Fleisch-Winter GmbH & Co. KG v Hauptzollamt Hamburg-Jonas.
Date: 2005-12-01
20. The Court has held, in relation to Commission Regulation No 1041/67/EEC of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (OJ, English Special Edition 1967, p. 323), that the requirement of ‘sound and fair marketable quality’ constitutes a general objective condition for the grant of a refund and that a product which could not be marketed within the Community under normal conditions and under the description given in the claim for the grant of a refund would not meet these requirements as to quality (see, to that effect, Case 12/73 Muras  [1973] ECR 963, paragraph 12 and Case C-409/03 SEPA  [2005] ECR I-0000, paragraph 22).
21. The fact that the marketability of the product in ‘normal conditions’ is an aspect inherent in the concept of ‘sound and fair marketable quality’ is indeed clearly apparent from the rules relating to export refunds for agricultural products inasmuch as, from Regulation No 1041/67 onwards, all the relevant regulations have adopted the concept of ‘sound and fair marketable quality’ as well as the criterion of the product’s marketability ‘in normal conditions’. As regards Regulation No 3665/87, it is the ninth recital which refers to that requirement (see, to that effect, SEPA , paragraphs 23 and 26).
23. Meat of which the distribution is significantly restricted cannot be regarded as being marketable ‘in normal conditions’ (see, to that effect, SEPA , paragraph 30).
26. In the beef and veal sector, Article 13(9) of Regulation No 805/68 provides that export refunds are to be paid upon proof that the products are of Community origin except where Article 13(10) applies. There is no evidence in the file that the derogation referred to in Article 13(10) was applicable. There is no doubt that proof must be provided by the exporter.
28. As regards ‘sound and fair marketable quality’, it must be observed, first of all, that Article 13 of Regulation No 3665/87 appears in Chapter 1, entitled ‘Entitlement to refund’, of Title 2, entitled ‘Exports to non-member countries’, which shows that ‘sound and fair marketable quality’ is a material condition required for the payment of refunds.
29. The fact that ‘sound and fair marketable quality’ is a material condition for the payment of refunds is not invalidated, as Fleisch-Winter maintains, by Article 3(5) of Regulation No 3665/87, since the information mentioned therein constitutes a non-exhaustive list.
31. Two features of the export refunds scheme are, first, that Community aid is granted only on condition that the exporter makes the application and, second, that the scheme is financed by the Community budget. The scheme being based on voluntary declarations, where the exporter decides on its own initiative to obtain a refund, it must provide the relevant information necessary to establish its entitlement to the refund and to determine its amount. In that connection, the Court, in the context of Regulation No 3665/87 and its sanctions scheme, has already held that, as regards a Community aid scheme, the grant of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness (see, to that effect, Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I-6453, paragraph 41).
32. By declaring a product in the context of the procedure for export refunds, the exporter implies that the product satisfies all the conditions necessary for the refund. Regulation No 3665/87 does not require the exporter to make an express declaration that its products are of ‘sound and fair marketable quality’, but even if it does not make such a declaration its application for a refund still implies that it guarantees that that condition is satisfied. Fleisch-Winter’s argument that there is a legal presumption of ‘sound and fair marketable quality’ cannot be accepted.
33. The common detailed rules for the application of export refunds for agricultural products are laid down by the Commission and it is for the national authorities of the Member States to apply Community legislation on their territory and enforce it. The duty to check the conditions for the refund is more onerous in a context such as that in the main proceedings, where the export of meat from a Member State may be subject to a ban for the protection of public health from serious diseases and epidemics. In that connection, the Court has drawn attention, on several occasions, to the reality and seriousness of the risks related to bovine spongiform encephalopathy and the appropriateness of interim measures justified by the protection of human health with respect to that disease (see Case C-180/96 United Kingdom  v Commission  [1998] ECR I-2265; Case C-365/99 Portugal  v Commission  [2001] ECR I-5645; and Case C-393/01 France  v Commission  [2003] ECR I-5405, paragraph 42).
35. On the contrary, in so far as the exporter, by lodging an application for a refund, continues to assert either expressly or impliedly that the product in question is of ‘sound and fair marketable quality’, it is for the exporter, according to the rules of evidence of national law, to prove that that condition is, in fact, satisfied if a declaration is questioned by the national authorities.
40. As regards the application for a refund, referred to in Article 47(1) of Regulation No 3665/87, the Court has already held that it is only a technical procedural document. Since that application may be submitted in the 12 months after acceptance of the export declaration, that is long after the export, it does not constitute the legal basis of entitlement to a payment, even though it is a condition precedent to the payment of the refund. Therefore, the request for a refund, within the meaning of Article 11(1) of that regulation, is not submitted by lodging the application for payment within the meaning of Article 47 (see, to that effect, Case C-385/03 Käserei Champignon Hofmeister [2005] ECR I-2997, paragraphs 26 and 27).
41. It is also clear from the case-law that it is the documents referred to in Article 3(5) of Regulation No 3665/87, namely, the export declaration or any other document used during export, which are capable of forming the legal basis of a refund and triggering the system of checks of the request for refund which may lead to the application of a sanction in accordance with Article 11(1) (see, to that effect, Case C-385/03 Käserei Champignon Hofmeister , cited above, paragraphs 23, 29 and 36).