Südzucker AG and Others v Hauptzollamt Hamburg-Jonas.
Date: 2012-07-12
34. As regards, firstly, the concept of ‘exporter’ within the meaning of Regulation No 800/1999, it is necessary to point out that this is defined in Article 2(1)(i) of that regulation as being ‘the natural or legal person who is entitled to the refund’. According to settled case-law, that definition, which makes no express reference to the law of the Member States, must be interpreted autonomously (see, to that effect, Case C-98/07 Nordania Finans and BG Factoring [2008] ECR I-1281, paragraph 17 and the case-law cited).
42. It follows from Article 68 of the Customs Code, read in conjunction with Article 73(1) of that code, that customs authorities are not obliged to verify the particulars contained in a declaration. Moreover, as the Hauptzollamt Hamburg-Jonas rightly pointed out, the export of goods which receive export refunds is of enormous dimensions. Therefore, at the time when they actually analyse the risks linked to a given instance of exportation, namely when they are informed of the commencement of loading operations under Article 5(7)(b) of Regulation No 800/1999, the customs authorities generally do not yet have all the documents in the file and must carry out their risk analysis in a very short space of time. In those circumstances, the view cannot be taken that the customs authorities are obliged to examine closely the entries made in an export declaration in order to detect, as the case may be, possible contradictions between those entries.
43. Moreover, and contrary to what Südzucker and WEGO claimed during the hearing, Article 5(7)(a) of Regulation No 800/1999 and the second subparagraph of Article 24(1) of Regulation No 1291/2000, which seek to ensure the effectiveness of physical checks carried out by the customs authorities, do not merely create ‘secondary’ obligations, the infringement of which gives rise only to less strict penalties than those provided for in the case of failure to comply with a principal obligation. On the contrary, according to settled case-law, those checks are necessary so that the objectives of the European Union legislation on export refunds may be fulfilled (see, to that effect, Case C-77/08 Dachsberger & Söhne  [2009] ECR I-2097, paragraph 41 and the case-law cited).
46. In that regard, it is necessary to note, firstly, that Regulation No 800/1999 does not contain any provision concerning the possibility of a post-clearance amendment of an export declaration, that is to say, after goods have been released. However, the Court has already held that exportation, for the purposes of that regulation, is a customs procedure and that, in essence, the general provisions of the Customs Code apply to all export declarations relating to goods qualifying for export refunds, without prejudice to special rules (see Case C-353/04 Nowaco Germany  [2006] ECR I-7357, paragraphs 45 to 47). The provision applicable to the facts in the main proceedings is therefore Article 78 of the Customs Code, concerning the post-clearance examination of declarations.
47. Secondly, with regard to the scope of that latter provision, the Court has already stated that its logic is to bring the customs procedure into line with the actual situation (Joined Cases C-430/08 and C-431/08 Terex Equipment and Others  [2010] ECR I-321, paragraph 56). Moreover, that provision does not make a distinction between errors or omissions which are capable of correction and others which are not (see Case C-468/03 Overland Footwear  [2005] ECR I-8937, paragraph 63). It follows that Article 78(3) of the Customs Code allows, in principle, amendment of an export declaration in order to correct the name of the exporter featuring in box 2 thereof.
48. As regards the question whether the customs authorities are not only authorised to regularise the situation and to grant the requested export refund to the exporter, but are also obliged to do so, the Court has already pointed out that, when the declarant seeks a revision of its declaration, its application must be examined by those authorities, at least in relation to the question whether or not there is cause to carry out such a revision, and that the revision applied for by the declarant is thus subject to the assessment of the customs authorities as regards both its principle and its result (see Terex Equipment and Others , paragraph 58 and the case-law cited). Those authorities thus enjoy broad discretion.
49. The Court has also stated that, in making that first assessment, the customs authorities are to take into account, in particular, the possibility of reviewing the statements contained in the declaration to be revised and in the application for revision. If revision is in principle possible, the customs authorities must either reject the declarant’s application by reasoned decision or carry out the revision applied for (see Terex Equipment and Others , paragraphs 59 and 60 and the case-law cited).
50. It is, however, necessary to add in that regard that the mere fact that the goods, at the time when the request for revision of the export declaration is submitted, have already left the territory of the European Union, and that a physical check of those goods prior to their being exported has therefore become impossible, does not allow the conclusion to be drawn that revision of the export declaration in question is not possible. Although it is necessary, in principle, as has been stated in paragraph 43 of the present judgment, that physical checks should be carried out on a portion of the goods which are exported outside of the European Union in order that the objectives of the European Union legislation on export refunds may be fulfilled, the absence of such a check in a specific case does not necessarily prevent those objectives from being none the less fulfilled, taking account of the particular circumstances of that case.
51. The Court has thus held that, if the revision of an export declaration indicates that the objectives of the customs procedure in question are not threatened, in particular in that the goods covered by that customs procedure have actually been exported, this being a matter for the applicant to establish, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the new information available to them, even if the declarant, by his conduct, has directly affected the ability of the custom s authorities to carry out controls (see, to that effect, Terex Equipment and Others , paragraphs 46 and 62).
55. However, as the European Commission has rightly pointed out, it is necessary that the exercise of that power by the customs authorities should indeed be by way of a correction to the export declaration. Such an express correction is dictated by the need to guarantee the transparency and due and proper form of the customs procedure. Moreover, this conclusion follows, at least implicitly, from the case-law of the Court (see, to that effect, in Case C-54/95 Germany  v Commission  [1999] ECR I-35, paragraph 77, and the order in Case C-446/02 Gouralnik  [2004] ECR I-5841, paragraph 36).
62. Moreover, Article 10 of the Customs Code expressly provides that the provisions of that code concerning the annulment, revocation or amendment of decisions favourable to the person concerned ‘shall be without prejudice to national rules which stipulate that decisions are invalid or become null and void for reasons unconnected with customs legislation’. Consequently, by virtue of the principle of procedural autonomy of the Member States, it is the latter which are competent to govern those aspects of the procedure. They must, however, ensure that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice, or excessively difficult, the exercise of rights conferred by the European Union legal order (principle of effectiveness) (see, to that effect, inter alia, Case C-1/06 Bonn Fleisch  [2007] ECR I-5609, paragraph 41 and the case-law cited).
64. It is only in the case where it should transpire that the amending decisions were properly adopted and have legal effects, apart from the possibility, for the persons concerned, to bring an action against those decisions, that the question would arise as to whether those decisions are binding on the customs office responsible for paying the export refund.
65. It appears, however, from the orders for reference in Cases C-10/11 and C-23/11 that the doubts expressed by the national court in that regard concern only the case in which the amending decisions adopted by the customs offices of export might be particularly seriously and manifestly flawed, while, in the absence of such a flaw, the Principal Customs Office responsible for paying the export refund would be bound by those decisions.
66. As is apparent from the answer given to the second question in Case C-608/10, in a case such as those in the main proceedings, the customs offices of export are, in principle, empowered to apply Article 78(1) and (3) of the Customs Code and to verify an export declaration in order to correct the name of the exporter featuring therein. The considerations which led to this answer are, moreover, fully capable of being transposed to the verification and amendment of a T5 control copy when, as is the case in Case C-10/11, this is used as an export declaration for the purpose of export refunds. It therefore does not appear that the amending decisions in question are, from that angle, flawed, let alone seriously and manifestly flawed.
67. In the light of the foregoing, the answer to the single question in Case C-10/11 and to the second question in Case C-23/11 is that, in a case such as those at issue in these cases, the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is bound by a post-clearance revision, by the customs office of export, of the reference in box 2 of the export declaration, or, as the case may be, of the T5 control copy, if the amending decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of the Customs Code and by the relevant provisions of the national law concerned. It is for the referring court to determine whether those conditions have been satisfied in the disputes in the main proceedings.
The third question in Case C-23/11
70. However, in that latter case, it is necessary to bear in mind the fact that the customs authorities did not respond to the request for amendment made by Moksel. It follows, however, from Article 6(2) of the Customs Code, as well as from paragraph 50 of the judgment in Overland Footwear , that those authorities must either reject such a request by reasoned decision or carry out the revision applied for ‘at the earliest opportunity’.