Case C‑334/13

Nordex Food A/S

v

Hauptzollamt Hamburg-Jonas

(Request for a preliminary ruling from the Bundesfinanzhof)

‛Reference for a preliminary ruling — Agriculture — Regulation (EC) No 800/1999 — Export refunds — Regulation (EC) No 1291/2000 — System of export licences — Export declaration submitted without an export licence — Period granted by the customs office of export — Customs documents proving the arrival of the exported goods in the country of destination — Forged documents — Rectification of irregularities — Application of the penalty referred to in Article 51 of Regulation (EC) No 800/1999’

Summary — Judgment of the Court (Sixth Chamber), 16 October 2014

Agriculture — Common organisation of the markets — Export refunds — Conditions for granting — Presentation of the export declaration for the goods before they leave the customs territory — Exporter not having a valid export licence at the date on which the declaration was accepted — Presentation of the licence within an additional period granted by the competent authority — Refund entitlement

Article 4(1) of Regulation No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 2299/2001, read in conjunction with Article 24 of Regulation No 1291/2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products, must be interpreted as not precluding the grant of an export refund in specific circumstances such as those in which the export took place without an export licence, whose existence was however established at the time the export declaration was made and which was presented, by the exporter, within the additional period of one week granted for that purpose by the competent customs office. Although the presentation of the export licence constitutes an essential element of the system of checks of applications for refunds, presentation of the export licence at the time of acceptance of the export declaration is not, in all cases, an essential condition for grant of the export refund, on the condition, however, that the objectives of the EU legislation on export refunds should not be compromised and that it should have been possible for the competent authorities to make the physical checks. (see paras 33, 39, 43, operative part 1)

The customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying an export refund is bound by a decision of the customs office of export, such as a decision granting an additional period for the presentation of an export licence, if that decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of Regulation No 2913/1992 establishing the Community Customs Code and by the relevant provisions of the national law concerned. It is for the national court to determine whether the decision at issue satisfies those conditions. (see paras 41, 42)

Articles 49 and 50 of Regulation No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 2299/2001, must be interpreted as meaning that, save in cases of force majeure, an exporter who has presented, in order to prove the arrival of the exported goods in the country of destination, customs documents that are later shown to be forged, may not, after periods laid down in those articles have expired, present, in the course of pending judicial proceedings relating to the grant of the export refund, valid customs documents, even though the grant of the export refund was delayed for reasons other than those relating to the proof of arrival of those goods. No refund is granted if the time-limits for export and for submitting the proof required for obtaining payment of the refund are not complied with. In that regard, failure to observe procedural rules laid down in the legislation can lead to the reduction, even the loss, of the rights to an export refund, this being the case, in particular, when an exporter does not produce the necessary evidence to obtain the export refund until after the expiry of the periods referred to in Articles 49(2) and 50(2) of Regulation No 800/1999. That conclusion is not called into question by the fact that the presentation out of time of proof of the arrival of the exported goods in the country of destination had no effect on the handling of the procedure for grant of the export refund, that procedure being delayed for reasons other than those relating to the proof of that arrival. Furthermore, the duration of the investigations carried out by the competent national authorities making it possible to ascertain that the documents certifying the arrival of the exported goods in the country of destination were forged is not to be equiparated to a case of force majeure, within the meaning of Article 49(2) of Regulation No 800/1999, inasmuch as delays by the national authorities may constitute a case of force majeure where they are administrative in nature and beyond the control of the exporter. Even if the fault or error committed by a contracting partner of the exporter could constitute a circumstance beyond the exporter’s control, the fact remains that this is an ordinary commercial risk and cannot be considered to be unforeseeable in the context of commercial transactions. The exporter is fully at liberty to select his trading partners and it is up to him to take the appropriate precautions, either by including the necessary clauses in the contracts which he concludes with them or by effecting appropriate insurance. (see paras 52, 53, 55-57, operative part 2)