Dachsberger & Söhne GmbH v Zollamt Salzburg, Erstattungen.
Date: 2009-03-19
24. In this respect, the Court has held that the information referred to in Article 3 of Regulation No 3665/87 is used not only in the mathematical calculation of the exact amount of the refund but rather, and above all, to ascertain whether a right to that refund exists or not and to trigger the system of checks of the request for refund which may lead to the imposition of a penalty in accordance with Article 11(1) of that regulation (see, to that effect, Case C‑385/03 Käserei Champignon Hofmeister  [2005] ECR I-2997, paragraphs 22, 29 and 36; Case C-309/04 Fleisch‑Winter  [2005] ECR I‑10349, paragraph 41; and, by analogy, Case C-27/05 Elfering Export  [2006] ECR I-3681, paragraphs 25 and 27).
26. In this connection, the Court has already held that that application for payment is a technical procedural document which the exporter must produce to obtain payment of the refund. That application does not constitute the legal basis of entitlement to such a payment, even though it is a condition precedent to payment of the refund (see, to that effect, Käserei Champignon Hofmeister , paragraphs 26 and 27, and Fleisch‑Winter , paragraph 40).
27. In the light of those considerations, the Court has held that, for a non‑differentiated refund, the amount of the refund requested for the purpose of the first and second subparagraphs of Article 11(1) of Regulation No 3665/87 is calculated solely on the basis of the document referred to in Article 3(5) of that regulation, that is, the export declaration or another document used for export (see, to that effect, Käserei Champignon Hofmeister , paragraphs 22 and 23). Incorrect information contained in that document, which is capable of leading to a refund in excess of the refund applicable, gives rise to the imposition of the penalty prescribed by the first and second subparagraphs of Article 11(1) of Regulation No 3665/87 (see, to that effect, Käserei Champignon Hofmeister , paragraph 36 and operative part).
28. As regards a differentiated refund, Article 20(1) and (2) of Regulation No 3665/87 provides for payment of the basic refund, calculated according to the lowest rate of the refund applicable on the day of export, as soon as the exporter has provided proof that the product has left the customs territory of the Community. Payment of the differentiated part of the refund is itself subject to the additional conditions set out in Articles 17 and 18 of that regulation. The exporter must prove, within 12 months following the date of acceptance of the export declaration, that the product has been imported into the non-member country or one of the non-member countries for which the refund is prescribed by providing proof that the product has been cleared through customs for release for consumption in that country.
31. It is apparent from Article 3(5) of Regulation No 3665/87 that the document referred to there must, whatever its title, ‘include all information necessary for the calculation of the amount of the refund’, including ‘in particular’, first, a description of the products concerned in accordance with the nomenclature used for refunds, secondly, the net mass or quantity of those products and, thirdly, in so far as is necessary for calculating the refund, particulars of the composition of those products. The Court has already held that the information mentioned in Article 5 constitutes a non-exhaustive list ( Fleisch-Winter , paragraph 29, and Elfering Export , paragraph 25). The term ‘in particular’ means that the Community legislature expressly mentions only some of that information. The expression ‘all information’ must thus encompass all information relating to the conditions subject to which the export refund is granted (see, as regards Article 5(4)(a) 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), which replaced Regulation No 3665/87, Elfering Export , paragraph 26).
41. Such a possibility would render entirely redundant not only Article 3 of Regulation No 3665/87, but also the process of checking the requests for a refund. Physical checks on products for which refunds have been requested are an important tool with which to combat irregularities and fraud in the area of export refunds. Therefore, in order to ensure that the purpose of the checks is fully secured, it is imperative that they take place after the filing by the exporter of a binding request for refund (see, to that effect, Käserei Champignon Hofmeister, paragraphs 27 and 28).