OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 20 January 2005 ( )

Case C-385/03

Hauptzollamt Hamburg-Jonas

v

Käserei Champignon Hofmeister GmbH & Co. KG

(Reference for a preliminary ruling from the Bundesfinanzhof (Germany))

(Agriculture – Export refunds – False information – Penalties – Interpretation of the first and second subparagraphs of Article 11(1) of Regulation (EEC) No 3665/87, as amended by Regulation (EC) No 2945/94)

I – Introduction

1. By order of 30 July 2003 the German Bundesfinanzhof (Federal Finance Court) referred to the Court of Justice for a preliminary ruling a question concerning the interpretation of rules on penalties in the area of export refunds. The referring court requests an interpretation of the first and second subparagraphs of Article 11(1) of Regulation (EEC) No 3665/87. ( )

2. The Court has already considered those rules on penalties in its judgment in Case C-210/00 ( ) and acknowledged the validity of point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 ‘in so far as it provides for a penalty even where, through no fault of his own, an exporter has applied for an export refund exceeding that to which he is entitled’.

3. The Court assumed in this context that, as the rules concerned are not of a criminal nature, the principle of nulla poena sine culpa cannot apply to them. In this context the Court emphasised, however, that ‘the fact that the principle nulla poena sine culpa is not applicable to penalties such as those at issue in the main proceedings does not leave the person subject to the regulation without legal protection’. It referred to its case-law, according to which ‘a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis’. ( )

4. The present case basically concerns not the validity of the rules on penalties in question but their interpretation in so far as they relate to a disparity between the export refund requested and the refund applicable to the actual export, while failing to make it clear from which document the information concerning the refund requested is to be derived. If, however, it is found that the rules on penalties are unclear, as the referring court assumes, the question of the implications of the statement quoted ( ) from the Käserei Champignon I judgment may arise.

II – Legal framework

A – Community law

5. Article 3 of Regulation No 3665/87 provides:

‘1. The day of export means the date on which the customs authority accepts the export declaration in which it is stated that a refund will be applied for.

2. The date of acceptance of the export declaration shall determine:

(a) the rate of the refund where the refund is not fixed in advance;

(b) any adjustments to be made to the rate of the refund where it is so fixed.

3. Any other act having the same effect in law as the acceptance of the export declaration shall be deemed to be equivalent to such acceptance.

4. The day of export shall be used to establish the quantity, nature and characteristics of the product exported.

5. The document used for export to enable products to qualify for a refund must include all information necessary for the calculation of the amount of the refund, and in particular:

(a) a description of the products in accordance with the nomenclature used for funds;

(b) the net mass of the products or, where applicable, the unit of measurement to be taken into account in calculating the refund; and,

(c) in so far as is necessary for calculating the refund, particulars of the composition of the products or the relevant reference.

If the document mentioned in this paragraph is the export declaration, this document must also include these references and the reference “refund code”.

6. At the time of such acceptance, or of such equivalent act, the products shall be placed under customs control until they leave the customs territory of the Community.’

6. Article 11(1) of Regulation No 3665/87 reads in part:

‘1. Where it has been found that an exporter, with a view to the granting of an export refund, has requested a refund in excess of that applicable, the refund due for the relevant exportation shall be the refund applicable to the actual exportation reduced by an amount equivalent to:

(a) half the difference between the refund requested and the refund applicable to the actual exportation;

(b) twice the difference between the refund requested and the refund applicable, if the exporter has intentionally supplied false information.

The refund requested is deemed to be the amount calculated from the information supplied pursuant to Article 3 or Article 25(2). Where the rate of refund varies according to destination, the differentiated part of the refund requested shall be calculated from the information supplied pursuant to Article 47.

The sanction referred to under (a) shall not apply:

– in the case of force majeure,

– in exceptional cases characterised by circumstances beyond the control of the exporter, which occur after the acceptance by the competent authorities of the export declaration or the payment declaration, and provided that he, immediately after he took note of these circumstances but within the time-limit referred to in Article 47(2), notifies the competent authorities, unless the competent authorities have already established that the refund requested was incorrect,

...

Where the competent authorities have established that the refund requested was incorrect and the exportation has not been effected and consequently no reduction of refund is possible, the exporter shall pay the amount equivalent to the sanction referred to under (a) or (b). Where the rate of refund varies according to destination, except in the case of a compulsory destination, the lowest positive rate or, if higher, the rate resulting from the indication as to the destination pursuant to Article 22(2) or Article 25(4) shall be taken into account for the calculation of the refund requested and the refund applicable.’

7. Article 25(1) and (2) of Regulation No 3665/87 stipulate:

‘1. Where the exporter states his intention to export the products or goods after processing or storage, and to qualify for a refund, in accordance with the provisions of Articles 4 or 5 of Regulation (EEC) No 565/80, admission under those provisions shall be subject to the lodging with the customs authorities of a declaration, hereinafter referred to as the “payment declaration”.

Member States may give the payment declaration another title.

2. The payment declaration shall include all such particulars as are necessary for determining the refund and, where applicable, the monetary compensatory amount in respect of the products or goods to be exported, in particular:

(a) a description of the product or goods in accordance with the nomenclatures used for refunds and monetary compensatory amounts;

(b) the net mass of the product or goods, or, where applicable, the quantity expressed in the unit of measurement to be taken into account in calculating the refund or the monetary compensatory amount;

(c) in so far as is necessary for determining the refund or the monetary compensatory amount, particulars of the composition of the products or goods or the relevant reference. ...’

8. Article 29(2) of Regulation No 3665/87 provides:

‘The amount shall be paid only on written application by the exporter. Member States may prescribe a special form to be used for that purpose.’

9. Article 47(1) of Regulation No 3665/87 reads in part as follows:

‘The refund shall be paid only on written application by the exporter and shall be paid by the Member State in whose territory the export declaration was accepted.

Application for the refund shall be made either:

(a) in writing: Member States may prescribe a special form to be used for this purpose;

...’

10. The first, third and fifth recitals of Regulation No 2945/94 read:

‘Whereas the Community rules provide for the granting of export refunds on the basis of solely objective criteria, in particular concerning the quantity, nature and characteristics of the product exported as well as its geographical destination; whereas in the light of experience, measures to combat irregularities and notably fraud prejudicial to the Community budget should be intensified; whereas, to that end, provision should be made for the recovery of amounts unduly paid and sanctions to encourage exporters to comply with Community rules;

...

Whereas, where an exporter has supplied wrong information that wrong information could lead to an undue payment of the refund if the error is not discovered, whilst where the error is discovered it is entirely proportional to sanction the exporter for an amount in proportion to the amount which he would have received unduly if the error would not have been discovered; whereas in the case where the wrong information was supplied intentionally it is equally proportional to provide for a higher sanction;

...

Whereas past experience and irregularities and notably fraud recorded in this context show that this measure is necessary and appropriate, that it will act as an adequate deterrent and that it is to be uniformly applied throughout the Member States.’

B – National law

11. The German Ausfuhrerstattungsverordnung (Export Refunds Regulations) of 24 May 1996 ( ) (hereinafter ‘Ausfuhrerstattungsverordnung’) similarly lays down rules concerning applications for the payment of export refunds.

12. Paragraph 15 of the Ausfuhrerstattungsverordnung reads:

‘Paragraph 15: Applicant and application

The application for a refund, which is to be made in the prescribed format, can be made only

1. in cases falling within subparagraphs 3 and 5, by the person whose name is given for refund purposes in field 2 of the export declaration; or

2. by the person who lodged the payment declaration pursuant to Paragraph 8(1) or sentence 1 or 2 of Paragraph 11(2).’

III – Facts of the case and main proceedings

13. On 29 July 1996 the claimant in the main proceedings, Käserei Champignon Hofmeister GmbH & Co. KG (hereinafter ‘Käserei Champignon’), applied for the export clearance of a consignment of cheese, especially cheese spread, with various CN goods list numbers, some of the goods listed being ineligible for a refund.

14. On 12 August 1996 Käserei Champignon applied to the Hauptzollamt (Principal Customs Office) Hamburg-Jonas (hereinafter ‘Hauptzollamt’) for an advance export refund. In the application for payment the items relating to the goods ineligible for a refund were crossed out and annotated with the handwritten, initialled note ‘cancelled’. The application for payment was accompanied by a letter in which Käserei Champignon stated that it was not applying for any refund in respect of those items.

15. The Hauptzollamt granted Käserei Champignon an advance export refund as applied for in respect of the non-cancelled items, but by decision of 26 March 1997 it imposed a penalty in respect of the cancelled items in accordance with the first subparagraph of Article 11(1) of Regulation No 3665/87.

16. Käserei Champignon lodged an objection against that decision, but the objection was set aside by decision of 25 May 1999. It did succeed, on the other hand, in the legal action it then brought before the Finanzgericht (Finance Court). The Finanzgericht found that the claimant had not made any application for payment in respect of items 4 and 5, because the submission of the export declaration could not be regarded as already constituting such an application. It is against this judgment that the Hauptzollamt has appealed to the Bundesfinanzhof, the referring court.

17. The Bundesfinanzhof maintains that the decision on the lawfulness of the penalty turns on whether the lodging of the export declaration in accordance with Article 3(1) of Regulation No 3665/87 already constitutes a request for a refund within the meaning of Article 11(1) of that regulation or whether that request is not made until the lodging of the written application required under Article 47(1) of Regulation No 3665/87. If such a separate application is in fact a precondition for the application of the rules on penalties, then in the case at issue here the imposition of the penalty was unlawful.

18. Before the Bundesfinanzhof the Hauptzollamt submitted that an interpretation such as that posited by Käserei Champignon and the Finanzgericht, according to which a penalty can be imposed only where, in addition to the export declaration, the exporter has lodged an application for payment, as provided for by the national legislature on the basis of a power conferred by Community law, would deprive the rules on penalties of any deterrent effect. Moreover, such an interpretation was inconsistent with the binding interpretation of the relevant provisions by the Court of Justice.

19. The Hauptzollamt contended that the preventive purpose of the rules on penalties, which is clear from the third and fifth recitals in the preamble to Regulation No 2945/94, which introduced the rules on penalties laid down in Article 11 of Regulation No 3665/87, supports the view that false information contained in the export declaration already gives rise to application of the rules on penalties.

20. In conclusion, the Hauptzollamt argued that the time at which the penalty for which Article 11(1) of Regulation No 3665/87 provides becomes applicable could not be subject to divergent laws within the Community depending on whether a Member State deemed the application for payment to have been made under national implementing legislation in the export declaration or not until the later application was made – in accordance with the power conferred by Article 47(1) and (2) of Regulation No 3665/87.

21. The Bundesfinanzhof contrasts the argument advanced by the Hauptzollamt – that the export declaration already contains the application for a refund pursuant to the first subparagraph of Article 11(1) of Regulation No 3665/87, because the exporter is required to state therein that he will be requesting a refund for the goods declared – with the wording of the second subparagraph of Article 47(1) of Regulation No 3665/87. This provision, which explicitly empowered the Member States to prescribe a special form for the submission of the written application for payment pursuant to the first subparagraph of Article 47(1) of Regulation No 3665/87, indicated the possibility of drawing a clear distinction between the export declaration and the application for payment.

22. The Bundesfinanzhof takes the view, however, that a stronger argument in support of the Hauptzollamt’s opinion is to be found in the second subparagraph of Article 11(1) of Regulation No 3665/87, claiming that that provision defines the term ‘refund requested’ as the amount to be calculated from the information supplied in the export declaration. No reference to a separate application for payment, in addition to the export declaration, was made in that provision.

23. According to the Bundesfinanzhof, the view taken by Käserei Champignon – that the penalty may be imposed only if the exporter has lodged the application for payment required under national law in addition to the export declaration – can be based on the wording of the first subparagraph of Article 11(1) and Article 47(1) of Regulation No 3665/87.

24. A further argument in support of Käserei Champignon’s legal view, according to the Bundesfinanzhof, is that it might be disproportionate to impose a penalty on it even though it had explicitly refrained from lodging an application for payment of the export refund in respect of the cancelled items and had not received a refund for those items.

25. As the Bundesfinanzhof has doubts about the interpretation of the rules on penalties laid down in the first and second subparagraphs of Article 11(1) of Regulation No 3665/87, as amended by Regulation No 2954/94, it has decided to refer the matter to the Court of Justice.

IV – The question referred

26. The Bundesfinanzhof has stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘Must the first and second subparagraphs of Article 11(1) of Regulation (EEC) No 3665/87, as amended by Regulation (EC) No 2945/94, be interpreted – including in the light of the principle of proportionality – as meaning that false information relating to individual items listed in the export declaration, which could result in the exporter receiving an export refund in excess of that applicable, is sufficient to give rise to a punitive reduction in the export refund in the amount set out in those provisions, even though the exporter expressly stated in connection with the separate application for payment which must be submitted under national law that it would not be applying for an export refund in respect of the relevant items in the export declaration?’

V – Comments on the question referred

27. In the circumstances depicted by the referring court the main issue is whether the information indicating that an export refund has been requested can be derived from the export declaration and/or the application for payment which may be required. This must be determined with the aid of an interpretation of Article 11(1) of Regulation No 3665/87, with due regard for the general principle of proportionality.

A – The wording of Article 11(1) of Regulation No 3665/87

1. Arguments of the parties

28. Käserei Champignon makes a distinction between the export declaration and the application for payment and begins by referring to the first and second subparagraphs of Article 11(1) and the second subparagraph of Article 47(1) of Regulation No 3665/87. It argues that, according to the first subparagraph of Article 11(1) of Regulation No 3665/87, the imposition of a penalty depends on whether ‘an exporter ... has requested a refund in excess of that applicable’ (author’s italics). Consequently, the application for a refund is alone decisive. The Member States were authorised by the second subparagraph of Article 47(1) of Regulation No 3665/87 to prescribe special forms for that application. The Federal Republic of Germany took advantage of this authorisation in Paragraph 15 of its Ausfuhrerstattungsverordnung and prescribed a specific model for the application for a refund, which made a distinction between the export declaration and the application for payment of the export refund. Under German law the application for payment prescribed at national level represents the decisive application for a refund. This argument is also accepted by the Bundesfinanzhof.

29. Käserei Champignon also argues that it does not follow from the second subparagraph of Article 11(1) of Regulation No 3665/87 that the application for a refund means the export declaration, since the second subparagraph does not define the term ‘refund requested’ but, through the reference it makes to other provisions, merely provides a basis for calculating the amount of the refund requested.

30. The Commission, on the other hand, takes the view that there is no ‘application for payment’ within the meaning of Article 11 of Regulation No 3665/87. The second subparagraph of Article 11(1) defines the term ‘refund requested’, which differs in particular from the term ‘refund applicable’ within the meaning of point (b) of the first subparagraph of Article 11(1). From the reference in that definition it follows that the information in the export declaration is decisive for the refund requested as referred to in Article 3 of Regulation No 3665/87 and that the information in the payment declaration, which must not be confused with the application for payment within the meaning of Article 47(1) of Regulation No 3665/87, is decisive for the refund requested as referred to in Article 25(2) of Regulation No 3665/87. The Bundesfinanzhof agrees with the Commission on this point and considers this argument more cogent than Käserei Champignon’s argument based on the wording.

31. The Commission also points out that, although the German version of the rules on penalties laid down in Article 11 of Regulation No 3665/87 uses the term ‘Zahlungsantrag’, the term ‘Zahlungserklärung’ would be correct. Other language versions make it clear that the payment declaration referred to in Article 25(2) is the same as the payment declaration referred to in Article 11 of Regulation No 3665/87, since the same term is used in both provisions, e.g. déclaration de paiement, payment declaration and declaracão de pagamiento.

2. Analysis

32. The first subparagraph of Article 11(1) of Regulation No 3665/87 requires a penalty to be imposed in the event that ‘an exporter ... has requested a refund in excess of that applicable’. What is meant by ‘refund requested’ is then defined in the first sentence of the second subparagraph of the same provision; according to this, ‘the refund requested is deemed to be the amount calculated from the information supplied pursuant to Article 3 or Article 25(2)’. For the calculation of the refund requested the second sentence of the second subparagraph refers, further, to Article 47 where the rate of refund is determined from the information supplied pursuant to that article. It is not entirely clear from this wording whether the second subparagraph is a legal definition of the term ‘refund requested’ within the meaning of the first subparagraph or merely, as Käserei Champignon maintains, a basis for calculation.

33. As the Commission points out, it should at any rate be emphasised that the first and second subparagraphs of Article 11(1) of Regulation No 3665/87 contain only the term ‘refund’, the first subparagraph making a distinction between the refund requested and the refund applicable to the actual exportation. There is thus no reference in the first and second subparagraphs of Article 11(1) to an ‘application for payment.’

34. The wording of the rules on penalties laid down in Article 11(1) of Regulation No 3665/87 thus refers crucially to the refund requested, the second subparagraph at least containing references to its calculation. Of decisive importance in this respect is the information in the export declaration referred to in Article 3 or in the payment declaration referred to in Article 25(2) of Regulation No 3665/87; information in the application for payment referred to in Article 47 of Regulation No 3665/87 is to be used only in special cases. ( ) From the rules laid down in Article 29(2) of Regulation No 3665/87 it can, moreover, be deduced, as the Commission rightly emphasises, that the terms ‘payment declaration’ and ‘application for payment’ are not identical, but distinct in their meaning: Article 29(2) refers to the payment declaration defined in Article 25(1) of Regulation No 3665/87, whereas Article 47 refers to the application for payment.

35. From this it becomes clear at least that the calculation of the refund requested within the meaning of the first subparagraph of Article 11(1) of Regulation No 3665/87 cannot depend primarily on the application for payment within the meaning of Article 47 of that regulation.

36. The use of the term ‘Zahlungsantrag’ in the second indent of the third subparagraph of Article 11(1) is unlikely to contradict this statement. Other language versions, such as the French, English, Italian, Spanish and Portuguese, refer in that provision to the payment declaration, the same term as that used in Article 25(2), to which the second subparagraph of Article 11(1) already refers. The failure of the German version, unlike other language versions, to use the same term as that used in Article 25(2), ‘payment declaration’, poses a problem for multilingual authenticity. As the provisions of Community law are equally binding in the various language versions, the interpretation of a provision of Community law requires a comparison of all language versions. ( ) The necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider the provision in isolation but requires that it be interpreted in the light of all the other versions. ( )

37. In support of its contention that the application for payment is decisive for the determination of the refund requested within the meaning of the first subparagraph of Article 11(1) of Regulation No 3665/87, Käserei Champignon also refers wrongly to the national form. Although the Federal Republic of Germany is authorised by the second subparagraph of Article 47(1) of Regulation No 3665/87 to prescribe that form, a provision of Community law cannot be interpreted on the basis of special national rules which Community law has enabled the Member State to introduce.

38. The fact that the refund requested within the meaning of the first subparagraph of Article 11(1) of Regulation No 3665/87 should not be determined primarily on the basis of the application for payment does not, however, admit of a compelling conclusion as to the documents to be consulted for that purpose. Of significance in this context is that Article 3(5) refers to a document ‘used for export to enable products to qualify for a refund’ and makes it clear that it may be – but need not be – the export declaration. ( )

39. As regards the wording of Article 3(1) of Regulation No 3665/87, the various language versions again differ. According to this provision, ‘the day of export means the date on which the customs authority accepts the export declaration in which it is stated that a refund will be applied for’. The German – or the Dutch – version of this definition indicates rather that – in essence at least – the refund is already applied for in the export declaration, while the use of the future tense in the French, ( ) English, Italian, Spanish and Portuguese versions tends to indicate that the export declaration does not necessarily contain such an application.

40. The conclusion to be drawn from all the foregoing is that the wording of the rules on penalties laid down in Article 11(1) of Regulation No 3665/87 does not refer to the application for payment within the meaning of Article 47(1) when it uses the term ‘refund requested’. This is the conclusion to be drawn in particular from the reference in the first sentence of the second subparagraph to the information in the export declaration pursuant to Article 3 of Regulation No 3665/87 or in the payment declaration pursuant to Article 25(2) of that regulation, although it is debatable at this juncture how far the information in the application for payment pursuant to Article 47(1) reiterates the information in the export declaration or the payment declaration where a Member State takes the option for which the second subparagraph of Article 47(1) provides. The wording of Article 11(1) of Regulation No 3665/87, at any rate, does not indicate clearly from which document the information concerning the refund requested is derived.

B – Systematic interpretation

1. Arguments of the parties

41. Käserei Champignon argues that the very existence of the first subparagraph of Article 47(1) of Regulation No 3665/87 is an indication of a difference between – in its view – the export declaration and the application for a refund, since that provision, which makes a linguistic distinction between the export declaration and the application for payment, would be superfluous if the export declaration itself represented the application for a refund.

42. Käserei Champignon also sees its view endorsed by Regulation (EC) No 800/1999: ( ) the first subparagraph of Article 49(1) of that regulation stipulates that refunds are to be paid only on a specific application, and the first recital in its preamble states that Regulation No 3665/87 should be recast by Regulation No 800/1999 for the sake of clarity.

43. Nor, in Käserei Champignon’s view, can any reason for penalising false information in the export declaration be inferred from the fifth subparagraph of Article 11(1).

44. Unlike the Hauptzollamt, Käserei Champignon does not consider the Court’s judgment in Case 55/74 ( ) to be helpful for the interpretation in the present case, since, unlike Article 47(1) of Regulation No 3665/87, the regulation which was the subject of those proceedings did not require an application.

45. The Commission likewise presents arguments derived from the systematic interpretation in support of its view. It contends that it is evident from the relationship between Article 3(1) and Article 47(1) of Regulation No 3665/87 that false information in the export declaration will give rise to the penalty, since Article 47(1) of Regulation No 3665/87 forms part of Title 4 of the regulation, which governs the procedure for the payment of refunds, and the specific application for payment referred to therein can be described as no more than an administrative act for the actual payment.

46. The Commission also argues that the third and fifth subparagraphs of Article 11(1) of Regulation No 3665/87 show that the application for payment is not a requirement for the applicability of the penalty: forgoing a penalty because of a notification pursuant to the second indent of the third subparagraph would not otherwise make any sense.

2. Analysis

47. As demonstrated above, only the refund requested is decisive for Article 11(1) of Regulation No 3665/87. The first subparagraph of Article 47(1) of that regulation, which makes a distinction between the terms ‘export declaration’ and ‘application for payment’, cannot therefore say anything about the requirements for a penalty pursuant to Article 11(1), if only because Article 11(1) refers not to one of those terms but to the refund requested.

48. It should also be borne in mind that the rules on penalties laid down in Article 11 form part of Title 2, ( ) Chapter 1 ( ) of Regulation No 3665/87, whereas Article 47 is to be found in Title 4 ( ) of that regulation. As Article 11 governs the entitlement requirements, it is in the nature of substantive law and refers in this context to Articles 3 and 25, which similarly form part of Title 2. Article 47, on the other hand, being part of Title 4, is a procedural provision and governs the application for payment as an administrative act in the payment process.

49. The legal qualification of Article 47(1) of Regulation No 3665/87 is also applicable to the almost identically worded Article 49(1) of Regulation No 800/1999, which recasts Regulation No 3665/87. The first recital in the preamble to Regulation No 800/1999, which states that the often amended Regulation No 3665/87 needs to be recast only ‘for the sake of clarity’, also argues for a uniform interpretation. Thus the recast version does not support Käserei Champignon’s view that, in accordance with the distinction made in Article 47(1) of Regulation No 3665/87 between the export declaration and the application for payment, the application for a refund – as Käserei Champignon designates it – is the same as the application for payment.

50. All that is evident from a comparison between the substantive provisions of Articles 3, 11 and 25 of Regulation No 3665/87 and the procedural provision of Article 47 of that regulation is that a distinction must in principle be made between the application process ( ) and the payment process, although this does not in itself reveal the document from which the refund request ensues.

51. It might, however, be inferred from the third and fifth subparagraphs of Article 11(1) of Regulation No 3665/87 that false information in the export declaration gives rise to the penalty referred to in Article 11(1).

52. The second indent of the third subparagraph of Article 11(1) provides for an exception to the imposition of a penalty in the event of notification by the exporter. This exception applies, however, only if the authorities have not already established that the refund requested was incorrect. As the goods are inspected by the authorities in the period after the export declaration is made and before the application for payment is lodged, this provision would not make any sense if the imposition of the penalty depended on the later application for payment. The Court’s decision that correction of the information contained in the export declaration may no longer be allowed if it is made after the customs authority has informed the exporter that it intends to examine the goods or after it has itself established that the particulars in question are incorrect ( ) applies equally where the exporter himself notifies the customs authority. ( )

53. Nor does the first sentence of the fifth subparagraph of Article 11(1) regard the application for payment as a requirement for the imposition of the penalty referred to in the first subparagraph of Article 11(1), since the latter provision also requires a penalty where exportation is not effected and the refund requested is incorrect. From this it follows, conversely, that the application for payment is not a requirement for the imposition of the penalty, since in such a case an application for payment cannot be lodged.

54. The judgment in Case 55/74, ( ) at any rate, does not seem very helpful. In that judgment the Court ruled that the submission to the competent national authority for the grant of refunds of the control copy referred to in Article 1 of Regulation (EEC) No 2315/69 of the Commission ( ) and Article 5 of Regulation (EEC) No 1041/67 of the Commission, ( ) as amended by Article 1 of Regulation (EEC) No 2586/69 of the Commission, ( ) may be regarded as equivalent to an application for a refund. However, Regulation No 1041/67 neither included a requirement for an application for payment comparable to the first sentence of Article 47(1) of Regulation No 3665/87 nor authorised the Member States to prescribe special forms, as the second sentence of Article 47(1) does. That judgment cannot therefore be taken into consideration.

55. In summary, it must be emphasised that, as a distinction should also be made in a systematic interpretation between the process of applying for a refund and the process of paying the refund, the refund requested within the meaning of the first subparagraph of Article 11(1) of Regulation No 3665/87 cannot be derived only from the application for payment referred to in Article 47(1) of that regulation.

C – Teleological interpretation

1. Arguments of the parties

56. Käserei Champignon, which took the view in the proceedings in Case C‑210/00 that the penalty laid down in Article 11(1) is of a criminal nature, now points out that, as the Court ruled in the judgment in question, ( ) that penalty is conceptually a negative refund amount and not of a criminal nature. Käserei Champignon now also argues, however, that that provision does not establish general liability for creating a potential risk (abstraktes Gefährdungsdelikt), so that a merely abstract threat to the financial interests of the Community cannot be relevant in terms of penalties. Nor is this contradicted by the idea underlying the third recital in the preamble to Regulation No 2945/94. Only a real threat may give rise to the penalty, and such a threat cannot occur at the stage when the export declaration was submitted.

57. Further, Käserei Champignon doubts that the preventive aim of Article 11 of Regulation No 3665/87 would be circumvented if it was the later application for payment and not the earlier export declaration which constituted the application within the meaning of Article 11(1).

58. Lastly, Käserei Champignon maintains that, if the legal situation is assessed correctly, there is no danger of non-uniform application of the rules on penalties within the Community, since it is not the rules on penalties which are triggered at different times, but the application for an export refund which can be lodged at different times because of the authorisation for which Article 47(1) of Regulation No 3665/87 provides.

59. The Commission, on the other hand, emphasises the objectives of the rules on penalties, which, according to the first recital in the preamble to Regulation No 2945/94, consist in combating irregularities and fraud and – as intimated in the fifth recital – in giving the penalty, which, according to the third recital, is already applicable if the information supplied by the exporter could lead to undue payments, a preventive and deterrent effect.

60. In the view of the Commission and the Hauptzollamt, focusing on the information in the application for payment in accordance with Article 47(1) of Regulation No 3665/87 would enable the exporter to submit an export declaration containing false information and, in the absence of a subsequent check, to lodge a corresponding application for payment without fear of a penalty. This would deprive the penalty of the deterrent effect which it should have according to the fifth recital in the preamble to Regulation No 3665/87.

61. The Commission and the Hauptzollamt also argue that focusing on the information in the application for payment would seriously impair the preventive effects of the systems of checks on goods, since only a limited number of exports actually underwent such checks.

62. Finally, the Commission and the Hauptzollamt maintain that the information in the application for payment in the context of Article 11 of Regulation No 3665/87 cannot be decisive because the rules on penalties would then be applied in the Member States at different times, which would be inconsistent with the fifth recital in the preamble to Regulation No 3665/87.

2. Analysis

63. According to settled case-law of the Court, the penalties provided for in rules under the common agricultural policy – like the rules laid down in Article 11(1) of Regulation No 3665/87 in the case of false information accompanying applications for export refunds – are intended to combat the numerous irregularities occurring in the context of agricultural aid and which, because they weigh heavily on the Community budget, are likely to compromise the action undertaken by the Community institutions in that field to stabilise markets, to support the standard of living of farmers and to ensure that supplies reach consumers at reasonable prices. ( )

64. Protecting the Community’s financial interests is also the explicit objective of the rules on penalties laid down in Article 11(1) of Regulation No 3665/87, as is clear from the first and third recitals of the preamble to Regulation No 2945/94, which introduced those rules.

65. The Court has already ruled on the nature of the penalty for which point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 provides, deeming it not to be of a criminal nature. ( )

66. In explaining the nature of the breaches complained of which are to be penalised in this way, the Court has emphasised on several occasions that ‘the rules breached were aimed solely at traders who had freely chosen to take advantage of an agricultural aid scheme’. ( ) The Court went on to state that ‘in the context of a Community aid scheme ... the granting of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness’ and concluded from this that ‘the penalty imposed in the event of non-compliance with those requirements constitutes a specific administrative instrument’. It was ‘intended to ensure the sound financial management of Community public funds’. ( )

67. The Court ruled in this respect that ‘only those traders who have applied for the export refunds are likely to have the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 imposed on them, when it appears that the information provided by those traders in support of their application is incorrect’. ( )

68. The Court concluded by stating that ‘the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 consists of the payment of a penalty, the amount of which is determined on the basis of the amount which would have been unduly received by the trader had an irregularity not been detected by the competent authorities. It is, therefore, an integral part of the export refund scheme in question and is not of a criminal nature’. ( )

69. Although the Court has made it perfectly clear that the rules on penalties laid down in Article 11(1) of Regulation No 3665/87 is not of a criminal nature, Käserei Champignon attempts to assign them to the categories of criminal law by defining what attracts the penalty as the creation of a material risk (konkretes Gefährdungsdelikt). This is unconvincing in view of the non-criminal nature of the rules on penalties. It is, moreover, an open question whether Community law includes a corresponding category.

70. The conclusion to be drawn from the foregoing is that false information supplied for the purpose of applying for a refund always gives rise to the penalty for which Article 11(1) of Regulation No 3665/87 provides. Irrelevant in this context is the document in which that information is supplied. This conclusion also corresponds to the purpose of the penalty as defined in the first recital in the preamble to Regulation No 2945/94. According to that recital, ‘measures to combat irregularities and notably fraud prejudicial to the Community budget should be intensified; ... provision should be made for the recovery of amounts unduly paid and sanctions to encourage exporters to comply with Community rules’. The third recital also underlines this aim, stating that ‘where an exporter has supplied wrong information that wrong information could lead to an undue payment of the refund if the error is not discovered, whilst where the error is discovered it is entirely proportional to sanction the exporter for an amount in proportion to the amount which he would have received unduly’.

71. The goal of protecting the Community’s financial interests by combating fraud and with the aid of the preventive effect of the penalty thus requires that time not be allowed to elapse until the Community has suffered a financial loss, but that a penalty be imposed on the supplier of false information which could lead to a loss, which also corresponds to the wording of the aforementioned third recital, according to which wrong information which could lead to undue payments must be penalised.

72. From this it does not yet follow, however, that the information in the export declaration is exclusively decisive for the purpose of Article 11(1) of Regulation No 3665/87: argumentum e contrario, the second subparagraph of Article 3(5) of that regulation does, after all, enable the Member States to prescribe, for the purpose of claiming the refund, a form which is not the same as the export declaration. It is consequently for the national court to determine whether or not, in the circumstances, the export declaration is to be regarded under national law as the document used ‘for export to enable products to qualify for a refund’.

73. This differentiated approach is not, in principle, precluded either by the need to ensure the uniform application of Community law or by the preventive or deterrent effect of the rules on penalties laid down in Article 11(1) of Regulation No 3665/87.

74. As regards the preventive effect of the rules on penalties in question, the Commission rightly emphasises that focusing on the application for payment as a requirement for the imposition of a penalty could deprive the rules of that deterrent effect where a check on the goods has preceded the application for payment, since under Commission Regulation (EC) No 2221/95 ( ) only a limited number of goods are checked to see whether they have been actually and duly exported. If the later application for payment was regarded as a requirement for the imposition of a penalty, the exporter would have the opportunity, in the event of an incorrect export declaration being detected in a random check, of avoiding the imposition of a penalty by refraining from lodging an application for payment in respect of the goods in question. The effectiveness of the system of physical checks, namely the preventive effect of those checks, would thus be appreciably reduced, which would in turn be inconsistent with the effet utile of the rules on penalties.

75. As regards the deterrent effect, the Commission similarly claims, likewise not incorrectly, that, if the information in the application for payment was, in principle, the decisive factor, the exporter could submit an export declaration containing false information and, in the absence of a subsequent random check, lodge the appropriate application for payment without fear of a penalty being imposed. This undoubtedly seemed detrimental to the deterrent effect of the rules on penalties.

76. Conversely, however, the consequence of the application for payment not being decisive in the context of the rules on penalties is not bound to be the imposition of a penalty as a matter of course if the export declaration contains errors. It must remain possible for the honest exporter subsequently to correct the original information in the export declaration, ( ) provided that that correction is made voluntarily and in time, i.e. not under the pressure of an inquiry or a – possibly no more than imminent – check by the customs authorities. ( ), ( )

77. As regards the uniform application of Community law, it should be pointed out that, according to the fifth recital in the preamble to Regulation No 2945/94, ‘this measure ... is to be uniformly applied throughout the Member States’, which surely precludes the specification by the Member States of the requirements for the imposition of penalties at different times. This being the case, it is at any rate not plausible to focus on individual forms – whether the export declaration or the application for payment – since those forms may vary from country to country according to the Member States’ responsibility for the implementation of the common rules and the leeway created in this context by Regulation No 3665/87. Suffice it to say in this connection, then, that the only determining factor is the information supplied by the exporter – irrespective of the forms to be used pursuant to the national implementing legislation, which may vary in line with the options offered by Regulation No 3665/87.

78. The interim conclusion to be drawn is therefore that the purpose of the rules on penalties laid down in Article 11(1) of Regulation No 3665/87 and the ratio legis of Regulation No 2945/94 require that false information in the document used to claim the refund – unless corrected voluntarily and within the allotted time – gives rise to the penalty for which provision is made.

D – Principle of proportionality

1. Arguments of the parties

79. Käserei Champignon questions the proportionality of the rules on penalties laid down in the first subparagraph of Article 11(1) of Regulation No 3665/87 in the event that the export declaration is regarded as the decisive application within the meaning of that provision. If that is taken to be the meaning of that provision, Käserei Champignon argues, the penalty is unlikely to serve its purpose since only the recipient of the refund can endanger the Community’s financial interests. Nor was it needed, since the possibility of a penalty being imposed in the event of false information being included in the application for a refund was an adequate deterrent. The penalty was still appropriate, since focusing on the export declaration meant that the preparatory act and the completed deed would be penalised equally severely in the criminal sense, which was inconsistent with the Member States’ traditions as States governed by the rule of law. The Bundesfinanzhof similarly expresses doubts about proportionality.

2. Analysis

80. According to the principle of proportionality, which is one of the general principles of Community law, the means employed by a provision of Community law must be appropriate to achieve the objective pursued and not go beyond what is necessary to achieve it. ( )

81. The Court has already ruled in Käserei Champignon I that the penalty specified in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 does not breach the principle of proportionality, since it cannot be considered to be inappropriate for attaining the objective pursued by Community law and does not go beyond what is necessary to achieve that objective. ( )

82. Over and above this general statement, the doubts expressed by Käserei Champignon and the Bundesfinanzhof about the proportionality of the penalty specified in the first subparagraph of Article 11(1) of Regulation No 3665/87 obviously relate to an interpretation which would permit a penalty to be imposed even where the exporter had corrected the originally false information during the procedure.

83. Having regard to the original case, it must be emphasised in this context that the basic possibility of a penalty being imposed on an exporter who, through no fault of his own, supplies false information when applying for a refund follows from the fact that the rules on penalties in question apply regardless of fault. This has already been taken into account by the Court in Käserei Champignon I. It is therefore irrelevant in this context why originally false information was not corrected within the allotted time. ( )

84. Focusing on the information in the document used to claim the refund – subject, where applicable, to the subsequent amendment of that information, provided that it is made voluntarily and within the allotted time in the sense described above – for the purpose of the penalty specified in the first subparagraph of Article 11(1) of Regulation No 3665/87 seems appropriate to achieve the objective of combating irregularities and fraud. It follows from the intended preventive and deterrent effect of the penalty that the Community legislature sets store by the accuracy of such information. It is also necessary to focus on the information in question in order to achieve the objectives of the rules on penalties, since, contrary to the view held by Käserei Champignon, the mere possibility of penalising false information supplied in the application for payment does not have a sufficiently deterrent effect. ( )

85. Reference must also be made to the fifth recital in the preamble to Regulation No 2945/94, according to which past experience of irregularities and fraud in the area of export refunds has shown that other penalties and mere repayment of the refund are not sufficient to have a deterrent effect and encourage exporters to take the necessary steps to ensure compliance with Community rules. ( )

86. Finally, even with the focus on the information in the document used to claim the refund, the penalty specified in the first subparagraph of Article 11(1) of Regulation No 3665/87 is proportional to the objective of protecting the Community’s financial interests, since it does not preclude the correction of that information provided that it is undertaken voluntarily and within the allotted time.

87. In criticising the alleged equal treatment of the preparatory act and the completed deed contrary to the Member States’ traditions as States governed by the rule of law, Käserei Champignon fails to recognise that the rules on penalties in question happen not to be of a criminal nature.

88. If, however, the rules on penalties laid down in Article 11(1) of Regulation No 3665/87 prove to be too stringent in practice in that the risk of a penalty being imposed seems unpredictable to the exporter, it cannot, in view of the objectives of the rules in question, which are clear – and worthy of protection – and whose validity is not (or no longer) in doubt, be for the Court to provide for a remedy; it is rather for the Community legislature, if need be, to bring about an appropriate solution with due regard for all relevant interests.

VI – Conclusion

89. In view of the foregoing, it is proposed that the question referred by the Bundesfinanzhof should be answered as follows:

The first and second subparagraphs of Article 11(1) of Regulation (EEC) No 3665/87, as amended by Regulation (EC) No 2945/94, must be interpreted – including in the light of the principle of proportionality – as meaning that false information relating to individual items listed in the document used to claim the refund in accordance with national implementing legislation, which could result in the exporter receiving an export refund in excess of that applicable, gives rise to a punitive reduction in the export refund in the amount set out in those provisions,

– even if the exporter expressly states in the separate application for payment which must be submitted under national law that it will not be applying for an export refund in respect of the relevant items in the document in question and

– provided that that statement was made only after customs checks had been announced or carried out.