Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas.
Date: 2006-09-07
27. The Court has already held, in relation to Regulation No 1041/67/EEC of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (OJ, English Special Edition 1967, p. 323), that the requirement of ‘sound and fair marketable quality’ constitutes a general objective condition for the grant of a refund and that a product which could not be marketed within the Community ‘under normal conditions’ would not meet these requirements as to quality (see, to that effect, Case 12/73 Muras [1973] ECR 963, paragraph 12, Case C-409/03 SEPA  [2005] ECR I-4321, paragraph 22 and Case C-309/04 Fleisch‑Winter  [2005] ECR I‑10349, paragraph 20).
28. The Court has also held that the fact that the marketability of a product in ‘normal conditions’ is an aspect inherent in the concept of ‘sound and fair marketable quality’ is indeed clearly apparent from the rules relating to export refunds for agricultural products inasmuch as, from Regulation No 1041/67 onwards, all the relevant regulations have adopted the concept of ‘sound and fair marketable quality’ as well as the criterion of the product’s marketability ‘in normal conditions’. As regards Regulation No 3665/87, it is the ninth recital which refers to that requirement (see SEPA , paragraphs 23 and 26, and Fleisch-Winter , paragraph 21).
29. Regulation No 3665/87 was replaced, from 1 July 1999, by 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), which provides in the first and second subparagraphs of Article 21(1) that no refund is to be granted on products which are not of ‘sound and fair marketable quality’ on the date on which the export declaration is accepted, and that products are to be deemed to meet that requirement ‘if they can be marketed on the Community's territory in normal conditions’. The Court held that that provision confirmed the existing legal position (see, to that effect, SEPA , paragraph 27).
35. The first indent of Article 1(3) of Regulation No 1906/90, which provides that that Regulation does not apply to poultrymeat for export from the Community, does not preclude the statement in the first sentence of paragraph 33 of this judgment. This provision must be interpreted in the light of the purpose of the regulation which is to lay down the marketing standards within the Community. Therefore, neither the said regulation nor the regulation introducing detailed rules for its implementation establish criteria for exportability as such. Even if a product does not meet the quality requirements laid down by Articles 6 and 7 of Regulation No 1538/91 as marketing requirements in the Community in normal conditions, it may in principle be exported.
36. The requirements contained in Articles 6 and 7 of Regulation No 1538/91 do not apply to export operations themselves, that is to transactions between Community economic operators and those of third countries. Their sole purpose is to establish entitlement to a financial subsidy granted by the Community. In that sense it is an internal Community operation, as it involves the Community economic operator and the national authorities of a Member State and not natural or legal persons from third countries.
37. An interpretation which permitted the subsidising of exports of products which did not meet the marketing standards applying within the Community would mean that there was inconsistency in the Community system of export refunds, as the Court has already stated in paragraph 31 of SEPA .
38. Moreover, it should be pointed out, as the Commission of the European Communities does in paragraph 23 of its written observations, that the minimum requirements laid down in Article 6(1) of Regulation No 1538/91 (such as, inter alia, being free of any foreign smell, matter or visible bloodstains), are requirements which directly concern the quality of the products, while other provisions of that regulation not concerning quality (for example those concerning the naming and labelling of the products), the objective of which is to inform the consumer and economic operators, cannot be invoked for the purposes of the application of Article 13 of Regulation No 3665/87.
41. It should first be pointed out that that uncertainty follows essentially from divergences between the different linguistic versions of Article 7 of Regulation No 1538/91. The German version of that provision, which contains the term ‘Fertigpackung’ (prepackage), is inconsistent with the other linguistic versions of that provision, in particular the Spanish (‘unidad’), Danish (‘emne’), Greek (‘μονάδa’), English (‘unit’), French (‘unité’), Italian (‘unità’), Dutch (‘produkt’), Portuguese (‘unidade’) Finnish (‘yksiköt’) and Swedish (‘enhet’) versions. In such a case, according to settled case-law, the need for a uniform interpretation of Community law makes it impossible for the text of a provision to be considered in isolation; on the contrary, it requires that it be interpreted in the light of the versions existing in the other official languages (see, to that effect, Case 9/79 Koschniske [1979] ECR 2717, paragraph 6; Case C-296/95 EMU Tabac and Others  [1998] ECR I‑1605, paragraph 36; and Case C-174/05 Zuid‑Hollandse Milieufederatie and Natuur en Milieu  [2006] ECR I-0000, paragraph 20).
45. Moreover, in accordance with the definition given in Article 4(16) of that Code, by ‘customs procedure’ is meant release for free circulation, transit, customs warehousing, inward processing, processing under customs control, temporary admission, outward processing and exportation. The latter is therefore a customs procedure.
46. Finally, regarding the structure of the Customs Code, it should be pointed out that Article 70 is part of Section 1 (Placing of goods under a customs procedure) of Chapter 2 (Customs procedures) of Title IV (Customs-approved treatment or use), while the rules relating to each of the customs procedures are in the other sections of that chapter.
47. It follows that Article 70 is one of the general customs provisions which apply to all export declarations relating to goods qualifying for export refunds, without prejudice to special rules.
52. Third, as was established in paragraph 39 of this judgment, certain provisions of Regulation No 1538/91 also apply for the purposes of establishing the ‘sound and fair marketable quality’ of a product in respect of which a refund is sought. Those rules are also special rules within the meaning of Article 1 of the Customs Code. Likewise, they do not preclude the application of Article 70 of that Code, but constitute detailed rules for its implementation.
54. By that question, the referring court asks, in substance, whether the legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of the Customs Code also applies if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91 and, consequently, it is not possible to establish whether the tolerance margins laid down therein have been exceeded or not.
55. The first paragraph of Article 70(1) of the Customs Code is a general provision which provides that, where only part of the goods covered by a declaration are examined, the results of the partial examination are to be taken to apply to all the goods covered by that declaration.
61. However, it should be recalled that it is for the Court to provide the national court with all those elements for the interpretation of Community law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its questions (see, to that effect, inter alia, Case C-241/89 SARPP  [1990] ECR I-4695, paragraph 8; Case C-315/92 Verband Sozialer Wettbewerb (‘Clinique’) [1994] ECR I-317, paragraph 7; Case C-87/97 Consorzio per la tutela del formaggio Gorgonzola  [1999] ECR I-1301, paragraph 16; and Case C-456/02 Trojani  [2004] ECR I‑7573, paragraph 38).
63. Community legislation provides for a sort of cooperation between the exporter and the national customs authority, in order to correctly monitor exports qualifying for refunds.
65. The Court has already stated, in paragraph 35 of Case C‑309/04 Fleisch-Winter , that in so far as the exporter, by lodging an application for a refund, continues to assert either expressly or impliedly that the product in question is of ‘sound and fair marketable quality’, it is for the exporter, according to the rules of evidence of national law, to prove that that condition is, in fact, satisfied if a declaration is questioned by the national authorities. In the case in the main proceedings, even if the size of the samples taken was insufficient, the result of the customs checks and the decisions of the Hauptzollamt show that the national customs authorities did question the exporter’s declaration.