BY WEIGHT OF CEREAL, OBLIGED UNDER ARTICLE 6 ( 1 ) AND ( 5 ) OF REGULATION NO 1957/69, EVEN WHERE THE DEPOSIT HAD ALREADY BEEN RELEASED, TO REPAY THE ENTIRE ADVANCE PAYMENT OF REFUND INCREASED BY 20%?"
9 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE OBSERVATIONS SUBMITTED BY THE PARTIES TO THE MAIN PROCEEDINGS AND BY THE COMMISSION, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
10 IT SHOULD FIRST BE NOTED THAT ARTICLE 6 ( 5 ) OF REGULATION NO 1957/69 REQUIRES THE EXPORTER TO REPAY THE AMOUNT OF THE REFUND PAID, PLUS ANY INCREASE, IF THE NECESSARY EVIDENCE IS NOT FURNISHED . THE PROVISION ADDS THAT IN SUCH A CASE, "IF REPAYMENT HAS BEEN CLAIMED BUT IS NOT RECEIVED", THE DEPOSIT WHICH WAS LODGED IS TO BE FORFEITED . CONSEQUENTLY, THE OBLIGATION TO REPAY THE REFUND IS NOT AFFECTED BY THE FACT THAT THE COMPETENT AUTHORITIES HAVE ALREADY RELEASED THE DEPOSIT, SINCE THE PURPOSE OF THAT DEPOSIT IS SOLELY TO ENSURE THAT THE TRADER RECEIVING THE REFUND HONOURS HIS UNDERTAKINGS .
11 IT MUST ALSO BE POINTED OUT, AS THE NATIONAL COURT RIGHTLY OBSERVES, THAT THE OBLIGATION TO REPAY THE REFUND ARISES WHEN CERTAIN EVIDENCE IS NOT FURNISHED . THE GRANT OF THE REFUND CONSTITUTES AN ADVANTAGE FOR THE TRADER WHICH IS JUSTIFIED IF CERTAIN CONDITIONS CONCERNING THE CHARACTERISTICS OF THE PRODUCT EXPORTED AND THE METHOD OF EXPORTATION ARE FULFILLED . WHEN CHECKS REVEAL THAT THAT HAS NOT BEEN THE CASE, THE REFUND IS NOT DUE TO THE EXPORTER AND IT MUST BE REPAID IF IT HAS ALREADY BEEN RECEIVED, FOR EXAMPLE UNDER ARRANGEMENTS FOR ADVANCE PAYMENT . IT IS NOT THEREFORE NECESSARY IN ORDER TO CLAIM REPAYMENT THAT THE TRADER SHOULD HAVE BEEN GUILTY OF FRAUD OR OF MISTAKES ATTRIBUTABLE TO FAULT ON HIS PART .
12 CONSEQUENTLY, THE POINTS RAISED BY THE NATIONAL COURT' S QUESTION CONCERN FIRSTLY THE APPLICATION OF A RATE OF 20% IN CALCULATING THE SUPPLEMENT PROVIDED FOR IN ARTICLE 6 ( 1 ) OF THE REGULATION AND, SECONDLY, THE REFUND WHICH IS TO SERVE AS THE BASIS FOR CALCULATING THAT SUPPLEMENT UNDER ARTICLE 6 ( 5 ) OF THE REGULATION .
13 WITH REGARD TO THE FIRST POINT, PLANGE CLAIMS THAT A RATE OF 20%, APPLICABLE REGARDLESS OF THE CIRCUMSTANCES OF THE CASE, IS DISPROPORTIONATE . ON THE OTHER HAND, THE HAUPTZOLLAMT AND THE COMMISSION ARGUE THAT RECOVERY OF REFUNDS UNDULY PAID NORMALLY TAKES PLACE AFTER A LONG PERIOD BROUGHT ABOUT BY THE PROCESSING OF THE PRODUCT, THE EXPORT FORMALITIES AND EXAMINATION OF THE RELEVANT DOCUMENTS . WHERE HE RECEIVES ADVANCE PAYMENT OF THE REFUND THE EXPORTER THEREFORE OBTAINS CREDIT OVER A LONG PERIOD, OFTEN MORE THAN A YEAR . UNDER THOSE CIRCUMSTANCES, THE IMPOSITION OF A STANDARD RATE SUPPLEMENT OF 20% IS PERFECTLY APPROPRIATE .
14 IT CAN BE SEEN FROM THE PREAMBLE TO REGULATION NO 1957/69 THAT THE 20% SUPPLEMENT WAS LAID DOWN