C-288/85
ECLI:EU:C:1986:445
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OPINION OF SIR GORDON SLYNN — CASE 288/85
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 26 November 1986
'3. The repayment mentioned in paragraph My Lords, 1 shall be required only in proportion to the quantities of goods or products in respect of which die proofs referred to in paragraph 1 are not furnished.' Council Regulation No 441/69 (Official Journal Special Edition 1969 Vol. 1, p. 91) provides for the advance payment of export '5. The amount of the refund paid, plus any refunds for certain agricultural products. In increase, shall be repaid in accordance the case of products which are admitted to with the provisions of this Article if the the scheme laid down by the regulation proofs referred to in paragraph 1 are not when they are to be exported in processed furnished within the time-limits laid form, the refund is paid as soon as the basic down. In such case, if repayment has product is placed under a customs control been claimed but is not received, the guaranteeing that, subject to force majeure, deposit which was lodged shall be the product will be exported from the forfeited.' Community after processing. This regu lation applies, inter alia, to products covered by Council Regulation No 2727/75 on the common market in cereals (Official Journal By Commission Regulations Nos 1136/77 1975, L 281, p. 1). and 1441/77 (respectively Official Journal 1977, L 135, p. 14, and Official Journal 1977, L 161, p. 23) the export refund for certain preparations of a kind used in animal feeding falling under CCT Detailed rules for the operation of this subheading 23.07 B1 was fixed at 38,98 scheme are laid down in Commission Regu ECU per tonne for preparations where the lation No 1957/69 (Official Journal Special cereal products' content by weight exceeded Edition 1969 Vol. 2, p. 417). It is clear 65% and at 31.19 ECU per tonne where the from Article 3 (2) of that Regulation that at content exceeded 50% but did not exceed the time when the basic product comes 65%. under customs control the trader must declare the precise characteristics of the processed products to be exported. Subject to special provisions in case of force majeure In this reference for a preliminary ruling (Article 6 (2)), Article 6 (1) requires the pursuant to Article 177 of the EEC Treaty trader to lodge a deposit or equivalent the Bundesfinanzhof of the Federal security guaranteeing repayment of an Republic of Germany states that in 1977 amount equal to that of the refund paid Piange, the respondent in the proceedings increased by 20%, where proof is not before it, supplied sheep feed to Libya. In furnished within prescribed periods that June and July of that year it applied for and specified obligations have been complied obtained advance payment of export refunds with. Article 6 also provides: and monetary compensation amounts, on
HAUPTZOLLAMT HAMBURG-JONAS v PIANGE KRAFTFUTTERWERKE
the understanding that the barley and maize payment of the sums paid in excess, but that put into the customs control procedure was the 20% increase was contrary to the to be used for the production of 'mixed principle of proportionality. cereal feed, containing more than 30% by weight of starch and no milk products, with more than 65% by weight of cereal products'. Piange completed the customs The Hauptzollamt then appealed to the control procedure in due time: on Bundesfinanzhof which has addressed the production of the control copy and following question to this Court under certificate of sampling the Hauptzollamt Article 177: released the deposit which had been lodged by Piange.
'Was the recipient of export refunds in 1978, who had undertaken pursuant to However, in the spring of 1978, a check Article 3 (2) of Regulation (EEC) No carried out by the German customs auth 1957/69 to export mixed cereal feeding orities revealed that the cereal content of stuff with a cereal content exceeding 65% some of the feed was only 63.9% by weight. by weight but who had in fact, owing to It is common ground between the parties to circumstances in which no blame attached the national proceedings that this was due to him, exported mixed cereal feedingstuff to no fault on Plange's part, although containing between 50 and 65% by weight Piange was not able to explain to this Court of cereal, obliged under Article 6 (1) and how the lower cereal content came about. (5) of Regulation No 1957/69, even where Equally, there is no suggestion that this was the deposit has already been released, to a case of force majeure. repay the entire advance payment of refund increased by 20%?'
Having discovered that Piange had not in Written submissions have been lodged by fact complied with its undertaking, the the parties to the main proceedings and the Hauptzollamt required Piange to pay Commission. DM 1066 739.05. It arrived at this figure by (a) taking the amount of the advance payment increased by 20% pursuant to Article 6 (1) of Regulation No 1957/69 and In its submissions Piange denies that in the then (b) subtracting from this the amount of export declarations it referred to Article 3 the export refund applicable by virtue of (2) of Regulation No 1957/69 or that it Commission Regulations No 1136/77 and declared the preparation to have more than No 1441/77 to feed containing over 50% 65% of cereal product. It says that it merely but less than 65% cereals. declared that this preparation was eligible for refund and was to be exported and that it subsequently gave the necessary details in the time limits laid down. What these are it Piange objected to paying this sum, but does not specify. This allegation may have without success. It then commenced to be further investigated by the national proceedings against the Hauptzollamt court but it seems to me that the reference before the Finanzgericht. These were must proceed on the basis of the facts stated partially successful: the court held that the by the Bundesfinanzhof. If in fact Piange Hauptzollamt was entitled to require did not undertake to export preparations
OPINION OF SIR GORDON SLYNN — CASE 288/85
having a cereal content of more than 65% recovery of a sum greater than the amount then obviously different considerations arise of the refund. In my view, rightly, it to those raised in the reference. concluded that it could, since Article 2 (5) of Regulation No 441/69 stipulates that an amount 'not less than the refund paid' would be reimbursed. It also rightly concluded that such an increase might be applicable in cases other than those where fraud was involved despite the sixth recital The essential question is thus whether in the preamble to Regulation No 441/69 Plange must repay the entire advance which in my view does no more than payment increased by 20% even where (i) explain why a repayment system was the deposit has been released and (ii) Plange needed, without limiting the circumstances was not at fault in exporting a preparation in which it may be required. having a lower cereal content than that declared.
Leaving aside these matters the question between the parties is whether the increase The Bundesfinanzhof took the view that the of 20% (assuming that to be valid) is position was not affected by the fact that payable on the entire advance payment or the deposit had been released. Although the only on the difference between that sum power to require repayment in such a and the refunds referable to the preparation situation is not spelled out in the regulations of the quality actually exported. The Haupt- there is nothing to indicate that such a zollamt says it should be the former, Plange course is excluded. If there were no such the latter. The Commission in its written power to recover the recipient of such a proceedings supported the Hauptzollamt in refund could unjustly benefit. An analogous saying that the Regulation is clear that the situation arose in Case 124/83 Direktoratet whole refund plus 20% must be paid and for Markedsordningerne v Corman, judgment the fact that an export refund was payable of 5 December 1985, ECR 3777, in which in respect of the product actually exported the Court held, inter alia, that 'the buyer of is irrelevant and fortuitous. At the hearing the butter who has given an undertaking to the Commission seemed, however, to resile comply with the conditions referred to' in from this view. the relevant Community legislation 'is not discharged from his obligations solely because the processing security was released' in accordance with that legislation. In my view the Bundesfinanzhof came to the right conclusion on this point. It is true that in terms Article 6 (1) of Regu lation No 1957/69 requires a guarantee only for 'the repayment of an amount equal to that of the refund paid increased by 20%' where the relevant proofs are not furnished. It makes no express provision as The Bundesfinanzhof then considered to the enforcement of the guarantee in a whether Article 6 (1) of Regulation No situation like the present. This is not a case 1957/69 could validly provide for the of force majeure within Article 6 (2) nor is it
HAUPTZOUAMT HAMBURG-JONAS v PIANGE KRAFTFUTTERWERKE
a case within Artide 6 (3) where the pretation of the regulation is that the guarantee can only be enforced in respect of increase is payable in respect of the whole those quantities of goods for which the sum, even though part was due in respect of necessary proofs are not provided. On the the same transaction under a different quali other hand the fifth recital to the regulation tative heading, the provision is void to the makes it plain that the object is to prevent extent that it obliges payment of the persons having credit to which they were increase on more than the difference
not entitled. If, as is accepted here, Piange between the sum paid and the sum properly was entitled to a payment in respect of the payable. Again, in my view that result is not goods actually exported at the lower rate precluded by the fact that limited then it cannot be said that pro tanto it exemptions are contained in paragraphs 2 received a credit to which it was not entitled and 3 of Article 6. even if the full amount was paid on the wrong basis. All the conditions in respect of the transaction were satisfied save that the goods fell into one category rather than another; the position might be different if Piange was seeking to set off a claim in respect of a different transaction. Having On either approach Piange is liable to pay regard to the object and purpose of the only the difference and an increase regulation taken as a whole, I interpret it as calculated on the difference. only permitting recovery of the difference between the two sums and an increase of 20% (assuming that figure to be valid) on that difference. I do not consider that the fact that specific exclusions are made only in respect of the matters covered by para The question posed does not specifically ask graphs 2 and 3 of Article 6 precludes that whether 20% is a valid increase.
It seems, result. however, to me to be implicit in the reference that this question is raised and the parties have dealt with it at length. Piange contends that 20% is excessive particularly for a trader in the Federal Republic where, at the time, interest rates were substantially If I had not come to that view as a matter lower. of the proper interpretation of the regu lation, I should have considered that the obligation to pay the whole sum plus 20% on the whole sum infringed the overriding principle of proportionality.
To ensure that the objective of ensuring that persons do Two factors seem to me to be of not receive credit to which they are not importance. In the first place 20% is not an entitled is achieved, it is not necessary or annual rate but an overall payment. The justified that they should pay the increase monies can only be recovered after the time on such part of the sum to which they were limits for processing under customs control in any event entitled in exactly the same and for furnishing proof of export have transaction.
The payment of this increase is expired. Taking Article 3 (3) and Article 6 not expressed to be a penalty or a fine even together the total period can vary between if it has the effect of ensuring that traders nine and 18 months. Review of the case and observe the provisions of the regulation. demand for repayment followed by Accordingly, in my view, if the proper inter repayment are likely to add a further
OPINION OF SIR GORDON SLYNN — CASE 288/85
period, which can be protracted as in the deterrent for those who might seek to present case, where although the deposit obtain an advance payment without justifi was released between August and September cation; it is not in my view disproportionate 1977 and repayment demanded on 21 or a penalty to provide for repayment of the November 1978, repayment was not appropriate sum with an increase of 20% apparently made until 1982, if indeed it was for what is a breach of a primary obligation made fully even then. under the scheme.
Secondly the Court is told that at the relevant time in some Member States, with The view I have come to is thus different inflation running at 15%, interest rates for from that of the Hauptzollamt which first loans ran at around 18% per annum. On increased the refund paid by 20% that footing 20% was not unreasonable as (DM 2 535 999.89 + DM 507 198.98) and an overall figure. Nor do I think that it is then deducted the refund payable (DM unreasonable or excessive to take a flat rate 1 976 454.82) leaving DM 1 066 739.05 to for the Community as a whole, a flat rate be repaid. The proper approach is to deduct which is not geared to changing current the refund payable from the refund paid rates or to the position in particular (leaving DM 559 540.07) and to add 20%, Member States. The actual rate may be a thus giving a toul due of DM 671 448.08.
Accordingly, in my opinion the answer to the question raised is that if pursuant to Article 3 (2) of Regulation (EEC) No 1957/69 a trader undertook to export mixed cereal feedingstuff falling under the CCT subheading 23.07 B1 with a cereal content exceeding 65 % by weight, but, who in fact owing to circumstances to which no blame attached to him, exported mixed cereal feedingstuff containing between 50 and 65 % by weight of cereals, he is obliged under Article 6 (1) and (5) of that regulation (even if the deposit in respect of the export is released) to repay only the difference between the advance payment actually made and that payable in respect of the goods actually exported under the same transaction, such difference increased by 20 %.
The costs of the Commission are not recoverable. The cost of the parties to the main action fall to be dealt with by the national court.