Belgian State v Boterlux SPRL.
Date: 1994-08-09
7 Questions of interpretation arose concerning the condition of release for free circulation and release for consumption of the goods in the country of destination and the Cour d' Appel thereupon stayed proceedings and referred the following questions to the Court for a preliminary ruling:
"1. Are the EEC rules applicable in this case, in particular Regulation No 1041/67/EEC of the Commission and Article 6 of Regulation (EEC) No 876/68 of the Council, to be interpreted as meaning that the payment of refunds is subject to the products being put in free circulation in a non-member country?
If so, do the principles laid down in the Court' s judgments in Case 125/75 Eier-Kontor v Hauptzollamt Hamburg-Jonas [1976] ECR 771 and in Case 6/71 Rheinmuehlen v Einfuehr- und Vorratsstelle fuer Getreide [1971] ECR 823 and in the judgments concerning payment of monetary compensatory amounts which may be equated with refunds (Case 250/80 Anklagemyndigheden v Toepfer [1981] ECR 2465 and Case 254/85 Irish Grain Board v Minister for Agriculture [1986] ECR 3309) make the exporter responsible for the objective performance of that obligation, which would preclude his being relieved on the ground that he did not participate in the fraud or acted in good faith, which Advocate General Dutheillet de Lamothe treated as equivalent to force majeure in his Opinion in Case 6/71?
2. Can re-importation into the Community, that is where the products have not been put into free circulation in a non-member country ° whether or not any fraud has taken place ° be described as an 'unforeseeable' event when the Community rules regard it as a risk, a possibility against which the Community' s regulations guard?
3. Can the exporter' s good faith be treated in the same way as a case of force majeure when he could have avoided the consequences of the failure to put the products into free circulation by ensuring through contractual means that the purchasers did not fraudulently divert the products from the required destination (judgment in Case 4/68 Schwarzwaldmilch v Einfuehr- und Vorratsstelle [1968] ECR 377 ° definition of force majeure ° judgment in Case 254/85 Irish Grain Board, cited above, at paragraphs 12 and 13)?"
18 The Court has consistently held that the system of variable export refunds is intended to gain and maintain access for Community exports to the markets of the non-member countries concerned and the variation in the refund is based on the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part (see in particular Case 125/75 Eier-Kontor v Hauptzollamt Hamburg-Jonas [1976] ECR 771, paragraph 5, and Case 89/83 Hauptzollamt Hamburg-Jonas v Dimex [1984] ECR 2815, paragraph 8).
19 It is clear from that case-law that if it sufficed, in order to qualify for payment of the refund at a higher rate, for the goods simply to be unloaded, the raison d' être of the system of varying the refund would be disregarded.
21 On the other hand in the case of a non-differentiated refund granted in order to cover the difference between the price of products in the Community and their price in international trade, the amount of the refund is not fixed by reference to the import market for which the products are destined.
25 According to the fifth recital in the preamble to Regulation No 1041/67 the aim of authorizing the Member States to require further evidence, before paying refunds, is to prevent abuses.
27 Additional evidence may thus be required where there is suspicion or proof that abuses have been committed.
30 The reply to the first part of Question 1 should therefore be that Article 4(1) of Regulation No 1041/67 and Article 6 of Regulation No 876/68 must be interpreted as meaning that payment of a differential refund is in principle conditional on proof that the product has been released into free circulation in the non-member country of destination and that Member States may also require such proof before granting a non-differentiated refund if there is suspicion or proof that abuses have been committed.
The second part of Question 1 and Questions 2 and 3
34 In view of the objective nature of the obligation to release the goods into free circulation, only a case of force majeure could justify exemption. The concept of force majeure in the sphere of agricultural regulations must be construed as referring to abnormal and unforeseeable circumstances beyond the control of the trader concerned, whose consequences could not have been avoided in spite of the exercise of all due care (see, most recently, Case C-12/92 Criminal proceedings against Huygen [1993] ECR I-6381, paragraph 31).
35 Even if fraudulent re-importation into the Community may be a circumstance beyond the control of the exporter, it none the less represents an ordinary commercial risk and cannot be regarded as being unforeseeable in the contractual relations entered into on the occasion of an export qualifying for a refund.
36 The exporter' s good faith and the fact that he did not take part in the fraud cannot be taken into account either. According to the consistent case-law of the Court, and as the national court rightly pointed out in Question 3, an exporter can ensure, by contractual measures, that purchasers do not fraudulently divert the goods from their destination. It is thus for the exporter to take the appropriate precautions either by including the requisite clauses in the contract in question or by effecting specific insurance (see Case 109/86 Theodorakis v Greece [1987] ECR 4319, paragraph 8).
37 The reply to be given to the second part of Question 1 and to Questions 2 and 3 should therefore be that the exporter of a product destined for a non-member country loses his right to a refund where the product is fraudulently re-imported into the Community notwithstanding the fact that he did not take part in the fraud or his good faith and such re-importation cannot be regarded as unforeseeable in the contractual relations entered into in connection with an export qualifying for a refund.