OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 28 NOVEMBER 1973

My Lords,

This case comes to the Court by way of a reference for a preliminary ruling by the Hessisches Finanzgericht.

It raises a question of interpretation of Regulation No 19 of the Council, of 4 April 1962, and of certain subsequent Regulations that were adopted to implement it. Your Lordships will remember that Regulation No 19 provided for the gradual establishment in the then Member States of a common organization of the markets for cereals and that it had effect for a transitional period which lasted from 1962 to 1967. One of the features of the system that it instituted was that Member States were thereby permitted to provide for the payment, through their intervention agencies, of refunds on exports.

Between October 1963 and March 1965 the plaintiff in the proceedings before the Hessisches Finanzgericht exported from the Federal Republic to third countries some 3000000 kg of a product which it described as wheat-meal within tariff heading 11.02. On the faith of that description the defendant, which, as Your Lordships know, is the German intervention agency for cereals and feeding-stuffs, granted to the plaintiff the refunds appropriate to such exportations. The defendant now alleges that the description was misleading and that what the plaintiff in fact exported was a mixed feedingstuff containing bran, for which the rate of refund was lower. On the strength of these allegations the defendant claims repayment by the plaintiff of the refunds in question. The plaintiff vigorously denies the allegations and contends that, even if they were substantiated, it would be liable to repay only the difference between the refunds appropriate to wheat-meal and those appropriate to feedingstuffs containing bran.

The Hessisches Finanzgericht, without making any finding on the crucial issues of fact thus raised, and in particular without making any finding of fraud on the part of the plaintiff, has referred to this Court the question whether under Regulation No 19 a refund could be granted only for the exportation of the goods described in the application for the refund or whether a fraudulent trader who exported goods carrying a lower rate of refund than those so described remained entitled, after discovery of the fraud, to the refund appropriate to the goods actually exported. I apprehend, my Lords, that the Court is bound to deal with this question despite the fact that it may turn out to be entirely hypothetical — see Case 13/68 Salgoil v Ministero italiano del commercio con l'estero (Rec. 1968, p. 662).

The question is of course closely akin to one of those asked by the Hessisches Finanzgericht in Case 146/73 which the Court heard at the same time as this case. I think it better, however, owing to the procedural complexities involved in Case 146/73 to deliver my Opinion to your Lordships in the present fairly simple case separately.

The plaintiff and the Commission were at one in submitting both in their written Observations and at the hearing that the answer to the question asked by the Hessisches Finanzgericht is not to be found in Community law but is a matter for the national law of the Member State concerned. I think they were right. One scours Regulation No 19 and in particular Article 20 (2) thereof, which is the Article dealing with refunds on exports to third countries, in vain for the answer to the question; and the same is true of the provisions of the implementing Regulations to which I have referred, namely Regulation No 55 of the Council, of 30 June 1962, Regulation No 141/64/EEC of the Council, which replaced Regulation No 55, and a number of Regulations of the Commission which are mentioned in the Commission's Observations.

This is not surprising once the underlying principles of the scheme of refunds instituted by Regulation No 19 have been properly understood. These have been expounded in a number of Judgments of this Court, namely those in Case 6/71 Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Rec. 1971, p. 823), Case 21/71 Brodersen v The same (ibid, p. 1069), Case 85/71 Kampffmeyer v The same (Rec. 1972, p. 213) and Case 5/72 Fratelli Grassi fu Davide v Amministrazione delle Finanze (ibid. p. 443). These authorities emphasize that, under the scheme instituted by Regulation No 19, the Member States were in no way required to grant any refunds at all.

They were merely permitted to do so within certain limits. It followed from this that they were at liberty to add to the conditions prescribed by Community Regulations for the grant of refunds, to grant them for certain kinds of goods but not others, and to grant them at rates differing according to the country to which the goods were exported. Nor were they tied by Community Regulations to any particular documentary machinery or to any particular time limit for the payment of the refunds they chose to grant. All that they might not do was to go beyond the limits permitted by the Community Regulations, for instance by paying higher refunds than were authorized by those Regulations or by paying refunds in respect of goods which did not meet the standards prescribed by the effect of those Regulations.

It follows in my view that, in the type of case posed by the Hessisches Finanzgericht, the trader concerned was not entitled, under Community law, to a higher refund than that appropriate to the goods he actually exported. But whether he was to be deprived of any refund at all (and if so by process of administrative or of criminal law) was a matter to be determined by the law of the Member State concerned.

I am therefore of the opinion that the question asked by the Hessisches Finanzgericht should be answered as follows:—

‘Article 20 (2) of Regulation No 19 of the Council of the European Economic Community, dated 4 April 1962, is to be interpreted as having implied that a trader who exported goods carrying a lower rate of refund than those described in his application for a refund could not be entitled to more than the refund appropriate to the goods in fact exported by him, but no provision of Community law in force during the currency of Regulation No 19 precluded him from receiving that refund even if his application was fraudulent. Whether or not he should receive it was a matter to be determined according to the law of the Member State concerned.’