C-55/74

JUDGMENT OF 22. 1. 1975 — CASE 55/74

In Case 55/74

Reference to the Court under Article 177 of the EEC Treaty by the Finanz­ gericht Hamburg for a preliminary ruling in the action pending before that court between

FIRMA ROBERT UNKEL of 87 Würzburg-Heidingsfeld, Resenstraße 1

and

HAUPTZOLLAMT Hamburg-Jonas, 2 Hamburg 11, Holzbrücke 8

Facts

The judgment making the reference I — Facts and procedure and the written observations submitted under Article 20 of the EEC Statute of In April 1972 the plaintiff in the main the Court may be summarized as proceedings obtained customs clearance follows: from the Hauptzollamt Würzburg for a

UNKEL v HAUPTZOLLAMT HAMBURG-JONAS

consignment of lard intended to be 2. Are the application (Article 15 (2) of exported from Germany to Britain via Regulation (EEC) No 121/67), proof Rotterdam. The Hauptzollamt of origin of the goods (Article 6 (1) of Würzburg issued two 'control copies', Regulation (EEC) No 177/67) and the issue and use of which are provided declaration that the goods are in free for by Regulation (EEC) No 2315/69 of circulation (Article 6 (1) of the Commission of 19 November 1969 Regulation (EEC) No 1041/67) (OJ L 295 of 24. 11. 1969 p. 14). The included among the documents in customs office of exit at Rotterdam support of the claim within the certified on both copies that the goods meaning of Article 10 (2) of had left the territory of the Community Regulation (EEC) No 1041/67 (1), and sent the two control copies to the which must be lodged within a Hauptzollamt Hamburg-Jonas, the timelimit of six months from the date competent authority in Germany for the of completion of the customs export payment for export refunds. formalities?

1. Does the control copy completed 1. Observations of the plaintiff in the main action pursuant to Article 5 of Regulation (EEC) No 1041/67 amount to a According to the plaintiff in the main statement of intention to export the action the conclusion at which the Court

products in question and qualify for the refund (Article 1, first paragraph, 1 — Translator's Note: The court is here asking for an interpretation of the word 'Unterlagen' in the first sentence, of Regulation (EEC) German text of the Regulation; no corresponding No 1041/67) and thus to an word appears in the authentic English text, where 'the phrase: 'Die Unterlagen fur die Zah­ application for the grant of the refund lung der Erstattung sind innerhalb einer Aus­ schlußfrist von 6 Monaten .. . einzureichen' is fixed, pursuant to Article 15 (2) of translated as: 'The time-limit for claiming Regulation (EEC) No 121/67? payment of the refund shall be six months .. .

JUDGMENT OF 22. 1. 1975 — CASE 55/74

1041/67, which is received by the particulars than those which are already authorities competent for refunds, must contained in the control copy. Since it be regarded as an application for a contains all the information necessary to refund. It appears from the spirit and the national authorities to proceed with scope, as well as from the contents, of the refund, such as stating the export the control copy that it constitutes a date, and since acceptance is considered written manifestation of intention in the to be the completion of the customs same way as the exit certificate in Case export formalities (Article 1 (2) of

. .' the following reply to the first question: (Article 1 of Regulation No 2315/69 of the Commission of 19 November 1969, The control copy completed pursuant OJ L 295 of 24. 11. 1969, p. 14). When it to Article 5 of Regulation (EEC) No is drawn up and used for export, the 1041/67 amounts to a statement of control copy becomes a specific export intention to export the product in document, the use of which indicates the question and qualify for the refund and desire on the part of the exporter to thus to an application for the grant of claim a refund. The first recital of the refund fixed, pursuant to Article 15 Regulation No 2586/69 of the (2) of Regulation No 121/67. Commission of 22 December 1969 (OJ L 322 of 24. 12. 1969, p. 27) has stated 2. Observations of the defendant in the that the use of the Community transit main action document should be substituted for that of the exit certificate. The defendant in the main action gives a general summary of the procedure for The contents of the control copy as laid export refunds as applied in the Federal down in Article 4 (2) of Regulation No Republic of Germany.

refund'. In contrast to the exit certificate, accompanies the goods until they have the control copy does not contain the left the Community or arrived at their words 'I certify that these goods qualify destination, and is endorsed by the for an export refund', but the particulars customs office at the destination which

Since in the Federal Republic of In many cases Community legislation, which has exhaustively laid down the Germany, moreover, the manifestation conditions for refund, has nevertheless of intention within the meaning of left open the question of the form in Article 1 (1) of Regulation No 1041/67 which these conditions must be proved. has no effect except by virtue of an act In particular in Regulation No 1041/67 enabling the intention of the person it has left a discretion to the Member concerned to be inferred, the control States to prescribe the documents copy could not constitute on its own the required to prove the entitlement to the statement of intention required by Article 1 (1) of Regulation No 1041/67. refund (Judgment of 17 February 1970, Case 31/69, Commission v Italy, Rec. It remains to be considered whether a 1970, p. 35). tacit manifestation of the statement of intention required by Article 1 (1) of Finally, the procedure for export refunds Regulation No 1041/67, or the control includes a procedure for control by the copy, on its own, may be regarded as customs offices and prior checking of equivalent to an application for the accounts. refund required by Article 15 (2) of As regards the first question raised by Regulation No 121/67. the national court, the defendant in the The first possibility has already been main action does not think that the covered by the Court of Justice, which solution arrived at by the Court in its in Case 94/71 required writing. judgment of 6 June 1972 (Case 94/71, The second possibility ought likewise to Schlüter & Maack), which related to an be ruled out on the following grounds: exit certificate, can be applied when it is — References to refunds in the control a question of a control copy. On copies do not relate specifically to comparing these two documents the export refunds. following differences appear: (a) Whereas the exit certificate was — The control copy, which is a general created exclusively for the purposes voucher, is of probative value, according to the community of the export refund and published provisions relating to refunds, only as an annex to Regulation No in respect of transport effected across 1041/67, the control copy depends another Member State. on Regulation No 2315/69 (OJ L 295 of 24. 11. 1969, p. 14), adopted — The time for claiming payment in as an implementing measure of Article 10 (2) of Regulation No Community transit procedure. 1041/67 begins to run as from the

time the customs formalities are meaning of Article 1 (1) of Regulation completed, that is to say, as from the No 1041/67 and therefore does not receipt of the control copy by the imply an application within the meaning competent office for refunds. If the of Article 15 (2) of Regulation No control copy itself represented the 121/67. application for a refund, the application would never be late, since 3. Observations of the Commission it would itself start the time running. Moreover, the return of the control According to the Commission the copy as a transport document would control copy constitutes a special copy deprive the administration of it as a of the Community transit documents 'refund application'. T1/T2 provided for by Regulation No 542/69 of 18 March 1969 on — If it were accepted that the Community transit (OJ L 77 of submission of the control copy could 29. 3. 1969, p. 1).

Even for the purpose of defined by the Court in Case 31/69. this precise end the conditions of use of The complementary requirement of such the control copy were fixed only for the a national form, to be supplied within a specific case of export to third countries certain time-limit and regarded as one of preceded by Community transit. This the documents within the meaning of was an objective limitation of the use of Article 10 (2) of Regulation No 1041/67, the control copy which was reflected in does not violate the principle of equality the contents of the form provided for in of treatment of all the commercial agents the annex to Regulation No 2315/69. working in the market, since this Compared with the former 'exit equality is in any event not assured at certificate' provided for by Regulation present in so far as the procedures for No 1041/67/EEC, this form has been payment are not yet regulated in a very much simplified in its contents and uniform manner. no longer gives any indication capable of The defendant in the main action being regarded unambiguously as an therefore considers that the reply to the application for payment of the refund, as first question should be that the control proof that the goods were in free copy completed pursuant to Article 5 of circulation or as proof of Community Regulation No 1041/67 does not amount origin of the goods. to a statement of intention within the The necessity of avoiding discrimina-

tions to the detriment of exporters and declaration of intention to export the persons entitled to refunds depending on product in question with the benefit of the Member State from which the goods the refund, the application is always in question are exported led the Court of lodged within the time-limit, save when Justice to find, in the judgment of 6 June there is delay in transmission from the 1972 in Case 94/71 Schlüter & Maack, original office to the competent office that the application for payment of the for refunds, which would constitute a refund was already implicit in the case of force majeure within the meaning lodging of the 'exit certificate' provided of Article 9 (2). for by Regulation No 1041/67/EEC

for. In the same way the time-limit for origin of the goods and that they are of claiming repayment provided in Article the requisite quality to be put into free 10 (2) of Regulation No 1041/67/EEC circulation are included among the for the purpose of ensuring that documents within the meaning of Article management and accountability were as 10 (2) of Regulation No 1041/67, as efficient as possible would be deprived appears from Articles 6 and 7 (1) of the of effect. same regulation and Article 6 (1) of Regulation No 177/67. B — On the second question The plaintiff in the main action therefore proposes that the reply should be as

refund. This appears both from the Regulation No 1041/67/EEC, which recitals to Regulation No 1041/67 and must be lodged within a time-limit of six from the ratio legis of its Article 10. To months following the day on which the the extent that the control copy properly customs export formalities were completed and signed constitutes a completed.

2. Observations of the defendant in the are essential conditions for payment of main action the refund. The declarations and evidence relating thereto are thus part of The defendant in the main action the documents (Unterlagen) provided for considers that not only does the in Article 10 (2) of Regulation No application required in Article 15 (2) of 1041/67. These documents must likewise Regulation No 121/67 form part of the include the application for payment of documents within the meaning of Article the refund required by Article 15 (2) of 10 (2) of Regulation No 1041/67 but so Regulation No 121/67/EEC.

and 7 (1) of Regulation No 1041/67 and (Article 6 of Regulation No required in a separate written form in 1041/67); Germany is part, as a basic condition of the refund, of the documents — that the products are of Community (Unterlagen) which are required to be origin (Article 6 of Regulation No lodged under Article 10 (2) of 177/67); Regulation No 1041/67. — that the products have left the The same is true of the declaration of geographical territory of the free circulation required in the national Community unaltered (Article 3 of

3. Observations of the Commission under the headings which refer to refunds. Since only goods in free According to the Commission Article circulation within the Community can 10 (2) of Regulation No 1041/67/EEC is benefit from a refund, the declaration as intended to ensure that all declarations, a result of which there is a right to a certificates and proofs intended to enable refund in respect of the goods, implies the competent body liable for payment the declaration that the goods are in free to verify whether a refund can be circulation within the Community. granted in respect of the goods and to As regards the origin of the goods, the check the regularity of the export, are plaintiff in the main action observes that provided within the time-limit.

UNKEL v HAUPTZOLLAMT HAMBURG-JONAS

Law

1 By order dated 26 June 1974, filed at the Court Registry on 25 July 1974, the Finanzgericht Hamburg referred, under Article 177 of the Treaty establishing

JUDGMENT OF 22. 1. 1975 — CASE 55/74

the European Economic Community, three questions on the interpretation of certain provisions of Regulations Nos 121/67 of the Council of 13 June 1967, on the common organization of the market in pigmeat (OJ No 117 of 19. 6. 1967, p. 2283) and 177/67 of the Council of 27 June 1967 laying down general rules for granting export refunds on pigmeat (OJ No 130 of 28. 6. 1967, p. 2614), of Regulation No 1041/67 of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (OJ No 314 of 23. 12. 1967, p. 9), as amended by Regulation No 1056/68 of 23 July 1968 (OJ L 179 of 25. 7. 1968, p. 28), 499/69 of 17 March 1969 (OJ L 69 of 20. 3. 1969, p. 1) and 2586/69 of 22 December 1969 (OJ L 322 of 24. 12. 1969, p. 27).

The questions raised relate to the formal conditions and time-limits for applications for export refunds of certain agricultural products in force in April 1972, the period in which the export in question took place.

2 The first question asks the Court whether the document called the 'control copy', provided for by Article 1 of Regulation No 2315/69 (OJ L 295 of 24. 11. 1969, p. 14) on the use of Community transit documents, completed pursuant to Article 5 of Regulation No 1041/67 of the Commission (as amended by Article 1 of Regulation No 2586/69), amounts to an application for the grant of a refund within the meaning of Article 15 (2) of Regulation No 121/67.

Although the control copy does not adopt all the particulars in the exit certificate, it contains headings for the additional information 1 which, according to Article 5 as amended of Regulation No 1041/67, are to be completed when it is a question of products benefiting from refunds.

6 Under Article 15 (2) of Regulation No 121/67, export refunds on pigmeat are granted only on application by the person concerned.

Although, having regard to the necessities of the proper functioning of the complex system of export refunds, Article 15 must be interpreted as implying a written application, formalism which would go beyond the necessities of efficient control must be avoided.

When, therefore, the commercial operator completes the control copy in accordance with Article 5 (2) of Regulation No 1041/67 by clearly stating that the exported goods are entitled to refunds, he shows sufficiently clearly his intention to benefit from them so that the control copy is equivalent to an application for a refund.

This is even more so when the control copy contains explanatory notes indicating explicitly the heading which must be completed when it relates to the export of goods entitled to a refund.

7 It is therefore right to reply to the first question that the submission to the competent national authority for the grant of refunds of the control copy

9 The term 'documents' (Unterlagen) used in Article 10 (2) refers not only to the application for the refund but to all the documents which the competent authority of each Member State needs to verify whether the conditions to which the grant of the refund is subject are fulfilled.

This interpretation is confirmed by the fact that the time does not start to run until the customs formalities are completed.

A time-limit of this extent is not required merely to lodge an application and the time-limit is therefore for the assembly of all the evidence which may be required.

10 It is therefore proper to reply to the second question that the documents (Unterlagen) referred to in Article 10 of Regulation No 1041/67 must include, besides the application for a refund, all the documents enabling the competent authority to verify whether the conditions to which the grant of the refund is subject are fulfilled.

UNKEL v HAUPTZOLLAMT HAMBURG-JONAS

11 The third question asks whether, when the different headings which the control copy contains are completed by the party concerned, it amounts to the declarations and proofs relatings to the origin of the goods and the quality required for them to be put into free circulation, to which conditions the grant of a refund is subject.

THE COURT

in answer to the questions referred to it by the Finanzgericht Hamburg by order of that court dated 26 June 1974, hereby rules:

(1) The submission to the competent national authority for the grant of refunds of the control copy referred to in Article 1 of Regulation No 2315/69 and Article 5 of Regulation No 1041/67, as amended by Article 1 of Regulation No 2586/69, is equivalent to an application for a refund if this copy contains information enabling it to be seen that it relates to goods benefiting from this refund.

OPINION OF MR WARNER — CASE 55/74

(2) The documents (Unterlagen) referred to in Article 10 of Regulation No 1041/67 must include, besides the application for a refund, all the documents enabling the competent authority to verify whether the conditions to which the grant of the refund is subject are fulfilled.

(3) Since the headings provided for in the control copy do not on their own make it possible to determine in every case that all these conditions are fulfilled, it is for the national authorities to determine in each case the probative value in this respect of the remarks on the control copy or the necessity for supplementary vouchers.

DELIVERED ON 10 DECEMBER 1974

My Lords, and applied, not only by lawyers, but also by traders and by officials in the In order to get to grips with the Member States under the pressures of questions at issue in this case one has everyday work. It is good to know that first to wend one's way through a maze the Commission and the Council too are of Community Regulations, so bewilder­ conscious of the need for such ing that it is difficult for anyone to be, at consolidation. any time, confident that he has not Your Lordships will remember that the overlooked any relevant provision. I common organization of the market in have the greatest sympathy with those pigmeat was established by Council who call for frequent consolidation of Regulation No 121/67/EEC of 13 June Community lesgislation in fields where it 1967 (OJ No 117 of 19. 6. 1967), and is intricate, particularly since such that that organization includes, among legislation often has to be understood other things, a system of export refunds.