Judgment of the Court of 14 December 2000 in Case C-110/99 (reference for a preliminary ruling from the Bundesfinanzhof): Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas (Agriculture — Export refunds — Goods immediately re-imported into the Community — Abuse of rights)
Date: 2001-05-19
Institutions: Court of Justice
Subjects: CCT duties, export refund, import tax, interpretation of the law, third country

19.5.2001

EN

Official Journal of the European Communities

C 150/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

of 14 December 2000

in Case C-110/99 (reference for a preliminary ruling
from the Bundesfinanzhof): Emsland-Stärke GmbH v
Hauptzollamt Hamburg-Jonas (1)

(Agriculture — Export refunds — Goods immediately re-
imported into the Community — Abuse of rights)

(2001/C 150/01)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-110/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Bundesfinanzhof
(Federal Finance Court) Germany, for a preliminary ruling in
the proceedings pending before that court between Emsland-
Stärke GmbH and Hauptzollamt Hamburg-Jonas — on the
interpretation of Articles 10(1) and 20(2) to (6) of Commission
Regulation (EEC) No 2730/79 of 29 November 1979 laying
down common detailed rules for the application of the system
of export refunds on agricultural products (OJ 1979 L 317
p. 1), in the version resulting from Commission Regulation
(EEC) No 568/85 of 4 March 1985 (OJ 1985 L 65, p. 5) —
the Court, composed of: G.C. Rodrı´guez Iglesias, President,
C. Gulmann, A. La Pergola, M. Wathelet and V. Skouris
(Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet,
P. Jann, L. Sevo´ n (Rapporteur), R. Schintgen and F. Macken,
Judges; S. Alber, Advocate General; H. von Holstein, Deputy
Registrar, has given a judgment on 14 December 2000, in
which it has ruled:

Articles 9(1), 10(1) and 20(2) to (6) of Commission Regulation
(EEC) No 2730/79 of 29 November 1979 laying down common
detailed rules for the application of the system of export refunds on
agricultural products,
in the version resulting from Commission
Regulation (EEC) No 568/85 of 4 March 1985, must be interpreted
as meaning that a Community exporter can forfeit his right to
payment of a non-differentiated export refund if (a) the product in
respect of which the export refund was paid, and which is sold to a
purchaser established in a non-member country, is, immediately after
its release for home use in that non-member country, transported
back to the Community under the external Community transit
procedure and is there released for home use on payment of import
duties, without any infringement being established and (b) that
operation constitutes an abuse on the part of that Community
exporter.

A finding that there is an abuse presupposes an intention on the part
of the Community exporter to benefit from an advantage as a result
of the application of the Community rules by artificially creating the
conditions for obtaining it. Evidence of this must be placed before the
national court in accordance with the rules of national
law, for
instance by establishing that there was collusion between that exporter
and the importer of the goods into the non-member country.

The fact that, before being re-imported into the Community, the
product was sold by the purchaser established in the non-member
country concerned to an undertaking also established in that country
with which he has personal and commercial links is one of the facts
which can be taken into account by the national court when
ascertaining whether the conditions giving rise to an obligation to
repay refunds are fulfilled.

(1) OJ C 174 of 19.6.1999.