Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

As in other organizations of the market it is provided in the common organization of the market for milk and milk products (Regulation No 804/68 of the Council of 27 June 1968, OJ English Special Edition 1968 (I), p. 176) that to enable the products, including butter, covered by the organization of the market to be exported the difference between the prices in international trade may be covered by an export fund (Article 17). The refund according to Article 17 (2) may be varied according to use or destination.

General rules for granting refunds on the export of milk and milk products and criteria for fixing the amount of such refunds were laid down in Regulation No. 876/68 of the Council of 28 June 1968 (OJ English Special Edition 1968 (I), p. 234). I shall return to these in detail later. At present I mention only Article 5 according to which the refund may be fixed in advance if the party concerned so requests when applying for the export licence. Further, Article 6 should be mentioned, according to which, where the refund is varied according to the destination, it is paid upon proof that the product has reached the destination for which the refund was fixed.

In addition, the detailed rules for the application of export refunds should be mentioned which the Commission laid down in Regulation No 1041/67 of 21 December 1967 (OJ English Special Edition 1967, p. 323). Article 4 provides that in certain cases Member States may require

Article 8 as amended by Regulation No 499/69 (OJ English Special Edition 1969 (I), p. 114) provides that the applicant must produce certain documents confirming arrival at the destination. Further it is provided:

These provisions are relevant in an action pending before the Finanzgericht Hamburg, brought by Milch-, Fett- und Eierkontor GmbH against the Hauptzollamt Hamburg-Jonas relating to the export refund for butter. In particular the following should be said on the facts:

In September 1970 the said company entered into a so-called pooling arrangement with three other undertakings including the Belgian firm Corman for the purpose of exporting a large quantity of butter held by the German intervention agency. All the participating firms, which retained their legal and economic independence, were to endeavour to sell butter in third countries. It was the plaintiffs task to acquire butter from the German intervention agency, to arrange for the necessary export licences, to procure the advance fixing of the export refunds, to carry out the exports and obtain payment of the refund to itself. Profits and losses from the export transactions were to be shared among the members of the pool.

Accordingly, on 2 September 1970 the plaintiff obtained an export licence and a refund fixed in advance for certain quantities of butter to be exported to Morocco, Tunisia or Algeria. On 12 January 1971 it sold a certain quantity of butter to the firm Corman, the Belgian member of the pool, subject first of all to the conditions destination Afrique du Nord (Maroc) and la livraison ne pas effectuer que sur quai Tanger. On the same day the contract was altered from fob Hamburg to cif Casablanca or Tangier and the charterparty with the shipping firm charged with the transport was altered by substituting the plaintiff for Corman. The goods left the territory of the Community on 15 February 1971. On the same day the plaintiff made the declaration under Article 1 (1) of Regulation No 1041/67 in respect of a quantity of 750 tons of butter, that is, it stated its intention to export the butter and qualify for a refund. The goods were unloaded in Casablanca on 21 February 1971 which was proved to the Hauptzollamt on 2 March 1971 by the production of the documents mentioned in Article 8 of Regulation No 1041/67.

The goods, however, did not remain in Morocco but apparently left Casablanca on 12 March 1971 in another ship destination Gdynia (Poland). On 31 December 1970 Corman had sold a quantity of butter ‘ex quai Casablanca ou Tanger to another Belgian undertaking. The latter for its part had already on 23 December 1970 sold a certain quantity of butter to a Prague firm cif Gdynia.

In view of these facts the competent Hauptzollamt took the view that the refund of DM 501-42 per 100 kg fixed in advance for Morocco, Algeria and Tunisia, could not be granted since there was no proof of a buyer in Morocco or marketing in Morocco and since from the outset it was clear that the goods were intended for Poland. Since moreover the validity of the licence which had been issued to the plaintiff with an advance fixing for European third countries — the basic refund amounted to DM 486-78 per 100 kg — had already expired at the relevant time, the Hauptzollamt granted only a refund in accordance with the rate of DM 347-70 per 100 kg obtaining on 15 February 1971.

This resulted in an action being brought before the Finanzgericht Hamburg.

In the statement of claim the Firma Milch-, Fett- und Eierkontor took the view that all that was necessary under Article 6 of Regulation No 876/68 for a special refund to be granted was that the goods should have reached the destination in the sense of arrival in the sovereign territory of the relevant state. The special refund is granted because of the higher transport costs as appears from Article 2 of the said regulation. The necessary proof has to be given in accordance with Article 8 of Regulation No 1041/67. Under that article only the arrival of the goods has to be proved and customs clearance and proof of a buyer in the territory of destination concerned are not relevant. Article 4 of Regulation No 1041/67 cited by the Hauptzollamt is in truth not relevant. The proof of importation for which it provides cannot be required in addition to proof of arrival. Further it must be recognized that Article 4 is not sufficiently precise, the proofs referred to in it can be required only on the basis of an EEC Regulation and in no event does it make proof of marketing a condition.

The defendant Hauptzollamt on the other hand adheres to its position. It takes the view that it was right in requiring proof of importation under Article 4 of Regulation No 1041/67, that is, proof of a sale to a buyer established in the country of destination or proof that the goods had reached the market of the country of destination. There is no such proof because the goods had merely passed through Morocco and therefore the special refund provided for this country cannot be granted.

By order dated 13 November 1975 the Finanzgericht stayed the proceedings and referred the following questions for a preliminary ruling under Article 177 of the EEC Treaty:

My view on these questions is as follows:

1 Translated from the German.