1 BY AN ORDER OF 13 AUGUST 1985, WHICH WAS RECEIVED AT THE COURT ON 26 SEPTEMBER 1985, THE BUNDESFINANZHOF REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 6 ( 1 ) AND ( 5 ) OF REGULATION NO 1957/69 OF THE COMMISSION OF 30 SEPTEMBER 1969 ON ADDITIONAL DETAILED RULES FOR GRANTING EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1969 ( II ), P.*417 ).
2 THAT QUESTION WAS RAISED IN PROCEEDINGS BETWEEN PLANGE KRAFTFUTTERWERKE GMBH, AN UNDERTAKING PRODUCING FEEDINGSTUFFS, AND HAUPTZOLLAMT HAMBURG-JONAS, WHICH IS CLAIMING FROM IT PARTIAL REPAYMENT OF AN EXPORT REFUND PAID IN ADVANCE, AS PROVIDED FOR IN REGULATION ( EEC ) NO 441/69 OF THE COUNCIL OF 4 MARCH 1969 LAYING DOWN ADDITIONAL GENERAL RULES FOR GRANTING EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM, EXPORTED UNPROCESSED OR IN THE FORM OF CERTAIN GOODS NOT COVERED BY ANNEX II TO THE TREATY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1969 ( I ), P.*91 ). THAT REGULATION PROVIDES FOR ADVANCE PAYMENT OF REFUNDS IN RESPECT OF CERTAIN PRODUCTS, INCLUDING COMPOUND PRODUCTS WHOSE EXPORT TO NON-MEMBER COUNTRIES ATTRACTS A REFUND BUT WHICH ARE PROCESSED BEFORE BEING EXPORTED .
3 REGULATION NO 1957/69 OF THE COMMISSION, WHICH IS TO BE INTERPRETED IN THIS CASE, LAYS DOWN DETAILED RULES FOR SUCH ADVANCE REFUNDS . UNDER THOSE RULES TRADERS MUST SUPPLY THE CUSTOMS AUTHORITIES WITH A DECLARATION IN WHICH THEY UNDERTAKE TO EXPORT FROM THE COMMUNITY THE PRODUCTS ON WHICH THE REFUND IS GRANTED, SETTING OUT THEREIN THE CHARACTERISTICS OF SUCH PRODUCTS ( ARTICLE 3 ). ADVANCE PAYMENT OF THE REFUND IS ALSO SUBJECT TO THE LODGING OF A DEPOSIT OR EQUIVALENT SECURITY "GUARANTEEING THE REPAYMENT OF AN AMOUNT EQUAL TO THAT OF THE REFUND PAID INCREASED BY 20%" ( ARTICLE 6 ( 1 )*). ACCORDING TO ARTICLE 6 ( 5 ), REPAYMENT MUST BE MADE IF PROOF IS NOT FURNISHED THAT THE PRODUCTS IN QUESTION HAVE ACTUALLY LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY WITHIN THE REQUIRED TIME-LIMITS . HOWEVER, THE SUPPLEMENT OF 20% IS NOT CHARGED IF THE NECESSARY PROOF CANNOT BE FURNISHED THROUGH FORCE MAJEURE ( ARTICLE 6 ( 2 )*).
4 IT CAN BE SEEN FROM THE ORDER FOR REFERENCE THAT IN 1977 PLANGE SOUGHT ADVANCE PAYMENT OF AN EXPORT REFUND IN RESPECT OF THE MANUFACTURE OF SHEEP FEED INTENDED TO BE SUPPLIED TO LIBYA . TO THAT END, IT PLACED UNDER CUSTOMS CONTROL A QUANTITY OF BARLEY AND MAIZE AND UNDERTOOK TO PRODUCE FROM IT A QUANTITY OF MIXED CEREAL FEED WITH A CEREAL CONTENT OF MORE THAN 65% BY WEIGHT . AFTER THE TRANSACTION HAD BEEN COMPLETED AND THE NECESSARY CHECKS CARRIED OUT, THE GERMAN CUSTOMS ADMINISTRATION RELEASED THE DEPOSIT LODGED BY THE UNDERTAKING .
5 HOWEVER, DURING AN ADDITIONAL CHECK CARRIED OUT IN SPRING 1978, IT WAS DISCOVERED THAT IN ONE OF THE FOUR FACTORIES IN WHICH THE PRODUCTS IN QUESTION WERE MANUFACTURED THE BARLEY AND MAIZE CONTENT CONSTITUTED 63.9% OF THE WEIGHT OF THE FEED AND WAS THEREFORE BELOW THE DECLARED CONTENT OF 65 %. FOR THAT REASON, THE HAUPTZOLLAMT HAMBURG-JONAS CLAIMED REIMBURSEMENT OF DM*1*066*739.05, CALCULATED BY DEDUCTING FROM THE AMOUNT OF THE REFUND WHICH HAD BEEN GRANTED, INCREASED BY 20%, THE AMOUNT OF THE REFUND WHICH WOULD HAVE BEEN GRANTED IF THE TRANSACTION HAD BEEN CARRIED OUT ON THE BASIS OF A CEREAL CONTENT OF BETWEEN 50 AND 65% BY WEIGHT .
6 IN AN ACTION BROUGHT AGAINST THE DEMAND FOR REPAYMENT, THE FINANZGERICHT (( FINANCE COURT )) HAMBURG DECIDED THAT THE HAUPTZOLLAMT COULD ONLY CLAIM REPAYMENT OF THE EXPORT REFUND UNDULY PAID . IT WAS CONTRARY TO THE PRINCIPLE OF PROPORTIONALITY TO CHARGE THE 20% SUPPLEMENT SINCE THE UNDERTAKING COULD NOT BE BLAMED FOR THE DEFECT WHICH HAD BEEN FOUND TO EXIST .
7 ON AN APPEAL BROUGHT BY THE HAUPTZOLLAMT, THE BUNDESFINANZHOF TOOK THE VIEW THAT, FOR THE PURPOSES OF REGULATION NO 1957/69, THE EXISTENCE OR OTHERWISE OF FRAUD HAD NO BEARING ON THE LAWFULNESS OF THE SUPPLEMENT . IN ITS OPINION, THE QUESTION WAS RATHER WHETHER IT WAS CONTRARY TO THE PRINCIPLE OF PROPORTIONALITY TO CHARGE THE SUPPLEMENT AT A HIGH RATE, SUCH AS THAT FIXED BY ARTICLE 6 ( 1 ) OF THE REGULATION, NAMELY 20 %. THE BUNDESFINANZHOF ALSO CONSIDERED THE BASIS ON WHICH THE SUPPLEMENT SHOULD BE CALCULATED, THAT IS TO SAY, WHETHER IT SHOULD BE CALCULATED ON THE TOTAL AMOUNT OF THE REFUND PAID IN ADVANCE OR ON THE DIFFERENCE BETWEEN THAT AMOUNT AND THE REFUND WHICH SHOULD HAVE BEEN PAID .
8 IN ORDER TO RESOLVE THOSE PROBLEMS, THE BUNDESFINANZHOF REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE : "WAS A RECIPIENT OF EXPORT REFUNDS IN 1978 WHO HAD UNDERTAKEN, PURSUANT TO ARTICLE 3 ( 2 ) OF REGULATION ( EEC ) NO 1957/69, TO EXPORT MIXED CEREAL FEEDINGSTUFF WITH A CEREAL CONTENT EXCEEDING 65% BY WEIGHT, BUT WHO HAD IN FACT, OWING TO CIRCUMSTANCES IN WHICH NO BLAME ATTACHED TO HIM, EXPORTED MIXED CEREAL FEEDINGSTUFF CONTAINING BETWEEN 50 AND 65% BY WEIGHT OF CEREAL, OBLIGED UNDER ARTICLE 6 ( 1 ) AND ( 5 ) OF REGULATION NO 1957/69, EVEN WHERE THE DEPOSIT HAD ALREADY BEEN RELEASED, TO REPAY THE ENTIRE ADVANCE PAYMENT OF REFUND INCREASED BY 20%?"
9 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE OBSERVATIONS SUBMITTED BY THE PARTIES TO THE MAIN PROCEEDINGS AND BY THE COMMISSION, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
10 IT SHOULD FIRST BE NOTED THAT ARTICLE 6 ( 5 ) OF REGULATION NO 1957/69 REQUIRES THE EXPORTER TO REPAY THE AMOUNT OF THE REFUND PAID, PLUS ANY INCREASE, IF THE NECESSARY EVIDENCE IS NOT FURNISHED . THE PROVISION ADDS THAT IN SUCH A CASE, "IF REPAYMENT HAS BEEN CLAIMED BUT IS NOT RECEIVED", THE DEPOSIT WHICH WAS LODGED IS TO BE FORFEITED . CONSEQUENTLY, THE OBLIGATION TO REPAY THE REFUND IS NOT AFFECTED BY THE FACT THAT THE COMPETENT AUTHORITIES HAVE ALREADY RELEASED THE DEPOSIT, SINCE THE PURPOSE OF THAT DEPOSIT IS SOLELY TO ENSURE THAT THE TRADER RECEIVING THE REFUND HONOURS HIS UNDERTAKINGS .
11 IT MUST ALSO BE POINTED OUT, AS THE NATIONAL COURT RIGHTLY OBSERVES, THAT THE OBLIGATION TO REPAY THE REFUND ARISES WHEN CERTAIN EVIDENCE IS NOT FURNISHED . THE GRANT OF THE REFUND CONSTITUTES AN ADVANTAGE FOR THE TRADER WHICH IS JUSTIFIED IF CERTAIN CONDITIONS CONCERNING THE CHARACTERISTICS OF THE PRODUCT EXPORTED AND THE METHOD OF EXPORTATION ARE FULFILLED . WHEN CHECKS REVEAL THAT THAT HAS NOT BEEN THE CASE, THE REFUND IS NOT DUE TO THE EXPORTER AND IT MUST BE REPAID IF IT HAS ALREADY BEEN RECEIVED, FOR EXAMPLE UNDER ARRANGEMENTS FOR ADVANCE PAYMENT . IT IS NOT THEREFORE NECESSARY IN ORDER TO CLAIM REPAYMENT THAT THE TRADER SHOULD HAVE BEEN GUILTY OF FRAUD OR OF MISTAKES ATTRIBUTABLE TO FAULT ON HIS PART .
12 CONSEQUENTLY, THE POINTS RAISED BY THE NATIONAL COURT' S QUESTION CONCERN FIRSTLY THE APPLICATION OF A RATE OF 20% IN CALCULATING THE SUPPLEMENT PROVIDED FOR IN ARTICLE 6 ( 1 ) OF THE REGULATION AND, SECONDLY, THE REFUND WHICH IS TO SERVE AS THE BASIS FOR CALCULATING THAT SUPPLEMENT UNDER ARTICLE 6 ( 5 ) OF THE REGULATION .
13 WITH REGARD TO THE FIRST POINT, PLANGE CLAIMS THAT A RATE OF 20%, APPLICABLE REGARDLESS OF THE CIRCUMSTANCES OF THE CASE, IS DISPROPORTIONATE . ON THE OTHER HAND, THE HAUPTZOLLAMT AND THE COMMISSION ARGUE THAT RECOVERY OF REFUNDS UNDULY PAID NORMALLY TAKES PLACE AFTER A LONG PERIOD BROUGHT ABOUT BY THE PROCESSING OF THE PRODUCT, THE EXPORT FORMALITIES AND EXAMINATION OF THE RELEVANT DOCUMENTS . WHERE HE RECEIVES ADVANCE PAYMENT OF THE REFUND THE EXPORTER THEREFORE OBTAINS CREDIT OVER A LONG PERIOD, OFTEN MORE THAN A YEAR . UNDER THOSE CIRCUMSTANCES, THE IMPOSITION OF A STANDARD RATE SUPPLEMENT OF 20% IS PERFECTLY APPROPRIATE .
14 IT CAN BE SEEN FROM THE PREAMBLE TO REGULATION NO 1957/69 THAT THE 20% SUPPLEMENT WAS LAID DOWN IN ORDER TO PREVENT THE EXPORTER CONCERNED OBTAINING UNDUE BENEFIT . UNDER THE ARRANGEMENTS FOR ADVANCE PAYMENT TRADERS WOULD OBTAIN UNDUE INTEREST-FREE CREDIT IF IT SUBSEQUENTLY EMERGED THAT THE REFUND SHOULD NOT HAVE BEEN GRANTED .
15 HAVING REGARD TO THE PURPOSE OF THE SUPPLEMENT, A RATE OF 20% CANNOT BE REGARDED AS DISPROPORTIONATE . SINCE THE REGULATION LAID DOWN A STANDARD RATE FOR THE WHOLE OF THE COMMUNITY, IT WAS APPROPRIATE TO TAKE ACCOUNT, ON THE ONE HAND, OF THE VARIETY OF INTEREST RATES APPLIED IN THE VARIOUS MEMBER STATES AND, ON THE OTHER, OF THE LENGTH OF THE PERIOD WHICH COULD ELAPSE BETWEEN THE GRANT OF THE REFUND AND THE ACTUAL REPAYMENT THEREOF .
16 THE SECOND POINT RAISED BY THE NATIONAL COURT' S QUESTION IS WHETHER, AS THE HAUPTZOLLAMT AND THE COMMISSION CONTEND, THE SUPPLEMENT SHOULD BE CALCULATED ON THE BASIS OF THE ENTIRE REFUND PAID IN ADVANCE OR WHETHER, ON THE CONTRARY, THAT CALCULATION SHOULD BE MADE ON THE BASIS OF THE DIFFERENCE BETWEEN THE REFUND PAID IN ADVANCE AND THE SMALLER REFUND TO WHICH THE EXPORTER WAS ENTITLED . THE LATTER VIEW, PUT FORWARD BY PLANGE, SEEMS TO BE SHARED BY THE NATIONAL COURT .
17 IT SHOULD BE NOTED FIRST THAT THE TERMS OF ARTICLE 6 ( 5 ) OF THE REGULATION DO NOT APPEAR TO COVER THIS POINT . THEY CONCERN THE NORMAL CASE IN WHICH A REFUND HAS BEEN UNDULY PAID BUT DO NOT DEAL WITH THE PARTICULAR CASE OF A TRADER WHO, ALTHOUGH ENTITLED TO A REFUND, OBTAINED A LARGER REFUND UNDER THE ADVANCE PAYMENT PROCEDURES . ARTICLE 6 ( 3 ) DEALS ONLY WITH THE SITUATION IN WHICH THE NECESSARY EVIDENCE IS NOT FURNISHED IN RESPECT OF PART OF THE GOODS AND PROVIDES THAT IN SUCH A CASE THE REPAYMENT IS REQUIRED ONLY IN PROPORTION TO THAT QUANTITY .
18 UNDER THOSE CIRCUMSTANCES, REFERENCE MUST BE MADE TO THE PURPOSE OF THE RULES AT ISSUE . AS HAS ALREADY BEEN POINTED OUT ABOVE, THAT PURPOSE IS TO AVOID THE UNJUSTIFIED ENRICHMENT OF A TRADER WHO HAS ENJOYED INTEREST-FREE CREDIT WHERE IT TRANSPIRES THAT THE REFUND PAID BEFORE THE PROCESSING OF THE EXPORTED PRODUCTS WAS NOT DUE TO HIM . HOWEVER, THE INTEREST-FREE CREDIT ENJOYED BY A TRADER IN PLANGE' S SITUATION DOES NOT COVER THE WHOLE OF THE REFUND ACTUALLY PAID IN ADVANCE BUT ONLY THAT REFUND REDUCED BY THE AMOUNT OF THE REFUND TO WHICH THE TRADER WAS ENTITLED .
19 IT FOLLOWS FROM THE FOREGOING THAT THE REPLY TO THE QUESTION RAISED BY THE BUNDESFINANZHOF SHOULD BE THAT A TRADER WHO HAS UNDERTAKEN, PURSUANT TO ARTICLE 3 ( 2 ) OF REGULATION NO 1957/69, TO EXPORT MIXED CEREAL FEEDINGSTUFF WITH A CEREAL CONTENT EXCEEDING 65% BY WEIGHT, BUT WHO HAS IN FACT, OWING TO CIRCUMSTANCES IN WHICH NO BLAME ATTACHES TO HIM, EXPORTED MIXED CEREAL FEEDINGSTUFF CONTAINING ONLY BETWEEN 50 AND 65% BY WEIGHT OF CEREAL, IS OBLIGED UNDER ARTICLE 6 ( 1 ) AND ( 5 ) OF THE SAID REGULATION, EVEN WHERE THE DEPOSIT HAS ALREADY BEEN RELEASED, TO REPAY THE DIFFERENCE BETWEEN THE REFUND PAID IN ADVANCE AND THE REFUND WHICH HE SHOULD HAVE OBTAINED FOR THE PRODUCTS ACTUALLY EXPORTED, THAT DIFFERENCE TO BE INCREASED BY 20 %.