Hauptzollamt Hamburg-Jonas v Käserei Champignon Hofmeister GmbH & Co. KG.
Date: 2005-04-14
22. It follows that, where the rate of refund does not vary, the calculation of the amount of the refund requested under Article 11(1) of Regulation No 3665/87 must be based solely on Article 3 or, if appropriate, on Article 25(2) thereof. It follows also that the document or documents containing the information required by Article 3 or Article 25(2), on the basis of which the amount of the refund is calculated, constitute the request which, if that information is erroneous, triggers the application of the sanction prescribed by Article 11(1) of Regulation No 3665/87.
23. As regards the interpretation of Article 3 of that regulation, it is appropriate to note, as the Advocate General stated in paragraph 38 of her Opinion, that it does not ne cessarily follow from that article that the amount of the refund requested is to be calculated from the information provided in the export declaration alone. More particularly, Article 3(5) does not specify the title of the document which must be filed to qualify for an export refund. It refers only to ‘the document used for export’. In addition, the second subparagraph of Article 3(5) provides for the situation in which ‘the document mentioned in this paragraph is the export declaration’. It follows that the document which must be submitted in order to obtain a refund is not necessarily the export declaration.
26. The foregoing analysis complies with the scheme as well as with the spirit and purpose of Regulation No 3665/87. As regards its scheme, it is appropriate to point out that the regulation contains substantive and procedural rules concerning the obtaining of export refunds. As the Advocate General pointed out in paragraphs 48 and 50 of her Opinion, Articles 3 and 11 of the regulation enact substantive rules and are set out in Title 2, Chapter 1, entitled ‘Entitlement to Refund’. By contrast, Article 47(1) of the regulation, which is set out in Title 4, entitled ‘Procedure for payment of the refund’, provides solely for the administrative formalities which the exporter must complete in order to obtain payment of the refund. The extent of the refund depends on the information contained in the document which establishes entitlement to the refund and not in the technical document, which constitutes, admittedly, a condition precedent to the payment of the refund, but not the legal basis of entitlement to such payment. It follows that, in accordance with the scheme of Regulation No 3665/87 and with the system which it establishes, the request for refund for the purposes of Article 11(1) of that regulation is filed under Article 3, or, if appropriate, under Article 25(2) of the same regulation, but not by the submission of the application for payment required by Article 47(1).
27. As regards the purpose of Regulation No 3665/87, it is clear from the first recital in the preamble to Regulation No 2945/94 that its aim is to combat irregularities and fraud detected in the area of export refunds (see Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I‑6453, paragraph 60). The interpretation by which it would be possible validly to make a request for refund concerning products which have already been exported undermines that aim, because the competent authorities would not be in a position to carry out physical checks on those products, checks which are nevertheless necessary to enable Regulation No 3665/87 to achieve its aim. It cannot therefore be accepted that the application for refund referred to in Article 47(1) of Regulation No 3665/87, which can be submitted within 12 months after the acceptance of the export declaration, could constitute the request for refund for the purposes of Article 11(1) of that regulation.
28. Physical checks on products for which refunds have been requested are an important tool with which to combat irregularities and fraud in the area of export refunds. In that regard, it must be observed that, in order to ensure that the object of the checks is fully secured, it is imperative that they take place after the filing by the exporter of a binding request for refund. As the Commission stated in its written observations, the deterrent effect of the sanctions prescribed by Article 11(1) of Regulation No 3665/87 is in large part lost if it is possible to submit the request for refund after the checks on the products have been carried out. The exporter would be in a position to adapt his request for refund according to the result of any check which might take place.
29. It follows that the process of checking requests for refunds must be regarded as an integral part of the system of export refunds provided for by Regulation No 3665/87. In order to determine which document constitutes the request for refund, the document which must be taken into consideration is not that which seeks the payment of the refund, but that which triggers the system of checks of the request for refund.
31. In that regard, it must be recalled, first of all, that in paragraphs 59 to 68 of the judgment in Käserei Champignon Hofmeister , cited above, the Court has already accepted that the sanction is proportionate. In paragraph 68, the Court held that the sanction prescribed in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 does not breach the principle of proportionality, since it cannot be considered either to be inappropriate for attaining the objective pursued by Community law, namely to combat irregularities and fraud, or to go beyond what is necessary to achieve that objective.
36. Having regard to the foregoing considerations, the reply to the question referred must be that the first and second subparagraphs of Article 11(1) of Regulation No 3665/87 are to be interpreted as meaning that wrong information contained in a document referred to in Article 3(5) of that regulation, that is, the export declaration or another document used for export, and capable of leading to a refund in excess of the refund applicable, gives rise to the imposition of the sanction prescribed by Article 11. That rule applies even if, in connection with the application for payment referred to in Article 47 of that regulation, it is expressly stated that payment of the export refund is not sought for certain products covered by that document.
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