CELEX: 62002CO0446
Language: en
Date: 2004-04-30 00:00:00
Title: Order of the Court (Third Chamber) of 30 April 2004. # Hauptzollamt Hamburg-Jonas v Gouralnik & Partner GmbH. # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Article 104(3) of the Rules of Procedure - Agriculture - Common organisation of the markets - Export refunds - Inaccurate declaration - Consequences for the validity of the declaration. # Case C-446/02.

Case C-446/02
      Hauptzollamt Hamburg-Jonas
      v
      Gouralnik & Partner GmbH
      (Reference for a preliminary ruling from the Bundesfinanzhof)
      (Article 104(3) of the Rules of Procedure – Agriculture – Common organisation of the markets – Export refunds – Inaccurate declaration – Consequences for the validity of the declaration)
      Summary of the Order
      Agriculture – Common organisation of the markets – Export refunds – Inaccurate declaration concerning part of the product
            exported – Amendment of the declaration – Retention of the right to a refund – Product declared not corresponding to the product
            actually exported – Determination of the applicable refund rate – Similarity between the declared product and the exported
            product – Immaterial
      (Council Regulations Nos 2913/92, Art. 78(3), and 3665/87,  Arts 3(5)(a) and 11)
      For refunds requested before 1 April 1995, Article 78(3) of Regulation No 2913/92 establishing the Community Customs Code
         and Article 3(5)(a) of Regulation No 3665/87 laying down common detailed rules for the application of the system of export
         refunds on agricultural products must be interpreted as meaning that entitlement to an export refund exists at least at the
         rate applicable to the product actually exported where it is established during a control by the customs authorities that
         the declared and exported consignment did not consist entirely of the declared product but included another product to which
         a lower rate of refund applied and the customs authorities adjusted the declaration in accordance with Article 78(3) of the
         Community Customs Code.
      
      For the purposes of the decision, it is not material whether the goods which were the subject of the incorrect customs declaration
         are goods similar to those which were in fact declared.
      
      For refunds requested after 1 April 1995, Article 11 of Regulation No 3665/87, as amended by Regulation No 2945/94, is applicable
         in such circumstances.
      
      (see para. 37, operative part 1)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            ORDER OF THE COURT (Third Chamber)30 April 2004(1)
            
            
         
            (Article 104(3) of the Rules of Procedure  –  Agriculture  –  Common organisation of the markets  –  Export refunds  –  Inaccurate declaration  –  Consequences for the validity of the declaration)
            
          In Case C-446/02,
          REFERENCE to the Court under Article 234 EC by the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings pending
         before that court between
         
         
         
         Hauptzollamt Hamburg-Jonas
         
         and
         
         Gouralnik & Partner GmbH,
         
         
          on the interpretation of the rules applicable to export refunds,
         
         
         
         
         THE COURT (Third Chamber),
         
          composed of: A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and N. Colneric, Judges,
         
          Advocate General: D. Ruiz-Jarabo Colomer,Registrar: R. Grass,
          after informing the national court that the Court proposes to give its ruling in the form of a reasoned order in accordance
         with Article 104(3) of its Rules of Procedure,after having requested the parties referred to in Article 23 of the Statute of the Court of Justice to lodge any observations
         which they might wish to make in that regard,after hearing the Advocate General,
         makes the following
         
         
         Order
         1
            
          By an order of 29 October 2002, received by the Court on 10 December 2002, the Bundesfinanzhof (Federal Finance Court) referred
         for a preliminary ruling under Article 234 EC several questions regarding the interpretation of the rules applicable to export
         refunds.
         
         
         
         2
            
          Those questions were raised in proceedings between the Hauptzollamt Hamburg-Jonas (Hamburg-Jonas Principal Tax Office, ‘the
         Hauptzollamt’) and Gouralnik & Partner GmbH (‘Gouralnik’) concerning entitlement to export refunds for ‘Kasseler’ declared
         under the wrong tariff sub-heading. 
         
         
            
               Legal framework
            Community law  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the
         Community Customs Code’)
         
         
         3
            
          Article 65 of the Community Customs Code states as follows:
         ‘The declarant shall, at his request, be authorised to amend one or more of the particulars of the declaration after it has
         been accepted by customs. The amendment shall not have the effect of rendering the declaration applicable to goods other than
         those it originally covered.
          However, no amendment shall be permitted where authorisation is requested after the customs authorities: 
         (a)     have informed the declarant that they intend to examine the goods; or,
         (b)     have established that the particulars in question are incorrect; or, 
         
         (c)
            have released the goods.’ 
         
         
         
         
         4
            
          Article 78 of that Code provides:
         ‘1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release
         of the goods. 
         …
          3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure
         concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance
         with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information
         available to them.’
         
          Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system
         of export refunds on agricultural products (OJ 1987 L 351, p. 1)
         
         
         5
            
          Article 3 of Regulation No 3665/87 provides:
         ‘…
         
         2.
            The date of acceptance of the export declaration shall determine:
         
         
         (a)
            the rate of the refund …
         
         
         …
         
          5.       The document used for export to enable products to qualify for a refund must include all information necessary for the calculation
         of the amount of the refund, and in particular:
         
         (a)
            a description of the products in accordance with the nomenclature used for refunds;
         
         
         …
         
          6.       At the time of such acceptance, or of such equivalent act, the products shall be placed under customs control until they leave
         the customs territory of the Community.’
         
         
         
         6
            
          Article 4(1) of that regulation states as follows:
         ‘Without prejudice to the provisions of Articles 5 and 16, the refund shall be paid only upon proof being furnished that the
         products for which the export declaration was accepted have, within 60 days from the date of such acceptance of the export
         declaration, left the customs territory of the Community in the unaltered state.’
         
         
         
         7
            
          Article 11 of Regulation No 3665/87, as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 amending Regulation
         No 3665/87 as regards the recovery of amounts unduly paid and sanctions (OJ 1994 L 310, p. 57), applicable to exports for
         which the formalities laid down in Article 3 of Regulation No 3665/87 have been fulfilled with effect from 1 April 1995, provides:
         ‘1. Where it has been found that an exporter, with a view to the granting of an export refund, has requested a refund in excess
         of that applicable, the refund due for the relevant exportation shall be the refund applicable to the actual exportation reduced
         by an amount equivalent to: 
         (a)     half the difference between the refund requested and the refund applicable to the actual exportation; 
         (b)     twice the difference between the refund requested and the refund applicable, if the exporter has intentionally supplied false
         information. 
          The refund requested is deemed to be the amount calculated from the information supplied pursuant to Article 3 or Article
         25(2). …
         …
          3. Without prejudice to the obligation to pay any negative amount as referred to in the fourth subparagraph of paragraph 1,
         where a refund is unduly paid, the beneficiary shall reimburse the amounts unduly received – which includes any sanction applicable
         pursuant to the first subparagraph of paragraph 1, – plus the interest calculated on the basis of the time elapsing between
         payment and reimbursement.
         …’
         
         National law	
         
         8
            
         …
         
         The main proceedings and the questions referred
         
         9
            
          On 21 June 1994, 10 October 1994 and 9 June 1995 Gouralnik declared boneless boiled hams from domestic pigs under tariff heading
         1602 4110 2100 for export to Russia and at the same time applied for payment of export refunds, which the Hauptzollamt granted
         to a total amount of DEM 35 999.06 by decisions of 26 August 1994, 9 March 1995 and 25 August 1995. During an examination
         conducted at Gouralnik’s supplier in the context of the common organisation of the market it was established that a proportion
         of the goods declared by it consisted of Kasseler meat (subheading 1602 4911 1900 of the Combined Nomenclature).
         
         
         
         10
            
          By decision on recovery of 17 March 1998 the Hauptzollamt then requested repayment by Gouralnik of the export refunds to a
         total amount of DEM 8 069.22, corresponding to the proportion of Kasseler meat found by the Customs Audit Office. The Hauptzollamt
         considered that there was no entitlement to a refund for the Kasseler in the relevant consignments.  Since Gouralnik had failed
         to submit a declaration in that respect those goods had not been placed under customs control, and consequently there was
         no proof that they had been exported. 
         
         
         
         11
            
         …
         
         
         
         12
            
         …
         
         
         
         13
            
         …
         
         
         
         14
            
         …
         
         
         
         15
            
          The referring court considers that its decision turns on whether the Kasseler meat in the exported consignments can also be
         regarded as declared for export and whether the export refund must in any event be paid to Gouralnik by application of the
         rate applicable to Kasseler meat. …
         
         
         
         16
            
          The national court is quite certain as to the legal basis for any obligation to repay the refunds. In that respect the Finanzgericht
         correctly stated that, as regards the decisions of 26 August 1994 and 9 March 1995, the national provision in the first sentence
         of Paragraph 10(1) of the Gesetz zur Durchführung der gemeinsamen Marktorganisationen (Law implementing the common organisation
         of markets, ‘MOG’) issued on 27 August 1986 is, in the absence of Community rules, the basis for any demand for recovery of
         the export refunds paid in respect of the Kasseler meat. It is also true that the relevant legal basis for the decision of
         25 August 1995 is Article 11(3) of Regulation No 3665/87, applicable to exports as of 1 April 1995.
         
         
         
         17
            
          The question is whether there was no entitlement to a refund at all in respect of the proportion of Kasseler meat in the various
         consignments determined in accordance with the findings of the customs audit report – as the Hauptzollamt considers – or whether
         such entitlement must at least be assessed in accordance with the rates of refund applicable to Kasseler meat – as the Finanzgericht
         stated. The decision turns on whether the requirements of Article 4(1) of Regulation No 3665/87 are fulfilled in respect of
         the Kasseler meat. Since it appears that the consignments at issue were exported in due time for the purposes of Article 4(1)
         of Regulation No 3665/87, a decision need be taken only as to whether the proportion of Kasseler meat in the various consignments
         is covered by the export declaration required in Article 4(1) of Regulation No 3665/87. The national court considers that
         it is. 
         
         
         
         18
            
          According to the Bundesfinanzhof, Article 3(5)(a) of Regulation No 3665/87 requires that the export declaration include a
         description of the products in accordance with the nomenclature used for refunds. This means that the description must be
         accurate. However, if the description is inaccurate that does not necessarily mean that the declared consignment is not covered
         by the export declaration. This is in any event the case where the product actually contained in the consignment does not
         differ completely from the description in the export declaration. That is so in this case, as the Finanzgericht correctly
         stated, according to the Bundesfinanzhof. Both the declared boiled hams and the Kasseler meat are pork coming under heading
         1602 of the Harmonised System (HS); they differ only as regards the subheadings of the HS to which they are assigned. On any
         view, the fact that a different rate of refund applies in each of those cases does not justify the conclusion that the export
         declaration did not relate to the Kasseler meat.
         
         
         
         19
            
          Allowance must made for the fact that the Kasseler meat in the consignments exported was declared incorrectly as boiled hams
         because in this case the declaration must be adjusted, as provided for in Article 78(3) of the Community Customs Code, carried
         out by the customs authorities of their own motion, and recovery is sought of the wrongly paid proportion of the refund. The
         Bundesfinanzhof indicates that this adjustment is not ruled out by the fact that under Article 65(2)(c) of the Community Customs
         Code no rectification can be permitted after the goods have been released by the customs authorities. Under Article 78(3)
         of the Code revision and adjustment of the export declaration are possible at any time. 
         
         
         
         20
            
          The national court is unable completely to rule out any uncertainty as to whether the view set out above is correct in the
         light of the judgment in Case C-54/95 Germany  v Commission [1999] ECR I-35, paragraph 75, to which the Hauptzollamt refers. If the rule set out in paragraph 75 of that judgment were
         applied to this case, Gouralnik would not be entitled to payment of the export refund at the rate of refund applicable to
         the Kasseler meat if the false declaration is attributable to it.
         
         
         
         21
            
          However, the national court considers that it is evident from the comments in paragraph 75 of the abovementioned judgment
         that the rule applies only where the declaration has been adjusted neither by the beneficiary nor by the customs authorities.
         However, since in the main proceedings a revision of the declaration was carried out by the customs authorities, as provided
         for in Article 78(3) of the Community Customs Code, and the actual composition of the consignments declared for export was
         established in the course thereof, the national court is uncertain whether, in this case, the complete refusal of export refunds
         in respect of the Kasseler meat is compatible with Community law. This uncertainty is heightened by the fact that the rule
         in Article 11 of Regulation No 3665/87 provides for sanctions where the export refund requested by the exporter exceeds that
         applicable. This rule may also cover cases such as the present, in any event as regards the decision on the refunds of 25
         August 1995, without necessarily meaning that the export refund must be refused entirely in respect of the incorrectly declared
         product.
         
         
         
         22
            
          The Bundesfinanzhof therefore considered it necessary to refer for a preliminary ruling the following questions:
         
         ‘1.
            Does an entitlement to an export refund exist at least at the rate of refund applicable to the product actually exported where
               it is established during a control by the customs authorities that the declared and exported consignment did not consist entirely
               of the declared product but contained a proportion of another product to which a lower rate of refund applied?
            
         
         
         2.
            Does the fact that the product which was incorrectly declared is similar to that actually declared have any bearing on the
               decision?
            
         
         
         3.
            If Question 2 is answered in the affirmative, in accordance with which criteria must it be determined whether the declaration
               also covers the incorrectly declared goods?’
            
         
         
         The questions referredObservations of the parties
         
         23
            
         …
         
         
         
         24
            
         …
         
         
         
         25
            
         …
         
         
         
         26
            
         …
         
         
         
         27
            
         …
         
         
         
         28
            
         [The Commission] also submits that Article 78 of the Community Customs Code is applicable, that it allows the customs authorities
         to adjust the declaration in respect of refunds not due, but that, failing any other legal basis, it does not permit them
         to impose sanctions such as the refusal of all the refund for the products in question.
         
         
         
         29
            
          The Commission also argues that there are considerations of proportionality and maintains that a refusal of the entire refund
         in a case of an incorrect declaration does not appear to be necessary in order to fulfil the actual intended aim, which is
         to curb fraud.  It considers it preferable to provide for sanctions, as does Regulation No 2945/94, based on the excess received
         and which increase in proportion to the degree of fault. 
         
         
         
         30
            
          That interpretation is in line with the Court’s case-law on the subject of export refunds. … 
         
         
         
         31
            
         …
         
         
         
         32
            
         …
         
         The Court’s answer
         
         33
            
          Since it takes the view that the answer to the questions leaves no room for reasonable doubt, the Court, in accordance with
         Article 104(3) of its Rules of Procedure, informed the national court that it intended to give its decision by reasoned order
         and invited the persons referred to in Article 23 of the Statute of the Court of Justice to submit any observations which
         they might wish to make in that regard.
         
         
         
         34
            
         …
         
         
         
         35
            
          The arguments set out by the national court and repeated in paragraphs 18 to 21 of this order determine the answer which must
         be given to the questions referred for a preliminary ruling.  They are reinforced by the arguments submitted to the Court
         by the Commission. 
         
         
         
         36
            
          Paragraph 75 of the judgment in Case C-54/95 cannot be applied to the facts of the main case here, but must be interpreted
         in the light of the facts of the case to which it relates.  As stated in paragraph 77 of that judgment, the Court held that
         it would have been possible to take into account refunds disbursed up to the level of the rate for slaughter cattle if the
         customs declarations relating to the export of pure-bred breeding animals of the bovine species had been rectified post-clearance,
         on presentation of the documents required by the Community rules for the export of animals for slaughter (veterinary certificates,
         transport documents and customs documents of the country of import, etc.).  It also does not appear that an adjustment of
         the customs declaration was made in accordance with Article 78 of the Community Customs Code, whereas, according to the national
         court, the question of such an adjustment arises in the main proceedings in the present case. 
         
         
         
         37
            
          The answer to the questions referred for a preliminary ruling must therefore be that:
         
         
         
          
         –
            for refunds requested before 1 April 1995, Article 78(3) of the Community Customs Code and Article 3(5)(a) of Regulation No
               3665/87 must be interpreted as meaning that entitlement to an export refund exists at least at the rate applicable to the
               product actually exported where it is established during a control by the customs authorities that the declared and exported
               consignment did not consist entirely of the declared product but included another product to which a lower rate of refund
               applied and the customs authorities adjusted the declaration in accordance with Article 78(3) of the Community Customs Code;
            
         
         
         
         
          
         –
            for the purposes of the decision, it is not material whether the goods which were the subject of the incorrect customs declaration
               are goods similar to those which were in fact declared;
            
         
         
         
         
          
         –
            for refunds requested after 1 April 1995, Article 11 of Regulation No 3665/87, as amended by Regulation No 2945/94, is applicable.
               
            
         
         
         
         
         Costs
         38
            
         …
         
         
         On those grounds,
         
         
         
            
            THE COURT (Third Chamber),
         
         
          in answer to the questions referred to it by the Bundesfinanzhof by order of 29 October 2002, hereby rules:
         
            
            
             
               1.
                  For refunds requested before 1 April 1995, Article 78(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing
                     the Community Customs Code  and Article 3(5)(a) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down
                     common detailed rules for the application of the system of export refunds on agricultural products must be interpreted as
                     meaning that entitlement to an export refund exists at least at the rate applicable to the product actually exported where
                     it is established during a control by the customs authorities that the declared and exported consignment did not consist entirely
                     of the declared product but included another product to which a lower rate of refund applied and the customs authorities adjusted
                     the declaration in accordance with Article 78(3) of the Community Customs Code. 
                  
               
            
            
            
             
               2.
                  For the purposes of the decision, it is not material whether the goods which were the subject of the incorrect customs declaration
                     are goods similar to those which were in fact declared. 
                  
               
            
            
            
             
               3.
                  For refunds requested after 1 April 1995, Article 11 of Regulation No 3665/87, as amended by Commission Regulation (EC) No
                     2945/94 of 2 December 1994 amending Regulation No 3665/87 as regards the recovery of amounts unduly paid and sanctions, is
                     applicable in such circumstances.
                  
               
            
             Luxembourg, 30 April 2004.
         
         
         
                  R. Grass
               
               
                  A. Rosas
               
            
         
         
         
                  Registrar
               
               
                  President of the Third Chamber
               
            
      
      
          1 –
            
            Language of the case: German.