DEPENDENT UPON COMPLETION OF THE DISPATCH OR EXPORT FORMALITIES?
( 2 ) IF THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE : MAY THE CUSTOMS OFFICE OF DEPARTURE WHERE THE TRANSIT FORMALITIES ( DISPATCH FORMALITIES ) REQUIRED BY CUSTOMS LAW WERE TO BE COMPLETED ISSUE CONTROL COPY T NO 5 RETROACTIVELY ONLY IF THOSE FORMALITIES WERE COMPLETED AT THAT OFFICE, OR IS IT SUFFICIENT IF THE EXPORT FORMALITIES WERE COMPLETED AT ANOTHER CUSTOMS OFFICE - EVEN AN OFFICE IN ANOTHER MEMBER STATE?"
7 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE LEGAL BACKGROUND AND THE FACTS OF THE MAIN PROCEEDINGS AND A SUMMARY OF THE WRITTEN OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
8 IT SHOULD FIRST BE OBSERVED THAT COMMISSION REGULATION ( EEC ) NO 1209/75 OF 3 MAY 1985 AMENDING REGULATION NO 223/77 ( OFFICIAL JOURNAL 1985, L 124, P . 19 ) ADDS AN ARTICLE 13 B TO THAT LATTER REGULATION UNDER WHICH CONTROL COPY T NO 5 MAY BE ISSUED RETROACTIVELY ON CONDITION, INTER ALIA, THAT THE PERSON CONCERNED FURNISHES PROOF THAT THE CONTROL COPY RELATES TO THE GOODS "IN RESPECT OF WHICH THE DISPATCH OR EXPORT FORMALITIES WERE COMPLETED ". THAT PROVISION WAS NOT YET APPLICABLE AT THE MATERIAL TIME .
9 FURTHERMORE, ACCORDING TO THE JUDGMENT IN CASE 302/81 OF 6 OCTOBER 1982, ON WHICH THE EXPORTING UNDERTAKING RELIES, PROCEDURAL FLAWS WHICH ARE BEYOND THE CONTROL OF THE PERSON WHO SHOULD NORMALLY BE ABLE TO OBTAIN AN ADVANTAGE PURSUANT TO COMMUNITY PROVISIONS, SUCH AS AN EXPORT REFUND, SHOULD NOT HAVE UNFAVOURABLE EFFECTS FOR THAT PERSON .
10 IN THOSE CIRCUMSTANCES, THE ESSENCE OF THE FIRST QUESTION SUBMITTED BY THE NATIONAL COURT IS WHETHER OUTRIGHT OMISSION TO COMPLETE DISPATCH OR EXPORT FORMALITIES MAY BE CONSIDERED TO BE A "PROCEDURAL FLAW" WITHIN THE MEANING OF THE ABOVEMENTIONED CASE-LAW .
11 FROM THE FILE ON THE CASE IN THE MAIN PROCEEDINGS, SUBMITTED BY THE NATIONAL COURT, IT IS CLEAR THAT :
( I ) NO DISPATCH FORMALITIES USING FORMS T 1 OR T NO 5 WERE COMPLETED AT THE CUSTOMS OFFICE OF DEPARTURE, THE HAUPTZOLLAMT HILDESHEIM;
( II ) THE ADVANCE FIXING CERTIFICATE FOR THE EXPORT OF THE SUGAR WAS NOT STAMPED BY THAT OFFICE AFTER VERIFICATION ;
( III ) THE TRANSIT OF THE GOODS THROUGH THE CUSTOMS POST ON THE DANISH-GERMAN BORDER INDICATED IN THE T 1 FORM, NAMELY PADBORG, WAS NOT INDICATED;
( IV ) THE T 1 FORM, DULY COMPLETED BY THE EXPORTING UNDERTAKING, WAS NOT CHECKED AND STAMPED BY THE CUSTOMS OFFICE OF DESTINATION UNDER THE COMMUNITY TRANSIT PROCEDURE, NAMELY FREDERIKSHAVN;
( V ) THAT CUSTOMS OFFICE MERELY STAMPED FORM T NO 5 TO INDICATE THAT THE QUANTITY OF SUGAR INDICATED IN THAT FORM HAD LEFT COMMUNITY TERRITORY .
12 ARTICLES 10 AND 12 OF REGULATION NO 223/77, INTERPRETATION OF WHICH IS REQUESTED, PROVIDE THAT PROOF THAT