Opinion of the Advocate General — ECLI:EU:C:2006:138
Date: 2006-02-23
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Free movement of goods;Monetary measures in the field of agriculture;Customs Union;Eggs and poultry
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Agriculture – Common organisation of the markets – Export refunds – Conditions for granting (Commission Regulations Nos 3665/87, Art. 13, and 1538/91, Arts 6 and 7) 2. Agriculture – Common organisation of the markets – Export refunds – Conditions for granting (Council Regulations Nos 386/90 and 2913/92, Arts 1 and 70; Commission Regulations Nos 1538/91 and 2221/95) 3. Agriculture – Common organisation of the markets – Export refunds – Conditions for granting (Council Regulation No 2913/92, Art. 70(1), first subpara.; Commission Regulation No 1538/91, Art. 7(3) to (5)) 4. Agriculture – Common organisation of the markets – Export refunds – Conditions for granting (Council Regulation No 2913/92, Art. 70) 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’, Regulation No 1538/91 introducing detailed rules for implementing Regulation No 1906/90 on certain marketing standards for poultry, as amended by Regulation No 1000/96 – which lays down minimum quality requirements and tolerance margins – in particular Articles 6 and 7, applies. (see para. 39, operative part 1) 2. Article 70 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 82/97 on the partial examination of goods covered by the same declaration, 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’. That article is one of the general customs provisions which apply to all export declarations relating to goods qualifying for export refunds, without prejudice to special rules. However, no special rule of the specific legislation applicable to the monitoring carried out at the time of export of agricultural products receiving refunds precludes the application of Article 70 of the Customs Code. (see paras 47-53, operative part 2(a)) 3. The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation No 2913/92 establishing the Community Customs Code, 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 introducing detailed rules for implementing Regulation No 1906/90 on certain marketing standards for poultry. The first subparagraph of Article 70(1) of the Customs Code is a general provision which provides that, where only part of the goods covered by a declaration are examined, the results of the partial examination are to be taken to apply to all the goods covered by that declaration. That legal fiction relating to uniform quality does not apply only to examinations carried out on the basis of the customs legislation, but is also relevant as regards checks carried out pursuant to the legislation concerning the system of export refunds on agricultural products and that concerning marketing standards for poultrymeat. Article 7(3) to (5) of Regulation No 1538/91 sets out the tolerable number of defective units in relation to the size of the batch and the size of the sample. If the minimum number of samples has not been taken, it is impossible to check compliance with those tolerance margins. (see paras 55-57, 59, operative part 2(b)) 4. Where several samples are taken from export consignments that were declared as a single unit and examination of part of those samples reveals that they are of sound and fair marketable quality, while examination of another part of those samples reveals that they are not, 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. (see paras 24, 68, operative part 3)