Käserei Champignon Hofmeister GmbH & Co. KG v Hauptzollamt Hamburg-Jonas.
Date: 2002-07-11
26 By its first question, the national court asks whether point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 is valid in so far as it provides for a penalty even where, through no fault of his own, an exporter has applied for an export refund exceeding that to which he is entitled.
31 As regards the law of the Member States, KCH refers to a comparative legal study requested by the Commission as part of the preparatory work for Regulation No 2988/95, which shows that the principle `nulla poena sine culpa' applies in almost all of the Member States, and that exceptions are lawful in only a few States and under very limited circumstances.
36 In that regard, it should be pointed out first of all that the Court, when asked specifically about the criminal nature of sanctions laid down in rules under the Common Agricultural Policy, such as the loss of security, imposed at a flat rate and independently of any culpability on the part of the trader, and the temporary exclusion of a trader from the benefit of a scheme of aid, has concluded that such penalties are not of a criminal nature (Maizena, cited above, paragraph 13, and Germany v Commission, cited above, paragraph 25).
38 As the Court pointed out in paragraph 19 of the judgment in Germany v Commission, cited above, temporary exclusion from the benefit of a scheme of aid, like surcharges calculated based on the amount of aid unduly paid, are intended to combat the numerous irregularities which are committed in the context of agricultural aid, and which, because they weigh heavily on the Community budget, are of such a nature as to compromise the action undertaken by the institutions in that field to stabilise markets, support the standard of living of farmers and ensure that supplies reach consumers at reasonable prices.
40 Regulation No 2945/94, which amended Regulation No 3665/87, states in the first recital in its preamble, that `the Community rules provide for the granting of export refunds on the basis of solely objective criteria, in particular concerning the quantity, nature and characteristics of the product exported as well as its geographical destination; whereas in the light of experience, measures to combat irregularities and notably fraud prejudicial to the Community budget should be intensified; whereas, to that end, provision should be made for the recovery of amounts unduly paid and sanctions to encourage exporters to comply with Community rules'.
41 In explaining the nature of the breaches complained of, the Court has emphasised on several occasions that the rules breached were aimed solely at traders who had freely chosen to take advantage of an agricultural aid scheme (see, to that effect, Maizena, paragraph 13, and Germany v Commission, paragraph 26). In the context of a Community aid scheme, in which the granting of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness, the penalty imposed in the event of non-compliance with those requirements constitutes a specific administrative instrument forming an integral part of the scheme of aid and intended to ensure the sound financial management of Community public funds.
42 In the present case, it is not disputed that only those traders who have applied for the export refunds are likely to have the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 imposed on them, when it appears that the information provided by those traders in support of their application is incorrect.
43 Lastly, it should be pointed out that the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 consists of the payment of a penalty, the amount of which is determined on the basis of the amount which would have been unduly received by the trader had an irregularity not been detected by the competent authorities. It is, therefore, an integral part of the export refund scheme in question and is not of a criminal nature.
44 It follows from all of the foregoing considerations that point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 cannot be said to be of a criminal nature. It follows that the principle `nulla poena sine culpa' is not applicable to this penalty.
47 In other areas, the Court has accepted that a system of strict criminal liability penalising breach of a Community regulation is not in itself incompatible with Community law (Hansen, paragraph 19; Case C-177/95 Ebony Maritime and Loten Navigation [1997] ECR I-1111, paragraph 36).
49 The rest of the case-law referred to by KCH is not decisive. In most of the cases referred to, the penalty is examined in the light of the principle of proportionality rather than the principle `nulla poena sine culpa' (cases cited above, Thyssen v Commission, paragraphs 18 to 22; Schumacher, paragraphs 25 to 31; Cereol Italia, paragraphs 13 to 27; National Farmers' Union and Others, paragraphs 49 to 55; and Molkereigenossenschaft Wiedergeltingen, paragraphs 33 to 45). As for the judgment in Estel v Commission, in paragraphs 38 to 43 of which the Court held that a steel company penalised by the Commission for having exceeded the production quota imposed on it had committed an error which was not excusable and that, accordingly, the Commission had not breached the principle `nulla poena sine culpa', that judgment was delivered in an area far removed from agricultural regulations and without the Court ruling explicitly on whether the penalty in question was of a criminal nature or not.
52 Lastly, it should be recalled that the fact that the principle `nulla poena sine culpa' is not applicable to penalties such at those at issue in the main proceedings does not leave the person subject to the regulation without legal protection. The Court has held in this connection that a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis. Moreover, it is settled case-law that provisions of Community law must comply with the principle of proportionality (see Maizena, cited above, paragraph 15), which will be examined in the context of the second plea put forward by KCH.
Breach of the principle of proportionality
Observations submitted to the Court
59 In this connection, it should be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions are appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (Maizena, cited above, paragraph 15; and Case C-339/92 ADM Ölmühlen [1993] ECR I-6473, paragraph 15).
60 Regulation No 2945/94, which amended Article 11 of Regulation No 3665/87, states in the first and second recitals of its preamble that it aims to combat irregularities and fraud detected in the area of export refunds. Those recitals highlight how export refunds are granted on the basis of solely objective criteria concerning the product and its geographical destination. They state that, to ensure the correct functioning of the system of export refunds, penalties should be applied regardless of the subjective element of fault, in order to encourage exporters to comply with the Community rules.
61 The recitals quite rightly highlight the difficulties involved in proving fraudulent intent. Whilst the authorities have only the information relating to the product and its destination at their disposal and the exporter is often the last link in a contractual chain of purchases for resale, there is a real risk that he will avoid responsibility for the inaccuracy of his declaration because of the possibility of error, negligence or fraud further back up the chain.
62 Therefore, contrary to what KCH argues, that it is precisely to take account of the role of the exporter as the last participant in the chain of production, processing and export of agricultural products that Article 11 of Regulation No 3665/87 makes him responsible for the accuracy of his declaration, subject to the possibility of a penalty in the event of non-compliance.
68 It follows from these various factors that the penalty laid down in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87 does not breach the principle of proportionality, since it cannot be considered to be inappropriate for attaining the objective pursued by Community law, namely to combat irregularities and fraud, and does not go beyond what is necessary to achieve that objective.
Breach of the principle of non-discrimination
Observations submitted to the Court
79 It should be recalled that 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 (see Case C-124/92 An Bord Bainne Co-operative and Inter-Agra [1993] ECR I-5061, paragraph 11; Boterlux, cited above, paragraph 34).
80 Even if the fault or error committed by the contracting partner is apt to constitute a circumstance beyond the control of the exporter, they are none the less 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 in question or by effecting appropriate insurance (see, to that effect, Theodorakis, cited above, paragraph 8; and Boterlux, cited above, paragraphs 35 and 36).
83 The cases Steff-Houlberg and Others and Oelmühle and Schmidt Söhne, cited above, do not preclude such an interpretation of Community law. It should be recalled that those judgments were given in cases involving references for preliminary rulings from national courts which had to rule on disputes involving the recovery of unduly paid Community aid and which, in accordance with the settled case-law of the Court, had to apply their national law as regards both procedure and substance to the extent to which Community law had not made other provision in the matter (see 130/79 Express Dairy Foods [1980] ECR 1887, paragraph 11).