4.

I now come to the questions submitted by the Bundesfinanzhof, which must, as can be seen from the foregoing discussion, be dealt with in accordance with the existing case-law. (a) The first question concerns the problem whether proof of importation into the country of destination is irrebuttably furnished where substitute documents requested by the competent authorities are submitted (it thus concerns the interpretation of the third subparagraph of Article 11 (1) of Regulation No 192/75, as amended by Regulation No 2818/75, which refers to proof that the goods have been unloaded). (i) In this connection, probably on the assumption that the meaning of the two preceding subparagraphs (which refer to importation and clearance for release into free circulation) is important for the interpretation of that subparagraph, Dimex raises the question whether those two preceding subparagraphs are valid. In its view, if attention is restricted to the wording of the relevant provisions, the question arises whether they do not go beyond the limits laid down by the basic regulation of the Council, since Article 6 of Regulation No 876/68 refers only to proof that the products have reached their destination (which, says Dimex, is clearly to be understood in a factual sense); moreover, whilst exceptions may be made to that rule, the second subparagraph of Article 6 (2) of the regulation provides that conditions are to be laid down which offer equivalent guarantees (which certainly precludes the imposition of supplementary requirements by the Commission). If it is desired to consider that question of validity (notwithstanding the fact that it was not raised by the Bundesfinanzhof), it may be dealt with quite briefly, in particular by considering the case-law to which I have already referred. It should not be overlooked, first of all, that Article 6 (3) of Regulation No 876/68 also refers to additional provisions and therefore clearly provides for the imposition of supplementary requirements. It is also important to point out that in the judgment in Case 125/75 ( 10 )the necessity of clearance for release into free circulation was inferred from Regulation No 876/68 itself, and that in the judgment in Case 44/76 ( 11 ) the Court went so far as to state that the regulation clearly established that to be the legal position. It is clear, therefore, that the term “reached” contained in the regulation is to be equated with lawful import and that doubt cannot be cast upon the validity of Regulation No 192/75 because it expressly refers to clearance for release into free circulation. (ii) On the basis of the case-law to which I have referred, there sould be no particular difficulty in deciding how to reply to the first question. It is an essential prerequisite for the grant of refunds at rates which vary according to destination that the products concerned should be marketed, that is to say, be traded in within the territory concerned. The completion of customs import formalities gives access to the market, but can certainly not be equated with marketing. Proof of the completion of those formalities can therefore be no more than rebuttable evidence. Reference may be made in that regard to the abovementioned decisions on “accession” compensatory amounts. The use of the phrase “shall be considered” in the provision in question (the second subparagraph of Article 11 (1) of Regulation No 192/75) does not furnish a counterargument. In subparagraph (3) of that provision itself it is envisaged that proof of completion of customs formalities may be regarded as “insufficient in view of the particular circumstances in the country of destination”. If the proof which is primarily required amounts only to rebuttable evidence, then the alternative form of proof, namely proof that the goods have been unloaded, which provides only limited evidence that the goods have reached the market and been traded in within the territory concerned, can itself be no more than rebuttable evidence. (iii) The Bundesfinanzhof did not ask what conditions and possible limits apply to the rebuttal of such evidence. In that regard Dimex submitted that, even if checks may subsequently be made to verify whether the conditions for the payment of the refund were met and previously accepted evidence may be rebutted, it is necessary — having regard to the principles of legal certainty and protection of legitimate expectation and to the objectives of the refund system — to observe certain limits in carrying out such checks. Thus, according to Dimex, a demand for repayment of refunds may be made only where unloading documents were falsified or contained misstatements, or in a case of abuse of the system (which must without exception be proven by the authorities demanding repayment). Conversely, a demand for repayment may not be made where it is subsequently ascertained that the goods were not cleared for entry into free circulation, in particular because the goods have deteriorated or have been reexported in circumstances for which the exporter is not responsible. In so far as it is necessary to consider this point in the context of the first question, it is clear from the observations which I made earlier that the view put forward by Dimex is too narrow. As I have pointed out, the essential prerequisite is that the goods should be traded in within the country of destination. An exporter can and must protect himself in that regard (by, for example, inserting clauses in the contract). Where it is discovered that there was no such trade, the alternative form of proof can in principle be declared insufficient. It is clear that, depending on the circumstances of the particular case, the principle of protection of legitimate expectation may also apply, but it is unnecessary to examine that question in further detail here. It is hard to see how that principle can apply in this case since it is established that on 25 October 1976 (a considerable time before the substitute documents were submitted) Dimex learned that the goods could not be marketed in Kuwait and that, when it accepted the alternative form of proof in April 1977, the Hauptzollamt was left unaware of that important fact. (b) Since the second question presupposes an affirmative answer to the first question, there is no need to consider it in detail. If it is clear that proof cannot be provided irrebuttably by the submission of substitute documents, it follows that the competent authorities may later reconsider their conclusion that proof of completion of customs formalities could not be furnished because of circumstances beyond the control of the importer. It is therefore unnecessary to consider further how that phrase is to be understood, and whether it should not in fact read “beyond the control of the exporter”, as Dimex submits, referring to Article 20 of the subsequent regulation, Regulation No 2730/79, and observing that exporters cannot be held responsible for decisions taken by importers of their own free will. Without going into the matter more closely at the present time, I wish only to suggest that, as the Commission remarked, it does not seem inappropriate to refer to the “importer” in this connection, if one considers circumstances in which the importer with whom the exporter does business deliberately refrains from having the goods cleared through customs. The third subparagraph of Article 11 (1) of Regulation No 192/75 may also properly be held to apply — as the preamble to Regulation No 2818/75, which amends Article 11, suggests — where the exporter, because of the particular characteristics of the import procedure in the country in question, is not in a position to produce the customs documents, if such documents have gone astray for reasons which cannot be attributed to him or it would be unreasonably difficult to obtain them. (c) Finally, the third question relates to the fact that the exported feta cheese was not placed on the market in Kuwait, but was destroyed as being unfit for human consumption (it is unclear and disputed when and where the cheese became spoiled, whether before or after its arrival in Kuwait, and if after, before or after its clearance for release into free circulation, in which regard, moreover, it is not certain whether customs clearance in fact took place or was refused on account of the condition of the goods). In view of those circumstances, it must be resolved whether a product is “imported” into the territory of destination where a few days after arrival it is either destroyed or re-exported, and it must be decided whether the answer to that question depends on whether the product is destroyed or re-exported before or after clearance for release into free circulation in that territory and whether the deterioration of the goods which was the cause of the destruction or re-exportation occurred before or after such clearance. In that connection Dimex maintains that it is to be inferred from Article 8 of Regulation No 192/75 that the only important point is whether the products are of sound and fair marketable quality at the time of their exportation (in this case the Finanzgericht found that to be the case, and its finding cannot be challenged). It should also be recalled, says Dimex, that the ship chartered by it reached the territory of Kuwait six weeks before it was unloaded, and that it is therefore probable that the deterioration of the goods occurred after that time (which it considers decisive). It is quite clear, however, that those considerations do not assist in answering the question raised. From my review of the relevant case-law it is clear that it must be inferred from the basic regulation, Regulation No 876/68, that the decisive factor in granting a refund varying according to destination is the clearance of the goods for release into free circulation and the fact that the goods have been placed on the market in the territory in question with a view to their sale. Thus it is not the actual arrival in the territory of the country in question that is important, but the authorization of access to the market, which in Kuwait, as may be inferred from the letter of the German Embassy of 23 November 1978, certainly requires approval by the health authorities, if not customs clearance for release into free circulation. Moreover, if it is marketing that is essential for the payment of the refund, it cannot be sufficient that the goods have left the territory of the Community in sound condition; they must still be in that condition when they reach the market, since otherwise they cannot be marketed because they are not of merchantable quality. As is apparent from the Court's decisions in previous cases, it is clear that there can be no question of the goods having been “imported” where they become unfit for marketing and are destroyed before clearance for entry into free circulation. If, however, that happens after customs clearance (which, as Dimex stated, in such countries sometimes takes place without a detailed examination), it will depend, as the Commission correctly contended, on whether the basic cause of the deterioration had already arisen before that. In a case such as the present that might easily be assumed, since on 7 October 1976, that is to say, immediately after unloading, Lloyds agents found the goods not to be in perfect condition in the buyer's cold store. As far as the third question of the Bundesfinanzhof in concerned, all the elements necessary for its decision have now been set out. Therefore, in the absence of any question on this point, there is no reason also to go into the problem raised by Dimex as to whether, where it is decided that the conditions for the payment of a specific refund are not fulfilled, the refund can be calculated at the lowest rate, if (as Dimex maintains is the case with regard to the rate applicable to the United States) that rate has no real significance for the export trade (this is disputed by the Commission, which points to the development of feta cheese exports to the United States).