Société d'Exportation de Produits Agricoles SA (SEPA) v Hauptzollamt Hamburg-Jonas.
Date: 2012-12-06
24. In that regard, it must be pointed out, first, that the reduction referred to in the first subparagraph of Article 11(1) of Regulation No 3665/87, as amended, must be applied not only when a refund is due while being less than that requested by the exporter, but, also, in the case where it is established that no refund is due, that is to say, that the amount of refund is zero (see, as regards Article 51(1) of Regulation No 800/1999, the wording of which corresponded to that of Article 11(1) of Regulation No 3665/87, Case C-27/05 Elfering Export  [2006] ECR I-3681, paragraph 27, and Case C-143/07 AOB Reuter  [2008] ECR I-3171, paragraph 22). In those cases, that reduction led to a negative amount, which, under the fourth subparagraph of Article 11(1) of Regulation No 3665/87, had to be paid by the exporter.
25. It must be borne in mind, next, that that reduction mechanism consists in imposing the payment of a penalty, the amount of which is determined in proportion to the amount which would have been unduly received by the exporter had the requested refund been granted. It concerns a penalty which forms an integral part of the export refund scheme and is not criminal in nature (see, to that effect, Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I-6453, paragraph 43; AOB Reuter , paragraph 18; and Case C-489/10 Bonda  [2012] ECR, paragraph 30).
26. The liability on which that penalty is based is essentially objective in nature. It follows that the reduction referred to in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 must be applied even if the exporter has not committed any fault ( AOB Reuter , paragraphs 17 and 19, and Case C-367/09 SGS Belgium and Others [2010] ECR I-10761, paragraph 58).
27. It must be borne in mind, finally, that, if the export declarations were initially accepted by the competent authorities and if it appears on the basis of findings made after that acceptance that the exporter at issue was not entitled to a refund, the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 must, in principle, be imposed ( AOB Reuter , paragraphs 27 and 30).
28. It follows from that settled case-law of the Court that it is not possible to uphold SEPA’s argument, shared by the Austrian Government, according to which the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 becomes inapplicable because of the mere fact that the exporter acted in good faith and gave an exact description of the nature and origin of the goods at issue in his export declarations. Unlike point (b) of the first subparagraph of Article 11(1) of Regulation No 3665/87, point (a) of that provision applies, inter alia, in cases where the exporter, on the basis of the nature and origin of the goods, considered and satisfied himself that those goods were of a sound and fair marketable quality, and where it appeared at a later stage that that information was incorrect (see, by analogy, SGS Belgium and Others , paragraphs 57 to 59).
29. In this regard, the Court has already stated that, even if an exporter does not make an express declaration that the goods at issue ar e of sound and fair marketable quality, its application for a refund still implies that it guarantees that that condition is satisfied (Case C-309/04 Fleisch-Winter  [2005] ECR I-10349, paragraph 32). Where it subsequently becomes apparent that that declaration implicitly contained in the application for a refund was wrong, the penalty referred to in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 can be imposed on the exporter unless one of the exemptions established in the third subparagraph of Article 11(1) applies (see Elfering Export,  paragraph 30).
32. 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 ( Käserei Champignon Hofmeister , paragraph 79 and the case-law cited).
33. However, contrary to what SEPA maintains, neither the instruction emanating from the competent German authorities, according to which the meat originating from isolation slaughterhouses did not meet the condition as to sound and fair marketable quality, nor the substance of the judgment in SEPA , in the same vein, could be considered as abnormal and unforeseeable. As the Court stated at paragraphs 29 and 30 of that judgment, it already appeared from Community legislation which had entered into force prior to the exports made by SEPA that the meat originating from isolated slaughterhouses, even if it fulfilled the hygiene criteria, could be authorised for human consumption only on the local market and only if various additional conditions had been fulfilled.