Opinion of the Advocate General — ECLI:EU:C:2005:45
Date: 2005-01-20
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Monetary measures in the field of agriculture
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, it must be emphasised that, as a distinction should also be made in a systematic interpretation between the process of applying for a refund and the process of paying the refund, the refund requested within the meaning of the first subparagraph of Article 11(1) of Regulation No 3665/87 cannot be derived only from the application for payment referred to in Article 47(1) of that regulation. C – Teleological interpretation 1. Arguments of the parties 56. Käserei Champignon, which took the view in the proceedings in Case C‑210/00 that the penalty laid down in Article 11(1) is of a criminal nature, now points out that, as the Court ruled in the judgment in question, (24) that penalty is conceptually a negative refund amount and not of a criminal nature. Käserei Champignon now also argues, however, that that provision does not establish general liability for creating a potential risk (abstraktes Gefährdungsdelikt), so that a merely abstract threat to the financial interests of the Community cannot be relevant in terms of penalties. Nor is this contradicted by the idea underlying the third recital in the preamble to Regulation No 2945/94. Only a real threat may give rise to the penalty, and such a threat cannot occur at the stage when the export declaration was submitted. 57. Further, Käserei Champignon doubts that the preventive aim of Article 11 of Regulation No 3665/87 would be circumvented if it was the later application for payment and not the earlier export declaration which constituted the application within the meaning of Article 11(1). 58. Lastly, Käserei Champignon maintains that, if the legal situation is assessed correctly, there is no danger of non-uniform application of the rules on penalties within the Community, since it is not the rules on penalties which are triggered at different times, but the application for an export refund which can be lodged at different times because of the authorisation for which Article 47(1) of Regulation No 3665/87 provides. 59. The Commission, on the other hand, emphasises the objectives of the rules on penalties, which, according to the first recital in the preamble to Regulation No 2945/94, consist in combating irregularities and fraud and – as intimated in the fifth recital – in giving the penalty, which, according to the third recital, is already applicable if the information supplied by the exporter could lead to undue payments, a preventive and deterrent effect. 60. In the view of the Commission and the Hauptzollamt, focusing on the information in the application for payment in accordance with Article 47(1) of Regulation No 3665/87 would enable the exporter to submit an export declaration containing false information and, in the absence of a subsequent check, to lodge a corresponding application for payment without fear of a penalty. This would deprive the penalty of the deterrent effect which it should have according to the fifth recital in the preamble to Regulation No 3665/87. 61. The Commission and the Hauptzollamt also argue that focusing on the information in the application for payment would seriously impair the preventive effects of the systems of checks on goods, since only a limited number of exports actually underwent such checks. 62. Finally, the Commission and the Hauptzollamt maintain that the information in the application for payment in the context of Article 11 of Regulation No 3665/87 cannot be decisive because the rules on penalties would then be applied in the Member States at different times, which would be inconsistent with the fifth recital in the preamble to Regulation No 3665/87. 2. Analysis 63. According to settled case-law of the Court, the penalties provided for in rules under the common agricultural policy – like the rules laid down in Article 11(1) of Regulation No 3665/87 in the case of false information accompanying applications for export refunds – are intended to combat the numerous irregularities occurring in the context of agricultural aid and which, because they weigh heavily on the Community budget, are likely to compromise the action undertaken by the Community institutions in that field to stabilise markets, to support the standard of living of farmers and to ensure that supplies reach consumers at reasonable prices. (25) 64. Protecting the Community’s financial interests is also the explicit objective of the rules on penalties laid down in Article 11(1) of Regulation No 3665/87, as is clear from the first and third recitals of the preamble to Regulation No 2945/94, which introduced those rules. 65. The Court has already ruled on the nature of the penalty for which point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 provides, deeming it not to be of a criminal nature. (26) 66. In explaining the nature of the breaches complained of which are to be penalised in this way, the Court has emphasised on several occasions that ‘the rules breached were aimed solely at traders who had freely chosen to take advantage of an agricultural aid scheme’. (27) The Court went on to state that ‘in the context of a Community aid scheme ... the granting of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness’ and concluded from this that ‘the penalty imposed in the event of non-compliance with those requirements constitutes a specific administrative instrument’. It was ‘intended to ensure the sound financial management of Community public funds’. (28) 67. The Court ruled in this respect that ‘only those traders who have applied for the export refunds are likely to have the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 imposed on them, when it appears that the information provided by those traders in support of their application is incorrect’. (29) 68. The Court concluded by stating that ‘the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 consists of the payment of a penalty, the amount of which is determined on the basis of the amount which would have been unduly received by the trader had an irregularity not been detected by the competent authorities. It is, therefore, an integral part of the export refund scheme in question and is not of a criminal nature’. (30) 69. Although the Court has made it perfectly clear that the rules on penalties laid down in Article 11(1) of Regulation No 3665/87 is not of a criminal nature, Käserei Champignon attempts to assign them to the categories of criminal law by defining what attracts the penalty as the creation of a material risk (konkretes Gefährdungsdelikt). This is unconvincing in view of the non-criminal nature of the rules on penalties. It is, moreover, an open question whether Community law includes a corresponding category. 70. The conclusion to be drawn from the foregoing is that false information supplied for the purpose of applying for a refund always gives rise to the penalty for which Article 11(1) of Regulation No 3665/87 provides. Irrelevant in this context is the document in which that information is supplied. This conclusion also corresponds to the purpose of the penalty as defined in the first recital in the preamble to Regulation No 2945/94. According to that recital, ‘measures to combat irregularities and notably fraud prejudicial to the Community budget should be intensified; ... provision should be made for the recovery of amounts unduly paid and sanctions to encourage exporters to comply with Community rules’. The third recital also underlines this aim, stating that ‘where an exporter has supplied wrong information that wrong information could lead to an undue payment of the refund if the error is not discovered, whilst where the error is discovered it is entirely proportional to sanction the exporter for an amount in proportion to the amount which he would have received unduly’. 71. The goal of protecting the Community’s financial interests by combating fraud and with the aid of the preventive effect of the penalty thus requires that time not be allowed to elapse until the Community has suffered a financial loss, but that a penalty be imposed on the supplier of false information which could lead to a loss, which also corresponds to the wording of the aforementioned third recital, according to which wrong information which could lead to undue payments must be penalised. 72. From this it does not yet follow, however, that the information in the export declaration is exclusively decisive for the purpose of Article 11(1) of Regulation No 3665/87: argumentum e contrario, the second subparagraph of Article 3(5) of that regulation does, after all, enable the Member States to prescribe, for the purpose of claiming the refund, a form which is not the same as the export declaration. It is consequently for the national court to determine whether or not, in the circumstances, the export declaration is to be regarded under national law as the document used ‘for export to enable products to qualify for a refund’. 73. This differentiated approach is not, in principle, precluded either by the need to ensure the uniform application of Community law or by the preventive or deterrent effect of the rules on penalties laid down in Article 11(1) of Regulation No 3665/87. 74. As regards the preventive effect of the rules on penalties in question, the Commission rightly emphasises that focusing on the application for payment as a requirement for the imposition of a penalty could deprive the rules of that deterrent effect where a check on the goods has preceded the application for payment, since under Commission Regulation (EC) No 2221/95 (31) only a limited number of goods are checked to see whether they have been actually and duly exported. If the later application for payment was regarded as a requirement for the imposition of a penalty, the exporter would have the opportunity, in the event of an incorrect export declaration being detected in a random check, of avoiding the imposition of a penalty by refraining from lodging an application for payment in respect of the goods in question. The effectiveness of the system of physical checks, namely the preventive effect of those checks, would thus be appreciably reduced, which would in turn be inconsistent with the effet utile of the rules on penalties. 75. As regards the deterrent effect, the Commission similarly claims, likewise not incorrectly, that, if the information in the application for payment was, in principle, the decisive factor, the exporter could submit an export declaration containing false information and, in the absence of a subsequent random check, lodge the appropriate application for payment without fear of a penalty being imposed. This undoubtedly seemed detrimental to the deterrent effect of the rules on penalties. 76. Conversely, however, the consequence of the application for payment not being decisive in the context of the rules on penalties is not bound to be the imposition of a penalty as a matter of course if the export declaration contains errors. It must remain possible for the honest exporter subsequently to correct the original information in the export declaration, (32) provided that that correction is made voluntarily and in time, i.e. not under the pressure of an inquiry or a – possibly no more than imminent – check by the customs authorities. (33), (34) 77. As regards the uniform application of Community law, it should be pointed out that, according to the fifth recital in the preamble to Regulation No 2945/94, ‘this measure ... is to be uniformly applied throughout the Member States’, which surely precludes the specification by the Member States of the requirements for the imposition of penalties at different times. This being the case, it is at any rate not plausible to focus on individual forms – whether the export declaration or the application for payment – since those forms may vary from country to country according to the Member States’ responsibility for the implementation of the common rules and the leeway created in this context by Regulation No 3665/87. Suffice it to say in this connection, then, that the only determining factor is the information supplied by the exporter – irrespective of the forms to be used pursuant to the national implementing legislation, which may vary in line with the options offered by Regulation No 3665/87. 78. The interim conclusion to be drawn is therefore that the purpose of the rules on penalties laid down in Article 11(1) of Regulation No 3665/87 and the ratio legis of Regulation No 2945/94 require that false information in the document used to claim the refund – unless corrected voluntarily and within the allotted time – gives rise to the penalty for which provision is made. D – Principle of proportionality 1. Arguments of the parties 79. Käserei Champignon questions the proportionality of the rules on penalties laid down in the first subparagraph of Article 11(1) of Regulation No 3665/87 in the event that the export declaration is regarded as the decisive application within the meaning of that provision. If that is taken to be the meaning of that provision, Käserei Champignon argues, the penalty is unlikely to serve its purpose since only the recipient of the refund can endanger the Community’s financial interests. Nor was it needed, since the possibility of a penalty being imposed in the event of false information being included in the application for a refund was an adequate deterrent. The penalty was still appropriate, since focusing on the export declaration meant that the preparatory act and the completed deed would be penalised equally severely in the criminal sense, which was inconsistent with the Member States’ traditions as States governed by the rule of law. The Bundesfinanzhof similarly expresses doubts about proportionality. 2. Analysis 80. According to the principle of proportionality, which is one of the general principles of Community law, the means employed by a provision of Community law must be appropriate to achieve the objective pursued and not go beyond what is necessary to achieve it. (35) 81. The Court has already ruled in Käserei Champignon I that the penalty specified in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 does not breach the principle of proportionality, since it cannot be considered to be inappropriate for attaining the objective pursued by Community law and does not go beyond what is necessary to achieve that objective. (36) 82. Over and above this general statement, the doubts expressed by Käserei Champignon and the Bundesfinanzhof about the proportionality of the penalty specified in the first subparagraph of Article 11(1) of Regulation No 3665/87 obviously relate to an interpretation which would permit a penalty to be imposed even where the exporter had corrected the originally false information during the procedure. 83. Having regard to the original case, it must be emphasised in this context that the basic possibility of a penalty being imposed on an exporter who, through no fault of his own, supplies false information when applying for a refund follows from the fact that the rules on penalties in question apply regardless of fault. This has already been taken into account by the Court in Käserei Champignon I. It is therefore irrelevant in this context why originally false information was not corrected within the allotted time. (37) 84. Focusing on the information in the document used to claim the refund – subject, where applicable, to the subsequent amendment of that information, provided that it is made voluntarily and within the allotted time in the sense described above – for the purpose of the penalty specified in the first subparagraph of Article 11(1) of Regulation No 3665/87 seems appropriate to achieve the objective of combating irregularities and fraud. It follows from the intended preventive and deterrent effect of the penalty that the Community legislature sets store by the accuracy of such information. It is also necessary to focus on the information in question in order to achieve the objectives of the rules on penalties, since, contrary to the view held by Käserei Champignon, the mere possibility of penalising false information supplied in the application for payment does not have a sufficiently deterrent effect. (38) 85. Reference must also be made to the fifth recital in the preamble to Regulation No 2945/94, according to which past experience of irregularities and fraud in the area of export refunds has shown that other penalties and mere repayment of the refund are not sufficient to have a deterrent effect and encourage exporters to take the necessary steps to ensure compliance with Community rules. (39) 86. Finally, even with the focus on the information in the document used to claim the refund, the penalty specified in the first subparagraph of Article 11(1) of Regulation No 3665/87 is proportional to the objective of protecting the Community’s financial interests, since it does not preclude the correction of that information provided that it is undertaken voluntarily and within the allotted time. 87. In criticising the alleged equal treatment of the preparatory act and the completed deed contrary to the Member States’ traditions as States governed by the rule of law, Käserei Champignon fails to recognise that the rules on penalties in question happen not to be of a criminal nature. 88. If, however, the rules on penalties laid down in Article 11(1) of Regulation No 3665/87 prove to be too stringent in practice in that the risk of a penalty being imposed seems unpredictable to the exporter, it cannot, in view of the objectives of the rules in question, which are clear – and worthy of protection – and whose validity is not (or no longer) in doubt, be for the Court to provide for a remedy; it is rather for the Community legislature, if need be, to bring about an appropriate solution with due regard for all relevant interests. VI – Conclusion 89. In view of the foregoing, it is proposed that the question referred by the Bundesfinanzhof should be answered as follows: The first and second subparagraphs of Article 11(1) of Regulation (EEC) No 3665/87, as amended by Regulation (EC) No 2945/94, must be interpreted – including in the light of the principle of proportionality – as meaning that false information relating to individual items listed in the document used to claim the refund in accordance with national implementing legislation, which could result in the exporter receiving an export refund in excess of that applicable, gives rise to a punitive reduction in the export refund in the amount set out in those provisions, – even if the exporter expressly states in the separate application for payment which must be submitted under national law that it will not be applying for an export refund in respect of the relevant items in the document in question and – provided that that statement was made only after customs checks had been announced or carried out. 1 – Original language: German. 2 – Commission Regulation 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), as amended by Commission Regulation (EC) No 1829/94 of 26 July 1994 amending Regulation (EEC) No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1994 L 191, p. 5) and by Commission Regulation (EC) No 2945/94 of 2 December 1994 amending Regulation (EEC) No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as regards the recovery of amounts unduly paid and sanctions (OJ 1994 L 310, p. 57) (hereinafter ‘Regulation No 3665/87’). 3 – Käserei Champignon Hofmeister [2002] ECR I-6453 (hereinafter ‘Käserei Champignon I’). 4 – Paragraph 52. 5 – See paragraph 3 above. 6 – BGBl. I 1996, p. 766. 7 – See, in this respect, the second sentence of the second subparagraph of Article 11(1) of Regulation No 3665/87. 8 – Case 283/81 Cilfit [1982] ECR 3415, paragraph 18, Case 291/87 Huber [1988] ECR 6449, paragraph 11, and Case C-236/97 Codan [1998] ECR I-8679, paragraph 25. 9 – Case 29/69 Stauder [1969] ECR 419, paragraph 3, Case 9/79 Koschniske [1979] ECR 2717, paragraph 6 et seq., and Case 55/87 Moksel [1988] ECR 3845, paragraph 15. 10 – By referring to the possibility that ‘the document mentioned in this paragraph is the export declaration’. 11 – ‘… la déclaration d’exportation dans laquelle il est indiqué qu’une restitution sera demandée’ (author’s italics). 12 – Commission Regulation of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (hereinafter ‘Regulation No 800/1999’). 13 – Unkel [1975] ECR 9. 14 – ‘Exports to non-member countries.’ 15 – ‘Entitlement to refund.’ 16 – ‘Procedure for payment of the refund.’ 17 – In the sense of an application for the granting of a refund or a process for the legally binding indication of the refund requested. 18 – Case C-371/92 Elliniko Dimosio [1994] ECR I-2391, paragraph 32. 19 – See paragraph 36 above for the unclear use of the term ‘Zahlungsantrag’ in the third subparagraph of Article 11(1). 20 – Cited in footnote 13, paragraph 9. 21 – Regulation of 19 November 1969 on the use of Community transit documents for the purpose of applying Community measures for verifying the use and/or destination of goods (OJ, English Special Edition 1969 (II), p. 515). 22 – Regulation of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (OJ, English Special Edition 1967, p. 323) (hereinafter ‘Regulation No 1041/67’). 23 – Regulation of 22 December 1969 amending Regulation No 1041/67 on detailed rules for the application of export refunds on products subject to a single price system (OJ, English Special Edition 1969 (II), p. 555). 24 – Cited in footnote 3 (paragraph 35 et seq.). 25 – Case C-240/90 Germany v Commission [1992] ECR I-5383, paragraph 19; Käserei Champignon I (cited in footnote 3), paragraph 38. 26 – Käserei Champignon I (cited in footnote 3), paragraph 44. 27 – Käserei Champignon I (cited in footnote 3), references in paragraphs 32 and 33 to the judgments in Case 137/85 Maizena [1987] ECR 4587, paragraph 13, and Case C-240/90 (cited in footnote 25), paragraph 26. 28 – Käserei Champignon I (cited in footnote 3), paragraph 41. 29 – Paragraph 42. 30 – Paragraph 43. 31 – Regulation of 20 September 1995 laying down detailed rules for the application of Council Regulation (EEC) No 386/90 as regards physical checks carried out at the time of export of agricultural products qualifying for refunds (OJ 1995 L 224, p. 13). 32 – In this respect see also Article 65 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1): ‘The declarant shall, at his request, be authorised to amend one or more of the particulars of the declaration after it has been accepted by customs. The amendment shall not have the effect of rendering the declaration applicable to goods other than those it originally covered. However, no amendment shall be permitted where authorisation is requested after the customs authorities: (a) have informed the declarant that they intend to examine the goods; or, (b) have established that the particulars in question are incorrect; or, (c) have released the goods.’ 33 – See also the judgment cited in footnote 18. 34 – It is impossible to deduce from the order for reference whether the corrections made by Käserei Champignon in the original case were ‘voluntary and in time’. At the hearing the Hauptzollamt maintained that the corrections were made after a check. 35 – Case 137/85 (cited in footnote 27), paragraph 15, and Case C-339/92 ADM Ölmühlen [1993] ECR I-6473, paragraph 15. 36 – Cited in footnote 3 (paragraph 68). 37 – Käserei Champignon claims in this respect that it could not know that its original information was incorrect because a laboratory test would have been necessary to reveal its inaccuracy. 38 – See paragraph 74 et seq. above. 39 – Käserei Champignon I (cited in footnote 3), paragraph 66.