2.

In the first question the Court is asked to decide whether the declaration under Article 1 of Regulation No 1041, that is to say, the document produced to the customs office through which the goods are cleared, ‘by which the declarant states his intention to export the products in question and qualify for a refund’ can be treated as the necessary application for the grant of a refund under Article 17 of Regulation No 1009. In this connexion, having regard to the facts set out in and the grounds of the order making the reference some further clarification of the problem must first be achieved. We have seen that, if goods are exported under Article 5 of Regulation No 1041, that is to say, if they cross other Community territory, an exit certificate is received by the customs office of exit in which the exporter certifies that ‘the goods qualify for a refund’. We have also learned that such exit certificates are invariably used in the Federal Republic of Germany, and therefore also in the case of direct exports. Since, however, Part B of the exit certificate contains an endorsement by the customs office ‘where the customs export formalities are completed’and, since Article 1 of Regulation No 1041 provides that acceptance of the document by which the declarant states his intention to export the products in question and qualify for a refund shall be considered to be completion of the customs export formalities, the Finanzgericht appears to proceed on the basis that the declaration of intent mentioned in Article 1 of Regulation No 1041 can be regarded as being included in the said exit certificate. As there are in my opinion good grounds for holding this view, the question therefore in fact arises, with reference to the facts in the main action, whether the certificate of the exporter in the exit certificate can be regarded as an application for the purposes of Article 17 of Regulation No 1009. This is the view which the plaintiff strenuously advocates while the Federal German Government and the Commission, for reasons which are in essence identical, submit that the question should be answered in the negative. If consideration is given to the view to be taken of the problem when stated in this way, it must without any doubt be conceded that there are clear distinctions between the actual purpose which must be attributed to the application lodged under Article 17 of Regulation No 1009 on the one hand and to the declaration made under Article 1 of Regulation No 1041 and also the exit certificate issued under Article 5 of this regulation on the other hand. The purpose of the firstmentioned application is to enable the right to claim a refund, to which, as emerges from the statement of the facts, various conditions apply, to be checked and acknowledged. On the other hand the purpose of the declaration under Article 1 of Regulation No 1041 and its acceptance is to determine the date of exportation, which in turn determines the rate of the refund to be applied, the relevant characteristics of the product exported and the Member State responsible for paying the refund. Finally I would mention that the main purpose of the exit certificate under Article 5 of Regulation No 1041 is clearly to provide proof that the product in question has left the geographical territory of the Community or has reached its intended destination. If the problem is looked at in this way, it could be tempting to give a negative answer to the question referred by the Finanzgericht and defined above. Nevertheless I hesitate to say that this solution is the right one. It has been rightly repeated over and over again that, in view of the extremely complex nature of the common organizations of agricultural markets and their trading arrangements, one should endeavour, by avoiding excessive formalism, to render their application practicable for commerce. In the context of this case this overriding principle is justified for two reasons. On the one hand the plaintiff has made it clear that the Community rules presently at issue are not, taken as a whole, entirely clear, and that they disclose certain deficiencies, at least in drafting. Regulation No 1009 for example expressly refers to an application for the refund whereas Article 10 of Regulation No 1041 only mentions the documents which have to be lodged and reference has to be made to a recital of this regulation to find out that applications for payment of the refund should be made within a reasonable period. On the other hand a recital in Regulation No 499/69 recommends that this rule should be made more flexible. It is true that this recital refers primarily to the provisions concerning force majeure but it appears, however, to have also a wider significance. Seen in this way, the following points assume importance having regard to the provisions of Article 5 of Regulation No 1041, which govern the issue of exit certificates. This certificate contains a ‘description of the goods according to the tariff nomenclature for refunds’. In addition the exporter must ‘certify that these goods qualify for a refund’. This — as we have seen — can be treated as a statement of intention within the meaning of Article 1 of Regulation No 1041, that is to say, it can be assumed that it is a sufficiently clear expression of the exporter's intention to claim a refund on the export transaction. Further, this statement of intention has to be brought to the notice of the authority responsible for granting the refund. Article 5 of Regulation No 1041 provides that a copy shall be sent directly to the authority responsible for paying the refund, if the customs office of exit is not itself responsible for granting the refund. In addition, after the original of the certificate which accompanies the goods has been endorsed by the customs office of exit from the Community, it shall then ‘within eight days’ be returned by this office to the national authority shown in the certificate heading, in this case to the Hauptzollamt Hamburg-Jonas. This provision therefore ensures that the exporter's statement of intention reaches the authority responsible for paying the refund. This raises the presumption, however, that it is perfectly reasonable to treat the exporter's declarations in the exit certificate as an application for a refund. If the objection is raised against this argument that at the time when the declaration is made under Article 1 of Regulation No 1041 an application for payment of the refund has not yet come into being and that, since, after the exporter makes the declaration, he can always dispose of the goods elsewhere and decide not to apply for the refund, it can therefore only be regarded as a declaration of intent, it must be acknowledged that this objection is not entirely misconceived. However the normal pattern can be taken to be that in the majority of cases the exportation can be presumed to have been effected and that owing to the price situation — as the plaintiff rightly emphasized — there is economic pressure to claim the refund. This explains why, following acceptance of the declaration, the administrative machinery is set in motion, certain verifications (of the quantity, nature and characteristics of the goods) are undertaken, the results of which are apparently sent direct to the authority responsible for paying the refund, and the exporter may receive an advance payment of the refund. Moreover it may at least be inferred from the forwarding of evidence and declarations as to the origin of the goods and their departure from the Community that, as is usually the case, it is still intended to claim a refund, that is to say, from actions which, as the plaintiff, referring to the most recent decision of the Court on the question of the submission of offers to intervention agencies, has rightly said, must, if one takes a reasonable view of the matter, be allowed to be undertaken in stages and if necessary, to be completed afterwards. Consequently there is no danger whatever, if it is assumed that the requirement of an application for a refund is satisfied by the declaration made under Article 1 of Regulation No 1041 or by the certificate issued under Article 5 of that regulation, that refunds will be granted in cases where undertakings have not adhered to their original intention to export the goods in question. However it is quite clear — and I come now to the last objection — that the applicable German implementing provisions expressly provide that the application for payment of the refund must be lodged with the competent customs office ‘in the prescribed form’. There is therefore a supplementary provision as to form which the Federal German Government and the Commission both assume was rightly issued on the basis of Community law. In order to support this view they rely on Article 10 of Regulation No 1041 which provides that ‘the refund shall be paid by the Member State in whose territory the customs export formalities were completed’ and they call attention to the fact, which is frequently encountered in Community law, that national implementing measures are essential for the implementation of Community law. However if this particular aspect of the matter is examined more closely, an answer to this objection can easily be found in the case-law of the Court. Thus in the judgment in Case 39/70 (Norddeutsches Vieh- und Fleischkontor GmbH v Hauptzollamt Hamburg St. Annen [1971] ECR) it was pointed out that when national authorities are responsible for implementing a Community regulation it must be recognized that ‘in principle this implementation takes place with due respect for the forms and procedures of national law’. This judgment on the other hand also stated that ‘the uniform application of Community provisions allows no recourse to national rules except to the extent necessary to carry out the regulations’ and that there was no such need where, as in that case, the rules submitted for interpretation laid down ‘the conditions which must be fulfilled for the levy to be suspended as well as arrangements for security and the supervision designed to prevent fraud’. There can in my opinion be no doubt that this lastmen-tioned reservation applies to the present case. A real need for implementing provisions in this case only arises to the extent to which the competent authorities have to be determined. On the other hand a refund based on the provisions of Community law can be granted if the party concerned has clearly stated his intention to claim the refund and produced a whole series of forms of proof specified under the Community regulations themselves. In particular I would not regard the use of the special form prescribed under German law as essential, because it does not call for any information which is not already found in the exit certificate (apart from statements concerning the method of payment — particulars of an account and a possible transfer of the sum — which indeed are not necessary for the acceptance of the claim but only for payment of the refund). It can also hardly be maintained that the claimant must use a special form, because in the Federal Republic of Germany computers are used in order to expedite payment of the refund. There is no doubt that organization of this kind may be regarded as effective and useful and that it may be assumed that the undertakings concerned will in their own interests conform to it. The use of a special form by the applicant does not however appear to be essential within the meaning of the cases which have been quoted, because if necessary, the administration itself can transfer the required particulars to such a form. Accordingly I would like to conclude my consideration of the first question by saying that upon a proper construction of Community law an exit certificate issued pursuant to Article 5 of Regulation No 1041 is also to be regarded as an application for a refund, in so far as this certificate is used and the continuing intention to claim a refund can be clearly inferred from additional documents produced later. On the other hand it cannot be inferred from the detailed Community provisions which exhaustively determine the conditions for the grant of the refund that, within the framework of national implementing provisions, additional requirements as to form of a stricter nature may be fixed, non-compliance with which must lead to a loss of the right to the refund.