Belgian State v Philipp Brothers SA.
Date: 1990-07-12
13 It should be borne in mind in that regard that, in its judgment of 5 December 1985 in Case 124/83 Direktoratet for Markedsordningerne v Corman ([ 1985] ECR 3777, paragraph 44, the Court held that an action against the successful tenderer in a sale of butter held by the intervention agencies for failure to fulfil his obligations is not barred once the security has been released . The Court considered that the Community rules imposed a responsibility on the successful tenderer independently of the security, release of which could not discharge him from his obligations .
14 The principle thus laid down must also be applied where an exporter who has been paid advances on a refund does not furnish proof that the goods in question have actually been imported into the non-member country of destination .
15 In certain circumstances, however, erroneous release of the security may have led the exporter to believe that the matter was settled once and for all, the national intervention agency having taken the view that the goods had been entered for home use in the country of destination . In those circumstances, it is for the national intervention agency, which is called upon to decide whether to grant an extension of time for the production of the requisite documents, to take into consideration any repercussions its error may have had on the exporter' s conduct .
16 The answer to the first two questions must therefore be that the erroneous release by the national intervention agency of the security provided for in Article 25 of Commission Regulation No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products does not have the effect of discharging the exporter from his obligations . In its decision on whether to grant an extension of time for the submission of the documents required under the regulation, the intervention agency must take into consideration the consequences which its error may have had on the exporter' s conduct .
The period prescribed for the submission of a request for an extension of time ( Question 3 )
27 It should also be observed that, as the Commission and the Belgian State have rightly pointed out, the distinction thus made between customs documents and transport documents can be explained by the consideration that exporters may encounter 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 . However, no such difficulty can exist with regard to the transport documents : in the case of a cif contract, the exporter retains a copy of the transport documents as the party arranging carriage, while in the case of a fob contract he may easily stipulate as part of the contract that the purchaser must furnish a certified true copy of those documents .
39 The fixing of the length of that period at six months is not unreasonable, bearing in mind that it is in the interest of traders themselves to obtain release of the security as soon as possible, that the intervention agencies cannot keep open indefinitely files relating to operations in respect of which a Member State has paid refunds in advance, that the grant of an extension of time is permissible for the submission of the customs documents which may not be easy to obtain from the authorities of non-member countries, and that an exception is provided for in cases of force majeure .