JUDGMENT OF 22. 1. 1975 — CASE 55/74 UNKEL v HAUPTZOLLAMT HAMBURG-JONAS
In Case 55/74 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 Lord Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore and H. Kutscher, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
I — Facts and procedure
II — Observations submitted under Article 20 of the Statute of the Court of Justice
A — On the first question
1. Observations of the plaintiff in the main action
2. Observations of the defendant in the main action
3. Observations of the Commission
B — On the second question
1. Observations of the plaintiff in the main action
2. Observations of the defendant in the main action
3. Observations of the Commission
C — On the third question
1. Observations of the plaintiff in the main action
2. Observations of the defendant in the main action
3. Observations of the Commission
III — Oral procedure
Law
Costs
I —. Facts and procedure
1. Does the control copy completed pursuant to Article 5 of Regulation (EEC) No 1041/67 amount to a statement of intention to export the products in question and qualify for the refund (Article 1, first paragraph, first sentence, of Regulation (EEC) No 1041/67) and thus to an application for the grant of the refund fixed, pursuant to Article 15 (2) of Regulation (EEC) No 121/67?
2. Are the application (Article 15 (2) of Regulation (EEC) No 121/67), proof of origin of the goods (Article 6 (1) of Regulation (EEC) No 177/67) and declaration that the goods are in free circulation (Article 6 (1) of Regulation (EEC) No 1041/67) included among the documents in support of the claim within the meaning of Article 10 (2) of Regulation (EEC) No 1041/67, which must be lodged within a timelimit of six months from the date of completion of the customs export formalities?
3. Does the full completion of the control copy amount to such declaration and proof of origin of the goods and of their being in free circulation?
II —. Observations submitted under Article 20 of the Statute of the Court of Justice
A —. On the first question
1. Observations of the plaintiff in the main action
2. Observations of the defendant in the main action
(a). Whereas the exit certificate was created exclusively for the purposes of the export refund and published as an annex to Regulation No 1041/67, the control copy depends on Regulation No 2315/69 (OJ L 295 of 24. 11. 1969, p. 14), adopted as an implementing measure of Community transit procedure.
(b). The control copy does not contain express references to the procedure for export refunds, which in Case 94/71 were in the Advocate-General's view an essential indication enabling the exit certificate to be regarded as a declaration of intention within the meaning of Article 1 (1) of Regulation No 1041/67.
(c). The customs office of departure does not send a control copy directly to the authority concerned with paying the refund.
3. Observations of the Commission
B —. On the second question
1. Observations of the plaintiff in the main action
1. The question whether the application is one of the documents provided for by Article 10 (2) of Regulation No 1041/67/EEC which must be lodged within the time-limit of six months following the day on which the customs export formalities were completed should, according to the plaintiff in the main action, receive an affirmative reply. The application within the meaning of Article 15 (2) of Regulation No 121/67 constitutes the prior condition for the refund. This appears both from the recitals to Regulation No 1041/67 and from the ratio legis of its Article 10. To the extent that the control copy properly completed and signed constitutes a declaration of intention to export the product in question with the benefit of the refund, the application is always lodged within the time-limit, save when there is delay in transmission from the original office to the competent office for refunds, which would constitute a case of force majeure within the meaning of Article 9 (2).
2. The declarations relating to the origin of the goods and that they are of the requisite quality to be put into free circulation are included among the documents within the meaning of Article 10 (2) of Regulation No 1041/67, as appears from Articles 6 and 7 (1) of the same regulation and Article 6 (1) of Regulation No 177/67.
2. Observations of the defendant in the main action
3. Observations of the Commission
C —. On the third question
1. Observations of the plaintiff in the main action
2. Observations of the defendant in the main action
3. Observations of the Commission
III —. Oral procedure
1. By order dated 26 June 1974, filed at the Court Registry on 25 July 1974, the Finanzgericht Hamburg referred, under Article 177 of the Treaty establishing the European Economic Community, three questions on the interpretation of certain provisions of Regulations Nos 121/67 of the Council of 13 June 1967, on the common organization of the market in pigmeat (OJ No 117 of 19. 6. 1967, p. 2283) and 177/67 of the Council of 27 June 1967 laying down general rules for granting export refunds on pigmeat (OJ No 130 of 28. 6. 1967, p. 2614), of Regulation No 1041/67 of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (OJ No 314 of 23. 12. 1967, p. 9), as amended by Regulation No 1056/68 of 23 July 1968 (OJ L 179 of 25. 7. 1968, p. 28), 499/69 of 17 March 1969 (OJ L 69 of 20. 3. 1969, p. 1) and 2586/69 of 22 December 1969 (OJ L 322 of 24. 12. 1969, p. 27).
2. The first question asks the Court whether the document called the control copy, provided for by Article 1 of Regulation No 2315/69 (OJ L 295 of 24. 11. 1969, p. 14) on the use of Community transit documents, completed pursuant to Article 5 of Regulation No 1041/67 of the Commission (as amended by Article 1 of Regulation No 2586/69), amounts to an application for the grant of a refund within the meaning of Article 15 (2) of Regulation No 121/67.
3. Regulation No 1041/67, made inter alia to ensure the implementation of Regulations Nos 121/67 and 177/67 of the Council relating to the organization of the markets and the grant of export refunds on pigmeat, lays down detailed rules for the application of export refunds.
4. The Court of Justice has recognized in its judgment of 6 June 1972 in Case 94/71 that the exit certificate, submitted to the competent department and accepted by it, showed sufficiently the exporter's intention to claim a refund and therefore constituted an application for a refund within the meaning of Article 15 of Regulation No 121/67.
5. Since Regulation No 2315/69 of the Commission of 19 November 1969 introduced a Community transit system, Article 5 of Regulation No 1041/67 was amended by Article 1 of Regulation No 2586/69 so that proof that the product had left the territory of the Community was no longer to be furnished by the production of an exit certificate but by that of the control copy provided for by Article 1 of Regulation No 2315/69.
6. Under Article 15 (2) of Regulation No 121/67, export refunds on pigmeat are granted only on application by the person concerned.
7. It is therefore right to reply to the first question that the submission to the competent national authority for the grant of refunds of the control copy referred to in Article 1 of Regulation No 2315/69 and Article 5 of Regulation No 1041/67, as amended by Article 1 of Regulation No 2586/69, is equivalent to an application for a refund if this copy contains information enabling it to be seen that it relates to goods benefiting from this refund.
8. The second question seeks to ascertain whether the application for a refund referred to in Article 15 of Regulation No 121/67, the proof of origin of the goods required, as regards export refunds on pigmeat, by Article 6 of Regulation No 177/67 and the declarations relating to the requisite quality of the goods for being put into free circulation, required by Article 6 of Regulation No 1041/67, are included among the documents in support of the claim which, under Article 10 of this regulation, must be lodged within a time-limit of six months following the day on which the customs export formalities were completed.
9. The term documents (Unterlagen) used in Article 10 (2) refers not only to the application for the refund but to all the documents which the competent authority of each Member State needs to verify whether the conditions to which the grant of the refund is subject are fulfilled.
10. It is therefore proper to reply to the second question that the documents (Unterlagen) referred to in Article 10 of Regulation No 1041/67 must include, besides the application for a refund, all the documents enabling the competent authority to verify whether the conditions to which the grant of the refund is subject are fulfilled.
11. The third question asks whether, when the different headings which the control copy contains are completed by the party concerned, it amounts to the declarations and proofs relatings to the origin of the goods and the quality required for them to be put into free circulation, to which conditions the grant of a refund is subject.
12. Under Articles 6 and 7 of Regulation No 1041/67 a refund is granted, in particular for the products in question, only if they are of Community origin, are in free circulation within the Community and are of sound and fair marketable quality.
13. The costs incurred by the Commission, which 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 national court, the costs are a matter for that court.
THE COURT in answer to the questions referred to it by the Finanzgericht Hamburg by order of that court dated 26 June 1974, hereby rules:
(1) The submission to the competent national authority for the grant of refunds of the control copy referred to in Article 1 of Regulation No 2315/69 and Article 5 of Regulation No 1041/67, as amended by Article 1 of Regulation No 2586/69, is equivalent to an application for a refund if this copy contains information enabling it to be seen that it relates to goods benefiting from this refund.
(2) The documents (Unterlagen) referred to in Article 10 of Regulation No 1041/67 must include, besides the application for a refund, all the documents enabling the competent authority to verify whether the conditions to which the grant of the refund is subject are fulfilled.
(3) Since the headings provided for in the control copy do not on their own make it possible to determine in every case that all these conditions are fulfilled, it is for the national authorities to determine in each case the probative value in this respect of the remarks on the control copy or the necessity for supplementary vouchers.
1 Translator's Note: The court is here asking for an interpretation of the word Unterlagen in the German text of the Regulation; no corresponding word appears in the authentic English text, where the phrase: Die Unterlagen fur die Zahlung der Erstattung sind innerhalb einer Ausschlußfrist von 6 Monaten . . . einzureichen is translated as: The time-limit for claiming payment of the refund shall be six months …
2 Translator's Note: This section of the control copy is described in Article 5 of Regulation No 2586/69 as being entitled Special Remarks. In fact, this section of the form, in the Annex to Regulation No 2315/69, is headed Additional Information.