# C_2006281EN.01000701.xml

| 18.11.2006 | EN | Official Journal of the European Union | C 281/7 |
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18.11.2006

EN

Official Journal of the European Union

C 281/7

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Judgment of the Court (First Chamber) of 7 September 2006 (Reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas

(Case C-353/04) (1)

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(Regulations (EEC) Nos 1538/91 and 3665/87 - Community Customs Code - Export refunds - Conditions for granting - Sound and fair marketable quality - Customs procedure - Export declaration - Physical check - Sample - Tolerated number of defective units - Uniform quality - Rights and obligations of the exporter and of the customs authority - Poultrymeat)

(2006/C 281/11)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Nowaco Germany GmbH

Applicant:

Defendant: Hauptzollamt Hamburg-Jonas

Defendant:

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90 on certain marketing standards for poultry (OJ 1991 L 143, p. 11), and of Article 70(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Application for export refunds for frozen chicken — Conditions as to merchantable quality of products where examination of samples has shown that a proportion of the chicken did not meet the requirements laid down in Article 6 of Regulation (EEC) No 1538/91

Operative part of the judgment

The Court rules:

| 1. | For the purpose of establishing whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’, Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90, as amended by Commission Regulation (EC) No 1000/96 of 4 June 1996, which lays down minimum quality requirements and tolerance margins, in particular Articles 6 and 7, applies. |
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1.

For the purpose of establishing whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’, Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90, as amended by Commission Regulation (EC) No 1000/96 of 4 June 1996, which lays down minimum quality requirements and tolerance margins, in particular Articles 6 and 7, applies.

| 2. | (a) | In circumstances such as those of the main proceedings, Article 70 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, applies, subject to the proper conduct of the examination referred to therein, where it is necessary to establish whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’. |
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2.

(a)

In circumstances such as those of the main proceedings, Article 70 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, applies, subject to the proper conduct of the examination referred to therein, where it is necessary to establish whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’.

| (b) | The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation No 2913/92, as amended by Regulation No 82/97, does not apply if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91. |
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(b)

The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation No 2913/92, as amended by Regulation No 82/97, does not apply if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91.

| 3. | In circumstances such as those of the case in the main proceedings, it is for the national administrative and judicial authorities to establish the facts by taking into account all of the evidence. Such evidence may include available samples but also other information, in particular the examination account produced in accordance with Community legislation by the customs officer who carried out the physical checks. In the event that the facts cannot be conclusively established for the purpose of entitlement to the refund, it is for the national court to assess the exporter's conduct and that of the customs authority by establishing the extent to which each has, or has not, exercised its rights and fulfilled its obligations and to draw the appropriate conclusions concerning entitlement to the export refund. |
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3.

In circumstances such as those of the case in the main proceedings, it is for the national administrative and judicial authorities to establish the facts by taking into account all of the evidence. Such evidence may include available samples but also other information, in particular the examination account produced in accordance with Community legislation by the customs officer who carried out the physical checks. In the event that the facts cannot be conclusively established for the purpose of entitlement to the refund, it is for the national court to assess the exporter's conduct and that of the customs authority by establishing the extent to which each has, or has not, exercised its rights and fulfilled its obligations and to draw the appropriate conclusions concerning entitlement to the export refund.

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(1)  OJ C 262, 23.10.2004.

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