C-94/71

on the interpretation of Article 17 of Regulation No 1009/67 of the Council of 18 December 1967 (OJ English Special Edition 1967, p. 304), of Articles 1 and 10 of Regulation No 1041/67 of the Commission of 21 December 1967 (OJ English Special Edition 1967, p. 323) and of Regulation No 499/69 of the Commission of 17 March 1969 (OJ English Special Edition 1969 (I), p. 114),

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

prices of sugar on the world market and munity provisions the Federal Republic of sugar prices within the Community. Germany adopted a regulation relating to The refunds, which are fixed by the Council export refunds (Verordnung Ausfuhrer and in exceptional circumstances by the stattungen EWG, Bundesanzeiger No 18 Commission (fifth and sixth paragraphs of of 26 January 1968). Article 6 of this Article 17(2)) are paid on application by regulation states, inter alia, that the appli the exporter (Article 17(2) of Regulation cation for a refund must be lodged with the No 1009/67/EEC) by the Member State in competent customs office in the prescribed whose territory the customs export formal

According The refund shall be paid only upon proof to the declaration the goods had to be that the product in respect of which cus delivered to Genoa, free port. An exit toms formalities have been completed has certificate containing the same particulars left the geographical territory of the Com had been issued in accordance with the munity or, in the case of supplies for vic provisions of Article 5 of Regulation No tualling sea-going vessels, that they have 1041/67. The German customs authorities reached their destination. (Regulation No kept a copy whilst the original of the cer 1041/67, Articles 2 and 3). tificate, as provided for by the before Furthermore Article 5 of this regulation, mentioned Article 5, accompanied the in the version which was in force when the goods to Genoa. events giving rise to this dispute occurred, On 18 April 1969 the customs office in stated that if, before leaving the geograph Genoa, in compliance with the provisions ical territory of the Community or before of the said Article 5, sent the exit certificate reaching its destination, a product crosses —although with some delay—to the na Community territory other than that of the tional authority responsible for paying the Member State in whose territory customs refund (the Hauptzollamt Hamburg-Jonas) export formalities have been completed, after having endorsed it on 1 April 1969 proof that this product has left the geo with a declaration that the goods had left graphical territory of the Community or Community territory on 12 February 1969. reached the intended destination had to be The plaintiff in the main action forwarded furnished in the form of an exit certificate, on 24 May 1969 to the Hauptzollamt the model of which is shown in the Annex Hamburg-Jonas a copy of the application to the said regulation. for a refund as provided by Article 1 (6) of Finally under Article 10(2) of this regula the beforementioned Verordnung Ausfuhr tion as amended by Regulation (EEC) No erstattungen EWG and pointed out that it 499/69: 'The time-limit for claiming pay was a second copy of an application sent ment of the refund shall be 6 months fol on 9 October 1968 which the defendant in lowing the day on which the customs ex the main action states it never received. port formalities were completed except in cases of force majeure'. 6.

JUDGMENT OF 6.6.1972 — CASE 94/71

an objection to this decision. As this was in the version contained in Regulation dismissed the plaintiff in the main action No 499/69 (OJ English Special Edition lodged an appeal on 19 May 1970 with the 1969(I), p. 114)? Finanzgericht Hamburg. 8. Upon hearing the report of the Judge- 7. In its order of 22 October 1971 the Rapporteur and the views of the Advocate- Finanzgericht Hamburg declared that it General the Court decided not to order any doubted whether the system in force under preparatory enquiries. German law was compatible with Com­ The plaintiff in the main action, the Govern­ munity law and, more particularly, with ment of the Federal Republic of Germany Regulations Nos 1009/67 and 1041/67. and the Commission of the European Com­ According to the Finanzgericht it is prob­ munities submitted their oral and written able that the declaration made by the ex­ observations. porter in the exit certificate amounts to an The plaintiff in the main action was re­ application for a refund as required by presented by Mr Modest of the Hamburg Article 17(2) of Regulation No 1009/67. Bar. The Government of the Federal Re­ The additional application required under public of Germany was represented by its German law cannot be reconciled with the agent Mr Morawitz. The Commission of procedure laid down by Regulation No the European Communities was repre­ 1041/67, and Regulations Nos 1009/67 and sented by its Legal Adviser, Mr P. Kalbe. 1041/67 did not permit national authorities The Advocate-General delivered his opin­ to adopt additional implementing measures ion at the hearing on 4 May 1972. since the relevant Community rules are exhaustive. As the Finanzgericht therefore was of the II — Observations submitted pur­ opinion that questions of interpretation of suant to Article 20 of the Proto­ Community law arose out of the action it col on the Statute of the Court stayed the proceedings and referred the of Justice of the European following questions to the Court of Justice Economic Community of the European Communities:

which has to be made in accordance with exporter to the notice of the responsible Article 17(2) of Regulation No 1009/67. It authority. substantiates its argument as follows: The objective of Article 17 (2) of Regulation (a) Community regulations do not include No 1009/67 is therefore wholly attained by any specific provision stating what form the declaration made by the exporter in the the application for a refund provided for exit certificate. by the said Article 17 must take. The view can therefore be taken that the (b) The declaration made by the exporter declaration which the exporter has to make clearly shows his intention to obtain a under Article 1(1) of Regulation No refund.

refund) are not such as can be associated quirement laid down by this latter article is with a mere declaration of intent which is to notify the office responsible for paying what the Federal Republic of Germany the refunds of the export likely to qualify considers the disputed declaration to be. for a refund, thereby assisting it to obtain a comprehensive view of the refunds which it will have to pay. (c) The fact that there is a German regula The objective of Article 17 is attained when tion under which it is the practice in the the declaration referred to in Article 1 (1) Federal Republic of Germany for an appli of Regulation No 1041/67 is sent to the cation for a refund to be lodged separately office responsible for paying the refunds or in no way invalidates the argument that the declaration in Part A of the exit certificate when it has to be sent to this office pursuant to the provisions of the law relating to is equivalent to an application for a refund.

Regulation No 1041/67 by Regulation No On the one hand the original certificate 499/69/EEC. must be returned to the national authority This amendment was prompted by the shown in the certificate heading by the consideration that the period prescribed customs office which is empowered to for lodging the documents claiming pay certify that the product has reached its ment of the refund in cases of force majeure destination and, on the other hand, the cannot apply to the exporter 'particularly second copy of the exit certificate is kept where the time-limit cannot be complied by the customs office of exit (if it is respon with owing to administrative delays for sible for paying the refund) or sent directly which the party concerned is not respon by that office to the authority responsible sible' (Regulation No 499/69, ninth recital).

JUDGMENT OF 6.6.1972 — CASE 94/71

This refund and the declaration referred to in is also substantiated by the wording of Article 1(1) of Regulation No 1041/67 are Article 9 of the beforementioned regulation identical, because in such a case the time which confers upon Member States a power of the despatch of this declaration to the to pay refunds in advance as soon as the office responsible for paying the refund customs export formalities are completed does not depend on the volition of the ex and this implies therefore that, after com porter. pletion of these formalities, when the ex The plaintiff in the main action therefore porter has already made the declaration proposes that the first question be answered referred to in Article 1 (1) of Regulation as follows: the application for a refund No 1041/67, the right to a refund no longer which has to be made under Article 17(2) exists. of Regulation No 1009/67 and the declara Moreover if the abovementioned declara tion which the exporter has to make under tion had to be regarded as an application Article 1(1) of Regulation No 1041/67 are for payment, it would have to be assumed identical, at least when the declaration is that this application precedes the date notified, or has under the regulations re when the right to claim a refund arose if lating to refunds to be notified, to the ad the goods are accompanied by an exit cer ministrative authorities responsible for tificate. This was not the intention of the paying refunds. authors of the regulation in question since the exporter, after having completed the

SCHLÜTER ν HAUPTZOLLAMT HAMBURG

for them to restrict the obligatory use of During its oral observations the German the form to this one case. Government stated that there may be cases of force majeure even if it is thought that (c) After the date when the events forming the application for a refund and the exit the subject-matter of these proceedings certificate cannot be regarded as identical. occurred the exit certificate was replaced An example of this would be where diffi­ by control copy T1 and T2 which is of culties have arisen in the analysis of the general application (cf. Article 1 of Reg­ goods—the result of which plays an im­ ulation No 2586/69, OJ English Special portant part in fixing the refund. Edition 1969(II), p. 555). This form which The Government of the Federal Republic does not contain any reference to the of Germany submits therefore that the first procedure for the payment of refunds question be answered in this way: "The shows that the authorities responsible for declaration by the exporter referred to in the regulation never had any intention of Article 1 (1) of Regulation No 1041/67 is regarding it as an application for payment not the same as the application for payment of a refund. of the refund required under Article 17(2) of Regulation No 1009/67'.

JUDGMENT OF 6.6.1972 — CASE 94/71

in Article 1(1) of Regulation No 1041/67 plying for a refund: the completion of may be made orally or in writing'. customs formalities is in itself under the terms of this regulation, no indication 2. The Government of the Federal Republic of the existence of a claim to a refund of Germany calls attention to the fact that which could only be granted after other Article 6(1) of the national regulation additional checks; relating to refunds on exports from the EEC provides that the application for re — there are practical reasons, relating to funds must be made on a special form. the fact that the completion of the cus In its view it is essential that such applica toms formalities does not mean that the tions are made in writing on a specific form exporter is demanding a refund, which so that the applications for refunds can be also support this distinction. examined by the administration.

B — The second question completed. If this form did not have to be completed, it would be difficult to prove 1. The plaintiff in the main action points that a refund should not have been paid out that under the basic Regulation No and therefore to demand repayment. On 1009/67, and in particular Article 17(2) the other hand, if there was no application thereof, the refund is conditional upon an in writing, the Commission's officials could application being made but that neither the hardly carry out their task of checking the basic regulation nor Regulation No 1041/ use of the funds of the European Agri 67 contain any provisions relating to the cultural Guidance and Guarantee Fund on form which must be used in making this the basis of documents in the possession of application. the competent national authorities. Since under public law, in the absence of The Federal Republic of Germany submits any special provisions, there is in principle therefore that the answer to the second the widest possible freedom in matters of question should be: 'Member States were form, it follows that the application for a given the task of laying down the procedure refund can be made in any form, even for applications for payment of refunds to orally, provided nevertheless that it is sent the full extent to which this was necessary. to the office responsible for the paying of A requirement that the application for the refunds. payment of a refund be made in writing This argument is confirmed by the fact does not constitute a breach of Community that, if it is considered necessary under law'.

3. The Commission points out that Com documents which have to be lodged in munity law neither insisted upon nor support of the claim for payment of the prohibited a particular form of application refund referred to in Article 10(2) of Reg for a refund. The question must therefore ulation No 1041/67'. fall within the jurisdiction of Member States. 2. The Government of the Federal Republic of Germany points out that the recitals of C — The third question Regulation No 1041/67 show that the ap plication for payment of the refund must

refund. All documents which may provide the evidence required (in particular that the D — The fourth question product has left the geographical territory of the Community or has reached its desti 1. The plaintiff in the main action points nation unaltered, or that the product has out that it is clear from the preamble to been imported into a third country) are Regulation No 499/69 that the concept of documents within the meaning of Article force majeure must be given a wide inter 10(2). pretation. The application for a refund, to the extent There could therefore be a case of force to which it is an additional requirement to majeure if non-compliance with the time- which the refund is made subject, is there limits is caused by reasons which cannot fore one of those documents. be imputed to the party concerned, since Moreover the time-limit laid down by Ar he cannot be held responsible, if he acted ticle 10(2) would be meaningless if the with the care and caution shown by a documents certifying that the goods may prudent businessman in order to produce qualify for a refund must be produced the documents in good time but could not within a certain period, but the applicant do so because an extraneous circumstance concerned is entitled only to lodge at a prevented him from complying with the much later date the application for a re time-limit. fund, which moreover is absolutely neces The concept of force majeure, as developed sary for payment of the refund. in particular in the case-law of the Court The plaintiff in the main action submits the (cf. Judgment of the Court of 11 July 1968 following answer to the third question: 'the in Case 4/68, Schwarzwaldmilch, [1968] application for a refund is also one of the ECR 377 et seq. and 386) and applied to

The plaintiff in the main action submits therefore that the following answer should — the lodging within the prescribed time be given to the fourth question: 'there is of the various documents connected force majeure within the meaning of Article with the refund and that of the applica­ 10(2) of Regulation No 1041/67 as amend­ tion for the refund, depend to a great ed by Regulation No 499/69 if non-com­ extent, and in the case of the application pliance with the time-limits is caused by for the refund exclusively, on the will of reasons which cannot be imputed to the the exporter. Failure to comply with the party concerned'. time-limit owing to circumstances at­ tributable to the exporter's conduct or 2. The Government of the Federal Republic for which he is responsible for some of Germany calls attention to the fact that other reason cannot be excused. the Court in its previous judgments has decided that there is force majeure if there — Moreover the concept of force majeure are unusual circumstances outside the con­ must be given a sufficiently narrow trol of the persons concerned, the conse­ interpretation to include only unusual quences of which, in spite of the exercise circumstances which the exporter could of all due care on their part, they could not not and did not have to foresee and the have avoided except at the cost of excessive consequences of which he could not sacrifice. prevent. The interpretation can also be applied to the present case in which the exporter, — On the other hand the requirements of moreover, has not stated the reasons which the regulation should not be interpreted prevented it from making its application too strictly and it can be accepted that within the period of six months following there is force majeure if compliance with completion of the customs export formal­ the time-limit would only have been ities. possible at the cost of unreasonable exertions. In order to determine whether 3. The Commission points out that accord­ this is the case each exporter must be ing to the recitals of Regulation No 499/­ required in any event to act with the 69/EEC the exporter should be able to rely diligence expected of a good business­ on force majeure in those cases where non­ man.

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 Ger­ many, 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 Commis­ sion 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

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.

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 observa­ tions 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;

Donner Trabucchi Monaco Pescatore

Delivered in open court in Luxembourg on 6 June 1972.

A. Van Houtte R. Lecourt

Registrar President