C-94/86

A — Facts 5. The plaintiffs challenge the amount ofthat 1. The proceedings for a preliminary ruling deduction since they take the view that the on which I give my Opinion today are relevant rate of production refund is the centred on the question how production rate applying in the months of export, refunds are to be deducted from export August and September, namely only 1.723 refunds if the export refunds were fixed in ECU per 100 kg. advance and the amount of the production refunds was changed in the period between advance fixing and actual export. 6. After lodging an objection which was unsuccessful, the plaintiffs appealed to the Finanzgericht (Finance Court) Hamburg, 2. The plaintiffs in the main proceedings but their appeal was dismissed. are engaged in the export and import of commodities that are subject to market organizations. As part of those activities 7. On an appeal on a point of law made they imported maize from the United States against that judgment, the Bundesfinanzhof of America in order to process it into (Federal Finance Court) has submitted to various products, in particular sorbitol, the Court of Justice for a preliminary ruling which are then exported to non-member under Article 177 of the EEC Treaty the countries. question whether the rate of export refund on sorbitol manufactured between August 3. In August and September of 1980 the and September of 1980 and then exported to plaintiffs exported sorbitol classified under non-member countries was to be calculated heading 29.04 C and 38.19 T of the according to the rate of production refund Common Customs Tariff to various applicable in the month of exportation even non-member countries. For the basic if the rate of export refund applicable on 30 product used — maize for the manufacture July 1980 had been fixed in advance. of starch classified under heading 10.05 B of the Common Customs Tariff — they had the rate of refund applicable on 30 July 8. The plaintiffs and the Commission have 1980 fixed in advance by the Bundesanstalt given their views on the question referred to für landwirtschaftliche Marktordnung. the Court. In the result, they are agreed that the question must be answered in the 4. They subsequently applied to the Haupt- affirmative. The plaintiffs' view is un- zollamt (Principal Customs Office) qualified; in the Commission's view, the rate Hamburg-Jonas, the defendant in the main of production refund applicable in the proceedings, for the grant of export refunds month of exportation can be applied only if at the rate of refund applicable on 30 July it is proved that only the lower rate of 1980. In calculating the export refunds production refund was actually granted in the defendant deducted inter alia the respect of the commodities concerned.

9. For the wording of the preliminary of the refund in advance and for the possi- question, the reasons for the reference and bility of adjusting and correcting the refund. the submissions of the parties I refer to the Report for the Hearing. 11. By Regulations No 1681/80 of 27 June 1980, 3 No 2050/80 of 31 July 1980" and No 2282/80 of 29 August 1980, 5 the B — Opinion Commission of the European Communities had fixed the rates of export refund applicable in the months of July, August and September 1980 to certain cereal and rice (1) The general rules on export refunds products exported in the form of goods not covered by Annex II to the Treaty at respectively 9.798 ECU, 8.575 ECU and 7.262 ECU per 100 kg for maize. According 10. Article 16 of Regulation (EEC) No to the footnotes in the aforesaid regulations, 2727/75 of the Council of 29 October 1975 the amounts stated were to be reduced by on the common organization of the market the production refund of respectively 2.055 in cereals 'provides that under the regime ECU, 1.723 ECU and again 1.723 ECU per governing trade with non-member 100 kg. The actual refund still to be paid for countries, export refunds may be granted in the purposes of Article 4 (3) of Regulation order to enable the agricultural products No 2682/72 was therefore 7.743 ECU per concerned to be exported to non-member 100 kg of maize in July, 6.852 ECU in countries. As regards sorbitol classified August and 5.539 ECU in September. under headings 29.04 C and 38.19 T of the Common Customs Tariff and mentioned in Annex B to Regulation No 2727/75, the export refunds were to be fixed in the (2) The application of Regulation No period in question (1 August to 30 1681/80 September 1980) in accordance with Regu- lation (EEC) No 2682/72 of the Council of 12 December 1972 laying down general rules for granting export refunds on certain 12. The peculiarity of this case is that the agricultural products exported in the form date of the advance fixing of the export of goods not covered by Annex II to the refund (30 July 1980) and the date of Treaty, and the criteria for fixing the exportation (August and September 1980) amount of such refunds. 2 Article 4 (3) of are different and that in the interval the that regulation provides that, in fixing the production refund and the export refund rate of the refund, account is to be taken, were reduced. This case is unquestionably where appropriate, of production refunds, not covered by Commission Regulation No aids or other measures having equivalent 1681/80. effect applicable to the basic products or to assimilated products. Article 5 (1) of the regulation provides that the rate of refund applying on the day on which the goods are 13. Regulation No 1681/80 only lays down exported is to be applied; however, Article 5 the rates of refund which applied in July (2) provides for a system of fixing the rate 1980. It is silent about which rates of refund

20. (b) The proposition that when the rate 16. Regulation No 2682/72 of the Council of refund is fixed in advance all those provides in Article 4 (3) that in fixing the elements of the refund for which no express rate of the refund, account is to be taken of possibility of correction or adjustment is inter alia production refunds. It provides in provided are fixed cannot in principle be Article 5 (1) that the rate of refund applying rejected. Such an interpretation would on the day on which the goods are exported accord with the aim of advance fixing, is to be applied; however, in Article 5 (2) it which is to enable traders some time before allows the rate of refund to be fixed in exportation to include the export refund in advance. their price calculation as a non-variable component. Traders are thus offered the possibility — of which they may or may not avail themselves — of establishing their 17. All in all it might be deduced from prices under stable conditions, which, those provisions that in the case of the however, are not necessarily the most advance fixing of the refund it is not only favourable conditions. the general rate of export refund within the meaning of Article 4 (2) which is fixed at the stated time but also the rate of 21. However, some doubt is cast on that production refund applying on the same possible interpretation by the wording of date, that is to say the refund provided for Regulation No 2682/72 which does not

MAIZENA v HAUPTZOLLAMT HAMBURG-JONAS

23. Since such ambiguities in the wording of legal provisions should not penalize traders relying on them, the inclination is to (4) Relevant date for the fixing of the assume that the term 'rate of refund' used in production refimd Article 5 (2) of Regulation No 2682/72 means the unreduced rate of export refund within the meaning of Article 4 (2) for which any production refund has not yet 26. Since the advance fixing of the export been taken into account. refund still does not therefore include advance fixing of the production refund, the question to be considered is which rate of production refund is to be used for the reduction of the export refund. 24. That conclusion is supported primarily by the fact that by Article 6 of Council Regulation (EEC) No 1009/86 of 25 March 1986 establishing general rules applying to 27. (a) Relying on Article 3 (1) (b) of production refimds in the cereals and rice Commission Regulation (EEC) No 2730/79 sector6 the Commission was empowered for of 29 November 1979 laying down common the first time to adopt, following the detailed rules for the application of the management committee procedure laid system of export refunds on agricultural down in Article 26 of Regulation No products 8the plaintiffs take the view that the 2727/75, detailed rules on the possibility of rate of production refund to be applied is production refunds being fixed in advance. the rate applicable on the day of Since that possibility became available in exportation. They claim that this view is addition to the possibility provided for in confirmed by Article 4 (3) of Regulation No Article 5 (2) of Council Regulation No 2682/72, according to which, in the fixing 3035/80 of 11 November 1980,7 which of the rate of the refund, account is to be succeeded Regulation No 2682/72, there taken of the production refunds applicable in all Member States to the products 6 — Official Journal 1986, L 94, p. 6. 7 — Official Journal 1980, L 323, p. 27. 8 — Official Journal 1979, L 317, p. 1.

31. For the purposes of the reduction of the 28. Nor does the Commission exclude the rate of export refund, the amount of the possibility of applying the rules in the fifth production refund actually paid is therefore subparagraph of Article 5 (2) of Regulation the relevant amount; that rate is not No 2682/72 in order to take account of the determined by the date of advance fixing or difference between the rates of production the date of exportation of the processed refund applicable at the time. An adjustment goods but by the day of processing. pursuant to the second sentence of the aforesaid provision would enter into consideration if the plaintiffs in the main proceedings could prove that they actually had to pay a higher price for the quantities 32. The fact that that conclusion is econ- which they exported because they were not omically logical is also in its favour. From granted the production refund in force in the total amount of the export refund within July 1980. the meaning of Article 4 (2) of Regulation No 2682/72 only the production refund already granted is deducted, no more, no less. This takes account of the aim of Article 4 (3) of the aforesaid regulation, which is to avoid the overlapping of aid. 29. (b) It must be pointed out first of all that, according to the view put forward here, the previous fixing of the rate of refund under Article 5 (2) of Regulation No 2682/72 covers only the unreduced rate of 33. Recourse to the rules in the fifth refund within the meaning of Article 4 (2) subparagraph of Article 5 (2) of Regulation of the aforesaid regulation. No 2682/72, which concern the adjustment of the rate of refund fixed in advance, is not, however, possible. Since the advance fixing does not include the amount of the rate of production refund, a change in that rate of refund cannot warrant an 30. As regards the rate of production adjustment. Besides, it seems very doubtful refund, the general rules in Article 4 (3) of whether the rules in that subparagraph the regulation continue to apply, that is to say the production refunds applicable in all 9 — Commission Regulation (EEC) No 1570/78 of 4 July 1978 Member States to basic products are taken laying down detailed rules for the application of Regu- into account. That provision therefore lation (EEC) No 2742/75 as regards production refunds on starches and repealing Regulation (EEC) No 2026/75, requires the 'applicable'refunds to be taken Official Journal 1978, L 185, p. 22.