C-302/81

JUDGMENT OF 6. 10. 1982 — CASE 302/81

as embodying and recognizing a produce the supporting documents general principle whereby procedural required for the issue of the control flaws which are beyond the control of copy. the person to whom compensatory amounts should normally be granted must not have effects which are 3. Where an exporting Member State unfavourable to him. lays down that the proof required for the purposes of Article 10 (1) of 2. Member States are both entitled and Regulation No 1380/75 concerning required to issue retroactively Control the payment by the exporting Member Copy T No 5 provided for by Article State of compensatory amounts 10 of Regulation No 223/77 in order granted by that State is to be to enable proof to be furnished furnished in the form of Control pursuant to Article 11 (2) of Regu­ Copy T No 5, it is both entitled and lation No 1380/75 concerning the required to issue the document retro­ payment by the exporting Member actively on the same conditions as State of compensatory amounts which those which are laid down where should be granted by the importing Control Copy T No 5 is used as a Member State where the failure to Community document pursuant to apply for or to issue the document Article 11 (2) of Regulation No when the goods were consigned was 1380/75, since any other solution beyond the control of the person could only be a source of confusion concerned and that person is able to and legal uncertainty.

In Case 302/81

REFERENCE to the Court under Article 177 of the EEC Treaty by the Hessisches Finanzgericht [Finance Court, Hesse] for a preliminary ruling in the case pending before that court between

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of Eggers therefore submitted an the procedure and the observations application to the Hauptzollamt Kassel submitted pursuant to Article 20 of the for the retroactive issue of the control Protocol on the Statute of the Court of copies. The Hauptzollamt Kassel Justice of the European Economic rejected the application and the objection Community may be summarized as lodged against that decision before the follows: Oberfinanzdirektion [Principal Revenue Office] was dismissed. Eggers brought an action before the Hessisches Finanz­ gericht against the decision dismissing I — Facts and written procedure the objection.

whether such an agreement allows the to additional conditions not Member States to subject the retroactive provided for by the agreement?" issue of control copies to additional conditions which are not provided for by the agreement concluded at Community level. The order for reference was received at the Court Registry on 30 November 1981. Consequently, by order of 9 November 1981 the Hessisches Finanzgericht decided to refer to the Court of Justice Pursuant to Article 20 of the Protocol on for a preliminary ruling the four the Statute of the Court of Justice of the following questions: EEC, observations were submitted by the Hauptzollamt Kassel, represented by its Director, Mr Nessler, assisted by A. " 1 . Are the Member States entitled to Schwintuchowski, Oberregierungsrätin at issue retroactively Control Copy T the Oberfinanzdirektion Frankfurt, and No 5, provided for by Article 10 of by the Commission of the European Regulation (EEC) No 223/7, even Communities, represented by A. Prozillo, where Community law does not its Legal Adviser, assisted by J. provide for its retroactive issue? Grünwald, a member of its Legal Department, acting as Agents. Eggers declared that it did not wish to submit observations in this case and confined 2. If the first question is answered in itself to forwarding to the Court a copy the negative, may an agreement of the written arguments which it had reached by the Committee on presented to the Hessisches Finanz­ Community Transit, set up pursuant gericht. to Article 55 of Regulation (EEC) No 222/77, which permits under certain conditions the retroactive issue of Control Copy T No 5, for Upon hearing the report of the Judge- which Community law makes no Rapporteur and the views of the provision, entitle the Member States Advocate General, the Court decided to to issue the control copy retro­ open the oral procedure without any actively? preparatory inquiry and to assign the case to the Third Chamber.

Committee on Community Transit, to With regard to the documents proving which the authorities of the Federal importation into another Member State, Republic of Germany made the retro­ these are determined by Article 11 (2) of active issue of the control copy subject. Regulation No 1380/75 of the Commission. An agreement was reached by the Committee on Community Transit in July 1971 concerning the possibility of issuing the control copy II — Written observations sub­ retroactively. The Commission con­ mitted to the Court sidered itself bound by that agreement, as is clear from the statements which it made at the meeting of the Working Party on Trade Mechanisms held on 25 May 1974. The Hauptzollamt Kassel draws a distinction between control documents according to whether they are intended to furnish proof of exportation from the In any event, the agreement reached by Federal Republic of Germany and the Committee on Community Transit therefore confer the right to receive permits the Member States to issue the compensatory amounts from the Federal control copies retroactively on such Republic of Germany on exportation or conditions as they may lay down. The are intended to furnish proof of impor­ agreement in fact confers, subject to tation into another Member State and to certain conditions, a discretion upon the confer the right to receive compensatory Member States with regard to the retro­ amounts from that other State on impor­ active issue of the control copies. It tation. follows that the persons concerned have no right to the retroactive issue of control copies and that the Member States are entitled to subject the retro­ With regard to proof of exportation, the active issue of control copies to Hauptzollamt Kassel maintains that the additional conditions, in any event in so means of proving exportation is not far as the purpose of the conditions is to specified in Regulation (EEC) No prevent abuse of procedure. 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory In conclusion, the Hauptzollamt Kassel amounts. Consequently, the Member proposes that the questions referred to States are free to determine the means of the Court of Justice for a preliminary proof themselves and may, within the ruling by the Hessisches Finanzgericht scope of that discretion, decide to should be answered as follows: employ as the means of proof an existing Community document such as Control Copy T No 5. That is what the Federal Republic of Germany has done. In so far "First and second questions as it is left to the Member States to determine the means of proof, they are not bound by Community law, in so far The agreement reached by the as the possibility of retroactively issuing Committee on Community Transit at its those means and the conditions attaching 21st meeting held in July 1971 to such issue are concerned. Those empowered the Member States, as questions are a matter for national law against the Commission, to issue control alone. copies retroactively, provided that the

The Commission accepts that the retro­ Fourth question active issue of this document is expressly provided for neither in Regulation No 223/77 nor in Regulation No 1380/75 The Member States are entitled to make but maintains that Article 11 (5) of the the retroactive issue of control copies latter regulation lays down the procedure subject to additional conditions which to be followed where the necessary proof are not provided for in the agreement." in the form of Control Copy T No 5 is lacking. That provision deals expressly with cases where the document has gone The Commission begins its observations astray, but, in the Commission's view, by recalling that Control Copy T No 5 the legal principle which it embodies is was provided for by Article 10 of of fundamental importance and is Commission Regulation No 223/77 of applicable in the case of non-issue. 22 December 1976 on provisions for According to that principle, procedural the implementation of the Community flaws which are beyond the control of transit procedure and for certain the person concerned must not have simplifications of that procedure effects which are unfavourable to him (Official Journal 1977, L 38, p. 20). It and he may produce the supporting states next that, under the terms of documents required for the retroactive Article 11 of Regulation No 1380/75 of issue of the document. the Commission, that document must be used as the means of proof conferring the right to monetary compensatory amounts from the importing Member 2. Control Copy T No 5 as national State, whereas the specifying of the documentary evidence means of proof conferring the right to the payment of monetary compensatory amounts by the exporting country is a The Commission considers that since matter for the Member State concerned, under Article 10 of Regulation No as is clear from Article 10 of Regulation 1380/75 it is for the Member State in No 1380/75 of the Commission. question to specify the means of proving exportation, it is necessary to distinguish between the means of proof which is a Since the Federal Republic of Germany matter of form and the procedural has decided to adopt Control Copy T questions as to the conditions on which No 5 as the means of proving expor­ Control Copy T No 5 may be issued tation, it follows, in the Commission's retroactively. In the Commission's view, view, that the control copy is both a the legal principle underlying Article 11 Community document and national (5) of Regulation No 1380/75, that

" 1 . The Member States are both entitled and required to issue retroactively Control Copy T No 5 provided for by Article 10 of Regulation No 223/77 in order to enable proof to be furnished pursuant to Article 11 Ill — Oral procedure (2) of Regulation No 1380/75, where the failure to apply for or to issue the document when the goods were consigned was beyond the control of the person concerned and At the sitting on 17 June 1982, oral that person is able to produce the argument was presented by J. Grünwald, supporting documents required for a member of the Commission's Legal the retroactive issue of the control Department, acting as Agent, for the copy. Commission of the European Com­ munities.

2. Where a Member State lays down that the proof required for the purposes of Article 10 (1) of Regu­ lation No 1380/75 is to be furnished The Advocate General delivered her in the form of Control Copy T No opinion at the sitting on 16 September 5, applying mutatis mutandis the 1982.

JUDGMENT OF 6. 10. 1982 — CASE 302/81

Decision

1 By order of 9 November 1981, which was received at the Court on 30 November 1981, the Hessisches Finanzgericht [Finance Court, Hesse] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions concerning the conditions for the issue of Control Copy T No 5 as defined by Article 10 of Commission Regulation No 223/77 of 22 December 1976 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure [Official Journal 1977, L 38, p.20).

4. If the second question is answered in the affirmative, are the Member States entitled to make the retroactive issue of control copies subject to additional conditions not provided for by the agreement?"

4 Before an answer is given to the questions submitted by the national court, it is necessary, as the Commission has stressed, to distinguish between the use of Control Copy T No 5 as documentary evidence in application of Community rules (for which purpose it will hereinafter be referred to as a "Community" document) and its use as documentary evidence under a provision of national law (for which purpose it will hereinafter be referred to as a "national" document).

5 Control Copy T No 5 is a Community document where it is used under Article 11 of Regulation No 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts (Official Journal 1975, L 139, p. 37) as the means of proof upon which the payment by the exporting Member State of compensatory amounts which should be granted by the importing Member State is conditional.

6 On the other hand, Control Copy T No 5 is a national document when the exporting Member State decides, as the Federal Republic of Germany has done, that it is also to be used as proof for the purpose of the grant of compensatory amounts granted by the exporting Member State.

First question

7 In relation to the use of Control Copy T No 5 as a Community document, although it is correct that its retroactive issue is not expressly provided for in Regulation No 1380/75, Article 11 (5) of that regulation, as amended by Regulation No 1498/76 of 25 June 1976 (Official Journal 1976, L 167, p. 28), nevertheless provides for the grant of a fresh control copy where the first has gone astray "owing to circumstances beyond the control of the person concerned".

13 On the other hand, where an exporting Member State lays down that the proof required for the purposes of Article 10 (1) of Regulation No 1380/75

EGGERS v HAUPTZOLLAMT KASSEL

on the payment by the exporting Member State of the compensatory amounts granted by that State is to be furnished in the form of Control Copy T No 5, it is both entitled and required to issue the document retroactively on the same conditions as those which are laid down where Control Copy T No 5 is used as a Community document pursuant to Article 11 (2) of Regu­ lation No 1380/75.

Second , third and fourth questions

1 4 In view of the reply to the first question, it is unnecessary to reply to the second, third and fourth questions.

Costs

produce the supporting documents required for the issue of the control copy.

2. Where an exporting Member State lays down that the proof required for the purposes of Article 10 (1) of Regulation No 1380/75 concerning the payment by the exporting Member State of compensatory amounts granted by that State is to be furnished in the form of Control Copy T No 5, it is both entitled and required to issue the document retroactively on the same conditions as those which are laid down where Control Copy T No 5 is used as a Community document pursuant to Article 11 (2) of Regulation No 1380/75.

Touffait Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 6 October 1982.

P. Heim A. Touffait Registrar President of the Third Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 16 SEPTEMBER 1982 1