CELEX: 62006CJ0464
Agriculture
System of export refunds on agricultural products
Regulation (EC) No 800/1999
Article 5
Lodging the export declaration
Transmission by fax

1       This reference for a preliminary ruling concerns the interpretation of Article 5 of Commission Regulation (EC) No 800/1999
of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products
(OJ 1999 L 102, p. 11), as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001 (OJ 2001 L 14, p. 22) (‘Regulation
No 800/1999’).
2       The reference was made in the course of proceedings brought by Avena Nordic Grain Oy (‘ANG’) against a decision of the Maa-
ja metsätalousministeriö (Ministry of Agriculture and Forestry) (‘the Ministry’), the authority which in Finland manages aid
financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), concerning the refusal to pay an export refund.

Legal context

Community legislation
Monitoring of agricultural products carried out at the time of export
3       Council Regulation (EEC) No 386/90 of 12 February 1990 on the monitoring carried out at the time of export of agricultural
products receiving refunds or other amounts (OJ 1990 L 42, p. 6) provides in Article 2(a) that Member States are to carry
out ‘physical checks on goods … at the time the customs export formalities are completed and before authorisation is given
for the goods in question to be exported, on the basis of documents submitted in support of the export declaration’.
4       Commission Regulation (EC) No 2090/2002 of 26 November 2002 laying down detailed rules for applying Regulation No 386/90 as
regards physical checks carried out when agricultural products qualifying for refunds are exported (OJ 2002 L 322, p. 4) states,
in Article 5(1), that for the purposes of Article 2(a) of Regulation No 386/90 ‘physical check’ is to mean ‘verification that
the export declaration, including documents submitted in support thereof, corresponds with the goods as regards quantity,
nature and characteristics’.
The detailed rules for the application of the system of export refunds on agricultural products
5       The fourth, sixth and sixty-third recitals in the preamble to Regulation No 800/1999 state:
‘(4)      Whereas, within the meaning of this Regulation, the day of export is that during which the customs authorities accept the
act by which the declarant shows his willingness to carry out the export of the products for which he seeks the benefit of
an export refund; whereas such act is intended to draw the attention, and in particular the attention of the customs authorities,
to the fact that the operation under consideration is being carried out with the aid of Community funds, in order that those
customs authorities shall carry out suitable checks; whereas at the time of acceptance, products are placed under customs
supervision until their actual export; whereas the date serves as a reference for establishing the quantity, nature and characteristics
of the product exported;
…
(6)      Whereas, for the sake of the proper application of … Regulation … No 386/90 …, as last amended by Regulation (EC) No 163/94
[OJ 1994 L 24, p. 2], provision should be made so that verification of whether the export declaration matches the agricultural
products is carried out at the time of loading of the container, lorry, vessel or other similar container;
…
(63)      Whereas the Community rules provide for the granting of export refunds on the sole basis of objective criteria, in particular
as to the quantity, nature and characteristics of the product exported, and its geographical destination; whereas, in the
light of experience, measures to combat irregularities and notably fraud harmful to the Community budget should be intensified;
whereas, to that end, provision should be made for the recovery of amounts over-paid and sanctions to encourage exporters
to comply with Community rules’.
6       Article 5 of Regulation No 800/1999 is worded as follows:
‘1.       “Day of export” means the day on which the customs authorities accept the export declaration stating that a refund is to be
applied for.
2.      The date of acceptance of the export declaration shall determine:
(a)       the rate of refund applicable where the refund is not fixed in advance;
(b)       any adjustments to be made to the rate of refund where it is so fixed in advance;
(c)       the quantity, nature and characteristics of the product exported.
3.      Any other act having the same effect in law as acceptance of the export declaration shall be deemed equivalent to such acceptance.
4.      The document used on export to qualify for a refund shall include all information necessary to calculate the refund, and in
particular:
(a)      for products:
–       a description, simplified where appropriate, of the products in accordance with the export refund nomenclature, together with
the refund nomenclature code and, where necessary to calculate the refund, the composition of the products concerned or a
reference thereto,
–       the net mass of the products or, where applicable, the quantity expressed in the unit of measurement to be used when calculating
the refund;
(b)      in the case of goods, the provisions of [Commission Regulation (EC) No 1222/94 of 30 May 1994 laying down common detailed
rules for the application of the system of granting export refunds on certain agricultural products exported in the form of
goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds] shall apply.
5.      At the time of acceptance or of the act envisaged in paragraph 3, the products shall be placed under customs control … until
they leave the customs territory of the Community.
…
7.       All persons exporting products for which they claim a refund shall be required to:
(a)       lodge the export declaration with the competent customs office in the place where the products are to be loaded for export
transport;
(b)       inform that customs office at least 24 hours prior to starting the loading operations and indicate the anticipated duration
of loading.
…
…
The competent customs office may authorise the loading operations after having accepted the export declaration, before expiry
of the time‑limit referred to in point (b).
The competent customs office must be able to make physical checks and identify the goods for transport to the office of exit
from the customs territory of the Community.
…’

National law
7       In accordance with Paragraph 9 of the Law on electronic communication in the activities of public authorities (Laki sähköisestä
asioinnista viranomaistoiminnassa (13/2003)) and Paragraph 18 of the Law on electronic signatures (Laki sähköisistä allekirjoituksista
(14/2003)), administrative procedures may be initiated electronically.
8       However, the Ministry of Agriculture and Forestry Regulation on the implementation of the system of export refunds, of securities,
and of import and export licences and advance fixing certificates for agricultural products (maataloustuotteiden vientituki-
ja vakuus- sekä tuonti-, vienti- ja ennakkovahvistustodistusjärjestämän täytäntöönpanosta annettu maa- ja metsätalousministeriön
asetus (1363/2002)) lays down in Paragraph 4 the requirement to transmit to the competent customs office referred to in Article
5(7), first subparagraph, (a) of Regulation No 800/1999 the original export declaration form.

The dispute in the main proceedings and the question referred for a preliminary ruling
9       On 14 June 2003, ANG exported two consignments of oats from Vaasa (Finland) to Canada. It is clear from the order for reference
that the export declaration concerning those consignments was sent to the competent customs office before loading solely by
fax, and that the original of that declaration was not sent until loading had taken place. According to the order for reference,
it is not disputed that the original document is identical to the version sent by fax, that the use of that method of transmission
was due to a misunderstanding between ANG’s forwarding agent and the competent customs authorities which arose during a conversation
concerning loading, that the customs authorities had every opportunity to undertake the checks required, that the consignments
concerned arrived at their port of destination, and that there is no evidence that ANG attempted to abuse the refund procedure
or to act fraudulently.
10     On being questioned by the Ministry as regards the payment of a refund in such circumstances, the Commission of the European
Communities indicated, by letters dated 23 May and 30 July 2004, that, in its opinion, ANG is not entitled to obtain such
a refund for the operation at issue in the main proceedings.
11     By decision of 2 September 2004, the Ministry therefore refused payment of the refund requested by ANG for those consignments
on the ground that the original of the export declaration was not available to the customs authorities prior to the time the
check on the cargo was to have taken place.
12     ANG brought an action against that decision before the Korkein hallinto‑oikeus (Supreme Administrative Court). According to
that court, it is clear from the judgments in Case C-27/94
Netherlands
v
Commission
[1998] ECR I-5581 and Case C-278/98
Netherlands
v
Commission
[2001] ECR I-1501 that the original of the export declaration must be transmitted in advance, and that a declaration sent
by fax cannot, as a general rule, be regarded as satisfactory. If the customs check revealed inaccuracies the operator concerned
might make another declaration giving the correct information. However, the Korkein hallinto-oikeus points out that in the
main proceedings the export declaration transmitted by fax before loading is identical to the original export declaration
transmitted subsequently and that the national authorities have no suspicions regarding the existence of potentially fraudulent
conduct since the transmission by fax arose from a misunderstanding concerning advice given by the competent customs authorities.
Therefore, if the main proceedings were determined in the light of national law, it is unlikely that ANG would be refused
payment of the refund. Furthermore, the principles of proportionality and good administration, which constitute general principles
of Community law, may have a bearing on the case in the main proceedings.
13     In those circumstances, the Korkein hallinto‑oikeus decided to stay proceedings and to refer the following question to the
Court for a preliminary ruling:
‘Is Article 5 of [Regulation No 800/1999] to be interpreted, in the light of the principles of proportionality and good administration,
as meaning that the competent national authority may accept an export declaration lodged by fax prior to loading in circumstances
in which the authority has no concerns whatever that any fraudulent practices may have occurred, the defect in lodging the
export declaration was the result of an error which arose in connection with the advice given by the authority, and the authority
has been able to confirm that the original signed export declaration which was lodged subsequently was identical to the declaration
lodged by fax?’

The question referred for a preliminary ruling
14     By its question, the national court asks whether Article 5 of Regulation No 800/1999 precludes the competent customs authorities
from accepting an export declaration for agricultural products which was transmitted only by fax before those products were
loaded, where that conduct did not arise from fraudulent intent, since the transmission of only a fax was the result of an
error concerning advice given by the customs authorities, and the original declaration transmitted after loading is identical
to the declaration transmitted by fax.
15     According to Article 5(7), first subparagraph, (a) of Regulation No 800/1999, all exporters of agricultural products are required
to lodge an export declaration in respect of the products for which they claim a refund. As is clear from the third and fourth
subparagraphs of Article 5(7), where that declaration is accepted, loading operations may be authorised by the competent customs
authorities, which must have had the opportunity, as is also apparent from the fourth and sixth recitals in the preamble to
Regulation No 800/1999 and from Article 2 of Regulation No 386/90 and Article 5 of Regulation No 2090/2002, to make physical
checks of the agricultural products concerned in order to ascertain whether they correspond to the declaration at the time
of loading.
16     According to Article 5(4) of Regulation No 800/1999, the export declaration must include all the relevant information necessary
to establish entitlement to the refund and to determine its amount (see, to that effect, Case C-309/04
Fleisch-Winter
[2005] ECR I-10349, paragraph 31, and Case C-27/05
Elfering Export
[2006] ECR I-3681, paragraph 26).
17     Furthermore, under Article 5(5) of Regulation No 800/1999, at the time of acceptance of the declaration by the competent customs
authorities, the products are to be placed under customs control until they leave the customs territory of the Community.
18     The overall effect of those provisions, even though they do not specifically state the form in which the export declaration
must be lodged, is that, first, the declaration must be made in writing in order, in particular, for it to be possible to
check whether the information given by the exporter corresponds to the goods presented for export and, second, it must be
submitted before the goods have left the customs territory of the Community (see Case C-54/91
Commission
v
Germany
[1993] ECR I-3399, paragraph 22 and Case C-27/94
Netherlands
v
Commission
, paragraph 25).
19     Lodging an export declaration, which is capable of forming the legal basis of a refund (
Fleisch-Winter
, paragraph 41), therefore constitutes an essential formality in the context of the cooperation established in that regard
between the exporter and the competent customs authorities, which enables the latter to have available all the information
necessary in order to carry out suitable physical checks on the goods concerned before loading, so as to exclude any risk
of irregularities and abuse in the field of export refunds, in accordance with the sixty-third recital in the preamble to
Regulation No 800/1999 (see, to that effect,
Elfering Export
, paragraph 31, and, as regards Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules
for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), Case C‑385/03
Käserei Champignon Hofmeister
[2005] ECR I-2997, paragraphs 27 and 28).
20     As all the interested parties which have submitted observations to the Court have stated, the fact that a declaration is transmitted
by fax involves lodging a written document which, provided that it was transmitted before the goods concerned were loaded
and it contains all the information necessary for checking them, in no way prevents those checks from being carried out by
the competent customs authorities.
21     It is true that the exporter should not be able to adapt his request for refund according to the result of any check which
might take place (
Käserei Champignon Hofmeister
, paragraph 28).
22     Thus, it has already been held that the competent customs authorities cannot accept retrospectively an export declaration
submitted after export has taken place for the purpose of obtaining refunds (see, to that effect, Case C-101/99
British Sugar
[2002] ECR I-205, paragraphs 68 and 73). Similarly, nor can they carry out checks on the basis of information communicated
by fax rather than on the basis of the original of the payment declarations seeking pre-financing of refunds, if this results
in a risk of unlawful payment of subsidies in that the trader might, after an inaccuracy had been found during a customs check
made on the basis of that fax, lodge another declaration containing the correct information (Case C-278/98
Netherlands
v
Commission
, paragraph 70).
23     However, such a risk is excluded where the export operation is not vitiated by any fraud or attempted fraud on the part of
the exporter, since the goods covered by the export declaration transmitted by fax have arrived in the third country of destination
and the original of the declaration which was sent after loading is identical to the declaration transmitted by fax prior
to loading.
24     In such circumstances, the transmission of an export declaration by fax has no real effect on the correct functioning of the
system of refunds.
25     It is for the national court to ascertain whether the conditions laid down in paragraph 23 of this judgment are satisfied
in the main proceedings, in the light of the information in the file before it.
26     Therefore, the answer to the question referred for a preliminary ruling must be that Article 5 of Regulation No 800/1999 must
be interpreted as not precluding the competent customs authorities from accepting an export declaration for agricultural products
which was transmitted by fax, where that transmission took place before loading for export transport, where the declaration
transmitted contains all the information necessary to enable physical checks to be carried out on the goods exported and the
export operation concerned is not vitiated by any fraud or attempted fraud. Such is the case where the goods covered by the
export declaration transmitted by fax have arrived in the third country of destination and the original declaration subsequently
transmitted is identical to the declaration transmitted by fax. It is for the national court to ascertain whether those conditions
are satisfied in the main proceedings.

Costs
27     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Article 5 of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application
of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 90/2001 of 17 January
2001, must be interpreted as not precluding the competent customs authorities from accepting an export declaration for agricultural
products which was transmitted by fax, where that transmission took place before loading for export transport, where the declaration
transmitted contains all the information necessary to enable physical checks to be carried out on the goods exported and the
export operation concerned is not vitiated by any fraud or attempted fraud. Such is the case where the goods covered by the
export declaration transmitted by fax have arrived in the third country of destination and the original declaration subsequently
transmitted is identical to the declaration transmitted by fax. It is for the national court to ascertain whether those conditions
are satisfied in the main proceedings.
[Signatures]
*
Language of the case: Finnish.