Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The case which falls to be dealt with today concerns a request for a preliminary ruling under Article 177 of the EEC Treaty submitted by the Seventh Senate of the Bundesfinanzhof [Federal Finance Court]. The facts of the case are as follows :

1. In August 1976, Dimex Nahrungsmittel Im- und Export GmbH & Co. KG, whose head office is in Hamburg, sold a quantity of Feta cheese in brine to a Kuwaiti company, the terms being C and F Kuwait. On 6 August 1976 the goods were cleared for export at the Zollamt [Customs Office] Weilheim on the control copy (as referred to in Article 7 of Regulation No. 192/75) and transported by lorry to Livorno in Italy (the customs office at the point of exit from the Community). There its was noticed that some tins were damaged and that the brine had leaked out (according to information provided by the Middle East Verschiffungsagentur GmbH the damage was slight and was restricted to the packaging). After the damaged tins had been refilled and sealed the goods were loaded on board a ship chartered by Dimex (on its own account), which left Livorno on 13 August 1976.

2. The following provisions are relevant to the case to be dealt with in these proceedings.

3. Since the case turned on the interpretation to be given to provisions of Community law, the Bundesfinanzhof stayed the proceedings pending before it and, by order of 21 April 1983, referred the following questions to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty:

My opinion on the matter is as follows.

1. I should like at the outset to refer to the remarks concerning the refund rules made in the Advocate General's Opinion in Case 125/75 (which also concerned the export of milk products to specific countries under the terms of Regulation No 876/68), since they seem to me to be convincing, and I should like also to give an outline of the relevant case-law.

2. Dimex's principal submissions (I shall deal with them before going on to discuss the questions raised) are clearly directed towards obtaining a change in the Court's approach; Dimex seeks to establish the principle that, even in the case of a refund varying according to destination, payment should not depend on customs clearance, but that it should be sufficient that the goods actually reached the territory of the importing State and that their subsequent fate (marketing in the importing State or reexport to other countries) should be disregarded.

3. For my part, however, I cannot see how Dimex's basic submission can succeed (for which, in view of the case-law set out above, a decision of the full Court would, moreover, be required).

4. I now come to the questions submitted by the Bundesfinanzhof, which must, as can be seen from the foregoing discussion, be dealt with in accordance with the existing case-law.

The following answers can therefore be given to the questions put by the Bundesfinanzhof:

1 Translated from the German.

2 Judgment of 2. 6. 1976 in Case 125/75, Ekr-Kontor v Hauptzollamt Hamburg-Jonas, [1976] ECR 771.

3 Judgment of 28. 10. 1971 in Case 6/71, Rbeinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, [1971] ECR 823.

4 Judgment of 2. 6. 1976 in Case 125/75, Eier-Kontor y Hauptzollamt Hamburg-Jonas, [1976] ECR 771.

5 Judgment of 2. 3. 1977 in Case 44/76, Eier-Kontor v Council and Commission, [1977] ECR 393.

6 Judgment of 25. 11. 1980 in Case 820/79, Belgium v Commission, [1980] ECR 3537.

7 Judgment of 27. 10. 1981 in Case 250/80, Anklagemyndigheden v Töpfer, [1981] ECR 2465.

8 Judgment of 2. 6. 1976 in Case 125/75, Eier-Kontor v Haupuollamt Hamburg-Jonas, [1976] ECR 771.

9 Judgment of 11. 7. 1978 in Case 6/78, Union Française de Céréales v Hauptzollamt Hamburg-Jonas, [1978] ECR 1675.

10 Judgment of 2 June 1976 in Case 125/75, Eier-Kontor v Hauptzollamt Hamburg-Jonas, [1976] ECR 771.

11 Judgment of 2 March 1977 in Case 44/76, Eier-Kontor v Council and Commission, [1977] ECR 393.