Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

Article 9 (1) of Regulation No 123/67/EEC of the Council of 13 June 1967 on the common organization of the market in poultry-meat (Official Journal, English Special Edition 1967, p. 63) provides that to the extent necessary to enable the products covered by the common organization of the market to be exported on the basis of prices for those products on the world market the difference between those prices and prices within the Community may be covered by an export refund. Pursuant to paragraph (2) of that provision the refund may be varied according to use or destination.

It is further provided by Article 6 (1) of Regulation No 178/67/EEC of the Council of 27 June 1967 laying down general rules for granting export refunds on poultry-meat and criteria for fixing the amount of such refunds (Official Journal, English Special Edition 1967, p. 144) that the refund shall be paid upon proof, inter alia,that the products have been exported from the Community. Paragraph (2) provides that where Article 4 of the regulation applies, under which the refund may be varied according to the destination of the products where the world market situation or the specific requirements of certain markets make this necessary, the refund shall be paid under the conditions laid down in paragraph (1), provided it is proved that the product has reached the destination for which the refund was fixed.

These provisions are complemented, finally, by Regulation No 1041/67/EEC of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (Official Journal, English Special Edition 1967, p. 323), Article 3 of which provides that the refund shall be paid only upon proof, inter alia, that the product has left the geographical territory of the Community unaltered. Under Article 4 the Member States may, in certain cases, by reason of difference between the rate of the refund and that of the levy, or by reason of the nature of the exported products or of export markets, … require, as a condition for payment of the refund, proof not only that the product has left the geographical territory of the Community, but also that the product in question has been imported into a third country and, where appropriate, proof of the conditions under which it was imported. Article 8, as amended by Regulation (EEC) No 499/69 (Official Journal, English Special Edition 1969 (I), p. 114) provides that the proof that the products have entered a certain country is to be submitted by the applicant in the form of certain documents certifying arrival in the country of destination or for the use in question. In addition the competent national authorities may recognize other documents as equivalent and may require additional forms of proof.

Lastly I should mention Regulation No 648/73 of the Commission of 1 March 1973 laying down detailed rules for the application of monetary compensatory amounts (Official Journal L 64 of 9 March 1973, p. 1), Article 7 of which provides that in trade with non-member countries provisions concerning the granting of export refunds and the charging of customs duties and levies shall apply to monetary compensatory amounts.

The provisions are relevant to a case pending in the Bundesfinanzhof brought by Geflügelschlachterei Freystadt GmbH & Co. KG against the Hauptzollamt Hamburg-Jonas (hereinafter referred to as the Hauptzollamt) concerning the repayment of export refunds and monetary compensatory amounts.

In the summer of 1973 the applicant sold approximately 1000 tonnes of frozen broiling chickens to an Austrian company acting on behalf of a company registered in Liechtenstein, which the latter re-sold to a company established in East Berlin. The broiling chickens fell within the common organization of the market for poultry-meat under tariff subheading 02.02 A I b, originated in the Community and were in free circulation in the Federal Republic of Germany; they were cleared for export by the German customs office at the Austrian border and immediately afterwards forwarded in transit through Austria and Czechoslovakia under the accompanying document procedure, without being given customs clearance for release into free circulation, and delivered directly without being transhipped to customers in the German Democratic Republic. Under the Commission regulations in force at the time of export the rate of export refunds was the same for all countries of destination.

Pursuant to an application by the plaintiff the Hauptzollamt fixed the amount of the export refund at a total of DM 33127.72 and the monetary compensatory amounts at DM 10259.11 and paid out those amounts.

By a decision of 24 July 1975 the Hauptzollamt reclaimed the export refund and the monetary compensatory amounts on the ground that the goods had entered the German Democratic Republic. In its view since the German Democratic Republic is a non-member country within the meaning of the regulations on the common agricultural policy, the export refunds should not have been paid. After an unsuccessful objection the applicant lodged an appeal to the Finanzgericht [Finance Court] Hamburg, which rejected the complaint in a decision delivered on 8 March 1977 on the following grounds: according to the relevant provisions of Community law a condition of the refund is that the goods have been given customs clearance for release into free circulation in a non-member country. This was done neither in Austria nor in Czechoslovakia however. According to the Protocol on German Internal Trade and connected problems which is annexed to the EEC Treaty, and the provisions of national law contained in the Grundgesetz [Basic Law] as interpreted by the Bundesverfassungsgericht [Federal Constitutional Court], an interpretation which is binding upon the courts of the Federal Republic of Germany (see judgment of 31 July 1973 concerning the Basic Treaty between the Federal Republic of Germany and the German Democratic Republic, Sammlung der Entscheidungen des Bundesverfassungsgericht [Federal Constitutional Court Decisions] vol. 36, p. 1 et seq.) export refunds and monetary compensatory amounts are not granted in respect of the movement of goods from free circulation within the territory of the Federal Republic of Germany to the territory of the German Democratic Republic, if the goods have not been put into free circulation in a non-member country prior to reaching the territory of the German Democratic Republic. The relevant provision of the abovementioned Protocol runs as follows:

In the appeal on a point of law against this decision lodged by the plaintiff in the Bundesfinanzhof it puts forward the view that according to Articles 4 and 6 of Regulation No 176/67 of the Council and Articles 3, 4 and 8 of Regulation No 1041/67 of the Commission, in cases where, as in the present instance, uniform refunds and monetary amounts have been fixed for all non-member countries, proof of importation into a specific non-member country cannot be required. The refunds and monetary compensatory amounts must, on the contrary, be paid upon proof only that the products have left the geographical territory of the Community. However, even if, contrary to that view, proof of importation into a non-member country must be furnished, this does not in any case mean that the goods must be given customs clearance for release into free circulation at their destination. The further transport of the goods into the German Democratic Republic without being put into free circulation in Austria and Czechoslovakia does not, in the plaintiff's view, jeopardize its claims to payment of the refunds and the monetary compensatory amounts, as the Protocol on German Internal Trade does not apply to deliveries which are carried out via third countries and with the intervention of contracting parties resident in those countries.

The defendant, the Hauptzollamt, holds the opposite view, namely that the conditions for granting a refund were not fulfilled. The Federal Minister of Finance, who intervened in the proceedings, is also of the opinion that as importation into a non-member country is a substantive condition for entitlement to an export refund, the Member States may, under Article 4 (1) of Regulation No 1041/67, require, in addition to proof that a product has left the territory of the Community, proof that the product has been put into free circulation in a non-member country. The consignments in question were not, however, imported into a non-member country after leaving the geographical territory of the Community, for the German Democratic Republic is not to be treated as such according to the Protocol on German Internal Trade.

By a decision of 9 January 1979 the Seventh Senate of the Bundesfinanzhof stayed the proceedings and referred the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

My opinion on these questions is as follows:

1 Translated from the German.