Judgment of the Court of 6 June 1972. - Schlüter & Maack v Hauptzollamt Hamburg-Jonas. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Case 94-71.



European Court reports 1972 Page 00307

Danish special edition Page 00091

Portuguese special edition Page 00111



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - EXPORT REFUND - APPLICATION - FORM

( REGULATION NO 1009/67 OF THE COUNCIL, ARTICLE 17 )

2 . MEASURES ADOPTED BY AN INSTITUTION - REGULATION - IMPLEMENTATION BY NATIONAL LAW - FORMS AND PROCEDURE PRESCRIBED BY NATIONAL LAW - NEED TO RECONCILE THEM WITH THE UNIFORM APPLICATION OF COMMUNITY LAW

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - REFUND TO EXPOTERS - APPLICATION - FORM - REQUIREMENTS - COMMUNITY AND NATIONAL LAW

( REGULATION NO 1041/67 OF THE COMMISSION, ARTICLES 1 AND 5; REGULATION NO 1009/67 OF THE COUNCIL, ARTICLE 17 )

Summary

1 . IN ORDER TO ENSURE THE SMOOTH FUNCTIONING OF THE COMPLICATED SYSTEM OF EXPORT REFUNDS THE APPLICATION FOR THE REFUND MUST BE MADE IN WRITING .

2 . WHERE IT IS FOR THE NATIONAL AUTHORITIES TO IMPLEMENT A COMMUNITY REGULATION SUCH IMPLEMENTATION MUST AS A MATTER OF PRINCIPLE BE CARRIED OUT IN ACCORDANCE WITH THE STIPULATIONS OF NATIONAL LAW AS TO FORM AND PROCEDURE .

THIS PRINCIPLE OF LAW MUST BE RECONCILED WITH THE NEED TO APPLY COMMUNITY LAW UNIFORMLY SO AS TO AVOID THE UNEQUAL TREATMENT OF PERSONS SUBJECT TO COMMUNITY LAW .

3 . THE DECLARATION WHICH THE EXPORTER HAS TO MAKE PURSUANT TO ARTICLE 1 ( 1 ) OF REGULATION NO 1041/67 AND, IN PARTICULAR, THE PRODUCTION BY HIM OF THE EXIT CERTIFICATE REFERRED TO IN ARTICLE 5 OF THAT REGULATION, CONSTITUTE A SUFFICIENT STATEMENT, FOR THE PURPOSES OF ARTICLE 17 ( 2 ) OF REGULATION NO 1009/67, OF THE EXPORTER' S INTENTION TO QUALIFY FOR THE REFUND AND FULFIL THE REQUIREMENTS OF THIS PROVISION .

ALTHOUGH MEMBER STATES MAY, THEREFORE, FOR REASONS OF ADMINISTRATIVE ORGANIZATION, REQUIRE EXPORTERS ALSO TO MAKE AN APPLICATION IN THE FORM PRESCRIBED BY NATIONAL LAW, THEY MAY NOT, HOWEVER, PUNISH FAILURE TO FULFIL THIS OBLIGATION BY FORFEITURE OF THE RIGHT TO A REFUND .

Parties

IN CASE 94/71

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SCHLUETER AND MAACK, HAMBURG, AND

HAUPTZOLLAMT HAMBURG-JONAS,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 17 OF REGULATION NO 1009/67 OF THE COUNCIL OF 18 DECEMBER 1967 ( OJ ENGLISH SPECIAL EDITION 1967, P . 304 ), OF ARTICLES 1 AND 10 OF REGULATION NO 1041/67 OF THE COMMISSION OF 21 DECEMBER 1967 ( OJ ENGLISH SPECIAL EDITION 1967, P . 323 ) AND OF REGULATION NO 499/69 OF THE COMMISSION OF 17 MARCH 1969 ( OJ ENGLISH SPECIAL EDITION 1969 ( I ), P . 114 ),

Grounds

1 BY ORDER DATED 22 OCTOBER 1971 WHICH REACHED THE COURT REGISTRY ON 18 NOVEMBER 1971 THE FINANZGERICHT HAMBURG REFERRED TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY VARIOUS QUESTIONS RELATING TO THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 1009/67 OF THE COUNCIL OF 18 DECEMBER 1967 ( OJ ENGLISH SPECIAL EDITION 1967, P . 304 ) ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR AND OF REGULATION NO 1041/67 OF THE COMMISSION OF 21 DECEMBER 1967 ( OJ ENGLISH SPECIAL EDITION 1967, P . 323 ) AS AMENDED BY REGULATION NO 499/69 OF THE COMMISSION OF 17 MARCH 1969 ( OJ ENGLISH SPECIAL EDITION 1969 ( I ), P . 114 ) ON DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM . THE QUESTIONS REFERRED RELATE TO THE FORMAL REQUIREMENTS OF AND THE TIME-LIMITS FOR APPLICATIONS FOR EXPORT REFUNDS MADE BY EXPORTERS WHO WISH TO QUALIFY FOR THE REFUNDS .

2 THE FIRST QUESTION ASKS THE COURT TO RULE WHETHER THE DECLARATION WHICH THE EXPORTER HAS TO MAKE UNDER ARTICLE 1 ( 1 ) OF REGULATION NO 1041/67 IS IDENTICAL WITH THE APPLICATION FOR A REFUND REFERRED TO IN ARTICLE 17 ( 2 ) OF REGULATION NO 1009/67 .

3 THE PLAINTIFF IN THE MAIN ACTION DESPATCHED FROM HAMBURG TO GENOA, 75 METRIC TONS OF SUGAR INTENDED FOR VICTUALLING SHIPS WHICH WAS CAPABLE OF QUALIFYING UNDER ARTICLE 2 OF REGULATION NO 1041/67 FOR EXPORT REFUNDS, AND PRODUCED TO THE GERMAN CUSTOMS AUTHORITY THE EXIT CERTIFICATE PROVIDED FOR BY ARTICLE 5 OF THIS REGULATION IF A PRODUCT, BEFORE LEAVING THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY, CROSSES THE TERRITORY OF OTHER MEMBER STATES .

4 THE COMMISSION AND THE COMPETENT AUTHORITIES OF THE FEDERAL REPUBLIC OF GERMANY, HAVING REGARD TO THE PARTICULARS IN THIS CERTIFICATE, CONSIDER THAT IT CONSTITUTES THE DECLARATION REFERRED TO IN ARTICLE 1 OF REGULATION NO 1041/67 OF THE COMMISSION BY WHICH THE DECLARANT " STATES HIS INTENTION TO EXPORT THE PRODUCTS IN QUESTION AND QUALIFY FOR A REFUND ".

5 THE PURPOSE OF THE REQUEST FOR AN INTERPRETATION IS TO DETERMINE WHETHER THE SAID DECLARATION, AND CONSEQUENTLY THE PRODUCTION TO THE CUSTOMS AUTHORITY OF THE EXIT CERTIFICATE REFERRED TO IN ARTICLE 5 OF REGULATION NO 1041/67, AMOUNT TO A VALID APPLICATION FOR A REFUND, WHICH, PROVIDED THAT ALL THE OTHER CONDITIONS TO WHICH PAYMENT OF THE REFUND IS SUBJECT UNDER COMMUNITY RULES HAVE BEEN FULFILLED, BINDS THE DEBTOR MEMBER STATE OR WHETHER THAT MEMBER STATE MAY MAKE QUALIFICATION FOR A REFUND CONDITIONAL UPON THE EXPORTER' S LOSING HIS RIGHT TO THE REFUND UNLESS HE MAKES A SPECIAL APPLICATION, FOR WHICH IT PRESCRIBES THE FORM AND PROCEDURES INVOLVED, AND LODGES IT WITHIN THE PERIOD OF SIX MONTHS PRESCRIBED BY ARTICLE 2 OF REGULATION NO 1041/67 .

6 ACCORDING TO ARTICLE 17 OF REGULATION NO 1009/67 REFUNDS ON THE EXPORT OF SUGAR ARE ONLY GRANTED ON APPLICATION BY THE PERSON CONCERNED . THE FORM OF THIS APPLICATION IS NOT EXPRESSLY PRESCRIBED BY THIS ARTICLE . ALTHOUGH TAKING INTO ACCOUNT THE NEED TO ENSURE THE SMOOTH FUNCTIONING OF THE COMPLEX SYSTEM OF EXPORT REFUNDS, ARTICLE 17 HAS TO BE CONSTRUED AS IMPLYING THAT THE APPLICATION MUST BE MADE IN WRITING, A FORMALISM WHICH WOULD GO FURTHER THAN IS NECESSARY FOR THE EFFECTIVE SUPERVISION OF THESE OPERATIONS SHOULD BE AVOIDED .

7 ARTICLE 1 OF REGULATION NO 1041/67 PROVIDES THAT " FOR THE PURPOSES OF DETERMINING THE RATE OF THE REFUND ON ... THE DATE OF EXPORTATION SHALL BE THE DAY ON WHICH THE CUSTOMS AUTHORITY ACCEPTS THE DOCUMENT BY WHICH THE DECLARANT STATES HIS INTENTION TO EXPORT THE PRODUCTS IN QUESTION AND QUALIFY FOR A REFUND ". SUCH A DECLARATION BY WHICH THE PERSON CONCERNED STATES HIS INTENTION TO EXPORT AND QUALIFY FOR A REFUND CONTAINS ALL THE PARTICULARS ENABLING THE NATIONAL AUTHORITIES, WHICH ACCEPT IT, TO TAKE NOTE THAT, SUBJECT TO THE EXPORT BEING EFFECTED, AND APPLICATION IS MADE TO THEM FOR THE GRANT OF A REFUND . MOREOVER THE DECLARATION IN QUESTION NOT ONLY DETERMINES THE RATE OF THE REFUND WHICH THE EXPORTER CLAIMS ( ARTICLE 1 ( 1 )) BUT IS CONSIDERED TO BE THE COMPLETION OF THE CUSTOMS EXPORT FORMALITIES ( ARTICLE 1 ( 2 )) AND IT HAS THE EFFECT OF PLACING THE PRODUCTS REFERRED TO UNDER CUSTOMS CONTROL ( LAST SENTENCE OF ARTICLE 1 ( 1 )). A DOCUMENT PRODUCED IN THESE CIRCUMSTANCES TO THE CUSTOMS AUTHORITIES AND ACCEPTED BY THEM IS A SUFFICIENT DECLARATION, WITHIN THE MEANING OF ARTICLE 17 OF REGULATION NO 1009/67, OF THE EXPORTER' S INTENTION TO QUALIFY FOR THE REFUND .

8 OF COURSE, AS THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY POINTS OUT, BY PRODUCING THIS DOCUMENT THE DECLARANT DOES NOT IRREVOCABLY UNDERTAKE TO EXPORT . THIS CANNOT, HOWEVER, ALTER THE ESSENTIAL NATURE OF THIS DOCUMENT BUT ONLY ALLOWS IT TO BE RECORDED, SHOULD THE CASE ARISE, THAT THE APPLICATION HAS BEEN WITHDRAWN OR THAT OTHER CONDITIONS TO WHICH THE RIGHT TO A REFUND IS SUBJECT HAVE NOT BEEN FULFILLED .

9 THE OBJECTION THAT THE COMPLETION OF THE FORMALITY LAID DOWN BY ARTICLE 1 OF REGULATION NO 1041/67 IS NOT SUFFICIENT TO ESTABLISH THE RIGHT TO A REFUND CANNOT BE SUSTAINED EITHER, SINCE THE PAYMENT OF THIS REFUND IS SUBJECT TO PROOF THAT THE PRODUCT HAS LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY . THE APPLICATION WHICH THE EXPORTER HAS TO MAKE IS AN ESSENTIAL CONDITION BUT NOT IN ITSELF SUFFICIENT TO ESTABLISH THE RIGHT TO A REFUND, WHICH IS, MOREOVER, DEPENDENT UPON PROOF THAT THE PRODUCTS HAVE BEEN EXPORTED .

10 HOWEVER, HAVING REGARD TO ARTICLE 10 OF REGULATION NO 1041/67 WHICH READS : " THE REFUND SHALL BE PAID BY THE MEMBER STATE IN WHOSE TERRITORY THE CUSTOMS EXPORT FORMALITIES WERE CONCLUDED ", IT IS APPROPRIATE TO EXAMINE THE OBSERVATION OF THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY THAT WHERE - AS IN THE PRESENT CASE - IT IS FOR THE NATIONAL AUTHORITIES TO IMPLEMENT A COMMUNITY REGULATION, SUCH IMPLEMENTATION MUST AS A MATTER OF PRINCIPLE BE CARRIED OUT IN ACCORDANCE WITH THE RULES OF FORM AND PROCEDURE OF NATIONAL LAW .

11 THIS PRINCIPLE OF LAW MUST BE RECONCILED WITH THE NEED TO APPLY COMMUNITY LAW UNIFORMLY SO AS TO AVOID UNEQUAL TREATMENT OF EXPORTERS DEPENDING ON THE FRONTIER ACROSS WHICH THEY EXPORT THEIR PRODUCTS . SINCE THE DOCUMENT REFERRED TO IN ARTICLE 1 OF REGULATION NO 1041/67 HAS ALL THE CHARACTERISTICS OF THE EXPORTER' S APPLICATION UNDER ARTICLE 17 OF REGULATION NO 1009/67, IT IS NOT NECESSARY, INASMUCH AS THE RIGHT TO A REFUND IS LINKED WITH THE MAKING OF AN APPLICATION, TO MAKE THIS RIGHT CONDITIONAL UPON REQUIREMENTS OTHER THAN THOSE LAID DOWN IN ARTICLE 1 OF REGULATION NO 1041/67 . ALTHOUGH MEMBER STATES MAY, THEREFORE, FOR REASONS OF ADMINISTRATIVE ORGANIZATION, REQUIRE EXPORTERS ALSO TO MAKE AN APPLICATION IN THE FORM PRESCRIBED BY NATIONAL LAW, THEY MAY NOT, HOWEVER, PUNISH FAILURE TO FULFIL THIS OBLIGATION BY FORFEITURE OF THE RIGHT TO A REFUND .

12 THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT THE DECLARATION WHICH THE EXPORTER HAS TO MAKE PURSUANT TO ARTICLE 1 ( 1 ) OF REGULATION NO 1041/67 AND, IN PARTICULAR, THE PRODUCTION BY HIM OF THE EXIT CERTIFICATE REFERRED TO IN ARTICLE 5 OF THAT REGULATION, CONSTITUTE A SUFFICIENT STATEMENT, FOR THE PURPOSES OF ARTICLE 5 OF THAT REGULATION, CONSTITUTE A SUFFICIENT STATEMENT, FOR THE PURPOSES OF ARTICLE 17 ( 2 ) OF REGULATION NO 1009/67, OF THE EXPORTER' S INTENTION TO QUALIFY FOR THE REFUND AND FULFIL THE REQUIREMENTS OF THIS PROVISION .

13 IN VIEW OF THE REPLY TO THE FIRST QUESTION THE OTHER QUESTIONS NO LONGER SERVE ANY PURPOSE .

Decision on costs

14 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE FINANZGERICHT HAMBURG, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 22 OCTOBER 1971, HEREBY RULES :

THE DECLARATION WHICH THE EXPORTER HAS TO MAKE PURSUANT TO ARTICLE 1 ( 1 ) OF REGULATION NO 1041/67, AND IN PARTICULAR THE PRODUCTION BY HIM OF THE EXIT CERTIFICATE REFERRED TO IN ARTICLE 5 OF THAT REGULATION, CONSTITUTE A SUFFICIENT STATEMENT, FOR THE PURPOSES OF ARTICLE 17 ( 2 ) OF REGULATION NO 1009/67, OF THE EXPORTER' S INTENTION TO QUALIFY FOR THE REFUND AND FULFIL THE REQUIREMENTS OF THIS PROVISIONS .