C-820/79

JUDGMENT OF 25. 11. 1980 — CASE 820/79

In Case 820/79

KINGDOM OF BELGIUM, represented by the Minister for Foreign Affairs, himself represented for the purpose of the proceedings by Robert Hoebaer, a director at the Ministry of Foreign Affairs, Foreign Trade and Co-operation with the Developing Countries, acting as Agent, assisted by Georges Vander- sanden of the Brussels Bar, with an address for service in Luxembourg at the Belgian Embassy, Résidence Champagne, 4 Rue des Girondins,

applicant,

v

COMMISSION OF THÈ EUROPEAN COMMUNITIES, represented by Gianluigi Cam- pogrande, a member of its Legal Department, acting as Agent, assisted by François Lamoureux, a member of its Legal Department, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg,

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the products and criteria for fixing the procedure, the conclusions, submissions amount of such refunds (Official and arguments of the parties may be Journal, English Special Edition 1968 (I), summarized as follows: p. 234) the varied refund shall be paid " . . . provided it is proved that the product has reached the destination for which the refund was fixed". I — Facts and written p r o c e d u r e In regard to acceptable means of proof A — Regulations applicable Article 8 (1) of Regulation No 1041/67 of the Commission of 21 December 1967 on detailed rules for the application of 1. In order to permit the export of export refunds on products subject to a products covered by Regulation No single price system (Official Journal, 804/68 of the Council of 27 June 1968 English Special Edition 1967, p. 323) as on the common organization of the amended by Regulation No 1056/68 of market in milk and milk products the Commission of 23 July 1968 (Official (Official Journal, English Special Edition Journal, English Special Edition 1968 1968 (I), p. 176) Article 17 (1) thereof (II), p. 343) and by Regulation N o makes provision for the introduction of 499/69 of the Commission of 17 March export refunds. By paragraph (2) of the 1969 (Official Journal, English Special same article the refund "may be varied Edition 1969 (I), p. 114) provides that according to use or destination". for the application of Article 6 (2) of Regulation No 876/68 the party By Article 6 (2) of Regulation No concerned must submit 876/68 of the Council of 28 June 1968 laying down general rules for granting "one copy of the transport document export refunds on milk and milk and, at the discretion of the competent

By Article 5 (2) (b) of that regulation the A copy of the customs or port document Commission, on the basis of the annual made out in the country of destination, a accounts submitted by the Member certificate issued by the official services States, is to make up the accounts of one of the Member States established relating to the expenditure by the in that country, a certificate by an inter- national authorities and bodies. national control and surveillance company. The competent national auth- orities may recognize other documents By Article 8 of Regulation N o 1723/72 as equivalent and may require additional of the Commission of 26 July 1972 on forms of proof. They shall forthwith so making up accounts for the European inform the Commission which shall Agricultural Guidance and Guarantee without delay inform the other Member Fund, Guarantee Section (Official States thereof". Journal, English Special Edition, Second Series, III, p. 109) the decision to make up the accounts shall cover amongst The power given to national authorities other things, "the determination of the to recognize other documents as amount of expenditure incurred in each equivalent was removed by Regulation Member State during the year in N o 2110/74 of the Commission of 26 question, recognized as chargeable to the July 1974 (Official Journal 1974, L 220, EAGGF, Guarantee Section". p. 1). Evidence of importation and entry into circulation in the country of destination required by that regulation, and not of arrival at destination as B — The facts before, simply consists of the production of the relevant customs document, or of a copy or photocopy of such document certified by the competent authorities. 1. By decision No 79/893 of 12 October 1979 (Official Journal, L 278, p. 9) the Commission determined in regard to the Kingdom of Belgium the amount of expenditure recognized as chargeable 2. Regulation N o 729/70 of the to the Guarantee Section of the Fund. Council of 21 April 1970 on the financing of the common agricultural policy (Official Journal, English Special Edition 1970 (I), p. 218) makes provision As is apparent from the fourth recital to for a system of direct financing by the that decision the Commission considered Community of refunds on exports to that "under Articles 2 and 3 of Regu- non-member countries and of lation (EEC) N o 729/70, only refunds intervention intended to stabilize the on exports to non-member countries..., agricultural markets by the Guarantee granted . . . according to Community Section of the European Agricultural rules within the framework of the Guidance and Guarantee Fund (here- common organization of agricultural inafter referred to as "the Fund"). Under markets, may be financed; . . . the Article 4 of that regulation the inspections carried out show that a part

of the expenditure declared amounting recognized by the Federation to BF 50 439 735 does not satisfy the Maritime of Antwerp; requirements of these provisions and therefore cannot be financed". — Issued by a shipping agent who was a member of a sea transport association The part of that sum in dispute, recognized by that Member State amounting to BF 29 008562, concerns warranting that the goods would not varied export refunds on milk and milk change destination en route (in the products paid on the basis of cif freight case of exportation via another prepaid bills of lading. That sum Member State). That arrangement represents the difference between the also applied in the case of sea/land amount of the varied refund and the part bills of lading showing the final of the refund calculated at the lowest destination of the goods. rate applying on the day when the customs export formalities were completed. In accordance with Article 8 (1) of Regu- lation N o 1041/67 the Commission 2. The cause of the dispute is a informed the other Member States of difference of opinion about the evidential that arrangement by communication of documents acceptable under Article 8(1) 10 January 1969. of Regulation No 1041/67 and in particular about the construction of the expression "other equivalent As is apparent from the transcript of the documents". recording sent to the Court by the defendant the Belgian arrangement figured in a discussion at a joint meeting Pursuant to the last sentence of that of experts under the aegis of the Expert paragraph the applicant communicated Group on Trade Mechanisms about the to the Commission by letter of 17 application and amendment of Regu- September 1968 confirmed by telex lation No 1041/67. message of 26 November 1971 the arrangements made by the Belgian auth- orities with regard to evidential During the course of the preparations to documents recognized for the payment clear the accounts of the Guarantee of varied export refunds on milk Section of the Fund for the 1973 products, beef and veal and fruit and vegetables. financial year the Director-General for Agriculture at the Commission notified the Belgian Government by letter of 23 December 1976 that the part of the It is apparent from those communi- refund varied according to destination cations that the Belgian authorities paid on the basis of copies of freight recognized as an "equivalent" evidential prepaid bills of lading must be treated as document a copy certified to be a true having been paid in the absence of proof copy of the original of a cif freight as to arrival required by Article 8 (1) of prepaid bill of lading which was: Regulation No 1041/67 and by Article 6 (2) of Regulation N o 876/68. In that connexion the Director-General referred — Issued by a shipping agent who was to the view maintained by the officers of on the list of shipping agents the Commission at the meeting of

3. The application was lodged at the In regard to the admissibility of the Court Registry on 19 December 1979. application the applicant first of all points out that it received notification of the decision at issue on 18 October 1979. On hearing the report of the Judge- Rapporteur and the views of the In regard to the substance of the Advocate General the Court decided to application it makes two submissions. open oral procedure without any preparatory inquiry. However, it invited the Belgian Government to describe the First submission precise scope of the warranty obligations, as to arrival in the country By its first submission the applicant of destination of goods transported contends that the Commission acted under cover of a freight prepaid bill of contrary to Article 8 (1) of Regulation lading, resting on a shipping agent who No 1041/67 by refusing to charge to the

BELGIUM v COMMISSION

Guarantee Section of the Fund country other than that of final expenditure on varied refunds incurred destination to suffice. To that extent at on the basis of documents recognized by any rate the Belgian arrangements are the Belgian authorities as proof of the the equivalent of the documents arrival of the goods at their destination. specifically listed in Article 8.

JUDGMENT OF 25. 11. 1980 — CASE 820/79

In its rejoinder the defendant contests Finally, the Commission could not accept the interpretation suggested by the the validity of a freight prepaid bill of applicant that for the purpose of lading as proof of arrival at destination applying Article 8 it is sufficient to without ignoring the obligation imposed guarantee that the goods in question on it by Articles 2 and 3 of Regulation have been loaded on board. It was No 729/70 to charge to the Fund only precisely the fact that the original expenditure incurred in accordance with function of a bill of lading was to act as the Community rules and also without proof of loading which led the comprising the equal treatment of traders Commission to refuse to recognize it as of the Member States (see judgment of 7 constituting proof of arrival at February 1979, Case 18/76 Germany v destination. The words "certifying arrival Commission [1979] ECR 343, paragraph in the country of destination or for the 8 at p. 384). use in question" contained in Article 8 (1) are rather intended to refer to the fact that varied refunds are fixed either for a given country, or for an area Second submission covering several countries, or for a specific use.

BELGIUM v COMMISSION

evidential documents recognized in was only a meeting of experts whose Belgium. deliberations have no legal effect. Consequently the statement made at that The defendant observes that the last meeting cannot be regarded as sentence of Article 8 (1) of Regulation representing the adoption of an official No 1041/67 simply makes provision for view by the Commission. a procedure for the supply of infor- mation. The Commission is not under a Finally, in the applicant's opinion, the duty to decide as to the validity of last part of Article 8 (1) of Regulation equivalent documents notified to it under No 1041/67 imposes on the Commission Regulation No 1041/67. the obligation both to inform the other Member States and to make sure that the Furthermore it refers to the transcript of provision in question is properly applied, the recording of the meeting of experts in keeping with its general supervisory of the Trade Mechanisms Group held on task. 25 and 26 January 1972 in order to emphasize the very clear position which it adopted from 1972 onwards on the IV — Oral procedure recognition of bills of lading as equivalent documents. At the sitting on 2 July 1980 oral argument was presented on behalf of the The applicant states that there is no parties. reference to be found in the minutes of that meeting to such a clear position on The Advocate General delivered his the part of the Commission. Moreover, it opinion at the sitting on 7 October 1980.

Decision

1 By application lodged at the Court Registry on 19 December 1979 the Kingdom of Belgium brought an action under Article 173 of the EEC Treaty for a declaration that Commission Decision N o 79/893/EEC of 12 October 1979 concerning the clearance of the accounts presented by the Kingdom of Belgium in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, Expenditure for 1973 (Official Journal, L 278, p. 9) is void in so far as the Commission did not recognize as chargeable to the Fund the sum of BF 29 008 562 concerning varied export refunds on milk and milk products paid by the applicant.

3 The first submission accuses the Commission of having infringed Article 8 (1) of the said Regulation N o 1041/67 by refusing in the contested decision to recognize the validity of documents submitted by the applicant as proof as to arrival at their destination of the goods in question.

4 It is apparent from the papers placed before the Court that the Belgian auth- orities agreed to pay varied refunds on the production of a bill of lading the declarations in which are identical to those of the export licence subject to the dual requirement that the bill of lading is a cif bill of lading bearing the words "freight prepaid" and that it is issued by a shipping agent recognized by the Compagnie Maritime Anversoise.

BELGIUM v COMMISSION

5 The applicant maintains that such a bill of lading is not only a transport document but that by showing that the costs of transport have been paid before the goods are exported it guarantees that they will be exported to the agreed destination. The additional requirement concerning the involvement of a shipping agent recognized by the Compagnie Maritime Anversoise is bound up with the fact that that body warrants to the exporter that the goods will arrive at the destination.

6 It should be recalled that the Court has already held in its judgment of 2 June 1976 (Case 125/75 Milch-, Fett- und Eier-Kontor GmbH w Haupt- zollamt Hamburg-Jonas [1976] ECR 771) that in order that the varied refund may be paid it is necessary for the goods to have been cleared through customs and put into free circulation at the destination. It went on to add that only objective criteria may be taken into account in answering the question whether goods have reached that destination.

1 2 The applicant has admitted that at a meeting of the Expert Group on Trade Mechanisms in January 1972 the officers of the Commission formally contested the validity of a freight prepaid bill of lading under the Community rules and that at its 300th meeting on 23 August 1973 the Management Committee for Milk and Milk Products unanimously upheld the argument of the Commission's representative to the effect that as regards the measures of control provided for by Regulation N o 1041/67 in the case of the grant of varied refunds Member States should require proof establishing that the goods have been put into free circulation in the country of destination.

n It is true, as the applicant submits, that the adoption of those views by the Commission's officers may not be regarded as the official views of the Commission as an institution of the Community. Nevertheless, particularly in view of the unequivocal terms in which the competent officers of the Commission gave their opinion on the practice of the Belgian authorities, only a clear indication of a contrary opinion on the part of the Commission as an institution could have allowed the Belgian Government to believe that that institution had approved the practice at issue.

H N o evidence of any indication of a contrary opinion has been adduced by the applicant; in particular mere relaying to other Member States, under Article 8 (1) of Regulation No 1041/67, of information given by the Belgian Government about the documents which it regarded as equivalent to those referred to in that provision does not amount to such an indication.

THE COURT

hereby:

1. Rejects the application;

2. Orders the applicant to pay the costs.

Mertens de Wilmars Pescatore Koopmans

Mackenzie Stuart O'Keeffe Bosco Touffait