C-94/71

JUDGMENT OF 6.6.1972 — CASE 94/71 SCHLÜTER v HAUPTZOLLAMT HAMBURG

CELEX: 61971CJ0094
Datum: 1972-06-06
Källa: eur-lex.europa.eu

In Case 94/71 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars (Rapporteur) and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

The facts and procedure may be summarized as follows :

1) The dispute before the national court relates to the right of the plaintiff in the main action to export refunds in connexion with a contract for the supply of 75 metric tons of sugar intended for victualling ships and transported for this purpose from Hamburg to Genoa. The questions referred for a preliminary ruling are primarily concerned with the requirements as to form and time relating to the application for a refund which an exporter must make if he claims to be entitled thereto.

2) Article 17 of Regulation No 1009/67/EEC of the Council on the common organization of the market in sugar establishes a system of export refunds designed to cover the difference between quotations or prices of sugar on the world market and sugar prices within the Community. The refunds, which are fixed by the Council and in exceptional circumstances by the Commission (fifth and sixth paragraphs of Article 17(2)) are paid on application by the exporter (Article 17(2) of Regulation No 1009/67/EEC) by the Member State in whose territory the customs export formalities are concluded (Article 10 of Regulation No 1041/67 of the Commission).

3) Article 1 of the latter regulation states that the date of exportation shall be the day on which the customs authority accepts the document by which the declarant states his intention to export the products in question and qualify for a refund and acceptance of this document shall be considered to be the completion of the customs export formalities. The refund shall be paid only upon proof that the product in respect of which customs formalities have been completed has left the geographical territory of the Community or, in the case of supplies for victualling sea-going vessels, that they have reached their destination. (Regulation No 1041/67, Articles 2 and 3). Furthermore Article 5 of this regulation, in the version which was in force when the events giving rise to this dispute occurred, stated that if, before leaving the geographical territory of the Community or before reaching its destination, a product crosses Community territory other than that of the Member State in whose territory customs export formalities have been completed, proof that this product has left the geographical territory of the Community or reached the intended destination had to be furnished in the form of an exit certificate, the model of which is shown in the Annex to the said regulation. Finally under Article 10(2) of this regulation as amended by Regulation (EEC) No 499/69: ‘The time-limit for claiming payment of the refund shall be 6 months following the day on which the customs export formalities were completed except in cases of force majeure’.

4) For the purpose of ensuring the implementation of the beforementioned Community provisions the Federal Republic of Germany adopted a regulation relating to export refunds (Verordnung Ausfuhrerstattungen EWG, Bundesanzeiger No 18 of 26 January 1968). Article 6 of this regulation states, inter alia, that the application for a refund must be lodged with the competent customs office in the prescribed form. The German authorities require that this form shall be lodged as one of the documents referred to in Article 10(2) of Regulation No 1041/67 in support of a claim for payment of the refund within the 6 months' period prescribed in this Article.

5) On 2 October 1968 the plaintiff in the main action delivered to the Uelzen customs office 75000 kgs of sugar which were covered by an export licence and intended for victualling sea-going vessels. According to the declaration the goods had to be delivered to Genoa, free port. An exit certificate containing the same particulars had been issued in accordance with the provisions of Article 5 of Regulation No 1041/67. The German customs authorities kept a copy whilst the original of the certificate, as provided for by the beforementioned Article 5, accompanied the goods to Genoa. On 18 April 1969 the customs office in Genoa, in compliance with the provisions of the said Article 5, sent the exit certificate — although with some delay — to the national authority responsible for paying the refund (the Hauptzollamt Hamburg-Jonas) after having endorsed it on 1 April 1969 with a declaration that the goods had left Community territory on 12 February 1969. The plaintiff in the main action forwarded on 24 May 1969 to the Hauptzollamt Hamburg-Jonas a copy of the application for a refund as provided by Article 1 (6) of the beforementioned Verordnung Ausfuhrerstattungen EWG and pointed out that it was a second copy of an application sent on 9 October 1968 which the defendant in the main action states it never received.

6) By a decision of 20 October 1969 the defendant in the main action dismissed the application for a refund. On 5 November 1969 the plaintiff in the main action lodged an objection to this decision. As this was dismissed the plaintiff in the main action lodged an appeal on 19 May 1970 with the Finanzgericht Hamburg.

7) In its order of 22 October 1971 the Finanzgericht Hamburg declared that it doubted whether the system in force under German law was compatible with Community law and, more particularly, with Regulations Nos 1009/67 and 1041/67. According to the Finanzgericht it is probable that the declaration made by the exporter in the exit certificate amounts to an application for a refund as required by Article 17(2) of Regulation No 1009/67. The additional application required under German law cannot be reconciled with the procedure laid down by Regulation No 1041/67, and Regulations Nos 1009/67 and 1041/67 did not permit national authorities to adopt additional implementing measures since the relevant Community rules are exhaustive. As the Finanzgericht therefore was of the opinion that questions of interpretation of Community law arose out of the action it stayed the proceedings and referred the following questions to the Court of Justice of the European Communities:

1) Is the application for a refund which has to be made under Article 17(2) of Regulation No 1009/67 (OJ English Special Edition 1967, p. 304) identical with the declaration which the exporter must make under Article 1(1) of Regulation No 1041/67 (OJ English Special Edition 1967, p. 323)?

2) Must the application for a refund which has to be lodged in these circumstances, in addition to the declaration under Article 1 (1) of Regulation No 1041/67 be made orally or in writing? If it must be made in writing,

3) Is it one of the documents envisaged in Article 10(2) of Regulation No 1041/67? If so,

4) What is meant by force majeure in Article 10(2) of Regulation No 1041/67 in the version contained in Regulation No 499/69 (OJ English Special Edition 1969(I), p. 114)?

8) Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided not to order any preparatory enquiries. The plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities submitted their oral and written observations. The plaintiff in the main action was represented by Mr Modest of the Hamburg Bar. The Government of the Federal Republic of Germany was represented by its agent Mr Morawitz. The Commission of the European Communities was represented by its Legal Adviser, Mr P. Kalbe. The Advocate-General delivered his opinion at the hearing on 4 May 1972.

II — Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community

The observations submitted pursuant to Article 20 of the said Protocol may be summarized as follows :

A — The first question

1. The plaintiff in the main action makes the preliminary observation that when, in accordance with Article 5 of Regulation No 1041/67/EEC, an exit certificate is required and the exporter certifies in Part A of this certificate that the goods qualify for an export refund he has thereby stated his intention to export the goods in question and qualify for a refund and that, consequently, the exporter's declaration referred to in Article 1 (1) of Regulation No 1041/67 is exactly the same as the declaration which the exporter has to make in Part A of the exit certificate. It is the plaintiff's view that this declaration must as a general rule be treated in the same way as the application for a refund which has to be made in accordance with Article 17(2) of Regulation No 1009/67. It substantiates its argument as follows: (a) Community regulations do not include any specific provision stating what form the application for a refund provided for by the said Article 17 must take. The view can therefore be taken that the declaration which the exporter has to make under Article 1(1) of Regulation No 1041/67 — the only provision of Regulation No Í041/67 which refers to a declaration of intent to qualify for a refund — should be considered as being the application for a refund required under Article 17(2) of Regulation No 1009/67 once it suffices to fulfil the purpose of Article 17(2). The meaning and the purpose of the requirement laid down by this latter article is to notify the office responsible for paying the refunds of the export likely to qualify for a refund, thereby assisting it to obtain a comprehensive view of the refunds which it will have to pay. The objective of Article 17 is attained when the declaration referred to in Article 1 (1) of Regulation No 1041/67 is sent to the office responsible for paying the refunds or when it has to be sent to this office pursuant to the provisions of the law relating to refunds. However if an exit certificate has to be completed in accordance with Article 5 of Regulation No 1041/67 the authority responsible for refunds in Germany would inevitably receive notice of the application for a refund through the customs authorities (moreover the two authorities, one responsible for customs matters and the other for refunds, are in Germany the same legal entity). On the one hand the original certificate must be returned to the national authority shown in the certificate heading by the customs office which is empowered to certify that the product has reached its destination and, on the other hand, the second copy of the exit certificate is kept by the customs office of exit (if it is responsible for paying the refund) or sent directly by that office to the authority responsible for paying the refund. It is the forwarding of this second copy of the exit certificate which brings the declaration made by the exporter to the notice of the responsible authority. The objective of Article 17 (2) of Regulation No 1009/67 is therefore wholly attained by the declaration made by the exporter in the exit certificate. (b) The declaration made by the exporter clearly shows his intention to obtain a refund. It is not just a simple declaration of intent, because there could not conceivably be any circumstances in which the exporter would waive the refunds after making a declaration as to his intention to export. Moreover the consequences attached to the declaration (commencement of the limitation period; the rate of the refund) are not such as can be associated with a mere declaration of intent which is what the Federal Republic of Germany considers the disputed declaration to be. (c) The fact that there is a German regulation under which it is the practice in the Federal Republic of Germany for an application for a refund to be lodged separately in no way invalidates the argument that the declaration in Part A of the exit certificate is equivalent to an application for a refund. In fact it was only lawful to resort to the adoption of national rules to the extent to which this was necessary for the implementation of regulations. In this case there was no such need, because Regulation Nos 1009/67 and 1041/67 lay down exhaustively the conditions for the grant of refunds. (d) The plaintiff's argument is supported by the amendment to Article 10(2) of Regulation No 1041/67 by Regulation No 499/69/EEC. This amendment was prompted by the consideration that the period prescribed for lodging the documents claiming payment of the refund in cases of force majeure cannot apply to the exporter ‘particularly where the time-limit cannot be complied with owing to administrative delays for which the party concerned is not responsible’ (Regulation No 499/69, ninth recital). According to the plaintiff in the main action there is no justification for this provision if the grant of the refund could be made conditional under the laws of the Member States upon the exporter's lodging a special form of application, different from the one set out in the exit certificate. Such an application can in fact be made at any time by the party concerned and it is impossible to imagine a case where force majeure could prevent him from complying with the prescribed time-limit. On the other hand it is quite possible to envisage such a situation arising if the application for a refund and the declaration referred to in Article 1(1) of Regulation No 1041/67 are identical, because in such a case the time of the despatch of this declaration to the office responsible for paying the refund does not depend on the volition of the exporter. The plaintiff in the main action therefore proposes that the first question be answered as follows: the application for a refund which has to be made under Article 17(2) of Regulation No 1009/67 and the declaration which the exporter has to make under Article 1(1) of Regulation No 1041/67 are identical, at least when the declaration is notified, or has under the regulations relating to refunds to be notified, to the administrative authorities responsible for paying refunds.

2. The Government of the Federal Republic of Germany makes the preliminary observation that the declaration by the exporter mentioned in Article 1 (1) of Regulation No 1041/67 is, in the circumstances referred to in Article 5 of this regulation, the same as the declaration which the exporter has to make in Part A of the exit certificate. It takes the view, however, that the said declaration, having regard to its wording and purpose, cannot be regarded as equivalent to the application for a refund referred to in Article 17 of Regulation No 1009/67 for the following reasons: (a) This view is based first of all on the reason and purpose of the exit certificate and also on the nature of the customs export formalities. This certificate was introduced for the purpose of standardizing the forms of evidence that the customs export formalities have been completed and that the goods have left the Community. These customs formalities play an important part in the application of the system of export refunds but their completion does not of itself establish the right to receive a refund. This emerges clearly from Article 3 of Regulation No 1041/67 under which the refund shall be paid only on proof that the product in question has left the geographical territory of the Community unaltered and completion of the customs formalities does not itself amount to such proof. This is also substantiated by the wording of Article 9 of the beforementioned regulation which confers upon Member States a power to pay refunds in advance as soon as the customs export formalities are completed and this implies therefore that, after completion of these formalities, when the exporter has already made the declaration referred to in Article 1 (1) of Regulation No 1041/67, the right to a refund no longer exists. Moreover if the abovementioned declaration had to be regarded as an application for payment, it would have to be assumed that this application precedes the date when the right to claim a refund arose if the goods are accompanied by an exit certificate. This was not the intention of the authors of the regulation in question since the exporter, after having completed the customs export formalities, must still be able to decide not to claim a refund. For example such a case could arise if the goods fail to reach their destination. Further, unlike the exit certificate, the application makes it possible to check whether the goods are of the requisite kind (harvested in the Community) and whether they have reached their destination: its purpose is therefore different from that of the exit certificate. (b) Regulation No 1041/67 only made the use of the exit certificate obligatory if the goods qualifying for a refund crossed the territory of other Member States before leaving the geographical territory of the Community. If the authors of the regulation had intended the declaration made by the exporter in Part A of the exit certificate to be regarded as an application for payment of a refund, it would hardly have made sense for them to restrict the obligatory use of the form to this one case. (c) After the date when the events forming the subject-matter of these proceedings occurred the exit certificate was replaced by control copy T1 and T2 which is of general application (cf. Article 1 of Regulation No 2586/69, OJ English Special Edition 1969(II), p. 555). This form which does not contain any reference to the procedure for the payment of refunds shows that the authorities responsible for the regulation never had any intention of regarding it as an application for payment of a refund. (d) The time-limits laid down by the provisions of Article 5 of Regulation No 1041/67 show that the authors of the regulation intended the application for payment of a refund to be lodged independently of the exit certificate. (e) If national authorities have to implement a Community regulation, as they must do in this case under Article 10(1) of Regulation No 1041/67 which provides that the refund shall be paid by the Member States, such implementation must be carried out, as a general rule, in accordance with the rules of form and procedure of national law. Working out the procedures for applying for payment of a refund was necessary and therefore lawful. (f) The amendments of Article 10(2) of Regulation No 1041/67 are silent on the need to lodge a separate application for a refund independently of the exit certificate. In order to interpret this provision correctly it is advisable to assume that it refers only to the documents to be lodged by the applicant, and that it excludes therefore the exit certificate, which the customs office of exit has to send direct to the administrative authority responsible for paying refunds. The cases of force majeure which might therefore arise refer to forms of evidence other than exit certificates, which are admissible under the regulation if the goods were exported directly from the territory of certain Member States. During its oral observations the German Government stated that there may be cases of force majeure even if it is thought that the application for a refund and the exit certificate cannot be regarded as identical. An example of this would be where difficulties have arisen in the analysis of the goods — the result of which plays an important part in fixing the refund. The Government of the Federal Republic of Germany submits therefore that the first question be answered in this way: ‘The declaration by the exporter referred to in Article 1 (1) of Regulation No 1041/67 is not the same as the application for payment of the refund required under Article 17(2) of Regulation No 1009/67’.

3. The Commission of the European Communities points out to begin with that the provisions, which the Court is asked to interpret, namely Article 17(2) of Regulation No 1009/67 and Article 1 of Regulation No 1041/67, refer to operations which have different objects and effects. The purpose of the application tor a refund referred to in Article 17 of Regulation No 1009/67 is to obtain an acknowledgement of the right to a refund and to obtain payment thereof; its effect is to set in motion the administrative procedure for obtaining a refund. On the other hand the aim of Article 1 of Regulation No 1041/67 is primarily to determine the date of exportation by defining it as the day on which the customs formalities are completed. The declaration mentioned in Article 1 (1) of Regulation No 1041/67 is therefore merely a declaration of intent within the context of the completion of customs formalities and its effect is to set in motion the customs formalities which are essential for establishing the basis of an application for a refund at a later stage. Consequently even if it were theoretically possible that the declaration and the application for a refund might both be contained in the document the fact that the object and effect of each of them is different rather indicates the contrary. The refund machinery, as actually set up by Regulation No 1041/67, provides also an argument against accepting the view that the declaration and application are identical : the declaration in Part A of the exit certificate is not formulated as an application for a refund; Regulation No 1041/67 does not assimilate the completion of the customs formalities with the procedure for applying for a refund: the completion of customs formalities is in itself under the terms of this regulation, no indication of the existence of a claim to a refund which could only be granted after other additional checks; there are practical reasons, relating to the fact that the completion of the customs formalities does not mean that the exporter is demanding a refund, which also support this distinction. Finally the Commission points out that Member States have wide powers to implement regulations, inter alia under Article 10(1) of Regulation No 1041/67, and that it is for them to decide whether or not to insist on a separate application in a particular form for payment of the refund. The Commission proposes therefore to answer the first question in the negative.

B — The second question

1. The plaintiff in the main action points out that under the basic Regulation No 1009/67, and in particular Article 17(2) thereof, the refund is conditional upon an application being made but that neither the basic regulation nor Regulation No 1041/67 contain any provisions relating to the form which must be used in making this application. Since under public law, in the absence of any special provisions, there is in principle the widest possible freedom in matters of form, it follows that the application for a refund can be made in any form, even orally, provided nevertheless that it is sent to the office responsible for the paying of refunds. This argument is confirmed by the fact that, if it is considered necessary under Community regulations that an application be in a particular form, such form is made mandatory in the regulations. The plaintiff in the main action submits that, if the Court answers the first question in the negative, the answer to the second question should be: ‘the separate application for a refund which has to be lodged in addition to the declaration referred to in Article 1(1) of Regulation No 1041/67 may be made orally or in writing’.

2. The Government of the Federal Republic of Germany calls attention to the fact that Article 6(1) of the national regulation relating to refunds on exports from the EEC provides that the application for refunds must be made on a special form. In its view it is essential that such applications are made in writing on a specific form so that the applications for refunds can be examined by the administration. In order to demonstrate this, the German Government describes the whole procedure leading to the payment of the refund. The Government of the Federal Republic of Germany points out, moreover, that the form on which the application for a refund must be made has another important function. It ensures that the funds applied by the Community in the payment of refunds are used properly and in particular only after all the conditions laid down have been completed. If this form did not have to be completed, it would be difficult to prove that a refund should not have been paid and therefore to demand repayment. On the other hand, if there was no application in writing, the Commission's officials could hardly carry out their task of checking the use of the funds of the European Agricultural Guidance and Guarantee Fund on the basis of documents in the possession of the competent national authorities. The Federal Republic of Germany submits therefore that the answer to the second question should be: ‘Member States were given the task of laying down the procedure for applications for payment of refunds to the full extent to which this was necessary. A requirement that the application for the payment of a refund be made in writing does not constitute a breach of Community law’.

3. The Commission points out that Community law neither insisted upon nor prohibited a particular form of application for a refund. The question must therefore fall within the jurisdiction of Member States.

C — The third question

1. The plaintiff in the main action submits that this only has to be answered if it were to be held, contrary to its own view, that the application for a refund must be made separately and in writing. The purpose of the question referred by the court is to find out whether the written application is one of the documents which have to be lodged to support the claim for payment of the refund under Article 10(2) of Regulation No 1041/67 within six months following the date when the customs export formalities were completed except in cases of force majeure. In order to construe the expression ‘the documents supporting the claim for payment of the refund’ the following considerations must be borne in mind: The documents must include those which prove that the goods may qualify for a refund. All documents which may provide the evidence required (in particular that the product has left the geographical territory of the Community or has reached its destination unaltered, or that the product has been imported into a third country) are documents within the meaning of Article 10(2). The application for a refund, to the extent to which it is an additional requirement to which the refund is made subject, is therefore one of those documents. Moreover the time-limit laid down by Article 10(2) would be meaningless if the documents certifying that the goods may qualify for a refund must be produced within a certain period, but the applicant concerned is entitled only to lodge at a much later date the application for a refund, which moreover is absolutely necessary for payment of the refund. The plaintiff in the main action submits the following answer to the third question: ‘the application for a refund is also one of the documents which have to be lodged in support of the claim for payment of the refund referred to in Article 10(2) of Regulation No 1041/67’.

2. The Government of the Federal Republic of Germany points out that the recitals of Regulation No 1041/67 show that the application for payment of the refund must be made within a specific period. This period can only be the time-limit of six months mentioned in Article 10(2) of Regulation No 1041/67. It therefore suggests the following answer to the third question: ‘the application for payment of refunds, which must be in writing and lodged separately, is one of the documents which have to be lodged in support of the claim for payment of the refund referred to in Article 10(2) of Regulation No 1041/67’.

3. The Commission calls attention to the fact that logically the application for a refund, in so far as it is from the formal point of view the foundation of the procedure for obtaining a refund, is one of the documents referred to Article 10(2) of Regulation No 1041/67.

D — The fourth question

1. The plaintiff in the main action points out that it is clear from the preamble to Regulation No 499/69 that the concept of force majeure must be given a wide interpretation. There could therefore be a case of force majeure if non-compliance with the time-limits is caused by reasons which cannot be imputed to the party concerned, since he cannot be held responsible, if he acted with the care and caution shown by a prudent businessman in order to produce the documents in good time but could not do so because an extraneous circumstance prevented him from complying with the time-limit. The concept of force majeure, as developed in particular in the case-law of the Court (cf. Judgment of the Court of 11 July 1968 in Case 4/68, Schwarzwaldmilch, [1968] ECR 377et seq. and 386) and applied to the present case may lead to the following conclusion. The exclusionary time-limit 0f six months does not apply if it transpires that it was not complied with for reasons beyond the control of the party concerned. This is the case if the documents were in the ordinary course of events to be sent within the prescribed time to the office responsible for paying the refund and an unusual event, which the party concerned could not have anticipated, alone prevented compliance with the time-limit. The plaintiff in the main action submits therefore that the following answer should be given to the fourth question: ‘there is force majeure within the meaning of Article 10(2) of Regulation No 1041/67 as amended by Regulation No 499/69 if non-compliance with the time-limits is caused by reasons which cannot be imputed to the party concerned’.

2. The Government of the Federal Republic of Germany calls attention to the fact that the Court in its previous judgments has decided that there is force majeure if there are unusual circumstances outside the control of the persons concerned, the consequences of which, in spite of the exercise of all due care on their part, they could not have avoided except at the cost of excessive sacrifice. The interpretation can also be applied to the present case in which the exporter, moreover, has not stated the reasons which prevented it from making its application within the period of six months following completion of the customs export formalities.

3. The Commission points out that according to the recitals of Regulation No 499/69/EEC the exporter should be able to rely on force majeure in those cases where noncompliance with the time-limits for lodging the documents supporting the claim for payment of the refund, and in particular the exit certificate, cannot be imputed to the exporter but rather to the different customs authorities of the Member States. It would be in keeping with the well-known interest of the exporter and also the aim of these exceptional arrangements, to admit also the plea of force majeure if the exporter was unable to lodge his application for a refund within the exclusionary time-limit. In the Commission's view the meaning of the concept of force majeure is determined on the basis of the legal framework and the objectives of the Community rules within which it is intended to take effect (cf. Judgment of the Court of 11 July 1968 in Case 4/68 [1968] ECR 377) and should therefore be interpreted in the present case taking account of the following considerations: the lodging within the prescribed time of the various documents connected with the refund and that of the application for the refund, depend to a great extent, and in the case of the application for the refund exclusively, on the will of the exporter. Failure to comply with the time-limit owing to circumstances attributable to the exporter's conduct or for which he is responsible for some other reason cannot be excused. Moreover the concept of force majeure must be given a sufficiently narrow interpretation to include only unusual circumstances which the exporter could not and did not have to foresee and the consequences of which he could not prevent. On the other hand the requirements of the regulation should not be interpreted too strictly and it can be accepted that there is force majeure if compliance with the time-limit would only have been possible at the cost of unreasonable exertions. In order to determine whether this is the case each exporter must be required in any event to act with the diligence expected of a good businessman. With reference to the judgment of the Court in Case 4/68 the Commission submits therefore that the question be answered by transposing the proposition contained in this judgment to this case as follows: ‘the exporter who relies on force majeure must prove that he was unable to lodge the application for a refund within the prescribed time and in proper form as a result of unusual circumstances outside his control, the consequences of which, in spite of the exercise of all due care on his part, he could not have avoided except at the cost of excessive sacrifice’.

Law

1. By order dated 22 October 1971 which reached the Court Registry on 18 November 1971 the Finanzgericht Hamburg referred to the Court pursuant to Article 177 of the EEC Treaty various questions relating to the interpretation of certain provisions of Regulation No 1009/67 of the Council of 18 December 1967 (OJ English Special Edition 1967, p. 304) on the common organization of the market in sugar and of Regulation No 1041/67 of the Commission of 21 December 1967 (OJ English Special Edition 1967, p. 323) as amended by Regulation No 499/69 of the Commission of 17 March 1969 (OJ English Special Edition 1969 (I), p. 114) on detailed rules for the application of export refunds on products subject to a single price system. The questions referred relate to the formal requirements of and the time-limits for applications for export refunds made by exporters who wish to qualify for the refunds.

2. The first question asks the Court to rule whether the declaration which the exporter has to make under Article 1(1) of Regulation No 1041/67 is identical with the application for a refund referred to in Article 17(2) of Regulation No 1009/67.

3. The plaintiff in the main action despatched from Hamburg to Genoa, 75 metric tons of sugar intended for victualling ships which was capable of qualifying under Article 2 of Regulation No 1041/67 for export refunds, and produced to the German customs authority the exit certificate provided for by Article 5 of this regulation if a product, before leaving the geographical territory of the Community, crosses the territory of other Member States.

4. The Commission and the competent authorities of the Federal Republic of Germany, having regard to the particulars in this certificate, consider that it constitutes the declaration referred to in Article 1 of Regulation No 1041/67 of the Commission by which the declarant ‘states his intention to export the products in question and qualify for a refund’.

5. The purpose of the request for an interpretation is to determine whether the said declaration, and consequently the production to the customs authority of the exit certificate referred to in Article 5 of Regulation No 1041/67, amount to a valid application for a refund, which, provided that all the other conditions to which payment of the refund is subject under Community rules have been fulfilled, binds the debtor Member State or whether that Member State may make qualification for a refund conditional upon the exporter's losing his right to the refund unless he makes a special application, for which it prescribes the form and procedures involved, and lodges it within the period of six months prescribed by Article 2 of Regulation No 1041/67.

6. According to Article 17 of Regulation No 1009/67 refunds on the export of sugar are only granted on application by the person concerned. The form of this application is not expressly prescribed by this article. Although taking into account the need to ensure the smooth functioning of the complex system of export refunds, Article 17 has to be construed as implying that the application must be made in writing, a formalism which would go further than is necessary for the effective supervision of these operations should be avoided.

7. Article 1 of Regulation No 1041/67 provides that ‘For the purposes of determining the rate of the refund on … the date of exportation shall be the day on which the customs authority accepts the document by which the declarant states his intention to export the products in question and qualify for a refund’. Such a declaration by which the person concerned states his intention to export and qualify for a refund contains all the particulars enabling the national authorities, which accept it, to take note that, subject to the export being effected, and application is made to them for the grant of a refund. Moreover the declaration in question not only determines the rate of the refund which the exporter claims (Article 1(1)) but is considered to be the completion of the customs export formalities (Article 1(2)) and it has the effect of placing the products referred to under customs control (last sentence of Article 1 (1)). A document produced in these circumstances to the customs authorities and accepted by them is a sufficient declaration, within the meaning of Article 17 of Regulation No 1009/67, of the exporter's intention to qualify for the refund.

8. Of course, as the Government of the Federal Republic of Germany points out, by producing this document the declarant does not irrevocably undertake to export. This cannot, however, alter the essential nature of this document but only allows it to be recorded, should the case arise, that the application has been withdrawn or that other conditions to which the right to a refund is subject have not been fulfilled.

9. The objection that the completion of the formality laid down by Article 1 of Regulation No 1041/67 is not sufficient to establish the right to a refund cannot be sustained either, since the payment of this refund is subject to proof that the product has left the geographical territory of the Community. The application which the exporter has to make is an essential condition but not in itself sufficient to establish the right to a refund, which is, moreover, dependent upon proof that the products have been exported.

10. However, having regard to Article 10 of Regulation No 1041/67 which reads : ‘The refund shall be paid by the Member State in whose territory the customs export formalities were concluded’, it is appropriate to examine the observation of the Government of the Federal Republic of Germany that where — as in the present case — it is for the national authorities to implement a Community regulation, such implementation must as a matter of principle be carried out in accordance with the rules of form and procedure of national law.

11. This principle of law must be reconciled with the need to apply Community law uniformly so as to avoid unequal treatment of exporters depending on the frontier across which they export their products. Since the document referred to in Article 1 of Regulation No 1041/67 has all the characteristics of the exporter's application under Article 17 of Regulation No 1009/67, it is not necessary, inasmuch as the right to a refund is linked with the making of an application, to make this right conditional upon requirements other than those laid down in Article 1 of Regulation No 1041/67. Although Member States may, therefore, for reasons of administrative organization, require exporters also to make an application in the form prescribed by national law, they may not, however, punish failure to fulfil this obligation by forfeiture of the right to a refund.

12. The answer to the first question should therefore be that the declaration which the exporter has to make pursuant to Article 1(1) of Regulation No 1041/67 and, in particular, the production by him of the exit certificate referred to in Article 5 of that regulation, constitute a sufficient statement, for the purposes of Article 17(2) of Regulation No 1009/67, of the exporter's intention to qualify for the refund and fulfil the requirements of this provision.

13. In view of the reply to the first question the other questions no longer serve any purpose.

Costs

14. The costs incurred by the Commission of the European Communities and the Government of the Federal Republic of Germany, which have submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Finanzgericht Hamburg, the decision as to costs is a matter for that court.

On those grounds, Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the Commission of the EEC and the Government of the Federal Republic of Germany; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the EEC, especially Article 177; Having regard to Regulation No 1009/67/EEC of the Council of 18 December 1967; Having regard to Regulation Nos 1041/67/EEC of the Commission of 21 December 1967 and 499/69/EEC of the Commission of 17 March 1969; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the questions referred to it by the Finanzgericht Hamburg by order of 22 October 1971, hereby rules: