TREATY TWO QUESTIONS ON THE INTERPRETATION OF COMMISSION REGULATION 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 ).
2 THE DISPUTE BEFORE THE NATIONAL COURT CONCERNS THE EXPORTATION BY TOEPFER, A COMPANY ESTABLISHED IN HAMBURG, OF A CONSIGNMENT OF WHITE SUGAR TO NORWAY . BECAUSE THAT EXPORT TOOK PLACE WITHOUT THE ISSUE OF CONTROL COPY T NO 5 WHICH TOEPFER NEEDED IN ORDER TO OBTAIN THE EXPORT REFUND TO WHICH IT WAS ENTITLED, THE COMPANY REQUESTED THE HAUPTZOLLAMT HILDESHEIM, THE CUSTOMS OFFICE OF DEPARTURE FOR ITS SUGAR EXPORTS, TO ISSUE THE NECESSARY CONTROL COPY RETROACTIVELY . IT CLAIMED THAT A T NO 5 FORM, COMPLETED BY THE UNDERTAKING ITSELF, HAD BEEN STAMPED AND SIGNED IN THE DANISH CUSTOMS OFFICE IN FREDERIKSHAVN WHERE THE SUGAR WAS PRESENTED FOR EXPORT BEFORE BEING TRANSPORTED TO NORWAY .
3 WHEN THE HAUPTZOLLAMT HILDESHEIM REFUSED TO COMPLY WITH THAT REQUEST, TOEPFER BROUGHT AN ACTION BEFORE THE FINANZGERICHT, HAMBURG . THAT COURT DISMISSED THE ACTION ON THE GROUND THAT RETROACTIVE ISSUE OF A CONTROL COPY IS ONLY POSSIBLE IF ALL EXPORT FORMALITIES HAVE BEEN COMPLETED, WHICH WAS NOT THE CASE .
4 TOEPFER APPEALED AGAINST THAT DECISION TO THE BUNDESFINANZHOF, RELYING ON THE COURT' S CASE-LAW, IN PARTICULAR THE JUDGMENT OF 6 OCTOBER 1982 IN CASE 302/81 EGGERS V HAUPTZOLLAMT KASSEL (( 1982 )) ECR 3443 . IT STATED THAT ACCORDING TO THAT JUDGMENT CUSTOMS AUTHORITIES ARE REQUIRED TO ISSUE CONTROL COPY T NO 5 RETROACTIVELY WHERE THE FAILURE TO APPLY FOR OR TO ISSUE THE DOCUMENT WHEN THE GOODS WERE DISPATCHED WAS BEYOND THE CONTROL OF THE UNDERTAKING CONCERNED AND THAT UNDERTAKING CAN PRODUCE THE SUPPORTING DOCUMENTS REQUIRED FOR THE ISSUE OF THE CONTROL COPY . IN THIS CASE, THE DOCUMENT WAS NOT ISSUED BECAUSE THE DRIVER OF THE LORRY TRANSPORTING THE SUGAR FAILED TO STOP AT A GERMAN CUSTOMS OFFICE AND PRESENTED HIMSELF DIRECTLY TO DANISH CUSTOMS .
5 THE BUNDESFINANZHOF ACCEPTED THAT ACCORDING TO THE CASE-LAW OF THE COURT RETROACTIVE ISSUE OF THE CONTROL COPY MUST BE CONSIDERED PERMISSIBLE . HOWEVER, IT WAS UNCERTAIN WHETHER SUCH RETROACTIVE ISSUE MIGHT NOT BE CONDITIONAL ON THE COMPLETION OF DISPATCH OR EXPORT FORMALITIES, APART FROM APPLICATION FOR A CONTROL COPY, WHICH FORMS PART OF THOSE FORMALITIES .
6 IN ORDER TO RESOLVE THAT ISSUE THE BUNDESFINANZHOF STAYED THE PROCEEDINGS AND SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
"( 1 ) IN CONNECTION WITH THE DISPATCH OF GOODS FOR WHICH EXPORT REFUNDS ARE AVAILABLE ON EXPORTATION, IS THE COMMUNITY LAW IN FORCE IN JUNE 1979 AND IN PARTICULAR ARTICLES 10 AND 12 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 TO BE INTERPRETED TO THE EFFECT THAT THE RETROACTIVE ISSUE OF CONTROL COPY T NO 5 IS