Report for the Hearing in Case C-27/92

I — Legal context of the dispute

1. Since a single market in beef and veal has been established, it has been necessary to set up a single trade system at the external frontiers in order to stabilize the market. In addition to compensatory amounts, the instruments for stabilizing the market are customs duties on imports and export refunds.

2. In view of the specific import conditions in some countries of destination, the amount of refunds is varied according to the destination of the products. Payment of the variable refund is subject also to the condition that the product must have left the geographical territory of the Community and to the requirement that the product must have been imported and have actually been placed on the market in the nonmember country.

3. Two Community regulations constitute the legislative background to that dispute. These are Regulation (EEC) No 885/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on beef and veal and criteria for fixing the amount of such refunds (OJ, English Special Edition 1968(1), p. 237), Article 4 of which mentions variable refunds and Article 6 of which is worded as follows:

4. Article 20(1) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1) provides that payment of the variable refund is subject to the condition that the product has been imported into the nonmember country or one of the nonmember countries for which the refund is prescribed. Article 20(2) of Regulation (EEC) No 2730/79 provides as follows:

5. Under Article 20(3) proof that those formalities have been completed is to be furnished by the production of the relevant customs document (indent (a)) or the customs entry certificate (indent (b)), which is to be made out in accordance with the specimen in Annex II to Regulation (EEC) No 2730/79.

6. Other documents listed in Article 20(4) may be produced if, owing to circumstances beyond the control of the exporter, none of the documents specified in paragraph 3 can be produced or they are considered inadequate.

7. Under Article 25 of that regulation, Member States may advance the amount of the refund.

II — Facts

1. Dispute in the main proceedings

8. Between 16 March and 25 April 1984 the plaintiff had beef cleared through customs and placed in its refund warehouse. In addition to monetary compensatory amounts, it applied to the defendant for advance payment of a variable export refund.

9. Part of the meat was taken out of the warehouse in early May 1994 and was cleared through customs for dispatch to Antwerp for supply to Baraka International in Cairo. The consignment was exported to Egypt on 16 May 1984 and the ship arrived in Alexandria in early June 1984. The Egyptian authorities took samples of the meat for the purpose of veterinary health inspections prior to importation.

10. On 15 June 1984 the applicant submitted an undated customs entry certificate to the defendant relating to the importation of the beef into Egypt.

11. Three documents bearing a date subsequent to 15 June 1984 have a certain amount of relevance. It appears from those documents that the results of the veterinary inspection were negative and that the meat was ordered to be re-exported.

12. Subsequently, the defendant instructed the applicant to repay it a total of DM 452168.60 in export refunds paid in advance in respect of the meat at issue, on the ground that the meat had never reached the market of the importing country, Egypt. It is precisely on the point as to whether the meat can be considered as having arrived on the Egyptian market that the parties are in disagreement.

13. According to the national court, the Court of Justice held in the judgment in Case 89/83 Hauptzollamt Hamburg-Jonas v Dimex [1984] ECR 2815 that a customs document is only rebuttable evidence of importation, that is to say, of the fact that the goods have actually reached the market of the nonmember country. The national court asks in what cases that evidence may be regarded as having been rebutted: whether it is enough to adduce good reasons for doubting the importation or whether it is necessary to prove the contrary, namely the absence of importation?

2. The question referred for a preliminary ruling

14. The Fourth Chamber of the Finanzgericht Hamburg stayed the proceedings and, by order of 20 December 1991, referred the following question to the Court of Justice for a preliminary ruling:

III — Procedure before the Court

15. The order for reference, dated 20 December 1991, was registered at the Court Registry on 30 January 1992.

16. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged by the plaintiff in the main proceedings, represented by L. Liebenau, Rechtsanwalt, and by the Commission, represented by U. Wölker, of its Legal Service, acting as Agent.

17. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

18. By decision of 21 October 1992, the Court assigned the case to the Fourth Chamber under Article 95(1) and (2) of the Rules of Procedure.

IV — Summary of the written observations submitted to the Court

19. Möllmann's line of argument comes down to a few main points. After pointing out that a customs entry certificate as provided for in Article 20(3) of Regulation (EEC) No 2730/79 was actually drawn up in this case, it submits that it clearly appears from Article 20(3)(b) of the regulation that the customs entry certificate and customs document prove that the customs formalities were completed, and accordingly constitute full, complete proof that the goods were imported into the nonmember country. Not to accept that submission would amount to a reversal of the burden of proof contrary to the aforementioned provision of the regulation.

20. Möllmann submits that in this instance there is no doubt about the authenticity of the documents. The mere fact that they are not dated cannot undermine their authenticity.

21. The Commission first considers the conditions for granting the refund before dealing with the question of proof.

22. The Commission refers to Article 20(1) and (2) of Regulation (EEC) No 2730/79 and the judgment in Hauptzollamt Hamburg-Jonas v Dimex, in which the Court held that, in view of the objectives of the system of variable refunds, it was essential that products subsidized by such refunds should actually reach the market of destination. In that regard, import formalities do not guarantee that importation has actually taken place. Again according to that judgment, where the product has deteriorated before completion of the customs formalities and its deterioration results in a decision being taken in the course of the completion of those formalities to re-export the product, it cannot be regarded as having been imported. The Commission considers that the rejection of a product for heath reasons is equivalent to the deterioration of a product.

23. The Commission considers the fact that the inspections took place in conjunction with the customs formalities to be decisive, not only from the point of view of the date, but in particular from the point of view of the content.

24. The Commission argues that, as regards the question of proof of importation into the country of destination, the customs document and the customs entry certificate are rebuttable evidence only, although it admits that those documents constitute the most important evidence. According to the Commission, it is above all Article 20(4) of Regulation (EEC) No 2730/79 which leads to that conclusion, in so far as it provides that other evidence will be accepted if [those documents] are considered inadequate.

25. The Commission argues that it is the authentic nature of the proof that the goods have actually reached the market of destination which is essential, rather than the actual piece of evidence, which is only a secondary formal requirement. In support of that argument, the Commission refers to Article 10 of Regulation (EEC) No 2730/79 which, in its opinion, contemplates in a very general manner the question of additional proof that the product has in fact been placed on the market. The Commission also mentions the amendments made to Article 20(3) and (4) of Regulation (EEC) No 2730/79.

26. Accordingly, in the opinion of the Commission, the question whether the main evidence is considered adequate cannot be answered on the basis of very formalistic criteria. Rather, it is necessary to consider pragmatically whether a product has actually reached the market.

27. The Commission therefore proposes that the Court should reply to the question referred by the Finanzgericht as follows:

1 Language of the case: German.

2 Amendments made by Commission Regulation (EEC) No 568/85 of 4 March 1985 amending for the tenth time Regulation (EEC) No 2730/79 (OJ 1985 L 5, p. 5). They were not applicable in this case.