OPINION OF MRS ADVOCATE GENERAL ROZÈSDELIVERED ON 16 SEPTEMBER 1982 ( 1 )

Mr President,

Members of the Court,

The court is requested by the Hessisches Finänzgericht [Finance Court, Hesse] to give a preliminary ruling concerning the conditions for the issue of Control Copy T No 5 provided for in Article 10 of Commission Regulation (EEC) No 223/77 of 22 December 1976 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (Official Journal 1977, L 38, p. 20).

I — The facts are as follows:

On 31 July 1979, Alfred Eggers & Co., Hamburg, [hereinafter referred to as “Eggers”], exported to the United Kingdom 19940 kg. of lard for industrial use.

If the necessary customs formalities had been completed, in particular those relating to control copies, the exporting company would have been entitled to receive monetary compensatory amounts in respect of that transaction. To that end on 17 July 1979 it therefore sent to Firma Schenker, which was entrusted with completion of those formalities, various documents including Control Copy T No 5 in duplicate intended for the carrier of the goods, Spedition Interstar BV of Rotterdam. That company's driver, who collected the lard in the normal way from Firma Hafeka, of Kassel, proceeded on his journey, handing in at the German customs office the transit and export declaration, but not the two forms T No 5.

Since those forms were not returned there was no proof that the exponation had been correctly carried out and the Hauptzollamt [Principal Customs Office] Hamburg-Jonas, within whose area the events occurred, refused to pay Eggers the monetary compensatory amounts.

Eggers then sent two fresh forms to the Hauptzollamt Kassel in order to regularize the situation retroactively and to enable it to receive the aforementioned monetary compensatory amounts, without which the transaction would not have been commercially worthwhile.

The Hauptzollamt refused to accept this retroactive issue of the forms although the delivery of the goods to the United Kingdom was not disputed.

Eggers then brought an action before the Hessisches Finanzgericht.

In its order for reference of 9 November 1981 that court notes that there is no provision for the retroactive issue of the Control Copies T No 5 referred to in Article 10 of Regulation (EEC) No 223/77 of 22 December 1976. ( 2 )

However, an agreement was reached by the Committee on Community Transit set up by Article 55 of Regulation No 222/77 ( 3 ) admitting that “Control Copy T 1/T 2 No 5 may by way of exception be issued retroactively, provided that the declarant furnishes proof that the control copy relates to the goods in respect of which the shipment formalities have been accomplished and that the customs authorities of the Member State of destination are in a position to establish that the goods have actually reached the destination and/or been put to the use provision for the control of which has been made”.

The German court seems to think that either:

— the retroactive issue of control copies is totally prohibited, in which case the agreement in question is void; or

— the agreement is lawful; however, the question then arises whether the conditions which it imposes on the retroactive issue of control copies are exhaustive and whether — if it is assumed that those conditions arc satisfied — the Member States are entitled to impose additional conditions. These are the questions put to the Court.

II —

First of all, as far as the agreement concluded by the Committee on Community Transit is concerned, the Commission pointed out at the hearing that the Court ruled on 14 May 1981 ( 4 ) that:

“It follows both from Article 155 of the Treaty and the judicial system created by the Treaty, and in particular by Articles 173 and 177 thereof, that a body such as the Administrative Commission may not be empowered by the Council to adopt acts having the force of law.”

Nor is the agreement concluded by the Committee on Community Transit, which was not even published in the Official Journal of the European Communities, of such a nature as to oblige the competent national authorities to follow certain methods or to adopt certain interpretations when they are applying Community rules; in any case, such an agreement does not bind national courts.

III —

It should be borne in mind that according to Article 10 of Commission Regulation (EEC) No 1380/75: ( 5 )

“(1) The monetary compensatory amount granted on export shall be paid only upon production of proof that the product in respect of which customs export formalities were completed has left the geographical territory of the Member State in which the formalities were completed.

(2) The monetary compensatory amount granted on import shall be paid only on production of proof that customs import formalities have been completed and that the duties and charges having equivalent effect payable in the Member State in question have been charged.”

However, as far the compensatory amount on importation is concerned Article 2 a of Council Regulation (EEC) No 974/71 provides that: ( 6 )

“Where a product exported from one Member State has been imported into a Member State which has to grant a compensatory amount upon importation, the exporting Member State may, by agreement with the importing Member State, pay the compensatory amount which should be granted by the said importing Member State.”

At the time of the exportation in question the Federal Republic of Germany, the exporting country, availed itself of that provision and the product in question benefited from that system.

The Community rules left the national authorities to decide how proof was to be furnished of satisfaction of, the preconditions for entitlement to monetary compensatory amounts granted on export.

On the other hand, in the event of payment by the exporting Member State of the compensatory amount granted in the importing country and normally paid by the latter, Article 11 (2) of Regulation No 1380/75 ( 7 ) referred to above provides that proof of completion of customs import formalities and of the payment of charges and duties of equivalent effect is to be furnished by production of the control copy referred to in Article 10 of

Regulation No 223/77. That copy contains sections to be filled in and in particular a “Section 104” in which the inapplicable items are to be struck out and the following is to be inserted in one of the official languages:

“Intended for entry for home use in (importing Member State)”

It is for the competent customs office in the importing Member State to complete the section “Control as to use and/or destination” and to add the following in one of the official languages:

“Monetary compensatory amount applicable on (date of entry for home use) not granted in (importing Member State).”

The Community rules left the national authorities to decide how proof was to be furnished of satisfaction of the preconditions for the payment of compensatory amounts granted on export.

The German provisions applicable at the time of the exportation in question are contained in a notice of 5 July 1973, issued by the Federal Minister of Food, Agriculture and Forestry, as amended on 2 July 1976. It states that in order to obtain monetary compensatory amounts on exports from the Federal Republic of Germany to another Member State, the applicant must prove by the production of one control copy to the Hauptzollamt Hamburg-Jonas that the product has actually left the country.

Similarly, in order to obtain (in the Federal Republic of Germany) monetary compensatory amounts granted on imports of goods exported from Germany to the United Kingdom under agreements concluded in accordance with Article 2 a of Regulation No 974/71, the applicant must prove, by the production of another control copy, that the goods have been released into free circulation in the United Kingdom.

The notice specifies that the latter copy is to accompany the exported goods as far as the United Kingdom customs post, which will release the goods into free circulation in the United Kingdom.

The forms for that control copy indicate in red letters that it must accompany the goods and be presented at the customs post in the State of departure and in the State of destination.

In this case it was therefore necessary to have two control copies T No 5, as provided for in Article 10 of Regulation No 223/77, stamped by the German customs office of departure.

The first was to accompany the goods as far as the relevant United Kingdom customs office where the necessary customs formalities would have been carried out in order to enable the addressee of the goods to receive them. After certifying completion of that formality by means of an entry in the section intended for that purpose, and after stating that the applicable monetary compensatory amount had not been granted in the United Kingdom, that office would have returned the copy to the customs office of departure in order to enable payment of the appropriate compensatory amount to be made in the Federal Republic of Germany.

After completion of the export formalities, the second copy was to be kept at the office of departure before being returned to the Hamburg office for payment of the compensatory amount on export.

As a result of an accidental error or omission those formalities were not observed. Eggers declared its willingness to assume responsibility in that regard. Furthermore, it did not claim that there was a case of force majeure, as provided for in Article 15 of Regulation No 1380/75, but it thought that the refusal on the part of the Kassel customs office showed excessive insistence on the observance of formalities.

IV —

In short, the problem is to decide whether, under the applicable Community rules, the retroactive issue of Control Copy T No 5 was possible or even obligatory.

To that end it is necessary first to study the “national” document, that is to say the control copy which was to serve as a basis for payment of the compensatory amount granted in the exporting country and secondly the “Community” document, that is to say the copy which was to serve as a basis for payment of the compensatory amount granted in the importing country.

1. The “national” document

In the Federal Republic of Germany the Control Copy T No 5 is used for the implementation of measures of Community law. It is also used in connexion with numerous national measures for the collection of information relating to exports, such as the compilation of statistics. At first sight it would seem to be unlikely that the Kassel customs office and the Hauptzollamt Hamburg-Jonas, which are Government agencies, should both disregard a formal requirement laid down by their superior authority, namely the Federal Minister of Agriculture.

The Federal Republic of Germany adopted measures in order to implement Article 10 (1) of Regulation No 1380/75. The customs authorities issued a notice implementing the Community rule to the effect that Member States must require proof of satisfaction of the preconditions for the grant of a compensatory amount payable in the exporting country.

It seems difficult in these circumstances to compel a national administration to issue a “national” control copy solely on the basis of the Community rules in force. In fact the issue of such a copy falls within the powers of the Member States and depends upon their own appraisal of the way in which Community law is to be applied.

2. The “Community” copy

The retroactive issue of such a document was not provided for in any Community legislation in force at the material time. However, Article 11 (5) of Regulation No 1380/75 ( 8 ) provides for cases where the control copy is not returned to the office of departure or relevant central body within three months of its issue owing to circumstances beyond the control of the person concerned. The latter may make application to the competent agency for other documents to be accepted as equivalent, stating the grounds for his application and furnishing various supporting documents including, in addition to the transport document, the document whereby the product is entered with the customs authorities for home use in the Member State of destination (or a copy or photocopy thereof certified by the competent authorities) on which certain entries must be made and stamps placed.

The Commission has pointed out that, by virtue of Article 15 (7) of Commission Regulation (EEC) No 1371/81, in certain circumstances the payment of monetary compensatory amounts by the exporting Member State may be subject to the production of a control copy “issued retrospectively or in anticipation by the customs office of departure and used in accordance with the provisions of paragraphs (1) to (4)”.

The Commission infers from this that the principle thus established should apply not only when the document disappears but also when it is not issued “owing to circumstances beyond the control of the person concerned”, on the condition that the latter produces equivalent proof.

However, this relaxation was introduced after the events in this case and it would seem difficult for the exporting German customs office of departure to issue a copy or a photocopy of a declaration of importation into the Member State of destination (the United Kingdom) certified as a true copy by the competent authorities of that State.

Even if the faillure to submit a control copy to the United Kingdom office of destination were treated in the same way as a delay by the latter in sending that copy to the German office of departure, it seems that, in the present case, the German court is precluded from annulling the refusal of the German authorities to issue the customs document relating to the entry of the goods for home use in the United Kingdom or compelling the German office, in place of the competent British authorities, to complete the section “Control as to use and/or destination” or to complete it with the entry “Monetary compensatory amount ... not granted in the United Kingdom”.

It is certainly desirable that administrative rules for the payment of monetary compensatory amounts should not operate as an obstacle to trade.

It should be noted however that in the present case the control copy constitutes the proof that the goods have arrived at the proper destination or have been used for the proper purpose, or that both those requirements have been satisfied, so that they qualify for the benefit of the monetary compensatory amounts which have not been granted in the Member State of destination. In view of this essential function of the control copy, the conditions for its issue must be fairly strict.

In the interests of users and in order to lighten the tasks of national authorities, the Community rules provide for a purely “documentary” system of transit, with the aim of avoiding repetition of the import formalities when the goods enter and export formalities when the goods leave each country of transit.

Furthermore, the Court held on 7 February 1979, ( 9 ) with regard to aid for skimmed-milk powder for animal feed, that proof that powder produced in one Member State, but denatured or used in another, had been placed under control in the importing Member State might be furnished only by production of the control copy of the Community transit document, certain sections of which had to be completed in a specific manner. The Court stated :

“Whatever the importance in Community law of the distinction between essential and subsidiary administrative formalities the distinction is not applicable to the proof required in this case.” ( 10 )

It also stated, as the Commission had argued at the time:

“The Community rules in this field are drawn up in terms which do not give the national authorities the option of accepting any other proof that the goods have been placed under control in the importing country than the formal proof provided by the control copy of the document correctly completed and stamped.” ( 11 )

Finally the Court declared that:

“As the objective of the regulatory provisions in question is to exclude the possibility of double payment and the possibility of the goods being returned to ordinary commercial channels, the formalities relating to proof must be strictly adhered to for that purpose and in particular to forestall any fraudulent practice intended to evade the supervisory measures.” ( 11 )

The effect of a monetary compensatory amount is technically equivalent to that of a duty on imports or exports. That is why the procedures for the application of compensatory amounts should be as close as possible to provisions applied on import and export. ( 12 )

On the subject of export refunds, the Court has held that the headings on the control copy do not by themselves make it possible to verify in every case that all the conditions for the grant of export refunds have been satisfied and that it is for the national authorities to determine in each case the probative value in that respect of the entries made on that copy; they may take the view that further documentary evidence should be produced. ( 13 )

Article 2a of Regulation (EEC) No 974/71 of the Council constitutes an exception to the normal system. That exception is allowed only on condition that the requirements as to documentary proof are strictly observed. In this regard, the existence of a control copy seems to me to be a minimum requirement. It is certainly advisable to avoid insistence upon the observance of formalities to an extent greater than needed to ensure effective control; however whilst it is possible to extend the time-limit for transmission of the documents required for the grant of compensatory amounts and to allow the late transmission of existing supporting documents to be remedied, that course of action is not possible in the case of the compulsory retroactive issue of a control copy which has never been approved by the competent customs office.

It was open to Eggers's United Kingdom customer to try to obtain the compensatory amount granted on import in the United Kingdom; if the customs authorites there had refused to pay it, that company or its customer would have had an opportunity to contest that refusal before the United Kingdom courts. Finally Eggers might have been able to enforce the liability assumed by Schenker, the company which was responsible for ensuring the successful completion of the transaction.

In answer to the questions submitted, I am of the opinion that the Court should rule as follows:

In February 1980, Community legislation placed no duty on the customs authorities in the Federal Republic of Germany retroactively to provide traders with the control copies referred to in Article 10 of Commission Regulation (EEC) No 223/77 for the purpose of obtaining payment of monetary compensatory amounts granted on export from the Federal Republic of Germany and on import to the United Kingdom.

( 1 ) Translated from the French.

( 2 ) That reputation contains provisions for theimplementation of the Community transit procedure and measures for certain simplifications of that procedure, as established by Council Regulation No 222/77 of 13 December 1976 on Community transit

( 3 ) In fact this is Article 56 of Council Regulation No 542/69 of 18 March 1969, of which Regulation No 222/77 is mercely a consolidation.

( 4 ) Case 98/80 Romano [1981] ECR 1241 at p. 1256, paragraph 20 of the decision.

( 5 ) Official Journal 1975, L 139, p. 37.

( 6 ) In the version contained in Article 2 of Regulation (EEC) No 1112/73 of the Council of 30 April 1973 — Official Journal, L 114, p. 4.

( 7 ) As amended by the eighth indent of Article 1 (1) of Regulation No 1234/77 of 9 June 1977.

( 8 ) Added by Commission Regulation (EEC) No 1498/76 of 25 June 1976.

( 9 ) Joined Cases 15 and 16/76 France v Commission [1979] ECR 321, Case 18/76 Germany v Commission [1979] ECR 343

( 10 ) Joined Cases 15 and 16/76, cited above, paragraph 13 of the decision.

( 11 ) Case 18/76, cited above paragraph 20 of the decision.

( 12 ) Seventh recital in the preamble to Commission Regulation (EEC) No 1371/81 of 19 May 1981, laying down detailed rules for the administrative application of monetary compensatory amounts (Official Journal 1981, L 138, p. 1).

( 13 ) Case 55/74, Unkel[1975] ECR 9.