C-46/82

THE COURT,

composed of: J. Mertens de Wilmars, President, K. Bahlmann and Y. Galmot (President of Chambers), P. Pescatore, O. Due, U. Everling and C. Kakouris, Judges,

Advocate General: S. Rozès Registrar: P. Heim

gives the following

GERMANY v COMMISSION

JUDGMENT

In the contested decision of 16 In respect of those supplies the Einfuhr- November 1981, which was notified to und Vorratsstelle für Getreide und Fut- the Permanent Representation of the termittel [Impon and Storage Agency for Federal Republic of Germany at the Cereals and Feedingstuffs, hereinafter European Communities on 3 December referred to as "the German intervention 1981, the Commission disallowed the agency"] had, within the permitted financing by the Community of a sum period, submitted the payment docu- totalling DM 32 894 745.37. ments to the Hauptzollamt Hamburg- Jonas [Principal Customs Office By way of reasons for disallowing the Hamburg-Jonas, hereinafter referred to sum in question, the decision itself, as "the Hauptzollamt"], the body em- referring exclusively to Anieles 2 and 3 powered to disburse export refunds and of Regulation (EEC) No 729/70 of the monetary compensatory amounts; the Council of 21 April 1970 (Official documents did not, however, contain Journal, English Special Edition 1970 (I), any express request for monetary com- p. 218), observed in general terms that pensatory amounts. the refunds disallowed had not been granted in accordance with the The Hauptzollamt initially did no more Community rules on the subject. than give a decision on the export refunds, and, in most cases, it refused Following suspension of the proceedings payment thereof on the ground that no pending before the Court, the parties such refunds existed between November reached a partial agreement succeeding 1973 and March 1975. in appreciably reducing the amount disputed, which now stands at DM During the summer of 1975 the German 5 407 890.68, instead of the figure of intervention agency then claimed DM 16 978 093.28 entered in the payment of the monetary compensatory application. As regards the sum of DM amounts a posteriori, by means of 945.51 relating to aid for the storage of applications which were all drawn up on wine, the issue became nugatory as the plain paper and consisted of a single parties were able to reach agreement on sentence referring expressly, inter alia, to the matter. the original payment documents.

payment of the monetary compensatory only in receipt of a written application amounts and paid over a total of D M from the person concerned. Member 18 230 594 in the course of the financial States may draw up a special form for year 1975, in pursuance of Community this purpose." rules on the subject, in particular Regulation (EEC) N o 1463/73 of the The 200 or so requests for payment Commission of 30 May 1973 laying which the German intervention agency down detailed rules for the application submitted to the Hauptzollamt between of monetary compensatory amounts July 1972 and March 1975 took the form (Official Journal, L 146, p. 1). As of printed forms known as "Control the applications from the German Copies 5" or " T 5" as prescribed by intervention agency for payment of the Community transit procedure, a speci- monetary compensatory amounts had men of which is annexed to Regulation been received by the Hauptzollamt (EEC) No 2315/69 of the Commission within the six-month period laid down of 19 November 1969 on the use of by Article 14 of that regulation, the Community transit documents for the payments in question were charged by purpose of applying Community the Commission to the European Agri- measures for verifying the use and/or culturaLGuidance and Guarantee Fund destination of goods (Official Journal, (hereinafter referred to as "the Fund")· English Special Edition 1969 (II), p. 515). Article 1 of the regulation is Apart from those cases, which involved worded as follows: DM 1 252 500.72, the Commission refused Community financing for the compensatory amounts paid retro- "When the application of a Community actively, on the ground that no express measure adopted in respect of imports or application as required by German law exports of goods, or of movement of on the payment of monetary compensa- goods within the Community, is tory amounts had been submitted within conditional upon proof that such goods the period prescribed by Community law. are intended for the use and/or In that regard, it was alleged, there had destination provided for or prescribed by therefore been an infringement of Article that measure, proof shall be furnished by 14 of Regulation N o 1463/73, which producing a special copy of the provides as follows: Community transit document, herein- after referred to as 'the control copy', bearing the number 5." "The application for payment of a 'monetary" compensatory amount must be submitted, save in cases of force In the matter of monetary compensatory majeure, within the six months following amounts, the applications for payment the date of completion of customs were submitted in several different forms. formalities; otherwise it shall be rejected." In some cases the T 5 control copies bore the typewritten heading "Aus- Applications for monetary compensatory gleichsbetrag Währung" (monetary amounts must be submitted in compensatory amount). accordance with Article 13 of the regu- lation, which provides that: In many cases the control copy showed, "Payment of 'monetary' compensatory under Heading 106, the provisions of the amounts to be granted shall be made notices applicable in each instance, issued

by the Federal Ministry of Food, Agri- commencement of the action, that the culture and Forestry, laying down Court should: national implementing measures on the grant of monetary compensatory 1. Declare void the decision of the amounts. Commission of 16 November 1981 concerning the clearance of the Approximately one third of the T 5 accounts presented by the Federal control copies contained no express Republic of Germany in respect of the reference to the monetary compensatory expenditure financed by the European amounts. Agricultural Guidance and Guarantee Fund, Guarantee Section, Expendi- After the present action had been ture for 1975, in so far as a sum of brought, the Commission agreed to D M 5 407 890.68 for the payment of charge the monetary compensatory monetary compensatory amounts in amounts to the Fund provided that they respect of German deliveries of food had been paid over by the Hauptzollamt aid consisting of wheat and wheat in cases which, despite the absence of flour was not taken over by the said any express request for payment, the Fund; control copies had referred to the compensatory amounts or had mentioned 2. Order the Commission to pay the under Heading 106 the provisions of the costs. aforesaid notices applicable to each particular case. Those cases represent a total of DM 11570 202.60, thus The Commission contends that the Court reducing the disputed amount to D M should: 5 407 890.68. 1. Dismiss the applications in so far as the substantive issues have not been The written procedure in this case settled; followed the normal course except as regards the suspension of proceedings referred to above, which enabled the 2. Order the applicants to pay the costs. parties to reach a settlement out of court as regards part of their dispute. Ill — Submissions and argu- Upon hearing the report of the Judge- m e n t s of t h e p a r t i e s Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any The Government of the Federal Republic preparatory inquiry. However, the Court of Germany maintains that the delivery of put various questions to the Government fully completed control copies may be of the Federal Republic of Germany and regarded as an implied request for to the Commission. payment of monetary compensatory amounts. In doing so it relies on a number of points and, in particular, on the following assertions which it makes: II — C o n c l u s i o n s of t h e p a r t i e s (a) The control copies submitted showed by the very manner in which they The Government of the Federal Republic had been completed that the expor- of Germany claims, having regard to tation of the goods conferred the explanations given after the entitlement to a refund.

(b) All the conditions required for the The German Government points to the payment of monetary compensatory judgments of 6 June 1972 (Case 94/71, amounts were satisfied in the cases Schlüter & Maack v Hauptzollamt forming the subject-matter of these Hamburg [1972] ECR 307) and of 22 proceedings. January 1975 (Case 55/74, Unkel v Hauptzollamt Hamburg-Jonas, [1975] ECR 9), both of which deal with cases in which the competent autority had refused payment of export refunds on (c) It was pointless, in respect of the the ground that the formal application period from November 1973 to for payment required under German law March 1975, to lodge applications had not been submitted within the pre- for export refunds accompanied by a scribed period. In both cases, the Court fully completed control copy unless held that delivery of the full set of the document was to be read as documents, as evidence that the goods signifying the wish to receive all the qualify for a refund, is objectively refunds at issue, because the German equivalent to a sufficient application for intervention agency as originator of payment. In the opinion of the German the appliction was equally aware that Government, the considerations on export refunds were out of the which those judgments are based are question at that time. directly applicable in these proceedings. That follows, first, from the identical structure of the payment procedures and, secondly, from the fact that Article 6 ( 1 ) (d) It would be sheer formalism to of Regulation No 1463/73 expressly require an express application for declares in that context that provisions payment when it is clear from the concerning the grant of export refunds documents produced, and in shall apply to trade with non-member particular from the filling-in of countries. Those two judgments columns which could serve no demonstrate, the German Government purpose other than payment, that the alleges, that the fact of filling in the goods in question confer entitlement columns on the control copy constitutes to such payment, and in circum- sufficient evidence of the desire to stances where all the details needed receive the refund. It further emphasizes for checking and calculating the that, under paragraph 11 of the Schlüter amounts payable have been entered. & Maack judgment mentioned above, although Member States may, for reasons of internal administrative organ- ization require exporters also to make an (e) The Commission itself readily application in the form prescribed by acknowledged that the Fund should national law, they are not entitled to bear — and this, according to the penalize failure to fulfil this obligation applicant, emphasizes once again its by forfeiture of the right of a refund. formalistic approach — those disbursements of monetary com- pensatory amounts in respect of which the German intervention agency had, apart from submitting The German Government also argues the fully-completed control copies, that the interpretation of a declaration of gone no further than to make an a desire for payment cannot depend on informal request for payment of the the subjective manner in which the amounts. recipient thereof understands it. That

principle is also borne out by the two entitled to claim even when the Com- cases mentioned above, in which the mission has not previously acknowledged Hauptzollamt had similarly been it, that is to say, in cases in which the unwilling to concede that the export copies contained no direct or indirect certificates or control copies held by the reference to monetary compensatory exporters constituted applications for amounts. export refunds, and in which the Court none the less acknowledged that the documents in queston might be regarded as such. Were the Court to give a narrow in- terpretation of the formal requirements imposed by Community law for an application for payment, the question of According to the German Government, the allocation of costs should, at all the fact that the German intervention events, be examined in the light of the agency failed to take legal action against principle of proportionality, which is also the decisions at issue is irrelevant. The recognized by Community law. absence of legal proceedings against the decisions adopted on the export refunds in no way affects the interpretation of the documents accompanying the The German Government stresses in that application. In the first instance, the connection that this case is concerned mere fact that no action has been with a formal defect pointed out by the brought against the partial absence of a Commission on the basis of a check decision on the application can no longer which was not carried out until three negate the objective declaratory value, years later, when the accounts were which may be established by interpre- being cleared, and that the defect has no tation, possessed by the documents bearing whatever on the substantive accompanying the application. Above all, merits of the application. In such a case however, German administrative law it is incompatible with the principle of does not admit of a challenge to proportionality that an exceptionally favourable decisions on export refunds. strict interpretation of a mere provision It cannot be accepted that that part of an governing form and procedure should application which has not received a lead, when all the conditions of favourable decision should be regarded substance are fulfilled, to the imposition as having been by implication rejected; on a Member State of the considerable on the contrary, the decision remains financial burdens which properly fall pending before the administrative body upon the Fund by virtue of substantive until such time as it becomes the subject provisions of Community law. In that of an express decision, whether connection the German Government favourable or not. It follows that the refers to the judgment of the Court of 21 original favourable decision as part of June 1979 (Case 240/78, Atalanta v the application cannot give rise to Produktschap voor Vee en Vlees, [1979] recourse to legal proceedings. ECR2137).

Community law may, by way of interpret- petence of Member States to lay down ation, be held to have occurred. The procedure in cases where Community government further notes that when a law has not already done so. number of interpretations of a provision are possible, the principle of pro- However, the Commission states that it portionality itself demands, for the was not guided by that aspect of the case purposes of interpreting Community law, when making its decision. In its opinion, that preference be given to the interpre- the determining factor remains the fact tation which best accords with that that the German intervention agency not principle. only omitted to indicate its wish to submit a claim for payment of the Lastly, the German Government refers to monetary compensatory amounts, but the principle of equality of treatment. It indeed indicated a wish not to submit claims that the Commission granted such a claim. To award monetary monetary compensatory amounts t o all compensatory amounts even when the other Member States by way of party concerned has signified no desire Community financing of deliveries under to apply for them would be to ignore the the food-aid programme. As long as principle that such amounts are paid, not formal applications for payment have not as a matter of course but only on been called for by all other Member demand. If it were otherwise, the duty to States as they have been for the Federal submit an application would become Republic of Germany under its national quite meaningless and the principle of legislation, there is discrimination against automactic payment would thereby be exporters, owing to the rejection of endorsed. A subsequent change of mind German applications which have indeed over the submission of an application been the subject of a disbursement. Such cannot, in the Commission's view, an outcome is not compatible with assume any significance unless it takes Community law as understood by the the form of the submission of an Court in the matter of refunds; see the application within the period prescribed. judgment in Case 94/71, mentioned

The German auth- refund. The Commission sees no reason orities would probably have not inserted why the principle acknowledged by the such references into the documents. The Court should not apply to monetary fact the German authorities were late compensatory amounts. in including those references also demonstrates that they had not been Nevertheless, in this case the Com- expecting to do so and discovered the mission stresses that the fact that the use position only at the eleventh hour. of special printed forms is expressly authorized by the second sentence of Article 13 of Regulation No 1463/73 In those cases the Commission accepts shows that such use is not a matter the principle that the monetary com- coming exclusively within the com- pensatory amount should be paid, on the

The inertia which the German intervention agency displayed towards Moreover, the Commission does not applications for payment of monetary have the impression that it has relied on compensatory amounts is clearly dem- too strict or too formalistic an interpret- onstrated by the consideration that in ation, or that it has thereby offended some cases the Haupzollamt initially against the principle of proportionality. applied the monetary coefficient to the export refund but later cancelled it, It believes that the legal point raised in without the relevant adjustments' elici- this connection comes down to the ting any protest from the intervention question of whether it is possible to agency. Lastly, the Commission notes regard delivery of the T 5 document as that, in its decisions on the award of an application even when it may be taken monetary compensatory amounts, the as certain that the party concerned did Hauptzollamt itself expressly mentioned not intend to submit an application for that the applications had been submitted payment of monetary compensatory out of time by the intervention agency. amounts.

The Commission takes the view that it Furthermore, the Commission rejects the was not until the German authorities had Federal Government's argument that it realized that Regulation N o 456/75 had, would have been pointless to send back owing to the insertion of the new Article the duly completed control copies unless

JUDGMENT OF 9. 11. 1983 — CASE 46/82

Lastly, the Commission remarks that in The Commission goes on to dismiss the respect of the other Member States in Federal Government's argument that it which the question of the acceptance of would be contrary to the principle of claims for payment of compensatory proportionality to refuse reimbursement amounts might arise, it has applied the of monetary compensatory amounts same principles as in the present case. paid by the Hauptzollamt. In the Commission's opinion, the Federal Government puts forward that argument on account of the size of the amounts at issue in this case. None the less, since the In its reply, the Federal German Federal Government does not deny in Government dismisses the Commission's principle that the award of monetary interpretation to the effect that the compensatory amounts may, under decisive factor for the acceptance of a Community law, be made conditional on claim for payment of monetary submission of an application to that compensatory amounts is that the effect within a stated period, the size of German intervention agency should the amounts in question cannot, in itself, manifest a conscious desire to that effect. nullify the relevant provision. The Federal Government emphasizes that, on the contrary, the above- mentioned case-law of the Court shows that it is unimportant that the documents should disclose a conscious desire on the part of the applicant to seek payment of IV — O r a l p r o c e d u r e monetary compensatory amounts; the only decisive point is, rather, the objective declaration contained in the At the sitting on 17 May 1983, oral documents delivered. argument was presented by the Government of the Federal Republic of Germany, represented by Jochim Sedemund, and by the Commission, represented by Jörn Sack. Consequently, the Commission's alle- gations that the German intervention agency did not consider itself entitled to payment of the monetary compensatory The Advocate General delivered her amounts in this case are beside the point. opinion at the sitting on 4 October 1983.

3 On the occasion of those exports, the German intervention agency had submitted documents concerning payment to the Hauptzollamt within the six-month period laid down by Article 14 of Regulation N o 1463/73 of the Commission of 30 May 1973 laying down detailed rules for the application of "monetary" compensatory amounts (Official Journal, L 146, p. 1). Amongst the documents were some referred to as " N o 5 control copies", such as are required when the applications of a Community measure concerning the exportation of goods is conditional on evidence that the goods in question have been put to the use or have reached the destination referred to or prescribed by that measure. The documents also included

JUDGMENT OF 9. 11. 1983 — CASE 46/82

requests for export refunds but no express request for monetary compensatory amounts.

4 O n reception of the documents, the Hauptzollamt granted export refunds in respect of export transactions carried out prior to November 1973, but refused them in respect of the period thereafter, on the ground that Community rules made no provision for refunds on export transactions carried out after November 1973. The Hauptzollamt made no decision as to the award of monetary compensatory amounts before receiving the reminders in August 1975.

s The Commission is of the opinion that this absence of requests and decisions is explained inasmuch as both the Hauptzollamt and the German intervention agency were unaware of the fact that the export transactions which had been effected conferred an entitlement to monetary compensatory amounts. It was, the Commission contends, not until after publication of Regulation N o 456/75 of the Commission of 26 February 1975 (Official Journal, L 51, p. 5), which abolished, as regards the future, the entitlement to monetary compensatory amounts in respect of food-aid transactions, that the German intervention agency and the Hauptzollamt realized that such entitlement actually existed in respect of the transactions already completed.

s The Commission does not contest the latter statement and it accepts that the case-law cited above may equally be applied in the context of monetary compensatory amounts. It was for that reason, the Commission claims, that it agreed, following the negotiations in the course of the written procedure, to charge to the Fund the monetary compensatory amounts paid out by the Hauptzollamt in all cases in which the control copy contained any reference whatever to those amounts or to the rules governing them.

9 As regards the remaining cases on the other hand, the Commission maintains that it is impossible to postulate an application since there is no evidence of any desire to that effect. In such cases it is even obvious that the German intervention agency did not intend to submit an application:

io In that connection, it is appropriate in the first place to stress that, although it may be necessary, for the proper working of the complex system of monetary compensatory amounts, to require, in Article 13 of the aforesaid Regulation No 1463/73, a written application from the person concerned, it is necessary, as the Court has previously held with with regard to refunds in its judgments of 6 June 1972 (Case 94/71 Schlüter & Maack v Hauptzollamt Hamburg-Jonas [1972] ECR 307 and 22 January 1975 (the Unkel case mentioned above), to avoid any formalism which would go further than is necessary for an effective supervision of the transactions.

1 1 In the second place, it is appropriate to recall that during the major part of the period in question exports of goods, as in this case, could not confer an entitlement to export refunds. For that reason, the lodging of the documents relating to payment with the authority empowered to grant refunds and monetary compensatory amounts may be seen to have been effected as a precaution, in case it should serve some useful purpose. In the cirsumstances it would be incorrect to construe the absence of an express application as a

On those grounds,

THE COURT

hereby:

1. Declares void Commission Decision No 81/1034/EEC of 16 Nov- ember 1981 concerning the clearance of the accounts presented by the Federal Republic of Germany in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, Expenditure for 1975, in so far as the Commission refused to charge to the said Fund the sum of DM 5 407 890.68 by way of monetary

GERMANY v COMMISSION

compensatory amounts granted on the export of goods supplied as part of the national food-aid programme;

1 — Translated from the French.