1 By order of 20 December 1991, received at the Court on 30 January 1992, the Finanzgericht (Finance Court) Hamburg (Fourth Chamber) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 6(2) and Article 4 of Regulation (EEC) No 885/68 of the Council of 28 June 1968 laying down general rules for granting export refunds on beef and veal and criteria for fixing the amount of such refunds (OJ, English Special Edition 1968(I), p. 237) and Article 20(1) and (3)(b) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of export refunds on agricultural products (OJ 1979 L 317, p. 1).
2 The question is concerned with the determination of the probative force of a customs entry certificate in proceedings between Moellmann-Fleisch (hereinafter "Moellmann"), the plaintiff in the main proceedings, and Hauptzollamt (Principal Customs Office) Hamburg-Jonas (hereinafter "the Hauptzollamt"), the defendant in the main proceedings.
3 Moellmann received advance payment of a variable export refund. On 16 May 1984 it exported beef to Egypt. The ship arrived in early June 1984 in Alexandria, where the Egyptian authorities took samples of the meat for the purposes of a pre-importation veterinary inspection.
4 On 15 June 1984 Moellmann presented to the Hauptzollamt an undated Egyptian customs entry certificate relating to the importation of the meat into Egypt. It appears from three documents dated later than 15 June 1984 that the results of the veterinary analyses were negative and that accordingly the meat was shipped back. Subsequently, the Hauptzollamt ordered Moellmann to repay it the sum which it had received by way of export refund. The proceedings brought by Moellmann in the Finanzgericht turn on whether the meat may be regarded as having reached the Egyptian market.
5 Article 6(2) of Regulation No 885/68 provides that a variable refund is to be paid provided that it is proved that the product has reached the destination for which the refund was fixed. Article 20(1) of Regulation No 2730/79 provides that payment of the variable refund is conditional on the product' s having been imported into the non-member country or a non-member country for which the refund is prescribed. Under Article 20(2) of Regulation No 2730/79, a product is to be considered to have been imported when the customs entry formalities for home use in the non-member country have been completed.
6 According to Article 20(3) of Regulation No 2730/79, proof that those formalities have been completed is to be furnished by production of (a) the relevant customs document or (b) the customs entry certificate. Article 20(4) lists other documents which may be produced if, owing to circumstances beyond the control of the exporter, none of the documents specified in paragraph 3 can be produced or they are considered inadequate.
7 The question referred by the national court for a preliminary ruling relates to the probative force of a customs entry certificate: "Is proof of importation into a non-member country, as required by Article 6(2) of Regulation (EEC) No 885/68, in conjunction with Article 4 of that regulation and Article 20(1) of Regulation (EEC) No 2730/79, for payment of a variable refund, which should, pursuant to Article 20(3)(b) of Regulation (EEC) No 2730/79, be provided by presentation of a customs entry certificate made out in accordance with the specimen in Annex II, to be regarded as not having been provided if there is reason to doubt that the goods specified in the customs entry certificate have actually reached the market of the non-member country, or is it, on the other hand, necessary to prove the contrary, namely that the goods have not been imported?"
8 Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
9 By its question, the national court essentially seeks to establish whether Article 6(2) of Regulation No 885/68, in conjunction with Article 4 of that regulation and Article 20(1) of Regulation No 2730/79, must be interpreted as meaning that it is sufficient in order to consider that importation into a non-member country has not been proved, to have reason to doubt that the goods specified in the customs entry certificate referred to in Article 20(3) of Regulation No 2730/79 have actually reached the market of the non-member country or whether it is necessary to prove the contrary, namely that the goods have not been imported.
10 Moellmann argues that the customs document and the customs entry certificate constitute full, complete proof of the importation of the goods into the non-member country unlike the documents mentioned in Article 20(4) of Regulation No 2730/79, which constitute only rebuttable evidence of actual access to the market. If "reason" to doubt were sufficient to deprive the customs entry certificate of all of its probative force, the burden of proof would be reversed to the exporter' s detriment. Only full, complete proof of failure to import the goods into the country in question may deprive such a certificate of its probative force.
11 The Commission argues in contrast that completion of importation formalities does not necessarily mean that actual importation has taken place. The Commission refers in that regard to the judgment in Case 89/83 Hauptzollamt Hamburg-Jonas v Dimex [1984] ECR 2815. In that judgment, the Court held that a product cannot be regarded as having been imported where it is re-exported after completion of the customs formalities prescribed by the country of destination, in so far as the re-exportation of the product was the result of a decision taken by the competent authorities of the State of destination on completion of those formalities and that the deterioration of the product which was the cause of that decision occurred before their completion. The Commission considers that the rejection of a product on health grounds is equivalent to such deterioration.
12 As far as proof of importation is concerned, the Commission considers that the customs document amounts only to rebuttable evidence, although it is one of the most important pieces of evidence, and that it is necessary, in contrast, to consider pragmatically whether the product in question actually had access to the market of the country of destination.
13 It should be pointed out that, as the Court has already held in Hauptzollamt Hamburg-Jonas v Dimex, at paragraph 11, concerning Regulation (EEC) No 192/75 of the Commission of 17 January 1975 laying down detailed rules for the application of export refunds in respect of agricultural products (OJ 1975 L 25, p. 1), the fact that the third subparagraph of Article 11(1) of that regulation permits the competent authorities to require other documents where they consider, in view of the particular circumstances in the country of destination, that proof of completion of customs formalities is insufficient shows that such proof amounts only to rebuttable evidence that the objective of the variable export refunds has in fact been attained.
14 However, just like the provision at issue in Hauptzollamt Hamburg-Jonas v Dimex, Article 20(4) of Regulation 2730/79 provides that other documents may be produced where the documents specified in paragraph 3 are considered inadequate. It follows that, although the customs entry certificate constitutes a more important piece of evidence than the documents listed in Article 20(4) of Regulation No 2730/79 to the effect that importation took place, none the less it does not amount to irrebuttable proof.
15 The probative force which normally attaches to the customs entry certificate may as a result be disregarded where there is reason to doubt the actual access of the goods to the market of the territory of destination in order to be marketed there. Otherwise the objective of the variable export refunds might be jeopardized. As the Court held in paragraph 16 of Hauptzollamt Hamburg-Jonas v Dimex, in view of the objectives of the system of variable refunds, it is essential that products subsidized by such refunds should actually reach the market of destination and be marketed there.
16 Finally, it should be pointed out that it is for the national court to decide, having regard to the facts of the case in the main proceedings, whether serious doubts exist in that regard.
17 Accordingly, the reply to the national court' s question must be that Article 6(2) and Article 4 of Regulation No 885/68, in conjunction with Article 20(1) of Regulation No 2730/79, must be interpreted as meaning that importation into a non-member country may be considered as not having been proved where there is reason to doubt that the goods indicated on the customs entry certificate referred to in Article 20(3) of Regulation No 2730/79 actually gained access to the market of the country of destination.