C-86/85
ECLI:EU:C:1986:235
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OPINION OF MR DARMON — CASE 86/85
O P I N I O N O F MR A D V O C A T E GENERAL D A R M O N delivered on 10 June 1986*
Mr President, vention agency, Moksel was required to pay Members of the Court, back the special refund on the ground that the slaughter of the cattle and the 1. By its Regulation No 32/82 of 7 January completion of the customs export formalities 1982, the Commission laid down 'the had been carried out in two different conditions for granting special export Member States and thus in contravention of refunds for beef and veal' (Official Journal the provisions laid down in Regulation N o 1982, L 4, p. 11). 32/82, in particular Article 2 thereof.
The situation in the Community beef and Moksel instituted proceedings before the veal market, in which the opportunities to Finanzgericht [Finance Court] Hamburg, dispose of meat sold to intervention which has asked this Court whether: agencies are limited, prompted the Commission to adopt a measure to encourage traders to export outside the 'the grant of special refunds is conditional Community meat originating from upon the animals having been slaughtered in 'full-grown male cattle' (Article 2 (1)) 'with the Member State in which the customs a view to reducing intervention purchases' export formalities are completed' (preamble, second recital).
and whether For that purpose, the regulation lays down the conditions for granting the refunds, which, being intended to stabilize the 'the slaughter of the animals in another market to which they relate, are very Member State precludefs] the grant of specific. special refunds even when the slaughter is certified by the competent intervention 2. It was on the basis of those provisions agency of that other Member State on the that Alexander Moksel Import-Export form provided for that purpose'. G m b H & Co. Handels-KG (hereinafter referred to as 'Moksel'), a meat exporter, applied for and, initially, obtained refunds 3. In order to clarify the background to this for various consignments of beef and veal problem, it should be noted that Article 1 intended for export from the Federal (1) of Regulation No 32/82 makes the Republic of Germany to the Soviet Union. grant of the 'special' refunds conditional upon compliance with the 'specific' conditions laid down in the regulation. The German customs authorities through which the export formalities had been completed partially reversed their decision. Determination of the type of beef or veal In respect of a consignment of meat from involved is of course of fundamental full-grown male cattle slaughtered in the importance, in view of the purpose of the United Kingdom, the origin of which had regulation. T o that end, Article 2 (1) pre- been certified by the United Kingdom inter- scribes that:
* Translated from the French.
MOKSEL y HAUPTZOLLAMT HAMBURG-JONAS
'the products exported come from It considers that that interpretation is full-grown male cattle', confirmed by the limited nature of the conditions for checking the products laid in the form of carcasses or quarters, and down in Article 3. In the absence of a makes entitlement to the special refunds Community checking procedure, the juxta- conditional upon the submission of proof position of uncoordinated national systems that the meat comes from such animals. might create a climate conducive to fraud, That proof is to be provided in so far as the requirements might vary
from one State to another. The requirement 'by means of a certificate . . . issued on that slaughter be carried out in the application by the party concerned by the exporting Member State precludes that risk intervention agency or any other authority by ensuring more effective checking of the designated for the purpose by the Member products. State in which the animals were slaughtered and in which the customs export formalities are completed'. The Commission has put forward two further arguments in support of that inter- It is that provision, and in particular the pretation. passage which I have emphasized, which lies
at the centre of the present proceedings. What the Court is asked to do is to It observes in the first place that the determine whether the requirement that the requirement, which in its view must be animals be slaughtered in the State where complied with, that the animals should be the customs formalities are completed slaughtered and the export formalities be constitutes, in the same way as the nature of completed in a single Member State does the products exponed, a general condition not in any way detract from the objective of for granting the refund. reducing intervention purchases.
Traders remain free to slaughter animals and export 4. According to the Commission, both a them from any Member State in the literal interpretation of Regulation No Community, provided that only one 32/82 and the concern to ensure effective Member State is involved in each instance. control require that the animals should be All the national markets are therefore slaughtered and the export formalities accessible to them. Accordingly, the completed in one and the same Member requirement of unity of place in no way State. hampers the free movement of goods within the Community. Moreover, the exportation By prescribing that eligibility for the refunds of meat from a Member State other than will depend upon compliance with the the one in which the animals were 'specific conditions' laid down in it, Regu- slaughtered could be carried out by means lation No 32/82 refers not only to the of transport under customs control in requirement as to the nature of the products accordance with the external 'Community but also to the conditions contained in transit procedure' provided for in Article 1 Article 2 regarding the submission of proof (2) (b) of Council Regulation No 222/77 of and those in Article 3 concerning the 13 December 1976 on Community transit control measures to be adopted by the (Official Journal L 38 of 9 February 1977, Member States. The Commission concludes p. 1). from this that the requirement laid down in Article 2 (2) that only one Member State In the second place, the Commission relies should be involved constitutes one of the specific conditions for the grant of special upon certain provisions of other regulations refunds. comparable to Regulation No 32/82.
It refers in particular to:
OPINION OF MR DARMON — CASE 86/85
Regulation No 1964/82 of 20 July 1982 Article 2 (1) indicates what has to be proved: (Official Journal 1982, L 212, p. 48) and the products must come from 'full-grown Regulation No 74/84 of 12 January 1984 male cattle'. Article 2 (2) describes how the (Official Journal 1984, L 10, p. 32) laying proof is to be provided. It defines the form, down the conditions for granting special 'a certificate, a specimen of which is given export refunds on certain cuts of boned and in the Annex', and then indicates which unboned meat of adult male cattle; hody is competent to issue it, namely an intervention agency or any other authority Regulation No 1136/79 of 8 June 1979 designated for that purpose, and to whom it laying down detailed rules for the is to be produced, namely the 'customs auth- application of special arrangements for orities' through which the export formalities certain types of frozen beef intended for were completed. Thus the form, origin and processing (Official Journal 1979, L 141, destination of the proof make up the explicit p. 10); and content of Article 2 (2).
Regulation No 1687/76 of 30 June 1976 laying down common detailed rules for As has been seen, the part of that provision verifying the use and/or destination of identifying the body which is to issue the products from intervention (Official Journal certificate provides for an alternative. The 1976, L 190, p. 1). certificate may be issued either by the competent national intervention agency It points out that all those regulations operating within the framework of the impose the requirement, in particular for the common organization of the markets in beef purpose of control measures, of unity of and veal, or by 'any other authority place for completion of the operations to designated for the purpose'. The phrase which they relate. referring to the Member State in which the animals were slaughtered and the customs formalities were completed can, in my 5. I cannot subscribe to that interpretation. opinion, apply only to the second alter- Neither the letter nor the scheme of Regu- native. lation N o 32/82, on the one hand, nor the control requirements, on the other, appear to make the grant of the special refunds conditional upon the animals having been That is apparent in the first place from a slaughtered and the export formalities simple grammatical analysis of the first having been completed in the same Member sentence of Article 2 (2), in particular the State. French and Italian versions: in French, it is the 'autre autorite' which is 'désignée' (in Italian, 'designata) by the Member State in It is true that Regulation No 32/82 pres- which the animals were slaughtered and cribes compliance with the 'specific from which the meat was exported and not conditions' laid down in it. The the 'organisme d'intervention', which, Commission's statement that those moreover, does not have to be 'désigné', conditions are contained both in Article 2 because it already has powers by virtue of and in Article 3 is correct. But it then goes the common organization of the market. on to draw an erroneous conclusion from The German and English language versions that correct analysis. No provision of the appear to me to confirm that analysis. regulation, and particularly not Article 2 (2), expressly makes entitlement to the refunds subject to the general condition that the operations must all be carried out in the But in addition to that textual argument it same Member State. should be noted that those two clearly
MOKSEL v HAUPTZOLLAMT HAMBURG-JONAS
separate possibilities are provided for in nature of the meat which they intend to order to meet a requirement, that of export. The form of certificate annexed to ensuring that the certificate has probative Regulation N o 32/82, by describing the force. If issued by the intervention agency, holder of the certificate as the 'exporter or the certificate will be endowed with authen- applicant', leaves both alternatives open ticity and its probative value will be since the certificate may be applied for by a accepted by every customs office in the trader who is not the exporter and the meat Community. That certainty would not be so may subsequently be transferred to him, and complete if the certificate were to be issued the two traders may operate in the same by an authority other than the intervention Member State or from different Member
agency. In view of the importance of the States. certificate, as proof of the origin of the meat, it is essential that every exporter should be able to produce a document whose probative force cannot be contested The interpretation proposed by the by the customs office to which he applies. Commission involves raising to the status of a general condition a condition which, although certainly binding, operates only in one particular case. Since it is contrary to That is why the regulation provides that if the wording and the purpose of Article the certificate is not issued by the inter- 2 (2), the imposition of such a condition vention agency it will constitute incontes- cannot, it seems to me, be justified implicitly table proof only for the customs authority in by control requirements. the Member State where the adult male cattle were slaughtered. The 'other authority' designated for the purpose of issuing the certificate can only be an 6. As the Commission has emphasized, authority in the exporting State. The Regulation No 32/82 did not introduce a requirement that all the operations must be Community control procedure.
Article 3 carried out in the same State therefore empowers the Member States to lay down provides a guarantee that the certificate will 'the conditions for checking the products have probative force. An indirect result of and for issuing the certificate'. The that fact is that only in that one case and measures adopted are intended to only for that one reason traders will be obliged to carry out all the slaughter and export operations in the same Member State. 'ensure that no substitution of products takes place between the time they are checked and the time they leave the It is clear that they are requirements relating Community's geographical territory . . . '. exclusively to the probative force of the certificate and, in certain cases, their effect is that all the operations must be carried out within a single Member State. The alter- This reliance upon national law involves the native provided for in Article 2 (2) enables co-existence of distinct control systems.
In traders in Member States where the inter- the Commission's view, the fact that some vention agency issues the certificate to have are more stringent than others is conducive the cattle slaughtered there and to submit to to fraud by substitution and that risk would the customs authorities in any other be avoided if all the operations were carried Member State incontestable proof as to the out in a single Member State.
OPINION OF MR DARMON — CASE 86/85
That reasoning cannot be accepted. The risk means of coordinated and effective national of fraud, resulting from a lack of coordi- rules can the risk of fraud be significantly nation — of which, moreover, the Com- reduced. mission has provided hardly any illus- tration — is already reduced by the provisions of Article 3 itself, which state Seen in those terms, that provision also that the national control measures must displays the advantage that, by avoiding partitioning of the national markets, it upholds the freedom of traders to carry out 'include identification of each product by slaughter and export operations at any means of an indelible mark on each quarter location, provided that the certificate or by individual seal on each quarter'. relating thereto is issued by an intervention
agency. It is clear that that minimum standard of control is not lacking in efficacy if it is borne in mind that the identification 7. Merely for the sake of completeness, I numbers of the pieces of the slaughtered shall briefly consider the last set of cattle must be entered on the certificate to arguments put forward by the Commission. be produced to the customs authorities, the latter thus having the means — and the The argument based on the existence of a responsibility — of ensuring that the meat Community transit procedure as an alter- exported corresponds exactly to what was native available to traders wishing to take slaughtered. It should be noted in passing the same course of action as the plaintiff in that in the Federal Republic of the main proceedings does not have the Germany — as was stated at the scope which the Commission attributes to it. hearing — no additional control measures The issue is not whether there exist other
were considered necessary. Moreover, means of carrying out the operation in Article 4 of Regulation No 32/82 gave the question but rather whether that operation Commission the opportunity to com- is prohibited by Regulation No 32/82. I municate its comments to the Member believe I have shown that it is not so States if it considered the national measures prohibited. to be inadequate. It was acknowledged that it had not done so. Let me make a further point. Such an The existing control measures were operation is advantageous, as became therefore considered sufficient. Further- apparent in the course of the proceedings, more, I do not see how the requirement that where meat intended for a non-member all the operations should be carried out in country has already been imported into the the same Member State could significantly Member State of exportation.
Certain reduce the risk of fraud. As the plaintiff in wholesalers can, pending the conclusion of the main proceedings stated at the hearing, contracts, store consignments of meat without being contradicted, the products in coming from other Member States which question may pass through the hands of are accompanied, for all relevant purposes, several intermediaries between the time of by the certificate provided for in Regulation slaughter and the time of exportation, N o 32/82. Thus, the requirement that all regardless of whether the operations are the operations should be confined to one carried out in one Member State or in Member State would have the effect of
several. The requirement that the operations depriving traders of the opportunities should be confined to one Member State offered by their own market and, indirectly, therefore provides only a theoretical of obstructing the free movement of the safeguard against the risk of fraud. Only by goods in question. Consequently, apart from
MOK.SEL v HAUPTZOLLAMT HAMBURG-JONAS
the exception expressly provided for, traders importation of meat intended for processing, should be free to purchase in any Member and the second concerns the exportation of State meat which they intend exporting products from intervention stocks. The from the State in which they have storage or control requirements in those cases are freight facilities to a non-member country. wholly different. As regards Regulations Nos 1964/82 and 74/84, which postdate the The rules referred to by the Commission in regulation at issue, they apply to boned and no way detract from my analysis. Regu- unboned cuts of meat from adult male • lations Nos 1136/79 and 1687/76 cover cattle, which are obviously more difficult to different situations: the first relates to the identify.
I therefore propose that the Court should rule that:
The grant of the special export refunds provided for in Commission Regulation N o 32/82 of 7 January 1982 (Official Journal 1982, L 4, p. 11) is not conditional upon the animals having been slaughtered in the Member State in which the customs export formalities were completed, provided that the document certifying that the products come from adult male cattle was issued by the intervention agency of a Member State.