Opinion of the Advocate General — ECLI:EU:C:2022:14
Date: 2022-01-13
Language of the case: German
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-415/20 – 1 
Case C-415/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 September 2020 
Referring court: 
Finanzgericht Hamburg (Germany) 
Date of the decision to refer: 
20 August 2020 
Applicant: 
Gräfendorfer Geflügel- und Tiefkühlfeinkost Produktions GmbH 
Defendant: 
Hauptzollamt Hamburg 
  
Subject matter of the main proceedings 
Action for payment of interest on export refunds which should have been granted 
but were not granted and penalties which were unduly imposed 
Subject matter and legal basis of the reference for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Does the requirement under EU law for Member States to repay, with 
interest, duties levied in breach of EU law also apply where the reason for the 
repayment is not a finding by the Court of Justice of the European Union that a 
provision of EU law has been breached, but that the Court of Justice has 
interpreted a (sub)heading of the Combined Nomenclature? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-415/20 
 
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2. Do the principles relating to a claim to interest established by the Court of 
Justice of the European Union also apply to the payment of export refunds refused 
by the Member State authority in breach of EU law? 
Provisions of EU law relied on 
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), recital 65, Articles 49 and 51 
Provisions of national provisions relied on 
Abgabenordnung (Tax Code), inter alia Paragraphs 37, 233 and 236 
Gesetz zur Durchführung der gemeinsamen Marktorganisationen und der 
Direktzahlungen (Law implementing the common organisation of markets and 
direct payments; ‘MOG’), Paragraphs 6 and 14 
Succinct presentation of the facts and the main proceedings 
1 The applicant exported poultry carcasses to third countries. In the period between 
January and June 2012 the defendant principal customs office refused to grant the 
applicant export refunds on the exported goods, noting that the exported products 
were not of fair marketable quality because the poultry carcasses had not been 
completely plucked or had too many giblets, and also imposed a penalty on the 
applicant on the ground that it had applied for a larger export refund than that to 
which it was entitled. 
2 After the Finanzgericht Hamburg (Finance Court, Hamburg) had decided, on the 
basis of the interpretation which the Court of Justice placed on subheadings  
0207 1210 and 0207 1290 of Annex I to Commission Regulation (EEC) 
No 3846/87 of 17 December 1987 establishing an agricultural product 
nomenclature for export refunds in its judgment of 24 November 2011, Gebr. 
Stolle (C-323/10 to C-326/10, EU:C:2011:774), that the presence of a small 
number of feathers was not prejudicial to a refund and that a total of up to four 
giblets from those listed therein could be added to the carcasses, the defendant 
principal customs office granted the applicant the export refunds applied for and 
refunded the penalties imposed. 
3 The applicant then made an application to the defendant principal customs office 
for the grant of interest on the export refunds which should have been granted but 
were not granted in the past and the unduly imposed penalties, for the period of 
the withheld refunds and the penalties imposed, which the defendant principal 
customs office refused. The defendant principal customs office also dismissed the 
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objection lodged against the decision to refuse. The applicant therefore brought an 
action before the referring court. 
Succinct presentation of the reasons for the request for a preliminary ruling 
The first question referred: interest on penalties unduly paid and reimbursed 
4 The applicant cannot base its claim for interest on provisions of national law. 
Under the first sentence of Article 233(1) of the Tax Code, interest is to be 
charged on claims arising from the tax debtor-creditor relationship, which also 
includes claims for refunds under the first sentence of Article 233(1) of the Tax 
Code, only to the extent to which this is legally prescribed. However, 
Paragraph 236 of the Tax Code to be considered in this respect is not applicable in 
the present case since it requires that the underlying amount of the refunds has 
been claimed, which is not so in this case. Only in that case can a claim for 
interest arise as from the time of lis pendens, that is to the time at which the action 
is served on the defendant. Nor does Regulation No 800/1999 contain any legal 
basis on which the applicant could found its claim. 
5 However, according to the case-law of the Court of Justice, where (import) duties 
are reimbursed on the ground that they have been levied in breach of EU law, 
there is an obligation on Member States, arising from EU law, to pay to 
individuals with a right to reimbursement the corresponding interest which runs 
from the date of payment by those individuals of the duties reimbursed (judgment 
of 18 January 2017, Wortmann, C-365/15, EU:C:2017:19, operative part). This 
decision of the Court of Justice follows a number of decisions in which the Court 
of Justice required the Member States under EU law not only to reimburse duties 
levied in breach of EU law but also to compensate individuals for losses 
constituted by the unavailability of sums of money (see inter alia judgment of 
27 September 2012, Zuckerfabrik Jülich, C-113/10, C-147/10 and C-234/10, 
EU:C:2012:591, paragraph  65), with interest payable, in principle, in respect of 
the period between the date of the undue payment of the duty at issue and the date 
of repayment thereof (see judgment of 18 April 2013, Irimie, C-565/11, 
EU:C:2013:250, paragraph 28). 
6 Penalties based on Article 51 Regulation No 800/1999 are not duties but fines. 
However, the referring court has no doubt that the case-law of the Court of Justice 
cited in the preceding paragraph is to be interpreted in a broad, general manner as 
meaning that the legal classification of a payment obligation under public law, 
which is imposed in breach of EU law by the authority of a Member State, as an 
(import) duty, tax or – as in the present case – penalty, is irrelevant. 
7 On the other hand, it appears uncertain to the referring court, as regards EU law, 
whether the obligation on Member States described above exists also in cases 
where the reason for the repayment is not a breach of EU law by the legal basis, as 
found by the Court of Justice of the European Union, but – as in the present case – 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-415/20 
 
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(merely) an interpretation by the Court of Justice of a (sub)heading of the 
Combined Nomenclature. 
8 However, in the view of the referring court, the aspect of compensation for the 
financial disadvantages suffered by the individual as a result of the unavailability 
of sums of money, repeatedly highlighted by the Court of Justice (see inter alia 
judgment of 18 April 2013, Irimie, C-565/11, EU:C:2013:250, paragraph 21) 
probably also holds true of the main proceedings. The applicant also sustained 
losses in that it did not have available to it in the form of current assets the 
financial resources which it had to raise to pay the unduly imposed penalties. 
9 As regards the time at which an interpretation which, in the exercise of the 
jurisdiction conferred upon it by Article 267, the Court of Justice gives, has effect, 
it is settled case-law that such interpretation clarifies and defines where necessary 
the meaning and scope of that rule as it must be or ought to have been understood 
and applied from the time of its entry into force and it thus follows that the rule as 
so interpreted may, and must, be applied by the courts to legal relationships 
arising and established before the judgment ruling on the request for 
interpretation, provided that in other respects the conditions enabling an action 
(judgment of 22 October 1998, IN.CO.GE.'90 and Others, C-10/97 to C-22/97, 
EU:C:1998:498, paragraph 23). In the present case too, the interpretation which 
the Court of Justice gives to subheadings 0207 1210 and 0207 1290 of Annex I to 
Regulation No 3846/87 in its judgment of 24 November 2011, Gebr. Stolle 
(C-323/10 to C-326/10, EU:C:2011:774) consequently has effect ex tunc with the 
result that the penalty imposed on the applicant was contrary to EU law from the 
outset and thus imposed in breach of EU law. 
The second question referred: interest on export refunds paid late 
10 There is no provision in EU law which provides for a claim to interest in the event 
that an export refund is unduly paid late. In particular, as regards the present case, 
Article 49(8) of Regulation No 800/1999 makes no mention of what rights the 
exporter has if the time limit referred to therein has expired and the authority of 
the Member State has not paid the export refund. Consequently, in principle it is 
probably for the national legal system of each Member State to lay down the 
conditions for payment of interest on State subsides which are paid late. 
11 National law contains no general legal principle relating to (adequate) interest on 
overdue State payments, but only interest in accordance with precisely defined 
conditions. In the present case, Paragraph 14(2) of the MOG, read in conjunction 
with Article 236 of the Tax Code, are to be considered. However, in this respect it 
is necessary for there to be lis pendens (see paragraph 4 above), which did not 
apply to the present case since no proceedings for reimbursement of the penalties 
had been brought. 
12 Since the applicant was paid export refunds for the exported poultry carcasses, to 
which it was entitled under EU law, very late, it sustained losses arising from the 
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unavailability of these sums of money; consequently, it was probably in a similar 
situation to that of a person required to pay duty in breach of EU law. 
13 The Court of Justice has highlighted the aspect of the ‘certain symmetry’ between, 
on the one hand, operators who have gained an advantage because of an error 
contrary to EU law and, on the other, operators who have suffered a disadvantage 
because of an error contrary to EU law (judgment of 18 January 2017, Wortmann, 
C-365/15, EU:C:2017:19, paragraph 29). According to recital 65 of Regulation 
No 800/1999, in order to ensure equal treatment for exporters in Member States, 
explicit provision should be made, as far as export refunds are concerned, for any 
amount over-paid to be reimbursed with interest by the beneficiary. In accordance 
with this requirement laid down in EU law, the national legislature stipulated in 
the first sentence of Paragraph 14(1) of the MOG that interest is to be charged on 
claims to reimbursement of benefits from the time they arise. A national legal 
order guided by the principle of symmetry might be organised in such a way as to 
require that an operator should also be able to claim interest from the time the 
export refund is wrongly refused since otherwise the aspect of the ‘certain 
symmetry’, highlighted by the Court of Justice, between the situation of the 
operator and that of the customs authority, would be achieved in only a highly 
incomplete manner. 
14 At least in Paragraph 14(2) of the MOG the Member State stipulated that interest 
is to be charged on claims to benefits, which include export refunds under 
Paragraph 6(1)(1a) of the MOG, from the time of lis pendens, that is to say the 
time at which the action is served on the defendant. The operator is consequently 
entitled in part to appropriate compensation for the financial losses which he has 
sustained because the Member State paid the export refunds late in contravention 
of EU law. However, in the present case the applicant has not exercised the claim 
to export refunds, as has already been stated (see paragraph 4 above), by bringing 
proceedings. 
15 In practice, it is common for an operator not to pursue his claim to export refunds 
through the courts, but merely by means of a first-stage appeal against the customs 
authority of the Member State, where the parties await the outcome of a test case 
for reasons of economy of procedure. In this case, the operator cannot claim any 
interest under national law if the outcome of the test case is in his favour, which 
can be justified by the fact that the decision not to exercise the claim by bringing 
proceedings, but rather to await the outcome of a test case, is an autonomous 
decision of the operator, who must then also bear the legal consequences, namely 
waiver of a claim to interest under Paragraph 236 of the Tax Code.