Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas.
Date: 2000-12-14
39 The Commission contends that the concept of an abuse of rights comprises three elements:
an objective element, that is to say, evidence that the conditions for the grant of a benefit were created artificially, that is to say, that a commercial operation was not carried out for an economic purpose but solely to obtain from the Community budget the financial aid which accompanies that operation. This requires analysis, on a case-by-case basis, both of the meaning and the purpose of the Community rules at issue and of the conduct of a prudent trader who manages his affairs in accordance with the applicable rules of law and with current commercial and economic practices in the sector in question.
a subjective element, namely the fact that the commercial operation was carried out essentially to obtain a financial advantage incompatible with the objective of the Community rules.
a procedural law element relating to the burden of proof. That burden falls on the relevant national administration. However, in the case of the most serious abuses, even prima facie evidence which might reverse the burden of proof is admissible.
48 As regards the other conditions laid down by Article 10(1) of Regulation No 2730/79, they could have been imposed only prior to the grant of the refund. That is sufficiently clear from the wording of that paragraph, according to which payment is conditional ... on the [product's] ... having been imported into a non-member country, and from the ninth recital to Regulation No 2730/79 which is in the same terms.
49 That analysis is confirmed by the judgment in Boterlux, cited above, in paragraph 30 of which the Court, interpreting a rule comparable to Article 10(1) of Regulation No 2730/79, stated that Member States may also require proof that the product has been released into free circulation in the non-member country of destination before granting a non-differentiated refund if there is suspicion or proof that abuses have been committed.
51 In that regard, it is clear from the case-law of the Court that the scope of Community regulations must in no case be extended to cover abuses on the part of a trader (Cremer, cited above, paragraph 21). The Court has also held that the fact that importation and re-exportation operations were not realised as bona fide commercial transactions but only in order wrongfully to benefit from the grant of monetary compensatory amounts, may preclude the application of positive monetary compensatory amounts (General Milk Products, cited above, paragraph 21).
52 A finding of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved.
53 It requires, second, a subjective element consisting in the intention to obtain an advantage from the Community rules by creating artificially the conditions laid down for obtaining it. The existence of that subjective element can be established, inter alia, by evidence of collusion between the Community exporter receiving the refunds and the importer of the goods in the non-member country.
54 It is for the national court to establish the existence of those two elements, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined (see, to that effect, in particular, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633, paragraphs 17 to 25 and 35 to 39; Case 222/82 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraphs 17 to 21; and Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECR I-389, paragraphs 49 to 51, and Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others v Minister van Volkshuisvesting [2000] ECR I-4475, paragraph 41).
55 The Bundesfinanzhof considers that the facts described in the first question referred for a preliminary ruling establish that the objective of the Community rules has not been achieved. It is therefore for that Court to establish, in addition, the existence of an intention on the part of the Community exporter to benefit from an advantage as a result of the application of the Community rules by carrying out an artificial operation.
56 Contrary to the assertions of Emsland-Stärke, the obligation to repay refunds received in the event that the two constituent elements of an abuse are established would not breach the principle of lawfulness. The obligation to repay is not a penalty for which a clear and unambiguous legal basis would be necessary, but simply the consequence of a finding that the conditions required to obtain the advantage derived from the Community rules were created artificially, thereby rendering the refunds granted undue payments and thus justifying the obligation to repay them.
58 As regards the second question referred by the national court, it must be observed that the fact that, before being re-imported into the Community the product was resold by the purchaser established in the non-member country concerned to an undertaking also established in that country with which it has personal and commercial links does not preclude the export to the non-member country at issue from being an abuse attributable to the Community exporter. On the contrary, it is one of the factual elements which can be taken into account by the national court to establish the artificial nature of the operation concerned.
59 In the light of these factors, the answer to the questions referred should be that Articles 9(1), 10(1) and 20(2) to (6) of Regulation No 2730/79 must be interpreted as meaning that a Community exporter can forfeit his right to payment of a non-differentiated export refund if (a) the product in respect of which the export refund was paid, and which is sold to a purchaser established in a non-member country, is, immediately after its release for home use in that non-member country, transported back to the Community under the external Community transit procedure and is there released for home use on payment of import duties, without any infringement being established and (b) that operation constitutes an abuse on the part of that Community exporter.
A finding that there is an abuse presupposes an intention on the part of the Community exporter to benefit from an advantage as a result of the application of the Community rules by artificially creating the conditions for obtaining it. Evidence of this must be placed before the national court in accordance with the rules of national law, for instance by establishing that there was collusion between that exporter and the importer of the goods into the non-member country.
The fact that, before being re-imported into the Community, the product was sold by the purchaser established in the non-member country concerned to an undertaking also established in that country with which he has personal and commercial links, is one of the facts which can be taken into account by the national court when ascertaining whether the conditions giving rise to an obligation to repay refunds are fulfilled.