Opinion of the Advocate General — ECLI:EU:C:1998:236
Date: 1998-05-19
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Cereals;European Agricultural Guidance and Guarantee Fund (EAGGF)
Procedure: Action for annulment - unfounded
Origin: Netherlands

Summary Report, the 
Commission gave as its reason for refusing 
funding the fact that the customs documents 
were only accepted by the Netherlands cus­
toms office in Terneuzen on 27 November 
1989, whereas the ship left the customs terri­
tory of the Community on 25 November. 
According to that report, the Netherlands 
authorities stated that the export documents 
were submitted at the weekend. Because the 
customs office which was in fact competent 
was closed at the weekend, another office ' 
dealt with the matter and took samples for 
later analysis, although no such analysis was 
ever carried out. The competent office then 
accepted the documents on Monday, 27 
November 1989. However, the Lloyd's reg­
ister of ship movements makes it clear that 
the ship did not call at Terneuzen but left 
Community territory direct from Ghent. 
Because the export declaration was accepted 
after shipment and departure of the ship, and 
there was no firm evidence that the goods 
had been declared to the competent customs 
office in order to enable any (physical) inspec­
tions to take place, it was not possible to pay 
the export refund. 
4. The inspection by the Commission which 
formed the basis of the summary report took 
* Original language: German. 
1 — According to the plaintiff in these proceedings, the other 
office was also a customs office in Terneuzen. 
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OPINION OF MR ALBER — CASE C-27/94 
place in 1991. It related principally to the 
Netherlands authority responsible for pay­
ment, namely the Hoofdproduktschap voor 
Akkerbouwprodukten (Central Board for 
Agricultural Products, hereinafter 'the HPA'). 
The results of that inspection were set out in 
a report dated 14 January 1992. The various 
dates of shipment and departure of the ship 
on the one hand, and the declaration on the 
other, were also set out in that report. 
According to the report, that gave rise to 
uncertainty as to •whether the goods -were 
declared for export in due time, that is to say, 
prior to departure, and as to the question 
whether customs would in the circumstances 
have been able to inspect them. The Commis­
sion (the EAGGF 2) accordingly asked the 
plaintiff for further information to dispel that 
uncertainty. 
5. The Commission subsequently reiterated 
its request for further information or evidence 
on several occasions, which led to an exchange 
of correspondence 3 between the Commission 
and the Netherlands authorities. In the end, 
the Commission fixed 15 December 1992 as 
the deadline for submission of the documents 
and evidence sought. 
6. On 14 December 1992 the Netherlands 
authorities gave notice that certain documents 
would be forwarded at a later date. O n 19 
and 20 July 1993 the Commission received 
some documents. These included a customs 
form with manuscript notes made by the 
competent customs official, from which it 
appears that the goods were declared and 
cleared for customs on 25 November 1989, 
and that the procedure was completed on 27 
November. These details were provided by 
the competent official in December 1989 in 
response to a query from the HPA. 
7. According to the plaintiff, the competent 
authorities took all necessary steps to comply 
with the Community provisions. It argues 
that, as the competent customs office is nor­
mally closed at the weekend, another customs 
office in Terneuzen accepted the goods on 25 
November and also took samples. The docu­
ments were then left with the competent 
office, which completed the matter on the next 
working day, Monday, 27 November, but in 
doing so did not, due to an oversight, state on 
the form the actual day of acceptance, namely 
25 November but 27 November. 
8. In addition, the plaintiff gives comprehen­
sive details in support of its claim that the 
ship was in fact in Terneuzen on 25 November. 
9. In the Commission's view, this last point 
is of minor importance. Neither does it dis­
pute that the ship set sail on 25 November. 
The most important question for the Com­
mission is whether the export declaration was 
accepted before the ship left the customs ter­
ritory and whether there was an opportunity 
2 — European Agricultural Guidance and Guarantee Fund. 
3 — See, inter alia, Annexes 2 and 3 to the application. 
I - 5584 
NETHERLANDS v COMMISSION 
to carry out inspections. According to the 
Commission, the plaintiff did not produce 
the necessary evidence to that effect in due 
time. 
10. The plaintiff disagrees and has therefore 
brought an action seeking 
— annulment of Commission Decision 
93/659/EC of 25 November 1993, pub­
lished in the Official Journal of 8 December 
1993 (OJ 1993 L 301, p. 13), on the clear­
ance of the accounts presented by the 
Member States in respect of the expendi­
ture for 1990 of the European Agricul­
tural Guidance and Guarantee Fund 
(EAGGF), Guarantee Section, to the extent 
that the decision disallows HFL 
3 317 344.26 of the export refund in respect 
of cereals; and 
— an order requiring the Commission to pay 
the costs. 
The Commission contends 
— that the action should be dismissed as 
unfounded; and 
— that the plaintiff should be ordered to pay 
the costs. 
11. The plaintiff first of all disputes that 
Article 8(2) of Regulation (EEC) N o 729/70 
of the Council of 21 April 1970 on the 
financing of the common agricultural policy 4 
by the Commission applies. It argues that it 
was not guilty of the slightest irregularity or 
omission. There can be no doubt that the 
Netherlands authorities fulfilled their obliga­
tions under Article 8(1) of Regulation N o 
729/70. They ensured in this case that the 
export declaration was drawn up in compli­
ance with all the requirements arising under 
the Community legislation, and in particular 
Articles 3, 4 and 47 of Commission Regula­
tion (EEC) N o 3665/87 of 27 November 1987 
laying down common detailed rules for the 
application of the system of export refunds 
on agricultural products. 5 
12. The Commission, on the other hand, does 
not regard this as the decisive question. In its 
view, the important issue is rather whether 
the necessary evidence to support the plain­
tiff's claim was submitted 'in due time', which 
in this case means by the deadline of 15 
December 1992 set by the Commission. 
4 — OJ, English Special Edition 1970 (I), p. 218. 
5 — OJ 1987 L 351, p. 1. 
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OPINION OF MR ALBER — CASE C-27/94 
C — Relevant legal provisions 
13. Article 2(1) of Regulation N o 729/70 pro­
vides: 
'Refunds on exports to third countries, granted 
in accordance with the Community rules 
within the framework of the common organi­
sation of agricultural markets, shall be financed 
under the terms of Article 1(2)(a).' 
Article 1(2)(a), to which reference is made, 
provides: 
'The Guarantee Section shall finance: 
(a) refunds on exports to third countries; 
» 
14. Articles 3, 4 and 47 of Regulation N o 
3665/87 are also relevant. Article 3(1) pro­
vides: 
'The day of export means the date on which 
the customs authority accepts the export dec­
laration in which it is stated that a refund will 
be applied for.' 
Article 3(2) provides: 
'The date of acceptance of the export declara­
tion shall determine: 
(a) the rate of the refund where the refund is 
not fixed in advance; 
...' 
I - 5586 
NETHERLANDS v COMMISSION 
Article 3(4) provides: 
'The day of export shall be used to establish 
the quantity, nature and characteristics of the 
product exported.' 
15. Article 4(1) provides: 
'... the refund shall be paid only upon proof 
being furnished [that] the products for which 
the export declaration was accepted have, 
within 60 days from the date of such accep­
tance of the export declaration, left the cus­
toms territory of the Community in the unal­
tered state'. 6 
16. Article 47 contains provisions on the pro­
cedure for payment of the refund. 
17. Article 8(1) of Regulation N o 729/70 pro­
vides: 
'The Member States in accordance with 
national provisions laid down by law, regula­
tion or administrative action shall take the 
measures necessary to: 
— satisfy themselves that transactions 
financed by the Fund are actually carried 
out and are executed correctly; 
— prevent and deal •with irregularities; 
— recover sums lost as the result of irregu­
larities or negligence 
...' 
6 — Emphasis added. 
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OPINION OF MR ALBER — CASE C-27/94 
18. The first sentence of Article 8(2) provides: 
'In the absence of total recovery, the financial 
consequences of irregularities or negligence 
shall be borne by the Community, with the 
exception of the consequences of irregulari­
ties or negligence attributable to administra­
tive authorities or other bodies of the Member 
States.' 
D — Opinion 
19. It is appropriate to start by examining 
whether it is not the case that sufficient evi­
dence was already available, before expiry of 
the time-limit on 15 December 1992, that the 
export declaration was accepted by the cus­
toms authorities before the ship put to sea. In 
that connection, the plaintiff refers to the 
HPA's records. At the time when the Com­
mission carried out its inspection in 1991, it 
would have been possible to have sight of the 
form filled out by the customs authorities 
with the manuscript notes made by the com­
petent customs official (the form is annexed 
to the application as Annex 15). It is apparent 
from those notes that the export declaration 
was accepted on 25 November 1989, the goods 
cleared for customs the same day and the 
processing of the documents completed on 27 
November 1989. On that basis, there can have 
been no doubt that the goods were declared 
to the customs authorities before the ship set 
sail. 
20. In that connection, the Commission points 
out that those notes did not appear on the 
form found in the HPA's file and attached to 
the application 7 at Annex 13. Moreover, the 
Commission points out that the HPA's stamp 
appears only on the form •without the cus­
toms official's notes (Annex 13 to the applica­
tion). The Commission concludes from this 
that the HPA took its decision to disallow 
the refund on the basis of the document in 
Annex 13, in other words, without being 
aware of the competent customs official's sub­
sequent clarificatory comments. 
21. That conclusion does not necessarily 
follow. As the plaintiff stated, those notes 
were added following a query from the HPA. 
The HPA was therefore aware of their con­
tent. 
22. However, in this case that is of no con­
sequence. What is important is whether the 
form bearing the customs official's manu­
script annotations was submitted to the Com­
mission in due time. The Commission denies 
7 — Annex 13, like Annex 15, comprises the customs office form 
relating to the clearance of the goods in dispute here How­
ever, the competent customs official's notes only appear on 
the form at Annex 15. 
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NETHERLANDS v COMMISSION 
that it was. It maintains that the form (Annex 
15 to the application) only reached it on 19 
July 1993 by fax. 
23. Since the form with the customs official's 
manuscript notes does not, unlike the form 
without those notes, bear the HPA's stamp, 
the Commission's view can certainly be 
endorsed in so far as the form with the notes 
was not officially registered by the HPA. It 
may therefore be assumed that the form was 
not available to the Commission when it 
inspected the HPA's files. 
24. For that reason, no conclusions can be 
drawn from a further entry on that form. The 
word 'conform' (in conformity) has been 
entered in manuscript under the heading 
'Inspection by the departures office' and there 
is an official stamp dated 27 November 1989. 
This section of the form does not serve to 
show that the export declaration had already 
been accepted on 25 November. Nor, there­
fore, can it be concluded that an inspection 
had already been carried out on 25 November 
leading to the entry 'category: in conformity'. 
25. The plaintiff also refers to its letters of 25 
June and 17 July 1992 to show that it did 
provide the necessary evidence within the 
prescribed period (those letters can be found 
in Annexes 2 and 3 to the application). These, 
however, only contain clarificatory statements 
by the competent authorities. 
26. Amongst other things, they state that the 
Terneuzen customs office was closed during 
the weekend of 25 and 26 November 1989, 
but that the export declaration was processed 
by another customs office. The MS Stankov 
was reportedly moored on 25 November 1989 
in Terneuzen. Customs officials took samples 
there which were subsequently examined by 
experts from the administrative authorities. 
The declaration was then processed on the 
next working day, namely 27 November. 
27. The plaintiff considers those letters to be 
official statements made under oath. How­
ever, that is not apparent from the text of the 
letters. They cannot therefore be viewed as 
satisfactory evidence. In that connection, ref­
erence should be made to the case-law of the 
Court of Justice on clearance of the EAGGF's 
accounts. According to that case-law, when 
the Commission refuses to charge expendi­
ture to the EAGGF on the ground that it was 
incurred as a result of breaches of Commu­
nity rules for which a Member State can be 
held responsible, it is for that State to show 
that the conditions for obtaining the financing 
I - 5589 
OPINION OF MR ALBER — CASE C-27/94 
refused by the Commission are fulfilled. 8 As 
regards the question whether a Member State 
carried out the necessary inspections, it is not 
sufficient for that State to claim that it did so 
without producing evidence to that effect. 9 
28. In this case, the Commission refused 
funding because, according to the informa­
tion in the HPA's files, the customs formali­
ties were only completed after the ship set 
sail. It is then for the Member State to show 
that the export declaration had been sub­
mitted at the relevant time and thus that the 
conditions for funding were fulfilled. How­
ever, the competent Netherlands authorities 
did not produce evidence by the prescribed 
deadline of 15 December 1992 to support the 
contentions in the letters of June and July 
1992. 
29. It may none the less be true — despite 
partially contradictory and incomplete extracts 
from the register of the Terneuzen Harbour 
and Locks Department and the Shipping Reg­
ister and notwithstanding the Commission's 
assumption to the contrary — that the ship in 
question passed through Terneuzen on 25 
November 1989. (The plaintiff claimed that it 
is practically impossible for ships of the size 
of the MS Stankov to put to sea direct from 
Ghent; they have to pass through the Ter­
neuzen locks.) That alone, however, cannot 
prove that the relevant customs formalities 
were also completed on that day. 
30. The documents submitted by the plaintiff 
furthermore state that samples for visual anal­
ysis were taken and later analysed. The Com­
mission rightly points out that no records of 
such analyses were supplied. Therefore, the 
two letters of 25 June and 17 July 1992 do 
not constitute adequate evidence either. 
31. In addition, the plaintiff points to a letter 
of notification from the customs office in 
support of its contention that such samples 
were taken and that the result of the analysis 
corresponded to the contents of the declara­
tion. (That letter of notification may be found 
at Annex 14 to the application.) The letter of 
notification, however, only contains general 
instructions from which it is not possible to 
conclude that such samples were in fact taken 
from the MS Stankov on 25 November. 
32. Furthermore, on that point, the plaintiff 
argues that where barley, in respect of which 
an export refund is payable, is exported, there 
is no statutory obligation to take samples. 
The Commission does not dispute that, but 
points out that the issue here is whether the 
8 — Case C-48/91 Netherlands v Commission [1993] ECR I-5611, 
paragraph 16, and Case 347/85 United Kingdom v Commis­
sion [1988] ECR 1749, paragraph 14. 
9 — Case C-8/88 Germany v Commission [1990] ECR I-2321, 
paragraph 25 et seq. 
I - 5590 
NETHERLANDS v COMMISSION 
competent authority was in a position to take 
such samples at all. The question is not whether 
there was a duty to inspect (which there was 
not), but whether there was an opportunity 
to inspect. 
33. The fifth recital in the preamble to Regu­
lation N o 3665/87 might be a basis for arguing 
that goods should be inspected. It states that: 
'... the competent authorities must verify that 
products leaving the Community ... are in 
fact those which were the subject of customs 
export formalities.' There is no provision for 
taking samples here either. However, the point 
is not that the plaintiff failed to take samples. 
It is that the goods were no longer on Com­
munity territory at the time when the export 
declaration was accepted. Accordingly, it 
would no longer have been possible to verify 
whether an export refund was in fact payable 
in this case. 
34. The question is not, as the plaintiff claims, 
whether the amount of the refund changed 
between 25 and 27 November, which is not 
in dispute. Damage could equally have been 
sustained as a result of the export refund being 
granted erroneously. 
35. In considering the question whether the 
plaintiff's letter of 14 December 1992 might 
have enabled the plaintiff to meet the deadline 
of 15 December 1992, it should be noted that 
the letter did not contain any further evi­
dence but merely declared that certain docu­
ments would be forwarded later. 
36. It cannot therefore be assumed that that 
letter met the deadline set by the Commis­
sion. It cannot have been so time consuming 
to procure the necessary evidence as to make 
it impossible to comply with the deadline. 
The authorities do not plead special circum­
stances. As the necessary evidence was also 
not produced immediately after that letter but 
— as the Commission rightly points out — 
only seven months later, and without any 
explanation for the delay, the deadline was 
not met by the plaintiff's letter of 14 December 
either. 
37. The Kingdom of the Netherlands, there­
fore, has not, at least not within the deadline 
set by the Commission, produced the rel­
evant evidence that the export refunds were 
properly paid. 
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OPINION OF MR ALBER — CASE C-27/94 
38. The imposition of such a deadline is made 
possible by Article 1(3) of Regulation (EEC) 
No 1723/72 on making up accounts for the 
EAGGF. 10 That provides: 
'Additional information may be forwarded to 
the Commission up to a deadline to be fixed 
by the Commission, taking into account in 
particular the amount of work necessary to 
supply the information concerned. In the case 
of failure to submit the aforementioned infor­
mation within the period fixed, the Commis­
sion shall take its decision on the basis of 
those elements of information in its posses­
sion at the deadline, except in cases where the 
late submission of information is justified by 
exceptional circumstances.' 
Under that provision, the Commission may 
refuse to finance export refunds if the plain­
tiff produces the necessary evidence but does 
not do so within the deadline set by the 
Commission. 
39. The Court of Justice confirmed this, more­
over, in Germany v Commission to which the 
Commission refers. 1 1 In relation to the Com­
mission's power to fix a deadline, the Court 
of Justice refers to the first recital in the pre­
amble to Regulation N o 422/86, 12 which 
states: '... so that Member States' accounts 
may be scrutinised rapidly, the Commission 
must be able to set a deadline for the for­
warding of new information by the Member 
States, taking account of the progress made 
on clearance of the accounts'. 
40. Under Article 1(3) of Regulation N o 
1723/72, therefore, the Commission is to make 
a decision on the basis of the information 
available to it when the deadline expires. As 
Article 4(1) of Regulation N o 3665/87 indi­
rectly suggests, the export declaration must 
be accepted before the goods leave the cus­
toms territory. The necessary proof for this 
— which is also referred to in Article 4(1) — 
was not adduced, since there was no evidence 
that the customs declaration had been accepted 
on 25 November 1989 when the deadline 
expired. 
41. As the plaintiff has not fulfilled the con­
ditions for payment of an export refund under 
Article 4(1) of Regulation N o 3665/87, the 
Commission considers that financing of the 
refund under Article 2 of Regulation N o 
729/70 must be refused. Article 2(1) provides 
that refunds are to be financed only if they 
are 'granted in accordance with the Commu­
nity rules within the framework of the 
common organisation of agricultural mar­
kets'. 
42. By contrast, the plaintiff is of the view 
that the Commission's decision is based on 
Article 8(2) of the same regulation. The pre­
amble to the decision refers both to Article 2 
and to Article 8, and the decision itself does 
not expressly state the legal basis for rejecting 
funding in this case. It cannot therefore be 
10 — Commission Regulation (EEC) N o 1723/72 of 26 July 1972 
on making up accounts for the European Agricultural Guid­
ance and Guarantee Fund, Guarantee Section, OJ English 
Special Edition, Second Series I II EAGGF, p. 109, as amended 
by Commission Regulation (EEC) N o 422/86 of 25 Feb­
ruary 1986 amending Regulation (EEC) N o 1723/72 on 
making up accounts for the European Agricultural Guid­
ance and Guarantee Fund, Guarantee Section, OJ 1986 
L 48, p. 31. 
11 — Case C-54/91 Germany v Commission [1993] ECR I-3399. 
12 — Case C-54/91, cited in footnote 11, paragraph 13. 
I - 5592 
NETHERLANDS v COMMISSION 
automatically assumed that the Commission 
relied on Article 2 in adopting its decision. 
43. In that connection, the Commission 
rightly refers to the fifth recital in the pre­
amble to its decision, which makes express 
reference to Articles 2 and 3 of Regulation 
N o 729/70 in relation to refunds on exports 
to third countries. 
44. Furthermore, the Commission is also cor­
rect in pointing out that the requirements of 
Article 8(2) are not fulfilled either, since the 
Netherlands authorities displayed a degree of 
carelessness, in not forwarding the documents 
to the Commission until 18 months later, or 
seven months after expiry of the last deadline 
to be set, so that the provision of funding 
cannot be justified. 
45. As it is therefore clear that the Kingdom 
of the Netherlands did not produce the nec­
essary evidence, at least not within the pre­
scribed time-limit, I can see no reason for 
annulling, in whole or in part, the Commis­
sion's decision. 
46. The plaintiff takes the view that the deci­
sion should also be annulled for infringement 
of Article 190 of the EC Treaty, which pro­
vides that decisions must be accompanied by 
a statement of reasons. Firstly, the Commis­
sion's decision was, according to the plaintiff, 
adopted on the basis of incorrect facts. Even 
if this had been the case (the opposite has 
been shown to be true in the foregoing), it 
would not result in infringement of Article 
190, which merely requires decisions to be 
reasoned. Whether the reasons given are right 
or wrong cannot be examined under Article 
190. 
47. The plaintiff also claims that Article 190 
was infringed by the Commission's failure 
clearly to state in its decision why it rejected 
what the plaintiff considered to be convincing 
evidence. The Commission disputes this. 
48. According to the case-law of the Court, 
the extent of the duty to state the reasons on 
which a decision is based, laid down in Article 
190, depends on the nature of the act in ques­
tion and on the context in which it was 
adopted. Furthermore, regard must be had to 
the particular context in which decisions on 
the clearance of EAGGF accounts are drawn 
up. 13 
49. In this case, there was extensive corre­
spondence between the Commission (the 
EAGGF) and the competent authorities. It 
must therefore be assumed that the authori-
13 — Case 327/85 Netherlands v Commission [1988] ECR 1065, 
paragraph 13, and Case C-54/91 Germany v Commission 
(cited in footnote 11), paragraphs 10 and 12. 
I - 5593 
OPINION OF MR ALBER — CASE C-27/94 
ties were aware of the reasons for the Com­
mission's subsequent decision. Furthermore, 
it is clear from the report of 14 January 1992 
that there were doubts as to whether the 
goods had been declared for export in due 
time and whether customs were able to inspect 
the products. That is why supplementary 
documentation was requested. The summary 
report of October 1993 states as a reason for 
rejection of funding the fact that the export 
declaration was accepted after the goods had 
left the customs territory and that there was 
no firm evidence that the goods had been 
declared to customs to enable any inspections 
to be carried out. Furthermore, the Commis­
sion contends that in a telex dated 12 
November 1992 it requested more specific 
evidence that the declaration had indeed been 
made on 25 November 1989 and that samples 
had been taken. 
50. The reasons why funding ought to have 
been and indeed ultimately was refused and 
the evidence required of it must therefore 
have been clear to the plaintiff. In addition, 
the plaintiff could, in the course of its exten­
sive correspondence with the Commission, 
have asked the latter for further details as to 
the evidence required of it. 
51. Therefore, there does not appear to have 
been any infringement of Article 190 of the 
EC Treaty either. 
Costs 
52. Under Article 69(2) of the Rules of Pro­
cedure of the Court of Justice, the unsuc­
cessful party is to be ordered to pay costs if 
they have been applied for in the successful 
party's pleadings. 
E — Conclus ion 
53. I therefore p ropose tha t the C o u r t should: 
(1) dismiss the act ion; 
(2) o rde r the K i n g d o m of the Ne the r l ands t o pay the costs . 
I-5594