C-146/73

on the interpretation of the second paragraph of Article 177 of the EEC Treaty and Articles 19 (2) and 20 (2) of Regulation No 19/62 of the Council of 4 April 1962 (OJ 1962, p. 933 et seq.), in conjunction with Articles 14 and 15 of Regulation No 141/64 of the Council of 21 October 1964 (OJ 1964, p. 2666),

THE COURT

composed of: R. Lecourt, President, A. M. Donner (Rapporteur) and M. Sørensen, Presidents of Chambers, J. Mertens de Wilmars, P. Pescatore, H. Kutscher and C. Ó Dálaigh, Judges,

Advocate-General: J. P. Warner

Registrar: A. Van Houtte

gives the following

in the main action exported pearl barley for the first time, or is a reference also from the Federal Republic of Germany. permissible when the case is being As a result of the particulars given by reconsidered after a judgment of a the plaintiff, according to which the court of first instance has been goods were being delivered to third quashed by a supreme court? countries, the defendant in the main If so: action allowed it the refunds for exports to third countries. Subsequently the 2. Must Articles 19 (2) and 20 (2) of defendant withdrew these refunds on the Regulation No 19/62 EEC (Official grounds that the deliveries had not been Journal of the European Communi­ made to third countries but to other ties, 933/62), in conjunction with Member States. After an unsuccessful Articles 14 and 15 of Regulation No administrative appeal the plaintiff issued 141/64 EEC (Official Journal a summons in the Hessisches 2666/64), be interpreted as meaning Finanzgericht. This summons was that an exporter who claims a third dismissed and the plaintiff appealed on a country refund for the export of pearl point of law to the Bundesfinanzhof, barley to a specific third country, which, by judgment dated 8 November when this refund has been granted 1972 — VII R 98/68, quashed the and received by him, is entitled to at judgment of the Finanzgericht and sent least the member country refund if a the case back to it for reconsideration. subsequent investigation reveals that, The Bundesfinanzhof considered that the contrary to his statements, he has decision to make a refund could not be exported the goods to a member revoked except to the extent that the country, or must he in such a case refund for third countries exceeded the forego the refund? refund for Member States. According to Paragraph 126 (5) of the Finanzgerichts- 3. Must Article 20 (2) of Regulation No ordnung (Rules of Procedure for the 19/62 EEC, in conjunction with Finanzgerichte) of 6 October 1965 Article 15 of Regulation No 141/64 (BGBI. I — 1477) the Court to which the EEC, be interpreted as meaning that case is sent back is bound by the an exporter is entitled to the third judgment of the Court which has sent country refund only if he exports the the case back. However, the Hessisches goods to the country mentioned in Finanzgericht considered that the the application for a refund, or does principle enunciated by the Bundesfi­ it suffice for the grant of a refund that nanzhof was not consistent with the the goods arc exported to any other system of refunds provided for by third country whatsoever?' Regulation No 19/62, and by order dated 7 May 1973 stayed the proceedings The order for a preliminary ruling was and referred the following questions to filed at the Court Registry on 20 June the Court for a preliminary ruling: 1973.

After hearing the report of the ordnung: 'The court to which the case Judge-Rapporteur, and the opinion of is sent back for reconsideration shall the Advocate-General, the Court decided take account in its decision of the view to proceed without a preparatory of the law given by the Bundesfinanz- inquiry. hof,' the decision sending a case back for reconsideration must be regarded as having the same binding force as that I.I — Observations submit accorded to the decision of a final court. ted under Article 20 The Finanzgericht, the Bundesgerichts- of the Protocol on the hof itself and also the parties to the Statute of the Court of proceedings are bound by such a Justice of the EEC decision sending a case back for reconsideration. The present order for a

Community law. When the final court 1. reject as inadmissible the application feels no doubt as to the validity or the made by the Hessisches Finanzgericht interpretation of a Community provision for a preliminary ruling on the and applies it without referring the case questions put; to the Court for a preliminary ruling, the parties to the proceedings do not have 2. Alternatively, reply to the first any means of attacking the decision question: taken by the final court and having it

Treaty when the final court of the which an appeal to the Constitutional Member State has itself interpreted Court against a decision of a final court the provisions in question and this on the ground that the latter had not has a binding force similar to that of referred a case to the Court of Justice of res judicata. the European Communities for a preliminary ruling is only possible if the (b) The defendant in the main action final court arbitrarily failed to do so. supports without reservation the The EEC Treaty has no provision arguments developed by the Finanzge permitting a case to be referred to the richt in its order for a preliminary ruling. Court of Justice with the object of The provisions of Article 177 of the EEC obtaining the revocation of a judgment Treaty have as objective to guarantee the given by a final national court which has principle of uniform application of the effect of res judicata.

RHEINMÜHLEN-DÜSSELDORF v EINFUHR-UND VORRATSSTELLE GETREIDE

were limited as regards the second not possible to conclude from that paragraph of Article 177 by provisions that no other question may arise. of national procedure, provisions which are very diverse. — The national judge is entitled under the second paragraph of Article 177 Further, the practice followed by the to refer a question to the Court for a Hessisches Finanzgericht is in accord­ preliminary ruling when he has ance with Paragraph 126 (5) of the doubts on the substance of a rule, or Finanzgerichtsordnung. The object of on the meaning or extent of a this provision is to prevent useless Community provision which he protraction of the proceedings by the considers relevant. It is impossible refusal of the lower court to accept the for the Court to verify whether, as view of the law adopted by the superior the result of national provisions, the court. In view of the fact that the very national judge did not have a right to object of a preliminary question is to entertain these doubts, or had no achieve a final decision on a legal ground for doing so. Thus the Court problem, there is nothing to prevent the may be validly seised of a request for Court from being seised of the matter at a preliminary ruling when the case is the current stage of the proceedings pending a second time before the before the national judge. court which refers it.

JUDGMENT OF 12. 2. 1974 — CASE 146/73

The Member States and otherwise the uniform application of the national courts must nevertheless see Community law would be compromised. that the maximum limits provided for as regards refunds by Regulation No 2. On the second question 141/64 and by other implementing provisions of Community institutions are The plaintiff refers to the Court's not exceeded and that the amount of the decisions in Cases 6/71, Rheinmühlen, refund paid without due reason which Rec. 1971, p. 823 and 85/71,

Community rules. As regards the sphere In the judgments in Cases 6/71 and covered by Regulation No 19/62 there 85/71 the Court referred to the was no Community provision on the differences between third country procedure to be followed on the grant of refunds on the one hand and Member refunds either as to the form of the States refunds on the other. In particular application for refunds or as to the the criteria for the calculation of the period for lodging them. The task of maximum refunds are different in laying down the procedure as regards the relation to the objectives pursued by the grant of refunds was left to the Member two categories of refunds.

RHEINMOHLEN-DOSSELDORF v EINFUHR-UND VORRATSSTELLE GETREIDE

from levy. This possibility was very refer to the preliminary assessment tempting for exporters, who could await which the authority responsible for the the most favourable moment for imports refund had necessarily to make, or did it free from levy. For this reason there was mean to stress the requirement that the a great temptation to declare exports to exporter had to have done everything to Member States as being to third ensure that the goods were put into free countries. circulation in the third country? In the light of these facts the Court has If the use of the conditional did not decided that the absence of a certificate lessen the force of the term employed of movement of goods DD 4 is not then the definition given by the Court sufficient proof to show the origin or went much further than those proposed destination of goods. The case law of the by the Community and national Court is based on the view that national authorities responsible for the implemen rules made in implementation of the tation of the system of refunds at the system of refunds provided for by time when Regulation No 19 was in Regulation No 19 cannot open the door force. to abuse.

As regards the delimitation of jurisdiction between the As regards the question of the proof of Community and the Member States it export to a Member State, the arrives at the same conclusions as the Commission maintains that the plaintiff and the defendant in the main possession of a DD 4 certificate could action. not constitute a prior condition for the The reply to the second question grant of a Member State refund. Nor depends on the interpretation to be given did the grant of this refund depend on

the submission of a valid export had been exported since the amount of certificate. Under Article 16 (1) of the refund was the same in all cases. Regulation No 19/62 the submission of The defendant in the main action such a certificate was required for all observes that the Member States were exports destined for Member States in generally entitled to fix different rates order to allow the competent authorities for third country refunds. However, they to obtain a correct picture of the had to remain within the maximum position of the market. In view of the limits provided for by the Community differences between the system of rules. In view of the fact that under certificates and the system of refunds on Articles 5 and 5a of Regulation No export it is not possible to relate them. 90/62 Member States were entitled to The Commission concluded that the exceed the maximum limits in certain Community provisions then in force did cases, the Community legislature needed not prevent an exporter from being able to see that exporters completed their to obtain a refund for exports to other transactions in accordance with the Member States, even if he had at first information which they had furnished declared that he intended to export the beforehand. goods to a third country. Consequently the first hypothesis of the third question should be adopted: 3. On the third question the exporter can claim the benefit of the third country refund only if he exports The plaintiff in the main action asserts the goods to the consumer country that it does not matter into which third named in the documents relating to the country the goods were imported. On refund. the contrary, the determining factor is The Commission refers to the argument that exported goods have been put into developed in reply to the second free circulation in some third country. In question and comes to the conclusion this event the objectives which the that the provisions of Community law in common agricultural policy sought to force at the time did not prevent an attain by the grant of a third country refund were realized. exporter from claiming a third country refund, if the other conditions were The plaintiff in the main action proposes fulfilled, even if the goods were exported the following reply to the third question: to a third country other than that indicated in the documents relating to For the purpose of claiming third the refund. country refunds under the basic Regulation No 19/62 and the provisions The oral hearing took place on 7 taken for its implementation it sufficed November 1973.

2 The first question asks whether a court against whose decisions there is a judicial remedy under national law may refer a doubtful question of European law to the Court of Justice of the European Communities for a preliminary ruling only when the case comes before it for the first time, or whether a reference is also permissible when the case is being reconsidered after a judgment given by such a court sitting at first instance has been quashed by a supreme court.

3 This question is substantially the same as a preliminary question put in the same case by the Bundesfinanzhof, which was the subject of the judgment by the Court given on 16 January 1974 in Case 166/73, to which reference should be made.

According to this judgment a rule of national law whereby a court is bound on points of law by the rulings of a superior court cannot on this ground alone deprive the inferior courts of their power, provided for under Article 177, to refer questions to the Court for a preliminary ruling.

However, in the case of a court against whose decisions there is a judicial remedy under national law, Article 177 does not preclude a decision of such a court referring a question to this Court for a preliminary ruling from remaining subject to the remedies normally available under national law.

Nevertheless, in the interests of clarity and legal certainty, this Court must abide by the decision to refer, which must have its full effect so long as it has not been revoked.

On the second and third questions

On the other hand, it was open to them, in particular as regards exports to third countries, to adopt criteria more restrictive than those provided for by the Community rules.

7 As regards refunds on export Member States were consequently bound to take into consideration the country of destination and in particular whether this was a third country or another Member State.

However, in the case where the country of destination was not a third country but another Member State, the authorities were obliged at the very least to reduce the refund so that it dit not exceed the limit laid down for export to the Member State in question.

It was the same in the case where the country of destination was a third country other than that shown documents relating to the refund.

RHEINMÜHLEN-DÜSSELDORF v EINFUHR-UND VORRATSSTELLE GETREIDE

Subject to this obligation, it was for the authorities of the Member States tc decide according to their national law the further consequences of such an occurrence.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the plaintiff in the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to EEC Regulation No 19/62 of the Council of 4 April 1962, especially Article 20; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

OPINION OF MR WARNER — CASE 146/73

THE COURT

in answer to the questions referred to it by the Hessisches Finanzgericht by order of that court dated 7 May 1973, hereby rules:

1. The existence of a rule of national law whereby a court is bound on points of law by the rulings of a superior court cannot on this ground alone deprive the inferior courts of their power, provided for under Article 177, to refer questions to the Court of Justice of the European Communities for a preliminary ruling;

2. In the case where the country of destination of the goods does not correspond with the particulars given in the export documents:

Registrar President

OPINION OF MR ADVOCATE-GENERAL WARNER

(See Case 166/73, p. 40)