Elfering Export GmbH v Hauptzollamt Hamburg-Jonas.
Date: 2006-04-27
18. In order to meet that material requirement, Community origin must be declared and proved. According to Article 33(9) of Regulation No 1254/1999, the refund is to be paid on proof that the products are of Community origin. It has already been stated by the Court in the context of Article 13 of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organisation of the market in beef and veal (OJ, English Special Edition 1968 (I), p. 187),  as last amended by Council Regulation (EC) No 1633/98 of 20 July 1998 (OJ 1998 L 210, p. 17), that context remaining similar as regards the application of Regulation  No 1254/1999, which, in accordance with recital 38 in the preamble thereto and Article 49 thereof, consolidates and repeals Regulation No 805/68 as amended, that there is no doubt that that proof must be provided by the exporter (see, to that effect, Case C‑309/04 Fleisch-Winter  [2005] ECR I-0000, paragraph 26).
25. First of all, it must be noted, as the national court and the Commission of the European Communities pointed out, that the list of information in Article 5(4)(a) of Regulation No 800/1999 is not exhaustive in nature. That has also been held to be the case by the Court, in the context 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 (OJ 1987 L 351, p. 1), a context which remained similar with regard to the application of Regulation No 800/1999, which replaced and repealed Regulation No 3665/87 (see Fleisch-Winter , paragraph 29).
26. Article 5(4)(a) of Regulation No 800/1999 requires the exporter to provide all information necessary to calculate the refund; the term ‘in particular’ means that the Community legislature expressly mentions only some of that information. The content of the expression ‘all information’ should not be restricted to the physical characteristics of the product, but must encompass all information relating to the conditions subject to which the export refund is granted.
27. As the Commission has rightly observed, the information referred to in that provision is used not only in the mathematical calculation of the exact amount of the refund but rather, and above all, to ascertain whether a right to that refund exists or not. Thus Article 51(1) of Regulation No 800/1999, under which a penalty is imposed where ‘an exporter … has applied for a refund exceeding that applicable’, must be interpreted as meaning that the exporter is regarded as having applied for a refund exceeding that applicable not only where an overclaim is detected when the information which he has provided is taken into account, but also where it is established that he is not entitled to a refund, that is to say, that the amount of refund is zero.
31. Lastly, in order to determine the scope of the provisions at issue the aim of Regulation No 800/1999 is of the utmost importance. According to recital 63 in the preamble to that regulation, those provisions are intended to combat irregularities and notably fraud harmful to the Community budget and the penalties are designed to encourage exporters to comply with Community rules.
32. It must be observed that the rules relating to sanctions are aimed at ensuring compliance with ‘Community rules’ in general and not only with some or specific provisions thereof.