. Since the recital expressly referring to Article 7 of Regulation No 499/69 states that that article must be applied with flexibility, there can also be force majeure if there are circumstances for which the exporter is not responsible, for example if the loss of an application which has been despatched in the proper manner is not his fault. In answer to this argument the defendant Hauptzollamt submits, as it did before, that for the reasons which have already been given no application for a refund was in fact made. With regard to the question of force majeure the Hauptzollamt also submitted during the proceedings that the plaintiff has not proved that it despatched the application on 9 October 1968.

In view of this dispute which includes questions of Community law the Finanzgericht by its order of 22 October 1971 stayed the proceedings and referred the following questions for a preliminary ruling:

I will now consider what answers to these questions appear to be appropriate after taking note of the written and oral submissions of the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities.

1. I must first of all examine an objection raised by the Federal German Government on the question whether the answers to these questions are relevant to the decision to be made by the Finanzgericht. We know that the Federal German Government has submitted that the plaintiff did not lodge the declaration provided for by Article 7 of Regulation No 1041 to the effect that the exported sugar was produced from sugar beet harvested in the Community until after the expiry of the period laid down by Article 10. Its claim for a refund must, it is said, for this reason be rejected and there is consequently no need to consider the questions referred by the Finanzgericht.

2. In the first question the Court is asked to decide whether the declaration under Article 1 of Regulation No 1041, that is to say, the document produced to the customs office through which the goods are cleared, by which the declarant states his intention to export the products in question and qualify for a refund can be treated as the necessary application for the grant of a refund under Article 17 of Regulation No 1009. In this connexion, having regard to the facts set out in and the grounds of the order making the reference some further clarification of the problem must first be achieved. We have seen that, if goods are exported under Article 5 of Regulation No 1041, that is to say, if they cross other Community territory, an exit certificate is received by the customs office of exit in which the exporter certifies that the goods qualify for a refund. We have also learned that such exit certificates are invariably used in the Federal Republic of Germany, and therefore also in the case of direct exports. Since, however, Part B of the exit certificate contains an endorsement by the customs office where the customs export formalities are completedand, since Article 1 of Regulation No 1041 provides that acceptance of the document by which the declarant states his intention to export the products in question and qualify for a refund shall be considered to be completion of the customs export formalities, the Finanzgericht appears to proceed on the basis that the declaration of intent mentioned in Article 1 of Regulation No 1041 can be regarded as being included in the said exit certificate. As there are in my opinion good grounds for holding this view, the question therefore in fact arises, with reference to the facts in the main action, whether the certificate of the exporter in the exit certificate can be regarded as an application for the purposes of Article 17 of Regulation No 1009. This is the view which the plaintiff strenuously advocates while the Federal German Government and the Commission, for reasons which are in essence identical, submit that the question should be answered in the negative.

3. The conclusions at which I have arrived with regard to the first question make it unnecessary to deal with the other questions in the order making the reference. However, by way of a secondary examination, I will consider these questions too. In its second question the Finanzgericht Hamburg asks whether, if a separate application for the refund has to be made, a written application must be lodged or whether an oral request is sufficient.

4. The third question, which asks whether the application for the refund is one of the documents which have to be lodged within the period prescribed in Article 10 of Regulation No 1041, can also be briefly answered in the view of the concurring views of the parties concerned.

5. Finally in a fourth question the Finanzgericht Hamburg requests the Court to clarify the expression force majeure which has been incorporated by Regulation No 499/69 into Article 10 of Regulation No 1041.

6. To sum up I submit that the questions referred should be answered in the following way :

1 Translated from the German.