Société Groupe Limagrain Holding v Établissement national des produits de l'agriculture et de la mer.
Date: 2011-10-27
31. It follows from those combined provisions that the smooth functioning of the system of advance financing of export refunds relies on the supervision mechanism constituted by the system of customs supervision. The application of that system must allow the competent national authorities to verify and ensure at any time, using a procedure uniform in all Member States, that the substantive conditions necessary for the grant of the refund applied for, as defined in the applicable provisions of European Union law, are met (see, to that effect, Case 121/87 Bayernwald Früchteverwertung  [1988] ECR 6273, paragraph 18).
33. The essential obligations connected with that system include, pursuant to Article 105 of the Community Customs Code, the obligation to keep stock records of goods placed under the customs warehousing procedure, unless the warehouse concerned is a public warehouse operated by the customs authorities. That exception is not relevant to the main proceedings, as the basic products were placed in a type C private warehouse.
37. It follows that, where the minimum indispensable information required by Article 520 et seq. of the Regulation implementing the Community Customs Code is lacking, the obligation to keep stock records cannot be regarded as fulfilled (see, to that effect, Bayernwald Früchteverwertung , paragraph 19). The result is a failure to fulfil an obligation essential to the customs supervision procedure. Consequently, one of the conditions governing entitlement to advance payment of an export refund under the provisions of Regulation No 565/80 will not have been met.
38. Nevertheless, account must be taken of the purpose of stock records, which is to make possible verification of the nature and exact quantities of goods in respect of which a refund is due. Accordingly, where there is doubt as to the accuracy of certain entries in the stock records, it may be possible to examine other additional documents in order to remove that doubt (see, to that effect, Bayernwald Früchteverwertung , paragraph 19). Thus, any remaining doubts as to the accuracy of certain entries in the stock records or relating to discrepancies or minor omissions in those records may be resolved by reference to other additional documents (see, to that effect, Bayernwald Früchteverwertung , paragraph 20).
45. Where the customs warehousing scheme has not been duly complied with, sanctions are applied, in particular under Article 43 of Regulation No 3719/88 (see Case C‑217/98 LFZ Nordfleisch  [2000] ECR I‑1619, paragraph 42). Under Article 43(1) of that regulation, where products have been placed under the arrangement provided for in Article 4 of Regulation No 565/80, and the exporter wholly or partly withdraws those products from customs control, the obligation to export will not have been complied with for the quantity concerned, which implies the loss, for that quantity, of any right to a refund.
50. That provision does not, admittedly, expressly identify the person liable, where appropriate, to pay the surcharge of 20%. None the less, as the European Commission has observed, the exporter alone is in contact with the competent authorities. He is the person who, initially, must submit, under Article 25 of Regulation No 3665/87, a payment declaration and who, before that application is accepted by the competent authorities, must, in accordance with Article 31 of that regulation, lodge a security equal to the amount of the refund as calculated at that date, increased by 20%. It is also the exporter who must then submit, under Article 29 of that regulation, a request in writing which alone enables the competent authorities to make advance payment to him of the export refund. That additional formality gives the exporter the opportunity, inter alia, where the destination of the products has been changed, to renounce that payment totally and to recover, in that case, the whole of the security provided (see LFZ Nordfleisch , paragraphs 36 and 40).
51. Furthermore, it is apparent from the 40th recital in the preamble to Regulation No 3665/87 that the 20% supplement was laid down in order to prevent the exporter concerned obtaining undue benefit. As the Court has held, traders would, under the arrangements for advance payment, obtain undue interest-free credit if it subsequently emerged that the refund should not have been granted (Case 288/85 Plange Kraftfutterwerke  [1987] ECR 611, paragraph 14).
52. It follows that it is the exporter who must bear the consequences of non-compliance with the obligations under the system of advance financing of export refunds.
53. Irrespective of the liability of the person designated by the competent authorities to keep stock records for products placed in a customs warehouse, the exporter must therefore bear the consequences of non-compliance with that obligation. In that regard, it must be noted that 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 which he concludes with them or by taking out appropriate insurance (Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I‑6453, paragraph 80).