1. This request for a preliminary ruling concerns the interpretation of Articles 4(1), 49(2) and 51 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, and corrigenda OJ 1999 L 180, p. 53, and OJ 1999 L 106, p. 28), as amended by Commission Regulation (EC) No 2299/2001 of 26 November 2001 (OJ 2001 L 308, p. 19) (‘Regulation No 800/1999’).
2. The request has been made in proceedings between Nordex Food A/S (‘Nordex’), a company established in Denmark, and the Hauptzollamt Hamburg-Jonas, concerning a refusal to grant an export refund and the application of a penalty, on the basis of Article 51 of Regulation No 800/1999. Legal context
3. Article 4, point 5, of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Customs Code’) defines ‘decision’ as ‘any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons’.
4. Commission Regulation (EC) No 612/2009 of 7 July 2009 on laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 2009 L 186, p. 1) repealed Regulation No 800/1999, which nevertheless remains applicable to the facts at issue in the main proceedings.
5. Recitals 63 and 64 of Regulation No 800/1999 were worded as follows: ‘(63)\t... in the light of experience, measures to combat irregularities and notably fraud harmful to the Community budget should be intensified; ... to that end, provision should be made for the recovery of amounts over-paid and sanctions to encourage exporters to comply with Community rules; (64) ... to ensure the correct functioning of the system of export refunds, sanctions should be applied regardless of any subjectivity of the fault; ... it is nevertheless appropriate to waive sanctions in certain cases, and notably where there is an obvious error recognised by the competent authority, and to provide harsher sanctions in cases of intent …’.
6. Article 4(1) of Regulation No 800/1999 provided as follows: ‘Entitlement to the refund shall be conditional upon the presentation of an export licence with advance fixing of the refund, except in the case of exports of goods ...’
7. Pursuant to Article 5(1) and (2) of that regulation, the day of export means the day on which the customs authorities accept the export declaration stating that a refund is to be applied for. The date of acceptance of the export declaration is to determine the rate of refund applicable, any adjustments to be made and the quantity, nature and characteristics of the product exported.
8. In accordance with Article 5(7), fourth subparagraph, of that regulation, the competent customs office must be able to make physical checks and identify the goods for transport to the office of exit from the customs territory of the Community.
9. Article 49(2) and (4) of that regulation provided as follows: ‘2. Except in cases of force majeure , the documents relating to payment of the refund or release of the security must be submitted within 12 months of the date on which the export declaration is accepted. ... 4. Where, despite having acted with all due diligence, the exporter has been unable to obtain and forward the documents required under Article 16 within the time-limit laid down in paragraph 2, he may be granted, on his application, further time in which to present them.’
10. Article 50(2) of Regulation No 800/1999 provided as follows: ‘Where proof that all the requirements laid down by Community regulations have been fulfilled is provided within six months of expiry of the time-limits laid down in Article 49(2) and (4), the refund paid shall be 85% of the sum that would have been paid had all the requirements been fulfilled. ...’
11. Pursuant to Article 51 of that regulation: ‘1. Where it is found that an exporter with a view to the grant of an export refund has applied for a refund exceeding that applicable, the refund due for the relevant exportation shall be that applicable to the products actually exported, reduced by: (a) half the difference between the refund applied for and that applicable to the actual export; (b) twice the difference between the refund applied for and that applicable where the exporter intentionally provides false information. ... 3. The penalty provided for in point (a) of paragraph 1 shall not apply: (a) in cases of force majeure ; (b) in exceptional cases where the exporter, on his own initiative, immediately after becoming aware that the refund applied for is excessive, notifies the competent authority thereof in writing, unless the competent authority has informed the exporter that it intends to examine the request or the exporter has otherwise become aware of this intention, or the competent authority has already established that the refund requested was incorrect; (c) in cases of obvious error as to the refund applied for, recognised by the competent authorities; ... 7. The penalties shall not apply simply where the refund applied for is higher than the refund applicable pursuant to Articles 4(2), 18(3), 35(2) and/or 50. ...’
12. Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 2000 L 152, p. 1) was repealed by Commission Regulation (EC) No 376/2008 of 23 April 2008 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 2008 L 114, p. 3).
13. Regulation No 1291/2000 however remains applicable to the facts at issue in the main proceedings.
14. Recitals 15 and 16 of Regulation No 1291/2000 read as follows: ‘(15) An import or export licence confers the right to import or export and so it must be presented at the time when the import or export declaration is accepted. (16) When simplified import or export procedures are used, the requirement to present the licence to the customs authorities may be waived or the licence may be presented subsequently. However, the importer or exporter must be in possession of the licence on the date considered to be that on which the import or export declaration is accepted.’
15. Article 24 of that regulation provided as follows: ‘1. Copy No 1 of the licence o[r] certificate shall be submitted to the customs office which accepted: ... (b) in the case of an export licence or of a certificate of advance fixing of the refund, the declaration relating to: - export ... 2. Copy No 1 of the licence or certificate shall be presented, or held at the disposal of the customs authorities, at the time of acceptance of the declaration referred to in paragraph 1. 3. After the office referred to in paragraph 1 has made the attribution and endorsed copy No 1 of the licence or certificate, it shall be returned to the party concerned. However, Member States may require or allow the party concerned to make the entry on the licence or certificate; in all such cases the entry shall be examined and endorsed by the competent office. ...’
16. Article 25(1) of that regulation provided as follows: ‘Notwithstanding Article 24, a Member State may allow the licence or certificate to be submitted to the issuing body or, where applicable, to the authority responsible for payment of the refund.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
17. On 2 May 2002, Nordex declared at the competent customs office, the Zollamt Nesserland, feta cheese for export from Germany to Kosovo. In that regard, it referred to an export licence drawn up by the Danish authorities. Given that that licence was not attached to the export declaration, the Zollamt Nesserland granted Nordex one week within which to present it. The licence having been presented within that period, the Zollamt Nesserland entered the exported goods on it.
18. On 22 May 2002, Nordex submitted an application for a differentiated export refund to the Hauptzollamt Hamburg-Jonas, the competent authority for the payment of that refund. A form dated 7 May 2002 and issued by the provisional customs authorities for Kosovo, the United Nations Interim Administration Mission in Kosovo (UNIMK), establishing the release for free circulation of that cheese in Kosovo, was attached to that application.
19. By a decision of 9 August 2002, the Hauptzollamt Hamburg-Jonas refused payment of the export refund applied for, on the ground that the export concerned had taken place without a valid export licence. The complaint brought by Nordex against that decision having been rejected by the Hauptzollamt Hamburg-Jonas, Nordex brought an action before the Finanzgericht Hamburg (the Hamburg Finance Court) in order to obtain that refund.
20. It was only in 2004 and 2005 that irregularities in the Kosovan customs documents were discovered. Given that the stamp of the customs authority on the customs document establishing the release for free circulation of the goods in Kosovo had been forged, the Hauptzollamt Hamburg-Jonas imposed a fine on Nordex on the basis of Article 51 of Regulation No 800/1999, by a corrective decision of 25 January 2006.
21. Consequently, Nordex also requested, in the judicial proceedings relating to the grant of the export refund, which were still pending before the Finanzgericht Hamburg, annulment of the penalty imposed. In this connection, Nordex submitted new documents taking the form of letters from the UNIMK customs authority and a certified copy of the original duties clearance sheet drawn up by that authority.
22. The Finanzgericht Hamburg dismissed Nordex’s action. According to that court, the Hauptzollamt Hamburg-Jonas is bound by the decision of the Zollamt Nesserland to extend the time-limit and it cannot therefore refuse payment of the export refund on the ground that the export licence was presented out of time. On the other hand, in so far as the documents proving that all the import formalities in Kosovo had been completed, produced by Nordex during the judicial proceedings, were not presented within the prescribed periods, namely, within the period of 12 months provided for in Article 49(2) of Regulation No 800/1999 or, failing this, within the period of 18 months mentioned in Article 50(2) of that regulation, the export refund applied for could not be granted and the penalty referred to in Article 51 of Regulation No 800/1999 would also be incurred.
23. Nordex brought an appeal against that decision before the Bundesfinanzhof (the Federal Finance Court).
24. That court takes the view, in the first place, that the outcome of the proceedings depends on whether, under Article 4 of Regulation No 800/1999, entitlement to the refund at issue in the main proceedings is conditional on observance of the procedural rules under, in particular, Article 24(2) of Regulation No 1291/2000. It states that that issue arises, however, only if the authority responsible for the payment of refunds is not bound by the additional period granted by the customs office of export for the presentation of the export licence.
25. In the second place, the Bundesfinanzhof expresses doubts as regards the applicability of the 12-month time-limit provided for in Article 49(2) of Regulation No 800/1999, when the presentation out of time of proof of the arrival of the goods at their destination neither hindered nor delayed the refund procedure, the competent authorities having rejected Nordex’s application for other reasons.
26. In the third place, as regards the application of a penalty, the Bundesfinanzhof is of the view that it is not evident from Article 51(1) of Regula tion No 800/1999, as interpreted by the Court, that a penalty is also incurred when the documents establishing that the goods did arrive at their destination prove to have been forged, but are replaced, during the judicial proceedings, by documents meeting the requirements.
27. In those circumstances, the Bundesfinanzhof decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) For the purposes of the decision on the granting of an export refund, must it be assumed that the export licence has been duly presented pursuant to Article 4(1) of ... Regulation [No 800/1999] if the export customs office accepted the export declaration without the presentation of the licence but in so doing permitted the exporter to submit the licence later within a certain time-limit and the exporter complied with this? (2) If the reply to the first question is in the negative: does Article 4(1) of ... Regulation [No 800/1999] require, on a mandatory basis, that the export licence must be presented when lodging the export declaration or is it sufficient if the exporter first submits the export licence (granted to him before export) in the payment procedure? (3) Is an exporter, who initially submitted forged customs documents in relation to the arrival of the exported product in the country of destination, able to submit valid customs documents to preserve his entitlement even after the expiry of the time-limits for submission laid down in ... Regulation [No 800/1999], if the delayed submission has not delayed or hindered the handling of the payment procedure because the application for a refund was initially rejected as a result of reasons other than the failure to submit such proof of arrival at destination and such proof is submitted after it was found that those documents had been forged? (4) Is a penalty pursuant to Article 51 of … Regulation [No 800/1999] incurred even if the export refund applied for did correspond to that which in fact had to be granted but in the payment procedure the exporter initially submitted documents on the basis of which the export refund could not have been granted to him?’ Consideration of the questions referred The first question
28. By its first question, the referring court asks, in essence, whether an export licence may be considered to have been presented in accordance with Article 4(1) of Regulation No 800/1999 when the export was made without that licence, whose existence was however established at the time the export declaration was made and which was presented, by the exporter, within the additional period of one week granted for that purpose by the competent customs office.
29. It must be noted that Article 4(1) of Regulation No 800/1999 provides that entitlement to the refund is conditional upon the presentation of an export licence to the competent customs authority.
30. Given that Article 4 of Regulation No 800/1999 is included in the part of the general provisions of that regulation relating to entitlement to refunds, it must be observed that the Court has held, so far as concerns Article 3 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), which corresponds to Article 5 of Regulation No 800/1999 and which is part of the same general provisions, that the information referred to in Article 3 of Regulation No 3665/87 is used not only in the 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 (judgment in Dachsberger & Söhne , C‑77/08, EU:C:2009:172, paragraph 24 and the case-law cited).
31. So far as concerns the checks to be carried out, Article 5(7) of Regulation No 800/1999 provides that the competent customs office must be able to make physical checks on the goods in respect of which export refunds have been applied for and to identify the goods for transport to the office of exit from the customs territory of the European Union.
32. Those checks are necessary in order that the objectives of the European Union (‘EU’) legislation on export refunds may be fulfilled (see, to that effect, judgments in Dachsberger & Söhne , EU:C:2009:172, paragraph 41 and the case-law cited, and Südzucker and Others , C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 43).
33. It follows that the presentation of the export licence constitutes an essential element of the system of checks of applications for refunds.
34. Regulation No 800/1999 does not, however, contain any details as regards the procedure for the presentation of the export licence. Those details appear in Regulation No 1291/2000. As is apparent from recital 15 in the preamble thereto, that licence confers the right to export and so it must be presented at the time the export declaration is accepted.
35. Article 24(1) of Regulation No 1291/2000 provides that the export licence is to be submitted to the customs office that accepted the export declaration. In accordance with Article 24(2) of that regulation, the licence is to be presented, or held at the disposal of the customs authorities, at the time of acceptance of that declaration.
36. Notwithstanding Article 24 of that regulation, Article 25 thereof provides that a Member State may allow the export licence to be submitted to the issuing body or, where applicable, to the authority responsible for payment of the refund.
37. Furthermore, according to recital 16 in the preamble to that regulation, when simplified export procedures are used, the requirement that the licence be presented to the customs authorities may be waived or the licence may be presented subsequently. However, the exporter must be in possession of the licence on the date considered to be that on which the export declaration is accepted.
38. Thus, it is apparent from Articles 24 and 25 of Regulation No 1291/2000 and recital 16 in the preamble thereto that the EU legislature intended to provide, in certain circumstances, that the exporter could either hold the export licence at the disposal of the customs authorities or present it to them subsequently.
39. The very existence of those exceptions therefore shows that presentation of the export licence at the time of acceptance of the export declaration is not, in all cases, an essential condition for grant of the export refund, on the condition, however, that the objectives of the EU legislation on export refunds should not be compromised and that it should have been possible for the competent authorities to make the physical checks.
40. In the present case, it is, first of all, not disputed that the export licence existed at the time of acceptance of the export declaration and that the competent customs office knew of its existence. Secondly, it is apparent that the delay in the transmission to that office of the export licence drawn up by the Danish authorities is not directly imputable to Nordex. Lastly, the order for reference does not show that the presentation of that export licence after the export declaration was lodged hindered the necessary physical checks that were performed by the competent customs office.
41. As regards the question whether the competent authority for payment of the export refund was in a position to challenge the decision by the competent customs authority to grant further time, the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying that refund is bound by a decision of the customs office of export if that decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of the Customs Code and by the relevant provisions of the national law concerned (see, to that effect, judgment in Südzucker and Others , EU:C:2012:444, paragraphs 64 to 67).
42. However, it is for the national court to determine whether the decision at issue satisfies those conditions (see, to that effect, judgment in Südzucker and Others , EU:C:2012:444, paragraph 67).
43. It follows from all the foregoing considerations that Article 4(1) of Regulation No 800/1999, read in conjunction with Article 24 of Regulation No 1291/2000, must be interpreted as not precluding the grant of an export refund in specific circumstances such as those of the case in the main proceedings, in which the export was made without an export licence, whose existence was, however, established at the time the export declaration was made and which was presented, by the exporter, within the additional period of one week granted for that purpose by the competent customs office. The second question
44. In the light of the answer to the first question, there is no need to answer the second question. The third question
45. By its third question, the referring court asks, in essence, whether an exporter who has presented forged customs documents in order to prove the arrival of the exported goods in the country of destination is authorised, after the periods laid down in Articles 49 and 50 of Regulation No 800/1999 have expired, to present, in the course of pending judicial proceedings relating to the grant of the export refund, valid customs documents, even though the grant of the export refund was delayed for reasons other than those relating to the proof of those goods’ arrival.
46. It is to be observed at the outset that the exporter must, in accordance with Article 49(1) of Regulation No 800/1999, make an express application for payment of the export refund. Under Article 49(2) of that regulation, except in cases of force majeure , the exporter has 12 months from the date on which the export declaration is accepted within which to submit, to the competent national authorities, the documents relating to payment of the refund.
47. In respect of that 12-month time-limit, the Court has held, on the one hand, that such a time-limit takes account of the interest of the Member States’ authorities in closing export refund files within a reasonable time (see, to that effect, regarding equivalent provisions in Article 47(2) of Regulation No 3665/87, the judgment in Eribrand , C‑467/01, EU:C:2003:364, paragraph 40).
48. On the other hand, the EU legislation also takes into consideration the fact that exporters may encounter practical difficulties in obtaining the customs documents from the authorities of the non-member country of importation, upon whom they have no means of exerting pressure. It is in that context that it enables the competent national authorities to grant the exporter concerned extensions of time (see, to that effect, judgment in Eribrand , EU:C:2003:364, paragraphs 41 and 42).
49. It is apparent from the scheme and spirit of the applicable legislation, specifically Article 49 of Regulation No 800/1999, that the latter seeks not automatically to deprive a diligent exporter of the refunds provided for when, despite having made every effort required of him, the exporter is unable to produce the documents required for the export refund to be paid, because those documents have been lost as a result of circumstances beyond his control (see, to that effect, judgment in Bonn Fleisch , C‑1/06, EU:C:2007:396, paragraph 46).
50. Thus, Article 49(4) of Regulation No 800/1999 provides that when, despite having acted with all due diligence, the exporter has been unable to obtain and forward the documents proving the completion of the import customs requirements within the 12-month time-limit, he may be granted, on his application, further time.
51. Although the wording of Article 49 of Regulation No 800/1999 does not contain any restriction of the duration of the extension of time that may be granted, it is clear from the express reference, in Article 50(2) of that regulation, to the time-limits set by Article 49(2) and (4) thereof that, if an extension of time has been granted to the exporter, he has a further period of six months following the expiry of that period to complete his file and thus obtain the payment of 85% of the refund which would have had to be paid if all the requirements had been satisfied (see, to that effect, judgment in Eribrand , EU:C:2003:364, paragraph 45).
52. On the other hand, as was already apparent from the 25th recital in the preamble to Regulation No 3665/87, no refund is granted if the time-limits for export and for submitting the proof required for obtaining payment of the refund are not complied with. Therefore the Court has held, concerning that regulation, that failure to observe procedural rules laid down in the legislation can lead to the reduction, even the loss, of the rights to an export refund and that this is the case, in particular, when an exporter does not produce the necessary evidence to obtain the export refund until after the expiry of the periods referred to in Articles 47(2) and 48(2) of that regulation, the content of which is, essentially, identical to that of Articles 49(2) and 50(2) of Regulation No 800/1999 (judgment in Laub , C‑428/05, EU:C:2007:368, paragraph 16).
53. That conclusion is not called into question by the fact that the presentation out of time of proof of the arrival of the exported goods in the country of destination had no effect on the handling of the procedure for grant of the export refund, that procedure being delayed for reasons other than those relating to the proof of that arrival.
54. To allow such presentation out of time would render redundant not only Articles 49 and 50 of Regulation No 800/1999 and the power of the competent authorities to grant an extension of the time-limits at the request of the exporter, but also the process of checking the applications for refunds. If valid documents furnishing proof of the arrival of the exported goods in the country of destination could be presented after the customs documents initially provided had been found to be forged, the exporter could amend its application for a refund at its convenience and according to the result of any check and, thus, avoid, in particular, the penalties provided for in Article 51 of Regulation No 800/1999, negating the dissuasive nature and, to a significant degree, the effectiveness of that article.
55. In that context, the duration of the investigations carried out by the competent national authorities making it possible to ascertain that the documents certifying the arrival of the exported goods in the country of destination were forged is not to be equiparated to a case of force majeure , within the meaning of Article 49(2) of Regulation No 800/1999, inasmuch as, as is apparent from the penultimate recital in the preamble to Regulation No 3665/87, delays by the national authorities may constitute a case of force majeure where they are administrative in nature and beyond the control of the exporter.
56. In accordance with the Court’s consistent case-law, even if the fault or error committed by a contracting partner of the exporter could constitute a circumstance beyond the exporter’s control, the fact remains that this is 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 he concludes with them or by effecting appropriate insurance (see, to that effect, judgments in AOB Reuter , C‑143/07, EU:C:2008:249, paragraph 36 and the case-law cited, and Eurofit , C‑99/12, EU:C:2013:487, paragraph 43).
57. It follows from the foregoing considerations that Articles 49 and 50 of Regulation No 800/1999 must be interpreted as meaning that, save in cases of force majeure , an exporter who has presented, in order to prove the arrival of the exported goods in the country of destination, customs documents that are later shown to be forged, may not, after the periods laid down in those articles have expired, present, in the course of pending judicial proceedings relating to the grant of the export refund, valid customs documents, even though the grant of the export refund was delayed for reasons other than those relating to the proof of arrival of those goods. The fourth question
58. By its fourth question, the referring court asks, in essence, whether Article 51(1)(a) of Regulation No 800/1999 must be interpreted as meaning that the penalty provided for in that provision is incurred when the exporter presented, within the prescribed periods, documents proving the arrival of the exported goods in the country of destination that have been shown to be forged, even though it is apparent from the valid documents produced during the proceedings that the export refund applied for corresponds to that which would have had to be granted.
59. In order to assess the implications of Article 51 of Regulation No 800/1999, it must be borne in mind that, in accordance with recitals 63 and 64 in the preamble to that regulation, the purpose of the EU legislation, in the light of experience, is to combat irregularities and notably fraud harmful to the EU budget, by providing for penalties designed to encourage exporters to comply with rules in this field (see, to that effect, judgment in Elfering Export , C‑27/05, EU:C:2006:260, paragraph 31), the subjective aspect of the fault committed having no impact in that regard (judgment in Eurofit , EU:C:2013:487, paragraph 38).
60. Therefore, the liability on which the penalty provided for in Article 51(1)(a) of Regulation No 800/1999 is based is essentially objective in nature (see, so far as concerns the provisions of Article 11(1), first subparagraph, point (a) of Regulation No 3665/87, the content of which is essentially identical to that of that provision of Regulation No 800/1999, judgment in AOB Reuter , EU:C:2008:249, paragraph 19). It follows that the reduction of the refund mentioned in Article 51(1)(a) of Regulation No 800/1999 must be applied even if the exporter has not committed any fault (see, to that effect, judgment in AOB Reuter , EU:C:2008:249, paragraph 17).
61. It must also be observed that the purpose of the rules relating to penalties is to ensure compliance with EU rules in general and not only with some or specific provisions thereof (see judgment in Elfering Export , EU:C:2006:260, paragraph 32). The provisions on penalties do not, therefore, distinguish the formal requirements relating to compliance with time-limits from the substantive requirements relating to the content of declarations.
62. In the present case, the documents proving the arrival of the exported goods in the country of destination and provided within the periods prescribed by the legislation have been shown to be forged. The exporter concerned having not, therefore, presented within the prescribed periods all the documents required by the legislation at issue, the penalty in Article 51(1)(a) of Regulation No 800/1999 had to be imposed on it, unless one of the exceptions in the exhaustive list in Article 51(3) applied, a list to which no new exception may be added on the basis, in particular, of lack of fault on the part of the exporter (see, to that effect, judgments in AOB Reuter , EU:C:2008:249, paragraph 36, and Eurofit , EU:C:2013:487, paragraph 43).
63. It follows from the foregoing considerations that, on a proper construction of Article 51(1)(a) of Regulation No 800/1999, the penalty provided for in that provision is incurred when the exporter presented, within the prescribed periods, documents proving the arrival of the exported goods in the country of destination that were shown to have been forged, even though it is apparent from the valid documents produced during the proceedings that the export refund applied for corresponds to that which would have had to be granted. Costs
64. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.