C-321/86

Mr President, to whom compensatory amounts should Members of the Court, normally be granted must not have effects which are unfavourable to him' (paragraph 8). 1. It is clear from the facts and observations submitted by the parties in the main proceedings and by the Commission, as 4. In its order referring questions to the related in the Report for the Hearing, that Court the Bundesfinanzhof considers that the questions referred to the Court by the that principle should also be applied where, Bundesfinanzhof [Federal Finance Court] as in this case, the retroactive issue of the amount in effect to asking whether the prin- control copy is requested for the purposes ciples laid down in the judgment of 6 of obtaining an export refund. October 1982 in Case 302/81 (Eggers v ' Hauptzollamt Kassel [1982] ECR 3443), are also applicable to a situation such as that in 5. Subject to what will be said below issue in the main proceedings. regarding completion of customs dispatch formalities, I cannot but share that point of view. It suffices in that respect to refer to 2. In that judgment the Court ruled that: Article 13 (2) of Regulation (EEC) No 192/75 of the Commission of 17 January 1975 laying down detailed rules for the 'The Member States are both entitled and application of export refunds in respect of required to issue retroactively Control Copy agricultural products (Official Journal 1975, T N o 5 provided for by Article 10 of Regu- L 25, p. 1), in force at the material time, ' lation No 223/77 in order to enable proof which provided expressly that a fresh to be furnished pursuant to Article 11 (2) of Control Copy T No 5 is to be issued where Regulation No 1380/75 concerning the the first has gone astray and is not returned payment by the exporting Member State of to the office of departure or relevant central compensatory amounts which should be body within three months of its issue 'owing granted by the importing Member State to circumstances beyond the control of the where the failure to apply for or to issue the party concerned'. It was on the basis of document when the goods were consigned Article 11 (5) of Regulation No 1380/75 of was beyond the control of the person the Commission of 29 May 1975 laying concerned and that person is able to down detailed rules for the application of produce the supporting documents required monetary compensatory amounts (Official for the issue of the control copy.' Journal 1975, L 139, p. 37), as amended by Regulation N o 1498/76 of 25 June 1976 (Official Journal 1976, L 167, p. 28), the 3. It drew that conclusion from the: wording of which is identical to that of the aforementioned Article 13, that the Court extended the possibility of the retroactive 'general principle whereby procedural flaws which are beyond the control of the person 1 — That regulation was later replaced by Regulation No 2730/79 of 29 November 1979, Official Journal 1979, L 317, p. 1. Article 13 became Article 30 of the new regu- * Translated from the French. lation.

8. Customs export formalities are those formalities which must be completed when 12. There is no point, in my opinion, in the goods are to leave Community territory. discussing the question whether that They consist mainly in the completion of an provision is retroactive, since the Court export declaration and an export certificate inferred the possibility of retroactive issue of for agricultural products which fall under a Control Copy T No 5 from a general common market organization. principle of law. It nevertheless remains to be determined whether that general principle, when applied in the area of export refunds, precludes a requirement that export 9. Where the export takes place from a port formalities should have been completed or or airport, dispatch formalities need not be whether, conversely, at the material time the completed. specific nature of the rules in that area made compliance therewith obligatory.

10. Since in the present case both dispatch 13. In that respect I should like first of all and export formalities had to be completed, to make two points concerning the Eggers either expression may be used. judgment.

11. With regard to the first question 14. 1. Contrary to what Töpfer maintains in referred to the Court by the Bundesfi- its written observations to the Court, it is by

OPINION OF MR MISCHO — CASE 321/86

17. As far as the present case is concerned, 20. Article 12 (1) provides generally that let us note first of all that the Community any goods to be carried under the legislature considered that: procedure for external Community transit must be covered by a T 1 declaration, a specimen of which is annexed to Regulation '. . . in the interest of users and with a view No 223/77. At least three copies of that to rendering as easy as possible the task of declaration are to be produced at the office national government authorities responsible of departure (Article 12 (3)) which is to for supervising the movement of goods, the register it, 'prescribe the period within simultaneous application of several adminis- which the goods must be produced at the trative procedures should be avoided; office of destination, and take such . . . therefore, the Community transit measures for identification as it considers procedure should always be used whenever necessary' (Article 17 (1)). As a general rule

TÖPFER v HAUFTZOLLAMT HILDESHEIM

identification is actually ensured by sealing 'Proof that the conditions prescribed by a (Article 18 (1)). It is the task of the office of Community measure as to the use and/or destination to check the goods and to send destination of goods imported into, a copy of the T 1 document, duly endorsed, exported from, or moving within the to the office of departure without delay Community have been complied with, shall (Article 26 (1)). be furnished by the production of Control Copy T No 5.'

21. Furthermore, Article 15 (1) of Regu- lation No 222/77 stipulates that: In the present case the 'Community measure' is the grant of a refund and the prescribed 'use' is the export of the goods out of Community territory. 'Where the goods, before they can be dealt with under the external Community transit procedure, are required to be the subject of an export or re-export declaration, that 24. In those circumstances, Article 7 3 of declaration and the Community transit Regulation N o 192/75 provides that: declaration shall be combined on a form T 1 . . . '.

25. Although it is therefore quite true that in the context of an external Community 23. The function and use of Control Copy transit operation giving rise to entitlement T N o 5 are defined in Articles 10 to 14 of to export refunds, form T No 5 is regarded Regulation N o 223/77. Article 10 2 provides as proof that goods have been exported as follows: from the geographical territory of the Community, that can only be the case, 2 — That article corresponds to Article 1 of Regulation (EEC) under the actual terms of the abovemen- No. 2315/69 of the Commission of 19 November 1969 on the use of Community transit documents for the purpose of tioned provisions, for products in respect of applying Community measures for verifying the use and/or destination of goods (Official Journal, English Special Edition 1969 (If), p. 515), which was repealed by Regu- 3 — That article became Article 11 of Regulation N o 2730/79 lation N o 223/77 (Article 83). of 29 November 1979; see footnote 1.

OPINION OF MR MISCHO — CASE 321/86

TÖPFER v HAUPTZOLLAMT HILDESHEIM

way constitute proof that those goods are method of exportation are fulfilled. When actually those which should qualify for checks reveal that that has not been the export refunds. case, the refund is not due to the exporter . . . ' (paragraph 11). 32. In its judgment of 5 February 1987 in Case 288/85 (Hauptzollamt Hamburg-Jonas 33. It follows from the foregoing that v Piange Krafifittterwerke GmbH & Co. completion of customs export formalities [1987] ECR 611), the Court stated that: constitutes an absolutely indispensable precondition for the grant of export refunds 'The grant of the refund constitutes an and failure both to complete those advantage for the trader which is justified if formalities and to obtain the issue of certain conditions concerning the charac- Control Copy T No 5 cannot subsequently teristics of the product exported and the be remedied.

34. Consequently I suggest that the C o u r t reply to the B u n d e s f i n a n z h o f s first question as follows:

'In J u n e 1979 C o n t r o l C o p y T N o 5 provided for in Article 10 of C o m m i s s i o n Regulation ( E E C ) N o 2 2 3 / 7 7 of 22 D e c e m b e r 1976 on provisions for t h e implementation of the C o m m u n i t y transit p r o c e d u r e a n d for certain simplifications of that p r o c e d u r e could n o t be issued retroactively in respect of the export t o n o n - m e m b e r countries of products on which refunds w e r e payable w h e n t h e prescribed customs dispatch or export formalities had not been c o m p l e t e d . '

to the Court that the Bundesfinanzhof has should have taken place at the point of doubts whether the office of departure, in departure, did not take place. this case the Hauptzollamt Hildesheim, the defendant in the main proceedings, is actually competent as a matter of principle to issue form T N o 5 retroactively where 41. Let us examine that problem. Pursuant the customs dispatch formalities (namely to Article 12 (1) of Regulation No 223/77 it endorsement of the T 1 declaration) were is for the office of departure, at which the T not completed there, even if some export 1 declaration must also be produced (see formalities were completed either at the Article 12 (3) of Regulation No 222/77), to border between the Federal Republic of issue Control Copy T No 5. Under Article Germany and Denmark or at the point of 12 (3) and (4), the original of form T No 5 exit from the geographical territory of the is to accompany the goods in transit under Community, on the border between the same conditions as the T 1 declaration Denmark and Norway. In that respect the and, like one copy of the T 1 declaration, is Bundesfinanzhof explains that as far as to be sent forthwith after appropriate endor- the main proceedings are concerned it is sement by the office of destination to the not important which office other than office of departure. Hildesheim might possibly have such competence. 42. It is thus clear that the conditions of issue and use of the two types of document are parallel. 38. In the event, the Frederikshavn customs office completed the last section of Copy T N o 5, namely that entitled 'Control as t o use a n d / o r destination' (Überwachung der 43. It also follows from what I have said in Verwendung und/oder der Bestimmung), regard to the first question that in order to although the section 'Examination by office qualify for export refunds the goods must of departure' (Prüfung durch die Abgangs- have been the subject of the prescribed zollstelle) was left blank. customs dispatch formalities.

46. If customs dispatch formalities have 5 cannot arise. Article 7 of Regulation N o been completed in another customs office of 192/75 only requires the production of that the Member State of departure, then that document as proof of exportation outside office might possibly be considered to be the the Community if the goods to which it office of departure and hence competent to relates have crossed the territory of one or issue the control copy. more Member States other than that in whose territory the customs export 47. Where all the prescribed formalités for formalities took place. Moreover, pursuant the exportation of goods to a non-member to Article 13 (1) of Regulation No 192/75 country are completed in a customs office export refunds are to be paid by the auth- of the Member State of exit, the question of orities of the Member State in which those the retroactive issue of Control Copy T No formalities were completed.

48. Consequently, I suggest t h a t the C o u r t should reply to the B u n d e s f i n a n z h o f s second question as follows:

'If customs dispatch o r export formalities have n o t been completed at the office of d e p a r t u r e which w o u l d normally be c o m p e t e n t t o issue C o n t r o l C o p y T N o 5, t h a t office m a y n o t issue it retroactively.'