Opinion of Mr Advocate General Gulmann delivered on 17 December 1992. - Möllmann-Fleisch GmbH v Hauptzollamt Hamburg-Jonas. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Variable export refund - Beef and veal - Customs entry certificate. - Case C-27/92.



European Court reports 1993 Page I-01701



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. The Finanzgericht Hamburg has referred a question for preliminary ruling to the Court in order to enable it to determine whether a German company, Moellmann-Fleisch, is entitled to obtain an export refund for the exportation of a consignment of beef to Egypt.

A variable refund is at issue, that is to say, a refund whose rate depends on the country of destination, and it appears from the applicable Community provisions that it is not enough for a finding to be made that the goods have been exported outside the Community, it must also be found that "the product has been imported into a non-member country for which the refund is prescribed" (see Article 20(1) of Commission Regulation (EEC) No 2730/79 laying down common detailed rules for the application of the system of export refunds on agricultural products (1)).

Under Article 20(2) of that regulation, "a product shall be considered to have been imported when the customs entry formalities for home use ... have been completed", and under Article 20(3), "proof that these formalities have been completed shall be furnished by production of (a) the relevant customs document ... or (b) the customs entry certificate ...".

2. It emerges from the order for reference that:

° according to an undated Egyptian customs entry certificate which the national court considers that it is appropriate to rely upon, the goods exported arrived at their destination and underwent the requisite customs processing;

° the goods were re-shipped to the Community where they were placed in a bonded warehouse and subsequently exported to another country by the German company;

° the reason for which the goods had to be shipped back to the Community is at issue in so far as it relates to the significance to be attached to documents which may perhaps substantiate the argument that the goods underwent a health inspection, the result of which was negative.

3. According to the German customs authorities, the customs entry certificate produced does not constitute, in the circumstances of this case, sufficient proof of importation, whereas the plaintiff in the main proceedings argues, on the basis of Article 20(2) and (3) of Regulation No 2730/79, that the customs entry certificate constitutes the requisite sufficient proof of importation.

4. The question referred by the Finanzgericht Hamburg is whether, under the applicable Community provisions,

"... Proof of importation into a non-member country [is] ... to be regarded as not having been provided

° if there is reason to doubt that the goods specified in the customs entry certificate have actually reached the market of the non-member country,

° or [whether it is] ... necessary to prove the contrary, namely that the goods have not been imported".

The Finanzgericht refers to the Court' s judgment in Hauptzollamt Hamburg-Jonas v Dimex, (2) in which the Court held in paragraph 10 that the completion of the customs formalities is only "normally sufficient to ensure that the goods have actual access to the market of the territory of destination". According to the Finanzgericht, it is therefore clear that the customs document constitutes only rebuttable evidence of importation and it is in that context that the national court wishes the Court to reply to the question as to the factual and legal circumstances in which the evidence of actual importation constituted by the customs entry certificate may be regarded as having been rebutted.

5. The reply to that question must be based on the finding that the refund need only be paid where the product is imported into the non-member country in question.

The Court held as follows in paragraphs 8 to 11 of the judgment in Hauptzollamt Hamburg-Jonas v Dimex:

° "... the system of variable export refunds is intended to gain and maintain access for Community exports to the markets of the non-member countries concerned and the variation in the refund is based on the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part";

° "... if it sufficed, in order to qualify for payment of the refund at a higher market rate, for the goods simply to be unloaded, without reaching the market of the territory of destination, the raison d' être of the system of varying the refund would be disregarded";

° that is the reason why the relevant provision in the case cited (which in the material respect corresponds to Article 20 of Regulation No 2730/79) "makes payment of the variable refund subject to the completion of customs formalities for entry into free circulation in the non-member country, since the completion of those formalities is normally sufficient to ensure that the goods have actual access to the market of the territory of destination", and

° the provision of the regulation which "permits the competent authorities to require other documents when they consider, in view of the particular circumstances in the country of destination, that proof of completion of customs formalities is insufficient shows that such proof amounts only to rebuttable evidence that the objective of the variable export refunds has in fact been attained". (my emphasis)

The Court therefore held that the completion of customs formalities only normally constitutes a guarantee that the goods in question had access to the market of destination. In addition, Article 20(4) of Regulation No 2730/79, just as the relevant provision in Hauptzollamt Hamburg-Jonas v Dimex, provides that the customs authorities have the option of requiring documents other than those referred to in paragraph 3, for example, certificates of unloading and bank documents "if ... [the documents] are considered inadequate". There is no doubt in this context that the customs entry certificate submitted in this case amounts, as the Finanzgericht also maintains, only to rebuttable evidence that the objective of the variable export refunds has in fact been attained (see, in that regard, paragraph 11 of the judgment in Hauptzollamt Hamburg-Jonas v Dimex).

6. Article 20(2) provides, as I have already mentioned, that "a product shall be considered to have been imported when the customs entry formalities for home use in the non-member country concerned have been completed" and, as a result, it is normal that the customs documents referred to in Article 20(3) should constitute primary evidence of the completion of those formalities.

Importance is attached to the documents referred to in Article 4 where the customs document or the customs entry certificate cannot be presented or where those documents are considered inadequate. In my opinion, contrary to that which the plaintiff in the main proceedings avers, there are no factors either in the wording of the regulation or in Hauptzollamt Hamburg-Jonas v Dimex which enable such evidential weight to be conferred on the customs entry certificate that, where such a certificate has been produced, the onus invariably falls on the customs authorities to prove that the goods were not imported.

Such an interpretation of the relevant provisions would be contrary to the objective of variable refunds, namely to gain and maintain access for Community exports to the markets of the countries in question.

The Court held in paragraph 16 of the judgment in Hauptzollamt Hamburg-Jonas v Dimex that:

"It follows from the considerations set out below that, in view of the objectives of the system of variable refunds, it is essential that products subsidized by such refunds should actually reach the market of destination and be marketed there".

Under normal circumstances, production of the customs entry certificate certainly constitutes sufficient basis for presuming that the goods were imported as provided for in the Community legislation; however, having regard to the meaning of the concept of "importation", it is also certain that there may very well be circumstances which show, despite the delivery of a customs entry certificate, that importation as provided for in the Community regulations has not taken place. The presumption of importation which is normally raised by the customs entry certificate will consequently only apply where no real doubts have emerged as to whether the goods obtained actual access to the market in the country of destination in order to be marketed in that country. It may certainly be considered, for example, that real doubts will exist where the court which has to assess the evidence is faced with documents which it interprets as showing that the goods were not regarded as acceptable by the customs authorities of the importing State on health grounds and where it may actually be considered that the goods have been shipped back to the Community.

7. I therefore propose that the Court give the following answer to the question referred by the national court:

Proof of importation furnished by the production of the customs entry certificate referred to in Article 20 (3) of Regulation (EEC) No 2730/79 is rebuttable and cannot be considered to have been provided where there are real doubts whether the goods in question had actual access to the market in the country of destination in order to be marketed in that country.

(*) Original language: Danish.

(1) ° (OJ 1979 L 317, p. 1), the corresponding condition in Regulation (EEC) No 885/68 of the Council laying down general rules for granting export refunds on beef and veal and criteria for fixing the amount of such refunds (OJ, English Special Edition 1968(I), p. 237) is set out in Article 6(2), under which it must be proved that the product has reached the destination for which the refund was fixed .

(2) ° Case 89/93 Hauptzollamt Hamburg-Jonas v Dimex [1984] ECR 2815