Nordex Food A/S v Hauptzollamt Hamburg-Jonas.
Date: 2014-10-16
30. Given that Article 4 of Regulation No 800/1999 is included in the part of the general provisions of that regulation relating to entitlement to refunds, it must be observed that the Court has held, so far as concerns Article 3 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), which corresponds to Article 5 of Regulation No 800/1999 and which is part of the same general provisions, that the information referred to in Article 3 of Regulation No 3665/87 is used not only in the calculation of the exact amount of the refund but rather, and above all, to ascertain whether a right to that refund exists or not and to trigger the system of checks of the request for refund (judgment in Dachsberger & Söhne , C‑77/08, EU:C:2009:172, paragraph 24 and the case-law cited).
32. Those checks are necessary in order that the objectives of the European Union (‘EU’) legislation on export refunds may be fulfilled (see, to that effect, judgments in Dachsberger & Söhne , EU:C:2009:172, paragraph 41 and the case-law cited, and Südzucker and Others , C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 43).
41. As regards the question whether the competent authority for payment of the export refund was in a position to challenge the decision by the competent customs authority to grant further time, the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying that refund is bound by a decision of the customs office of export if that decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of the Customs Code and by the relevant provisions of the national law concerned (see, to that effect, judgment in Südzucker and Others , EU:C:2012:444, paragraphs 64 to 67).
47. In respect of that 12-month time-limit, the Court has held, on the one hand, that such a time-limit takes account of the interest of the Member States’ authorities in closing export refund files within a reasonable time (see, to that effect, regarding equivalent provisions in Article 47(2) of Regulation No 3665/87, the judgment in Eribrand , C‑467/01, EU:C:2003:364, paragraph 40).
48. On the other hand, the EU legislation also takes into consideration the fact that exporters may encounter practical difficulties in obtaining the customs documents from the authorities of the non-member country of importation, upon whom they have no means of exerting pressure. It is in that context that it enables the competent national authorities to grant the exporter concerned extensions of time (see, to that effect, judgment in Eribrand , EU:C:2003:364, paragraphs 41 and 42).
49. It is apparent from the scheme and spirit of the applicable legislation, specifically Article 49 of Regulation No 800/1999, that the latter seeks not automatically to deprive a diligent exporter of the refunds provided for when, despite having made every effort required of him, the exporter is unable to produce the documents required for the export refund to be paid, because those documents have been lost as a result of circumstances beyond his control (see, to that effect, judgment in Bonn Fleisch , C‑1/06, EU:C:2007:396, paragraph 46).
51. Although the wording of Article 49 of Regulation No 800/1999 does not contain any restriction of the duration of the extension of time that may be granted, it is clear from the express reference, in Article 50(2) of that regulation, to the time-limits set by Article 49(2) and (4) thereof that, if an extension of time has been granted to the exporter, he has a further period of six months following the expiry of that period to complete his file and thus obtain the payment of 85% of the refund which would have had to be paid if all the requirements had been satisfied (see, to that effect, judgment in Eribrand , EU:C:2003:364, paragraph 45).
52. On the other hand, as was already apparent from the 25th recital in the preamble to Regulation No 3665/87, no refund is granted if the time-limits for export and for submitting the proof required for obtaining payment of the refund are not complied with. Therefore the Court has held, concerning that regulation, that failure to observe procedural rules laid down in the legislation can lead to the reduction, even the loss, of the rights to an export refund and that this is the case, in particular, when an exporter does not produce the necessary evidence to obtain the export refund until after the expiry of the periods referred to in Articles 47(2) and 48(2) of that regulation, the content of which is, essentially, identical to that of Articles 49(2) and 50(2) of Regulation No 800/1999 (judgment in Laub , C‑428/05, EU:C:2007:368, paragraph 16).
56. In accordance with the Court’s consistent case-law, even if the fault or error committed by a contracting partner of the exporter could constitute a circumstance beyond the exporter’s control, the fact remains that this is an ordinary commercial risk and cannot be considered to be unforeseeable in the context of commercial transactions. The exporter is fully at liberty to select his trading partners and it is up to him to take the appropriate precautions, either by including the necessary clauses in the contracts he concludes with them or by effecting appropriate insurance (see, to that effect, judgments in AOB Reuter , C‑143/07, EU:C:2008:249, paragraph 36 and the case-law cited, and Eurofit , C‑99/12, EU:C:2013:487, paragraph 43).
59. In order to assess the implications of Article 51 of Regulation No 800/1999, it must be borne in mind that, in accordance with recitals 63 and 64 in the preamble to that regulation, the purpose of the EU legislation, in the light of experience, is to combat irregularities and notably fraud harmful to the EU budget, by providing for penalties designed to encourage exporters to comply with rules in this field (see, to that effect, judgment in Elfering Export , C‑27/05, EU:C:2006:260, paragraph 31), the subjective aspect of the fault committed having no impact in that regard (judgment in Eurofit , EU:C:2013:487, paragraph 38).
60. Therefore, the liability on which the penalty provided for in Article 51(1)(a) of Regulation No 800/1999 is based is essentially objective in nature (see, so far as concerns the provisions of Article 11(1), first subparagraph, point (a) of Regulation No 3665/87, the content of which is essentially identical to that of that provision of Regulation No 800/1999, judgment in AOB Reuter , EU:C:2008:249, paragraph 19). It follows that the reduction of the refund mentioned in Article 51(1)(a) of Regulation No 800/1999 must be applied even if the exporter has not committed any fault (see, to that effect, judgment in AOB Reuter , EU:C:2008:249, paragraph 17).
61. It must also be observed that the purpose of the rules relating to penalties is to ensure compliance with EU rules in general and not only with some or specific provisions thereof (see judgment in Elfering Export , EU:C:2006:260, paragraph 32). The provisions on penalties do not, therefore, distinguish the formal requirements relating to compliance with time-limits from the substantive requirements relating to the content of declarations.
62. In the present case, the documents proving the arrival of the exported goods in the country of destination and provided within the periods prescribed by the legislation have been shown to be forged. The exporter concerned having not, therefore, presented within the prescribed periods all the documents required by the legislation at issue, the penalty in Article 51(1)(a) of Regulation No 800/1999 had to be imposed on it, unless one of the exceptions in the exhaustive list in Article 51(3) applied, a list to which no new exception may be added on the basis, in particular, of lack of fault on the part of the exporter (see, to that effect, judgments in AOB Reuter , EU:C:2008:249, paragraph 36, and Eurofit , EU:C:2013:487, paragraph 43).