2.

If against this background we proceed to the interpretation of the provisions of Community law which are relevant to the court making the reference, we must first consider Article 6 of Regulation No 876/68. It provides that where Article 4 applies, that is, where the refund is varied according to the destination, the refund shall be paid “provided it is proved that the product has reached the destination for which the refund was fixed.” A literal interpretation of “reach” means at least “arrive at”. After what has just been said about the meaning and objective of the refund rules, their system taken as a whole and the Community interests, there can be no doubt in my view that it is not only this literal meaning which is relevant, but that it is necessary to go further: “reach” must necessarily relate to the market. It is thus necessary that the goods in question have an effect on the relevant market, that they are dealt with on the market and that they are subject to the laws of the market according to the criterion of which the refund was fixed. This is certainly not the case — this much may be said immediately — when the goods are only reloaded in the harbour of a particular country, when the most that can be said is that they are in transit. It is the Commission's view, namely that the decisive condition is the importation into the particular country, which must rather be acknowledged as the correct one. In this respect — I shall return once again to this factor in another connexion — reference may be made to Article 3 of Regulation No 876/68, according to which the refund depends on “the most favourable prices in third countries of destination for third country imports”. It is also relevant that in the recitals to this regulation, namely in relation to varying the amount of the refund according to the destination, it is stated that ‘special conditions apply to imports in certain countries of destination’. It is clear in fact that the market of a particular country is opened to imported goods only on the completion of customs import formalities. It may thus be assumed that they represent important evidence of the marketing which is required under the refund rules. The Commission has, however, rightly added that it is only rebuttable evidence. Moreover, it is probably right that it cannot be said in a general and abstract manner what conditions must be fulfilled for the market of a particular country to be reached. It depends on the particular circumstances of the individual case; for example it may be important whether the export is made to an undertaking with a place of business in the particular country of destination. This argument that importation and marketing are essential criteria, an argument to which the considerations voiced so far have led, cannot be rebutted, as the plaintiff has tried to do, by referring to an answer which the Commission gave to a Question in Parliament with regard to frauds committed in the course of exports from the Community (OJ C 38 1970 p. 1). As is known mention is made in this answer of the proof ‘that the goods have in fact reached the country of destination’ and following on from this it is stated further: ‘after that the Commission can no longer follow what becomes of the goods exported.’ In the view of the plaintiff this observation is an authentic interpretation of the refund rules in question here. It infers from this that according to the legal position then obtaining customs clearance into free circulation and reaching the market of the relevant country of destination and the corresponding proofs did not have any crucial significance because they were not mentioned by the Commission. It is scarcely possible to accept this. In this way manifestly far too much importance would be attached to a very brief answer by the Commission to one of several subsidiary questions, an answer which could not cover all the legal problems which concern us here. On the other hand it is pertinent to refer to the judgment in Case 6/71, Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel ([1971] ECR) which was concerned with the refund rules applying at first and with the distinction between the concepts ‘export to third countries’ and ‘export to other Member States’. The judgment states: ‘Both the provisions of Regulation No 19 and the recitals in the preamble thereto show that the refunds prescribed by the regulation were intended to offset the price differences between the markets in question. It follows that exports to third countries within the meaning of that regulation presupposed that the goods were offered for sale on the market of a third country, that is to say, that they must at least have been put into free circulation there.’ It must indeed, as the Hauptzollamt has stressed, appear noteworthy that customs clearance into free circulation and contact with the market in the third country are the criterion for the concept ‘export to third countries’ where the accent is rather on leaving the territory of the Community. If this was correct for the wording used at that time it, is surely impossible to see how lesser requirements could obtain in respect of the refund rules valid in 1971 which are essentially founded on the same idea but in which there is reference to reaching the destination.