Case C-391/07

Glencore Grain Rotterdam BV

v

Hauptzollamt Hamburg-Jonas

(Reference for a preliminary ruling from the Finanzgericht Hamburg)

(Regulation (EC) No 800/1999 – Export refunds on agricultural products – Article 16 – Differentiated refund – Proof that customs formalities for importation have been completed – Production of a copy or photocopy of the transport documents – Regulation (EC) No 1501/95 – Granting of export refunds on cereals – Article 13 – Derogation from Article 16 of Regulation No 800/1999)

Summary of the Judgment

Agriculture – Common organisation of the markets – Export refunds – Variable refund

(Commission Regulations No 1501/95, as amended by Regulation No 1259/97, Art. 13, and No 800/1999, Art. 16(3))

Article 13 of Regulation No 1501/95 laying down certain detailed rules for the application of Regulation No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals, as amended by Regulation No 1259/97, which releases operators from the obligation to provide proof of completion of customs formalities for release for consumption where refunds are fixed by invitation to tender on condition that the operator provides proof that a quantity of at least 1 500 tonnes of cereal product has left the customs territory of the Community on board a vessel suitable for sea transport, must be interpreted as meaning that the fact that the operator provides such proof does not release him from the obligation laid down in Article 16(3) of Regulation No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products to produce a copy or a photocopy of the transport documents.

(see para. 50, operative part)

JUDGMENT OF THE COURT (First Chamber)

4 December 2008 ( )

(Regulation (EC) No 800/1999 – Export refunds on agricultural products – Article 16 – Differentiated refund – Proof that customs formalities for importation have been completed – Production of a copy or photocopy of the transport documents – Regulation (EC) No 1501/95 – Granting of export refunds on cereals – Article 13 – Derogation from Article 16 of Regulation No 800/1999)

In Case C‑391/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Finanzgericht Hamburg (Germany), made by decision of 30 July 2007, received at the Court on 20 August 2007, in the proceedings

Glencore Grain Rotterdam BV

v

Hauptzollamt Hamburg-Jonas,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, M. Ilešič (Rapporteur), A. Tizzano, E. Levits and J.‑J. Kasel, Judges,

Advocate General: E. Sharpston,

Registrar: K. Sztranc-Sławiczek, Administrator,

having regard to the written procedure and further to the hearing on 12 June 2008,

after considering the observations submitted on behalf of:

– Glencore Grain Rotterdam BV, by L. Harings and C. Bittner, Rechtsanwälte,

– Hauptzollamt Hamburg-Jonas, by G. Seber, acting as Agent,

– the Commission of the European Communities, by J. Schieferer and F. Erlbacher, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 September 2008,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 13 of Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals (OJ 1995 L 147, p. 7), as amended by Commission Regulation (EC) No 1259/97 of 1 July 1997 (OJ 1997 L 174, p. 10, ‘Regulation No 1501/95’).

2 The reference has been made in the course of proceedings between Glencore Grain Rotterdam BV (‘Glencore’) and Hauptzollamt Hamburg-Jonas (the ‘Hauptzollamt’) concerning the right to a refund for a consignment of 3 041 886 kg of rye exported to Russia.

Legal context

Regulation (EEC) No 3665/87

3 The 3rd and 12th recital in Commission Regulation (EEC) No 3665/87 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), read as follows:

‘Whereas the general rules laid down by the Council provide for the refund to be paid upon proof being furnished that the products have been exported from the Community; whereas, in order that the notion of exportation from the Community may be interpreted in a uniform manner, it should be specified that a product shall be regarded as having been exported when it leaves the customs territory of the Community;

…

Whereas, where the rate of the refund is varied according to the destination of the product, provision should be made for it to be verified that the product has been imported into the non-member country or countries for which the refund was fixed; …’

4 According to the seventh indent of Article 1 thereof, Regulation No 3665/87 laid down, ‘[w]ithout prejudice to derogations provided for in Community rules specific to certain products’, common detailed rules for applying the system of export refunds to cereals.

5 The provisions concerning differentiated export refunds appeared in Articles 16 to 21 of that regulation.

6 Article 18 of Regulation No 3665/87, in the version as amended by Commission Regulation (EEC) No 2955/94 of 5 December 1994 (OJ 1994 L 312, p. 5, ‘Regulation No 3665/87’) provided as follows:

‘1. Proof that customs formalities for importation have been completed shall, as the exporter chooses, be furnished by one of the following documents:

(a) the customs document or a copy or photocopy thereof; such copy or photocopy shall be certified as being a true copy by the body which endorsed the original document, an official agency of the third country concerned, an official agency of a Member State in the third country concerned or an agency responsible for paying the refund;

(b) a certificate of unloading and release for consumption drawn up by an international control and supervisory agency approved by a Member State. The date and number of the customs document of release for consumption must appear on the certificate concerned.

2. Where the exporter cannot obtain the document chosen in accordance with points (a) or (b) of paragraph 1 even after taking the appropriate steps, or where there are doubts as to the authenticity of the document furnished, proof of completion of customs formalities for importation may be furnished by one or more of the following documents:

…

3. Exporters shall in all cases produce a copy or photocopy of the transport documents.

4. The Commission may, in accordance with the procedure laid down in Article 38 of Regulation No 136/66/EEC [of the Council of 22 September 1966 on the establishment of a common organisation of the market in oils and fats (OJ, English Special Edition 1956-1966, p. 221)] and in the corresponding articles of the other regulations on the common organisation of the markets, provide, in certain specific cases to be determined, for proof of import as referred to in paragraphs 1 and 2 to be furnished by a specific document or in any other way.’

7 Regulation No 3665/87 was repealed and replaced by 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 and corrigendum OJ 1999 L 180, p. 53).

Regulation No 800/1999

8 The 1st, 2nd and 17th recitals in Regulation No 800/1999 read as follows:

‘(1) Whereas Commission Regulation (EEC) No 3665/87 … has been repeatedly and substantially amended; whereas, on the occasion of fresh amendments, it should be recast for the sake of clarity;

(2) Whereas the general rules laid down by the Council provide for the refund to be paid upon proof being furnished that the products have been exported from the Community; whereas entitlement to the refund is acquired as soon as the products have left the Community market, when a single refund rate applies for all third countries; whereas, where the rate of refund is differentiated according to the destination of the products, entitlement to the refund is conditional on importation into a third country;

…

(17) Whereas, where the rate of refund is differentiated according to the destination of the exported products, proof should be furnished that the product concerned has been imported into a third country; whereas completion of customs import formalities consists notably in the payment of import duties applicable in order that the product may be marketed in the third country concerned; whereas considering the diversity of situations prevailing in the importing third countries, it is advisable to accept the production of customs import documents which give assurances that the products exported have arrived at their destination, whilst hindering trade as little as possible’.

9 According to the ninth indent of Article 1 thereof, Regulation No 800/1999 lays down, ‘[w]ithout prejudice to derogations provided for in Community rules specific to certain products’, common detailed rules for the application of the system of export refunds to cereals.

10 The general provisions governing the right to export refunds are contained in Articles 3 to 13 of the abovementioned regulation whereas those concerning differentiated export refunds are in Articles 14 to 19 thereof.

11 According to Article 14(1) of Regulation No 800/1999 ‘[w]here the rate of refund varies according to destination, refunds shall be paid subject to the additional conditions laid down under Articles 15 and 16’.

12 Article 15(1) and (3) provide as follows:

‘1. The products shall be imported in their unaltered state into the third country or one of the third countries for which the refund applies within 12 months of the date of acceptance of the export declaration; …

…

3. A product shall be considered to have been imported when the customs import formalities, in particular those concerning the collection of import duties in the third country have been completed.’

13 According to Article 16(1) to (4) of the said regulation:

‘1. Proof that customs formalities for importation have been completed shall, as the exporter chooses, be furnished by one of the following documents:

(a) the customs document or a copy or photocopy thereof; such copy or photocopy shall be certified as being a true copy by the body which endorsed the original document, an official agency of the third country concerned, an official agency of a Member State in the third country concerned or an agency responsible for paying the refund;

(b) a certificate of unloading and importation drawn up by an international control and supervisory agency approved by a Member State in accordance with the minimum requirements set out in paragraph 5. The date and number of the customs document of import must appear on the certificate concerned.

2. Where the exporter cannot obtain the document chosen in accordance with points (a) or (b) of paragraph 1 even after taking the appropriate steps, or where there are doubts as to the authenticity of the document furnished, proof of completion of customs formalities for importation may be furnished by one or more of the following documents

…

3. Exporters shall in all cases produce a copy or photocopy of the transport documents.

4. The Commission may, in accordance with the procedure laid down in Article 38 of Regulation No 136/66/EEC and in the corresponding articles of the other regulations on the common organisation of the markets, provide, in certain specific cases to be determined, for proof of import as referred to in paragraphs 1 and 2 to be furnished by a specific document or in any other way.’

14 As has been pointed out in paragraph 7 of the present judgment, Regulation No 800/1999 repealed and replaced Regulation No 3665/87. Article 54(2) of Regulation No 800/1999 provides that references in all Community instruments to Regulation No 3665/87 are to be construed as referring to Regulation No 800/1999 or to the corresponding articles thereof. It is apparent from Annex I to Regulation No 800/1999 that Article 18 of Regulation No 3665/87 corresponds to Article 16 of Regulation No 800/1999.

15 Pursuant to the second paragraph of Article 55 thereof, Regulation No 800/1999 is to apply from 1 July 1999.

Regulation No 1501/95

16 The 14th recital of Regulation No 1501/95 reads as follows:

‘Whereas Commission Regulation (EEC) No 3665/87 … requires that, where refunds vary according to destination, payment of the refund be made conditional in particular on presentation of proof that the product has been imported in its unaltered state into the third country or into one of the third countries for which the refund applies; whereas, as regards cereals, the only refund lower than that applicable to exports to third countries as a whole is that on exports to Switzerland and Liechtenstein; whereas, in order to avoid obstructing most Community exports by requiring proof of arrival at destination, other means must be found to ensure that products on which a refund applying to all third countries has been paid are not exported to the abovementioned countries; whereas, to that end, the need to present proof of arrival should be waived in all cases where export is effected by sea; whereas certificates drawn up by the competent authorities of the Member States stating that the products have left the customs territory of the Community on board a vessel suitable for sea transport are considered to provide a sufficient guarantee’.

17 Article 13 of Regulation No 1501/95 provides as follows:

‘Notwithstanding Article 18 of Regulation (EEC) No 3665/87, proof of completion of customs formalities for release for consumption shall not be required for payment of refunds fixed by invitation to tender, on condition that the operator provides proof that a quantity of at least 1 500 tonnes of cereal product has left the customs territory of the Community on board a vessel suitable for sea transport.

Such proof shall be provided by the following endorsement certified by the competent authority on the control copy referred to in Article 6 of Regulation (EEC) No 3665/87, on the single administrative document or on the national document proving that the goods have left the Community customs territory:

…

“Export of cereals by sea – Article 13 of Regulation (EC) No 1501/95”

…’

The main proceedings and the question referred to the Court

18 On 30 December 1999, Glencore requested customs supervision of the export to Poland of a total of 6 725 000 kg of rye. The competent customs office accepted that application, issued Glencore with an export declaration, and authorised it to store the rye temporarily prior to export.

19 During February 2000, Glencore requested final customs supervision of the export of the said goods to Russia via the Lithuanian port of Klaipeda in three part shipments of 3 041 886 kg, 3 002 975 kg and 668 709 kg. In respect thereof, the customs office issued export declarations containing the endorsement appearing in the second paragraph of Article 13 of Regulation No 1501/95.

20 It is common ground that the part shipment of 3 041 886 kg, the only one which is the subject of the main proceedings, was transported from Lübeck, in Germany, to Klaipeda on board a vessel suitable for sea transport.

21 On the application of Glencore, the Hauptzollamt paid, in advance, the export refunds relating to that part shipment, in accordance with Article 24 of Regulation No 800/1999, subject to the legal entitlement to the prescribed export refunds arising and proof thereof being furnished in the form and within the period prescribed.

22 Since it considered that, under Article 16(3) of Regulation No 800/1999, Glencore was required to produce the transport documents for the journey between Lübeck and the destination in Russia, namely Nazran, and finding that it had produced only the bill of lading for the sea journey between Lübeck and Klaipeda, the Hauptzollamt, by letter of 2 August 2000, asked for a copy of the additional transport documents for the journey from Klaipeda to Nazran.

23 Since Glencore did not produce the copy requested within the period prescribed, the Hauptzollamt, by decisions taken on 12 December 2001, amended by decision of 1 March 2004, required, with a supplement of 10%, repayment of the advance payment of export refunds in accordance with Article 52(1) of Regulation No 800/1999, read in conjunction with Article 25(1) thereof.

24 Glencore brought an action against those decisions before the Finanzgericht Hamburg.

25 It argues, essentially, that Article 16 of Regulation No 800/1999, including Article 16(3), has been made inapplicable by the provisions of Regulation No 1501/95, as is shown, in particular, by the 14th recital in the latter regulation. Having provided the proof required by Article 13 of Regulation No 1501/95, it maintains that it has fulfilled the conditions for obtaining the refund.

26 The Hauptzollamt points to the fact that, under Article 13 of Regulation No 1501/95, proof that a quantity of at least 1 500 tonnes of cereal product has left the customs territory of the Community on board a vessel suitable for sea transport is a substitute only for proof of completion of customs formalities. By contrast, the exporter is not released from the obligation to present a copy of the transport documents which, in accordance with Article 16(3) of Regulation (EC) No 800/1999, must be produced in all cases.

27 The national court has doubts as to whether Article 13 of Regulation No 1501/95, which releases the exporter, subject to the conditions set out in that provision, from the obligation to provide proof of completion of customs formalities, must be interpreted as also releasing the exporter from the obligation laid down in Article 16(3) of Regulation No 800/1999 to produce a copy or photocopy of the transport documents.

28 Since it considered that an interpretation of Article 13 of Regulation No 1501/95 was necessary to enable it to decide the case before it, the Finanzgericht Hamburg decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 13 of Regulation (EC) No 1501/95 be interpreted as meaning that production of the proof described in the second paragraph thereof results in waiver of the need not only for proof of completion of customs formalities for release for consumption but also for production of the transport documents (Article 18(3) of Regulation (EEC) No 3665/87, now Article 16(3) of Regulation (EC) No 800/99)?’

The question referred for a preliminary ruling

29 By its question, the national court asks whether Article 13 of Regulation No 1501/95 is to be interpreted as meaning that if the operator provides proof that a quantity of at least 1 500 tonnes of cereal product has left the customs territory of the Community on board a vessel suitable for sea transport, he is released from the obligation laid down in Article 16(3) of Regulation No 800/1999 to produce a copy or a photocopy of the transport documents.

30 Both at the date on which Regulation No 1501/95, in its initial version, was adopted and at the date on which Article 13 thereof was amended by Regulation No 1259/97, the purpose of the said article was to derogate from Article 18 of Regulation No 3665/87.

31 Under those circumstances, in order to determine whether, by adopting Regulation No 1501/95, in its initial version, and then by amending Article 13 thereof, the Community legislature intended to absolve exporters from producing a copy or a photocopy of the transport documents, the article in question must first be interpreted in the light of the provisions of Article 18 of Regulation No 3665/87.

32 First of all, Article 18 of Regulation No 3665/87 makes a clear distinction between the obligation to provide proof that the customs formalities for release for consumption have been completed, which is the subject of Article 18(1) and (2), and the obligation to produce a copy or a photocopy of the transport documents, laid down by Article 18(3).

33 It must be stressed in this respect that the transport documents are not customs documents and cannot therefore be regarded as proof of completion of customs formalities for release for consumption in the non-member country of destination.

34 Clearly, Article 13 of Regulation No 1501/95 merely releases the exporter from the obligation to provide proof of completion of the customs formalities for release for consumption.

35 Thus, in spite of the fact that Article 13 of Regulation No 1501/95 begins with the words ‘[n]otwithstanding Article 18 of Regulation (EEC) No 3665/87’, it must be interpreted as derogating solely from Article 18(1) and (2) of Regulation No 3665/87.

36 Secondly, it is clear from Article 18(4) of Regulation No 3665/87 that the Commission may, in accordance with the procedure laid down in Article 38 of Regulation No 136/66 and in the corresponding articles of the other regulations on the common organisation of the markets, provide, in certain specific cases to be determined, for proof of import as referred to in paragraphs 1 and 2 to be furnished by a specific document or in any other way.

37 On the other hand, the Community legislature made no provision for a derogation from the separate obligation to produce a copy or a photocopy of the transport documents laid down in Article 18(3) of Regulation No 3665/87.

38 When Regulations Nos 1501/95, in its initial version, and 1259/97 were adopted, the relevant provision corresponding to Article 38 of Regulation No 136/66 was Article 23 of Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals (OJ 1992 L 181, p. 21). That article introduced a procedure which called for the intervention of the Management Committee for Cereals.

39 Both Regulation No 1501/95, in its initial version, and Regulation No 1259/97 were adopted in accordance with the procedure laid down in the abovementioned article, as may be seen from their final recital, according to which the measures provided for in those regulations were adopted in accordance with the opinion of the Management Committee for Cereals. It thus appears that the regulations were adopted in implementation of Article 18(4) of Regulation No 3665/87.

40 It is therefore in accordance with the provisions of Article 18(4) of Regulation No 3665/87 to interpret Article 13 of Regulation No 1501/95 as derogating solely from Article 18(1) and (2).

41 Thirdly, the foregoing interpretation is in accordance with the purpose of Article 13 of Regulation No 1501/95.

42 Indeed, as may be seen from the 14th recital in that regulation, the purpose of the aforementioned article is to avoid obstructing most Community exports by requiring the exporter to prove that the goods were imported into a non-member country other than Switzerland or Liechtenstein and, for that purpose, to be satisfied, under certain conditions, with proof that the goods had not been exported to Switzerland or Liechtenstein.

43 There is a difference between the customs documents required by Article 18(1) and (2) of Regulation No 3665/87 and the transport documents required by Article 18(3) which is based on the consideration that exporters may encounter difficulties in obtaining the customs documents from the authorities of the non‑member country of importation, upon whom they have no means of exerting pressure, whereas no such difficulty can exist with regard to the transport documents: in the case of a c.i.f. contract, the exporter retains a copy of the transport documents as the party arranging carriage, while in the case of an f.o.b. contract he may easily stipulate as part of the contract that the purchaser must furnish a certified true copy of those documents (see, to that effect, Case C‑155/89 Philipp Brothers [1990] ECR I‑3265, paragraph 27).

44 It would thus appear to be in accordance with the purpose of Article 13 of Regulation No 1501/95 to release exporters from the obligation to provide proof of completion of customs formalities for release for consumption in the non‑member country of destination, in the light of the obstacles they could encounter in providing such proof, while continuing to require them to produce a copy or a photocopy of the transport documents, which does not give rise to the same difficulties.

45 It should also be added that in the light of the fact that production by an exporter of the transport documents for goods which he is exporting is always useful in limiting the risks of fraud and that exporters have no particular difficulties in obtaining those documents, the obligation to produce a copy or a photocopy of the documents in question in order to obtain a differentiated export refund, even in situations of fact where Article 13 of Regulation No 1501/95 is intended to apply, does not, contrary to Glencore’s argument, infringe the principle of proportionality.

46 Secondly, the foregoing interpretation of Article 13 of Regulation No 1501/95 remains valid after the replacement in that article of the reference to Article 18 of Regulation No 3665/87 by a reference to Article 16 of Regulation No 800/1999.

47 Article 16 of Regulation No 800/1999 substantially repeats the contents of Article 18 of Regulation No 3665/87.

48 Thirdly, the foregoing interpretation of Article 13 of Regulation No 1501/95 is confirmed by the terms of the other regulations adopted in implementation of Article 18(4) of Regulation No 3665/87 – such as Commission Regulation (EEC) No 2669/89 of 1 September 1989 opening an invitation to tender for the free supply of olive oil to Poland (OJ 1989 L 257, p. 20) –, or of Article 16(4) of Regulation No 800/1999 – such as Commission Regulation (EC) No 40/2004 of 9 January 2004 on proof of completion of customs formalities for the import of sugar into third countries as provided for in Article 16 of Regulation (EC) No 800/1999 (OJ 2004 L 6, p. 17) and the regulations which succeeded it, or Commission Regulation (EC) No 450/2005 of 18 March 2005 on proof that customs formalities for importation of milk and milk products in third countries have been completed as provided for in Article 16 of Regulation (EC) No 800/1999 (OJ 2005 L 74, p. 30).

49 Leaving aside drafting differences, it must be stated that none of those regulations releases the exporter from the obligation to produce a copy or a photocopy of the transport documents.

50 Consequently, the answer to the question submitted must be that Article 13 of Regulation No 1501/95 must be interpreted as meaning that the fact that the operator provides proof that a quantity of at least 1 500 tonnes of cereal product has left the customs territory of the Community on board a vessel suitable for sea transport does not release him from the obligation laid down in Article 16(3) of Regulation No 800/1999 to produce a copy or a photocopy of the transport documents.

Costs

51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

Article 13 of Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals, as amended by Commission Regulation (EC) No 1259/97 of 1 July 1997, must be interpreted as meaning that the fact that the operator provides proof that a quantity of at least 1 500 tonnes of cereal product has left the customs territory of the European Community on board a vessel suitable for sea transport does not release him from the obligation laid down in Article 16(3) of 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 to produce a copy or a photocopy of the transport documents.

[Signatures]