C-94/71

JUDGMENT OF 6.6.1972 — CASE 94/71 SCHLÜTER v HAUPTZOLLAMT HAMBURG

CELEX: 61971CJ0094
Datum: 1972-06-06
Källa: eur-lex.europa.eu

In Case 94/71 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars (Rapporteur) and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community

A — The first question

B — The second question

C — The third question

D — The fourth question

Law

Costs

I —. Facts and procedure

1. The dispute before the national court relates to the right of the plaintiff in the main action to export refunds in connexion with a contract for the supply of 75 metric tons of sugar intended for victualling ships and transported for this purpose from Hamburg to Genoa.

2. Article 17 of Regulation No 1009/67/EEC of the Council on the common organization of the market in sugar establishes a system of export refunds designed to cover the difference between quotations or prices of sugar on the world market and sugar prices within the Community.

3. Article 1 of the latter regulation states that 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 and acceptance of this document shall be considered to be the completion of the customs export formalities.

4. For the purpose of ensuring the implementation of the beforementioned Community provisions the Federal Republic of Germany adopted a regulation relating to export refunds (Verordnung Ausfuhrerstattungen EWG, Bundesanzeiger No 18 of 26 January 1968). Article 6 of this regulation states, inter alia, that the application for a refund must be lodged with the competent customs office in the prescribed form.

5. On 2 October 1968 the plaintiff in the main action delivered to the Uelzen customs office 75000 kgs of sugar which were covered by an export licence and intended for victualling sea-going vessels. According to the declaration the goods had to be delivered to Genoa, free port. An exit certificate containing the same particulars had been issued in accordance with the provisions of Article 5 of Regulation No 1041/67. The German customs authorities kept a copy whilst the original of the certificate, as provided for by the beforementioned Article 5, accompanied the goods to Genoa.

6. By a decision of 20 October 1969 the defendant in the main action dismissed the application for a refund. On 5 November 1969 the plaintiff in the main action lodged an objection to this decision. As this was dismissed the plaintiff in the main action lodged an appeal on 19 May 1970 with the Finanzgericht Hamburg.

7. In its order of 22 October 1971 the Finanzgericht Hamburg declared that it doubted whether the system in force under German law was compatible with Community law and, more particularly, with Regulations Nos 1009/67 and 1041/67. According to the Finanzgericht it is probable that the declaration made by the exporter in the exit certificate amounts to an application for a refund as required by Article 17(2) of Regulation No 1009/67. The additional application required under German law cannot be reconciled with the procedure laid down by Regulation No 1041/67, and Regulations Nos 1009/67 and 1041/67 did not permit national authorities to adopt additional implementing measures since the relevant Community rules are exhaustive.

8. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided not to order any preparatory enquiries.

II —. Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community

A —. The first question

1. The plaintiff in the main action makes the preliminary observation that when, in accordance with Article 5 of Regulation No 1041/67/EEC, an exit certificate is required and the exporter certifies in Part A of this certificate that the goods qualify for an export refund he has thereby stated his intention to export the goods in question and qualify for a refund and that, consequently, the exporter's declaration referred to in Article 1 (1) of Regulation No 1041/67 is exactly the same as the declaration which the exporter has to make in Part A of the exit certificate.

2. The Government of the Federal Republic of Germany makes the preliminary observation that the declaration by the exporter mentioned in Article 1 (1) of Regulation No 1041/67 is, in the circumstances referred to in Article 5 of this regulation, the same as the declaration which the exporter has to make in Part A of the exit certificate.

3. The Commission of the European Communities points out to begin with that the provisions, which the Court is asked to interpret, namely Article 17(2) of Regulation No 1009/67 and Article 1 of Regulation No 1041/67, refer to operations which have different objects and effects.

B —. The second question

1. The plaintiff in the main action points out that under the basic Regulation No 1009/67, and in particular Article 17(2) thereof, the refund is conditional upon an application being made but that neither the basic regulation nor Regulation No 1041/67 contain any provisions relating to the form which must be used in making this application.

2. The Government of the Federal Republic of Germany calls attention to the fact that Article 6(1) of the national regulation relating to refunds on exports from the EEC provides that the application for refunds must be made on a special form.

3. The Commission points out that Community law neither insisted upon nor prohibited a particular form of application for a refund. The question must therefore fall within the jurisdiction of Member States.

C —. The third question

1. The plaintiff in the main action submits that this only has to be answered if it were to be held, contrary to its own view, that the application for a refund must be made separately and in writing.

2. The Government of the Federal Republic of Germany points out that the recitals of Regulation No 1041/67 show that the application for payment of the refund must be made within a specific period. This period can only be the time-limit of six months mentioned in Article 10(2) of Regulation No 1041/67.

3. The Commission calls attention to the fact that logically the application for a refund, in so far as it is from the formal point of view the foundation of the procedure for obtaining a refund, is one of the documents referred to Article 10(2) of Regulation No 1041/67.

D —. The fourth question

1. The plaintiff in the main action points out that it is clear from the preamble to Regulation No 499/69 that the concept of force majeure must be given a wide interpretation.

2. The Government of the Federal Republic of Germany calls attention to the fact that the Court in its previous judgments has decided that there is force majeure if there are unusual circumstances outside the control of the persons concerned, the consequences of which, in spite of the exercise of all due care on their part, they could not have avoided except at the cost of excessive sacrifice.

3. The Commission points out that according to the recitals of Regulation No 499/69/EEC the exporter should be able to rely on force majeure in those cases where noncompliance with the time-limits for lodging the documents supporting the claim for payment of the refund, and in particular the exit certificate, cannot be imputed to the exporter but rather to the different customs authorities of the Member States. It would be in keeping with the well-known interest of the exporter and also the aim of these exceptional arrangements, to admit also the plea of force majeure if the exporter was unable to lodge his application for a refund within the exclusionary time-limit. In the Commission's view the meaning of the concept of force majeure is determined on the basis of the legal framework and the objectives of the Community rules within which it is intended to take effect (cf. Judgment of the Court of 11 July 1968 in Case 4/68 [1968] ECR 377) and should therefore be interpreted in the present case taking account of the following considerations:

1. By order dated 22 October 1971 which reached the Court Registry on 18 November 1971 the Finanzgericht Hamburg referred to the Court pursuant to Article 177 of the EEC Treaty various questions relating to the interpretation of certain provisions of Regulation No 1009/67 of the Council of 18 December 1967 (OJ English Special Edition 1967, p. 304) on the common organization of the market in sugar and of Regulation No 1041/67 of the Commission of 21 December 1967 (OJ English Special Edition 1967, p. 323) as amended by Regulation No 499/69 of the Commission of 17 March 1969 (OJ English Special Edition 1969 (I), p. 114) on detailed rules for the application of export refunds on products subject to a single price system. The questions referred relate to the formal requirements of and the time-limits for applications for export refunds made by exporters who wish to qualify for the refunds.

2. The first question asks the Court to rule whether the declaration which the exporter has to make under Article 1(1) of Regulation No 1041/67 is identical with the application for a refund referred to in Article 17(2) of Regulation No 1009/67.

3. The plaintiff in the main action despatched from Hamburg to Genoa, 75 metric tons of sugar intended for victualling ships which was capable of qualifying under Article 2 of Regulation No 1041/67 for export refunds, and produced to the German customs authority the exit certificate provided for by Article 5 of this regulation if a product, before leaving the geographical territory of the Community, crosses the territory of other Member States.

4. The Commission and the competent authorities of the Federal Republic of Germany, having regard to the particulars in this certificate, consider that it constitutes the declaration referred to in Article 1 of Regulation No 1041/67 of the Commission by which the declarant states his intention to export the products in question and qualify for a refund.

5. The purpose of the request for an interpretation is to determine whether the said declaration, and consequently the production to the customs authority of the exit certificate referred to in Article 5 of Regulation No 1041/67, amount to a valid application for a refund, which, provided that all the other conditions to which payment of the refund is subject under Community rules have been fulfilled, binds the debtor Member State or whether that Member State may make qualification for a refund conditional upon the exporter's losing his right to the refund unless he makes a special application, for which it prescribes the form and procedures involved, and lodges it within the period of six months prescribed by Article 2 of Regulation No 1041/67.

6. According to Article 17 of Regulation No 1009/67 refunds on the export of sugar are only granted on application by the person concerned. The form of this application is not expressly prescribed by this article. Although taking into account the need to ensure the smooth functioning of the complex system of export refunds, Article 17 has to be construed as implying that the application must be made in writing, a formalism which would go further than is necessary for the effective supervision of these operations should be avoided.

7. Article 1 of Regulation No 1041/67 provides that For the purposes of determining the rate of the refund on … 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. Such a declaration by which the person concerned states his intention to export and qualify for a refund contains all the particulars enabling the national authorities, which accept it, to take note that, subject to the export being effected, and application is made to them for the grant of a refund. Moreover the declaration in question not only determines the rate of the refund which the exporter claims (Article 1(1)) but is considered to be the completion of the customs export formalities (Article 1(2)) and it has the effect of placing the products referred to under customs control (last sentence of Article 1 (1)). A document produced in these circumstances to the customs authorities and accepted by them is a sufficient declaration, within the meaning of Article 17 of Regulation No 1009/67, of the exporter's intention to qualify for the refund.

8. Of course, as the Government of the Federal Republic of Germany points out, by producing this document the declarant does not irrevocably undertake to export. This cannot, however, alter the essential nature of this document but only allows it to be recorded, should the case arise, that the application has been withdrawn or that other conditions to which the right to a refund is subject have not been fulfilled.

9. The objection that the completion of the formality laid down by Article 1 of Regulation No 1041/67 is not sufficient to establish the right to a refund cannot be sustained either, since the payment of this refund is subject to proof that the product has left the geographical territory of the Community. The application which the exporter has to make is an essential condition but not in itself sufficient to establish the right to a refund, which is, moreover, dependent upon proof that the products have been exported.

10. However, having regard to Article 10 of Regulation No 1041/67 which reads : The refund shall be paid by the Member State in whose territory the customs export formalities were concluded, it is appropriate to examine the observation of the Government of the Federal Republic of Germany that where — as in the present case — it is for the national authorities to implement a Community regulation, such implementation must as a matter of principle be carried out in accordance with the rules of form and procedure of national law.

11. This principle of law must be reconciled with the need to apply Community law uniformly so as to avoid unequal treatment of exporters depending on the frontier across which they export their products. Since the document referred to in Article 1 of Regulation No 1041/67 has all the characteristics of the exporter's application under Article 17 of Regulation No 1009/67, it is not necessary, inasmuch as the right to a refund is linked with the making of an application, to make this right conditional upon requirements other than those laid down in Article 1 of Regulation No 1041/67. Although Member States may, therefore, for reasons of administrative organization, require exporters also to make an application in the form prescribed by national law, they may not, however, punish failure to fulfil this obligation by forfeiture of the right to a refund.

12. The answer to the first question should therefore be that the declaration which the exporter has to make pursuant to Article 1(1) of Regulation No 1041/67 and, in particular, the production by him of the exit certificate referred to in Article 5 of that regulation, constitute a sufficient statement, for the purposes of Article 17(2) of Regulation No 1009/67, of the exporter's intention to qualify for the refund and fulfil the requirements of this provision.

13. In view of the reply to the first question the other questions no longer serve any purpose.

14. The costs incurred by the Commission of the European Communities and the Government of the Federal Republic of Germany, which have submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Finanzgericht Hamburg, the decision as to costs is a matter for that court.

On those grounds, Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the Commission of the EEC and the Government of the Federal Republic of Germany; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the EEC, especially Article 177; Having regard to Regulation No 1009/67/EEC of the Council of 18 December 1967; Having regard to Regulation Nos 1041/67/EEC of the Commission of 21 December 1967 and 499/69/EEC of the Commission of 17 March 1969; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the questions referred to it by the Finanzgericht Hamburg by order of 22 October 1971, hereby rules: