AOB Reuter & Co. v Hauptzollamt Hamburg-Jonas.
Date: 2008-04-24
13. As a preliminary point, it should be recalled that the two features of the export refunds system are, first, that Community aid is not granted unless the exporter makes an application and, second, that the system is financed by the Community budget (Case C-309/04 Fleisch-Winter [2005] ECR I-10349, paragraph 31).
14. With regard to such an exporter, the Court, in the context of Regulation No 3665/87 and its system of sanctions, has already held that, as regards a Community aid scheme, the grant of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness (see, to that effect, Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I-6453, paragraph 41, and Fleisch-Winter , paragraph 31).
17. According to the second recital in the preamble to Regulation No 2945/94, ‘sanctions should be applied regardless of the subjective element of fault’. In reality, it is only the level of the sanction which increases if there is an intentional act, in accordance with Article 11(1)(b) of Regulation No 3665/87, whereas the sanction provided for in Article 11(1)(a) is applicable even if the exporter has not committed any fault. In the latter case, the sanction provided for in the first subparagraph of Article 11(1) is applicable, except in the cases listed exhaustively in the third subparagraph of Article 11(1).
18. In paragraph 41 of Case C-210/00 Käserei Champignon Hofmeister , the Court held that the sanction constitutes a specific administrative instrument forming an integral part of the scheme of aid which is intended to ensure the sound financial management of Community public funds and, in paragraph 44 of that judgment, that it cannot be said to be of a criminal nature.
19. It follows from the two preceding paragraphs that the liability on which the sanction provided for in Article 11(1)(a) of Regulation No 3665/87 is based is of an essentially objective nature.
22. The Court has held in the context of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11, and corrigendum OJ 1999 L 180, p. 53), which replaced and repealed Regulation No 3665/87, but did not change its content in that regard, that the phrase ‘an exporter … has applied for a refund in excess of that applicable’ must be interpreted as meaning that the exporter is regarded as having applied for a refund exceeding that applicable not only where an overclaim is detected when the information which he has provided is taken into account, but also where it is established that he is not entitled to a refund, that is to say, that the amount of refund is zero (see, to that effect, Case C-27/05 Elfering Export  [2006] ECR I-3681, paragraph 27).
27. However, other express provisions of that article also require that a sanction be imposed on the exporter on the basis of findings made after acceptance of the export declaration.
30. In those circumstances, it is necessary to apply the sanction provided for under Article 11(1)(a) of Regulation No 3665/87, unless one of the exceptions as exhaustively defined in the third subparagraph of Article 11(1) applies.
35. Second, with regard to the principle of proportionality, it should be pointed out that, in the fifth recital in the preamble to Regulation No 2945/94, the legislature refers to past experience and, in particular, irregularities and fraud already recorded in the context of export refunds. The Court has already upheld the proportionate character of the sanction provided for in Article 11(1)(a) of Regulation No 3665/87, by holding that it does not infringe the principle of  proportionality, since it cannot be considered to be inappropriate for attaining the objective pursued by the Community rules, namely to combat irregularities and fraud, and does not go beyond what is necessary to achieve that objective (Case C-210/00 Käserei Champignon Hofmeister , paragraph 68, and Case C-385/03 Käserei Champignon Hofmeister  [2005] ECR I-2997, paragraph 31).
36. Third, with regard to the justification relied upon by AOB Reuter, it is sufficient to point out that it is not possible to add a new exception, based in particular on the absence of fault on the part of the exporter, to the exhaustive list contained in the third subparagraph of Article 11(1) of Regulation No 3665/87, and that the Court has already held that the fault or error of a contracting partner is an ordinary commercial risk and cannot be considered to be unforeseeable in the context of commercial transactions. The exporter is fully at liberty to select his trading partners and it is up to him to take the appropriate precautions, either by including the necessary clauses in the contracts which he concludes with them or by effecting appropriate insurance (see, to that effect, Case C-210/00 Käserei Champignon Hofmeister , paragraph 80, and the case-law cited).