C-5/90

A — Facts 2. Article 2(1) of Regulation No 798/80, however, provides that the application of these procedures is to be subject to the lodging with the customs authorities of a 'payment declaration' in which the exporter states his intention to export the products or 1. The cases today before the Court have goods in question after processing or been referred by the Bundesfinanzhof and storage under Articles 4 or 5 of Regulation concern in the first instance the interpre- No 565/80 and to apply for a refund. This tation of the Community rules governing payment declaration must include a number the system of advance payment of export of particulars, details of which are given in refunds under Regulations No 565/80 ' and Article 2(2) and (3) of Regulation No No 798/80. 2 This system of advance 798/80. payment is designed to ensure a balance between the use of Community basic products with a view to exporting processed products or goods to third countries and the use of basic products from such countries admitted under inward processing arrangements. 3 To this end, Article 4(1) of 3. The question of the legal consequences Regulation No 565/80 provides that an which flow from the fact that the product amount equal to the export refund is to be exported does not correspond to the infor- paid as soon as the basic products are mation contained in the payment placed under customs control (an alternative declaration is one of the two problems procedure is set out in Article 5). In order which require examination today. More to guarantee reimbursement in the event precisely, the Bundesfinanzhof seeks in each that the conditions for granting the refund of these two joined cases to ascertain what are not fulfilled, a security must be effect such a discrepancy may have on the furnished (sixth recital in the preamble to choice of the date which determines the rate of refund, assuming that the exporter is * Originai language: German. entitled to a refund. If one applies Article 1 — Council Regulation (EEC) No 565/80 of 4 March 1980 10(4) of Regulation No 798/80, * which on die advance payment of export refunds in respect of agricultural products (OJ 1980 L 62, p. 5). governs reimbursement in the case where 2 — Commission Regulation (EEC) N o 798/80 of 31 March 1980 laying down general rules on the advance payment of 4 — As amended, in this case, by Commission Regulation export refunds and positive monetary compensatory (EEC) N o 3445/85 of 6 December 1985 amending Regu- amounts in respect of agricultural products (OJ 1980 lation (EEC) No 798/80 laying down detailed rules on the L 87, p. 42). advance payment of export refunds and positive monetary 3 — See the third recital in the preamble to Regulation N o compensatory amounts in respect of agricultural products 565/80. (OJ 1985 L 328, p. 13).

7. By a series of successive decisions, the Hàuptzollamt granted the plaintiffs the 5. The facts underlying those two problems, following amounts: in Case C-5/90, the details of which are set out in the DM 1 574 347.25 in . respect of export Report for the Hearing, may be refunds and DM 375 517.59 in respect of summarized as follows. monetary compensatory amounts, making a total of DM 1949 864.84; in Case C-206/90, D M 1 314 160.57 in respect of export refunds and DM 273 881.12 in respect of monetary compensatory amounts, making a total of DM 1 588 041.69. In each 6. As undertakings engaged in commercial case, the calculation of the export refunds milling, the plaintiffs in the main was based on the rates in force at the time proceedings operate within the scope of the indicated on the advance fixing certificate cereals sector. On 27 November 1980 (Case (3 July 1980 in Case C-5/90 and 1 July C-5/90) and 28 November 1980 (Case 1980 in Case C-206/90). Those rates were C-206/90) they placed certain quantities of derived from Regulation No 1633/80, 6 wheat under customs control pursuant to which lays down rates varying according to ash content and final destination of the 5 — See Article 3(1) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common 6 — Commission Regulation (EEC) No 1633/80 of 26 June detailed rules for the application of the system of export 1980 fixing the export refunds on cereals and on wheat or refunds on agricultural products (OJ 1979 L 317, p. 1). rye flour, groats and meal (OJ 1980 L 162, p. 45).

9. So far as the nature of these various payments is concerned, the documents relating to the main proceedings also show that only the payment based on the decision of 8. In Case C-5/90, the list submitted by the 11 December 1980 was made as an advance Hauptzollamt makes it clear that the fixing payment, whereas the corrective payments of the rate of refund for exports to the were made in respect of refunds (in addition USSR at ECU 0 per tonne (for both types to monetary compensatory amounts) of flour) had a twofold effect on the pursuant to the second sentence of Article 9 amounts of refund. In the first place, of Regulation No 798/80 on conclusion of pursuant to the first sentence of Article 4(7) the advance payment procedure. It follows of Regulation No 565/80 (likewise, Article that three separate variants require to be 6(3) of Regulation No 798/80), the amount examined in Case C-5/90: 7 to be paid as refund was calculated for the vast majority of the amounts in question on the basis of the rate in force for the USSR as the country of destination was still unknown at the time of application for advance payment (decision of 11 December 1980). The amount provided for other third countries was granted only for a certain — the amount paid in advance was greater quantity of flour, earmarked at the outset than the amount to which the exporter for Poland, on the basis of flour with an ash was entitled by reason of the difference content of 0 to 520 mg/100 g. After the in the characteristics of the flour; this exports had been completed between 28 November 1980 and 18 February 1981 7 — The list produced by the defendant shows that in this case it was not possible to supply proof of export in respect of and upon presentation of the proof a small quantity. However, the request for a preliminary submitted by the plaintiffs in respect of ruling is evidently not concerned with the problems which arise in this regard, as will be clear from the wording of certain quantities to which the first sentence the question in the reference.

— the amount paid in advance was lower than the amount due but the total amount paid was greater than the minus the export refund to which the amount due; this was the case with plaintiffs were entitled by application of the regard to certain exports, the destination following rates of refund: of which was not known at the outset but in respect of which it was subsequently established that they had been made to 'other third countries' ('the third variant'). — in Case C-5/90, in which some of the exports were effected within the period of validity of the advance fixing certificates, the rate in force on the day 10. The circumstances in Case C-206/90 indicated on the certificate had been correspond to the first variant, as described applied in respect of those exports; for above. In that case, the country of desti- the remaining quantities the defendant nation (North Yemen) was known at the applied the rate in force on the day of outset and the advance payment was export; accordingly made at the rate in force for 'other third countries'.

— in Case C-206/90 the rate in force on 11. Following investigations, the defendant the day of export was applied in all cases reached the conclusion in both cases that as none of the exports was effected the exported flour had an ash content within the period of validity of the greater than 520 mg/100 g 8 and requested advance fixing certificates. that the plaintiffs reimburse an amount 9 — See the preceding footnote. In Case C-5/90 there was a 8 — With the exception of a quantity of 50 tonnes in Case minimal alteration to the monetary compensatory C-5/90, the ash content of which was below amounts, which is, however, irrelevant for present 521 mg/100 g. purposes as it was not based on a change in the rates.

— Regulation (EEC) No 316/81; ' 5

provided for lower rates for wheat flour with an ash content of 521 to 600 mg/100 g than for flour with a lower ash content (0 to 520 mg/100 g) in the

10 — See footnote 6 above. 14. The plaintiffs appealed to the Finanz- 11 — OJ 1980 L 288, p. 27. gericht (Finance Court) Hamburg against 12 — OJ 1980 L 329, p. 30. 13 — OJ 1980 L 334, p. 43. 16 — OJ 1979 L. 188, p. 5. 14 _ OJ 1981 L 9, p. 17. 17 — OJ 1980 L 184, p. 10. 15 — OJ 1981 L 34, p. 32. 18 — OJ 1980 L 162, p. 48.

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'Is Community law, in particular Article 10(4) of Commission Regulation (EEC) No 798/80, as amended by Commission Regu- lation (EEC) No 3445/85, to be interpreted as meaning that a recipient of export refunds who, in claiming advance payment 15. The plaintiffs and the Hauptzollamt of the export refunds under Article 4 of appealed against those decisions to the Regulation (EEC) No 565/80, had Bundesfinanzhof (Federal Finance Court) undertaken pursuant to Article 2 of Regu- on points of law. The Hauptzollamt lation No 798/80 to export flour with an ash content of 0 to 520 mg/100 g but in 19 — So far as the increase is concerned, the Finanzgericht took fact exported flour with an ash content of the view that this also had to be paid by the plaintiffs pursuant to Article 10(4) of Regulation No 798/80 on the more than 520 mg/100 g must repay the difference between the amount paid in advance and the entire amount of the advance payment and amount to which they were entided in respect of export refunds and monetary compensatory amounts. However, only claim instead an export refund for the this point subsequently came to serve no further purpose in view of the fact that the Hauptzollamt waived the goods actually exported, in accordance with increase during the procedure (see point 12 above). the rules in Commission Regulation (EEC) Certain explanatory comments will, however, be made on this matter (see point 62 below). No 2730/79 of 29 November 1979?'

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17. The first question seeks essentially to ascertain the consequences of the above discrepancy between the characteristics of 21. The position is different if the rules on the goods exported and the information advance payment are applied. In this case, it contained in the payment declaration, so far follows from the provisions in chronological as concerns the choice between the various order, that is to say; possibilities set out in Article 10(4) of Regu- lation No 798/80, as amended by Regu- lation No 3445/85. As I have already pointed out, the Bundesfinanzhof wishes to know whether it must, for the purpose of — Article 17(l)(b) and the second indent of ascertaining the date which determines the Article 17(8)(b) in conjunction with the calculation of the amount due to the third indent of Article 9(3)(b) of Regu- exporter in such a case, apply the general Ution No 193/75,2i applicable in this rules under Regulation No 2730/79 (Article case; 3(1] or the special rules governing advance payments (Article 3(2) of Regulation No 20 — See point 3 above. 798/80). 21 — OJ 1975 L 25, p. 10.

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OPINION OF MR LENZ —JOINED CASES C-5/90 AND C-206/90

— Article 29(b) and the third indent of cases, traders are granted the 60-day. period Article 32(b)(aa) in conjunction with the within which exports must be completed third indent of Article 22(l)(b) of Regu- under Article 11(3), a period adapted to the lton No 3183/80;22 above rules since it does not begin to run until the conclusion of the procedure under Articles 4 or 5 of Regulation N o 565/80.

22. These, then, are the differences between the general rules and the special system of advance payment in so far as they affect the that, in view of the period of validity of the date which determines the rate of refund. licences, 24 the obligation to export is to be treated as satisfied and the right to export on the basis of the licence to be treated as exercised on the date on which the customs authorities accept the payment declaration. Under Article 3(2)(b) of Regulation No 798/80, this date is also determinant for any adjustments to be made to the rate of 23. II. In order to establish the connection refund fixed in advance or the monetary between the above considerations and compensatory amount. If the acceptance of Article 10(4) of Regulation N o 798/80, the payment declaration and actual with the interpretation of which we are exportation are treated as identical, this today concerned, it is necessary to bear in raises the question of what becomes of the mind the fact that the time-limits within period of validity of the advance fixing which the rules on advance payment apply certificate. It must be pointed out in this (in particular, Article 3(2) of Regulation No regard that the rules on the advance 798/80 on the determinant date), are payment procedure may in fact result in an derived from the abovementioned Article 11 extension of that period of validity;25 that is of that regulation. If the time-limits there precisely what has happened in the present prescribed are not complied with following case. While the period for processing under the introduction of the advance payment Article 11(1) of Regulation No 798/80 procedure, the exports subsequently effected generally corresponds to the remaining will again be subject to the general period of validity of the advance fixing provisions. 26 The second indent of Article certificate, the period is increased to three 42(1) of Regulation No 3183/80 (in the months if it amounts to less than that. In all same way as the second indent of Article 43(1) of Regulation No 3719/88) confirms 22 — OJ 1980 L 338, p. 1. this for the special case in which the 23 — OJ 1988 L 331, p. 1. exporter had made use of an advance fixing 24 — The export licence and the advance fixing form a single certificate in the advance payment unit from the legal standpoint (judgment in Case 316/86 procedure. Article 10(4)(a) of Regulation Hauptzollamt Hamburg-Jonas v Krücken [1988] ECR 2213, at paragraph 17). No 798/80 presents this result in the form 25 — See the third phrase in the third recital in the preamble to Regulation No 798/80 and the judgment in Joined Cases 44 to 51/77 Union Malt and Others v Commission [1978] 26 — See the Opinion of Advocate General Mayras in Union ECR 57. Malt, cited above, at p. 89.

of a retrospective rule under which the is applicable in the case where a different exporter must reimburse the amount of the product to that indicated in the payment advance payment (increased by the amount declaration has been exported. That view under Article 7(1], a total, therefore, repre- can be accepted without further exam- senting the sum of the security, if he fails to ination. comply with the period laid down in Article 11. In other words: if the time-limit is exceeded, the rules governing advance payment, which formed the legal basis on which advance payment could be made, become inapplicable, with the result that the amount paid on that basis must be reim- bursed by the exporter. 26. Is the exported flour, in view of its higher ash content, a 'different product' to that indicated in the payment declaration, as the Hauptzollamt and the Commission argue, or should the view of the applicants that similar goods of different (lower) 24. On the other hand, if the time-limit laid quality were exported be upheld? down under Article 11 is complied with, the exporter remains in principle entitled under the advance payment procedure, subject to a limitation to the amount owed if it is less than the amount paid in advance. This is the common denominator of the rules under Article 10(4)(b) and (c), each of which provides initially that: 27. (a) So far as concerns the criterion determining the reply to that question, I would agree with the defendant that in this case it is the law governing refunds which provides the criteria to be applied. Contrary 'where the time-limits laid down under to the views which have been expressed Article 11 have been complied with but the (particularly during the hearing by entitlement to refund covers a smaller Getreide-Import), the issue of possibly amount. . . '. divergent commercial practices is irrelevant to the case. While, on the one hand, the export refund constitutes a measure which, as a support for exports, is directed at participation in world trade, it represents, on the other, a public law advantage 25. III. 1. On the basis of the above expla- guaranteed by the Community (through the nations I would initially like to consider the agency of the Member States) within the first variant (for both Cases C-5/90 and system of the common agricultural policy. C-206/90) in view of the fact that it raises In view of this particular nature of export precisely the problem over which the parties refunds, it is self-evident that the applicable are in dispute, that is to say, the choice concepts and distinctions must, on grounds between subparagraphs (a) and (c) of Article of legal certainty, be taken in the first 10(4) of Regulation No 798/80. Before we instance from the system of rules governing examine the individual points in dispute, we refunds, in which Article 15 of Regulation can at least establish that the parties agree in No 2730/79, which excludes refunds in proceeding on the basis that Article 10(4)(a) respect of products 'which are not of sound

28. (b) The distinction drawn by the Hauptzollamt in the present case is based 29. Article 4(2)(b) of Regulation No on Regulation No 162/67 of the 2746/75 in fact provides that, with regard Commission, 27 in the version applicable at inter alia to wheat flour (compare the the material time. 28 Article 1(1) of that reference in Article 4(1) to Article 1(c) of regulation divides wheat flour into six Regulation N o 2727/75), the refunds are to separate categories according to ash be fixed in the light of the quantities of content, the lowest ash content being cereals required for the manufacture of the 0 mg/100 g and the highest being products in question and the value of 1900 mg/100 g. Article 1(1) also states that by-products. The significance of this the amount of wheat required for the manu- criterion becomes clear if one bears in mind facture of 1 tonne of flour increases in the interests involved with regard to export inverse proportion to the ash content. These refunds for wheat flour. According to the categories also include the two here in first recital in the preamble to Regulation question with ash contents of 0 to No 2746/75, the criteria laid down in that 520 mg/100 g and 521 to 600 mg/100 g. regulation were intended to make it possible This categorization belongs to the system of 'to cover the difference between quotations the criteria under which the amount of and prices for those products within the refund is determined pursuant to Regulation Community and on the world market, while N o 2746/75. 2 9 The first recital in the respecting the general aims of the common preamble to Regulation No 162/67 refers to organization'. the system of that regulation, which replaced Regulation N o 139/67 (previously applicable). 30 That recital provides as follows :

34. It must first be pointed out that the two types of flour are produced from the same 32. As for the present case, with regard to basic product and that the method of Regulation No 1633/80 as applied to the processing (milling) is identical in each case. advance payment, the difference in ash The external indication of all these points of content between the two types of flour in similarity is that both types of flour share question was reflected in the rates of refund the same tariff number in the Common indicated above (see the fourth recital in the Customs Tariff. The difference between the preamble to Regulation No 1633/80). In its two products lies solely in the fact that the reply to a question put by the Court, the amount of grain used is greater for one than Commission stated in this regard that: for the other and that the rate of refund may also differ accordingly. It follows that, although this difference in rates makes it clear that the Community may have a greater or a lesser interest in providing subventions for exports, this difference is not one of substance, as in the case of the export of a totally separate product, but is 'It is vital, when fixing the export refunds solely a difference of degree capable of being applicable to flour, to draw a distinction on precisely expressed in figures through the the basis of ash content in order to take difference in the export refund. This account of the factors mentioned in Article situation resembles the case in which the 2 of Regulation No 2746/75. The refund amount of the product exported is less than applicable to flour is derived from the that specified in the payment declaration. refund applicable to wheat and flour with a This distinction between cases in which high ash content is produced from a smaller there is a substantive difference and cases in quantity of wheat than flour with a low ash which there is a difference of degree content. That is why, in accordance with capable of being expressed in figures is Commission Regulation No 1633/80, the precisely that which constitutes the basis of rate of refund applicable to flour with an Article 10(4) of Regulation No 798/80 ash content of 1651 to 1900 mg/100 g is where it provides for cases of failure to the lowest and that for flour with an ash respect the time-limits for exportation a content of 0 to 520 mg/100 g is the highest system which differs from that applicable to rate.' cases in which the amount due in respect of

37. It is for that reason that I take the view that the present case does not come under Article 10(4)(a) of Regulation N o 798/80 (but rather under Article 10(4)(c)), even if we proceed on the basis that the 35. During the oral procedure, however, I Commission's reply to the above question of was given the impression that the the Court is unreliable. Commission was not at all certain that the difference existing at the time between the rates of refund were based (solely) on differences in the amounts of grain used. On the contrary, if I have correctly understood its argument, the Commission 38. (d) It seems to me that two factors did not exclude the possibility that reinforce the opinion which I have conditions on the world market would developed up to this point. (also) have required such a differentiation (see Article 4(2)(c) of Regulation No 2746/75). Is there in this latter case a 'different product', with the result that Article 10(4)(a) of Regulation No 798/80 becomes applicable? 39. (aa) It may first of all be held that once the ash content exceeds a certain limit it also becomes significant for the substantive interest attaching to the provision of subsidies for flour exports. From this it follows that the conclusion previously arrived at is valid when that limit is 36. In my view, this question also should be complied with. In this connection, reference answered in the negative. In the first place, must be made to the limit of it is often impossible to separate the two 1900 mg/100 g in the definition of the aspects of grain quantities and conditions on sixth category set out in Regulation No the world market. This is attributable to the 162/67 in conjunction with the Commission circumstance (already explained) that the regulations which regularly determine rates export of flour to third countries represents of refund. This is a system in which no in one sense an export of grain, with the refund is granted in respect of exported result that grain prices on the world market flour with a higher ash content than that may always have an effect on the rate of specified. Even if the system were to be refund. Secondly, from the point of view of revised with a view to granting an export Community interest, the export of wheat refund even for flour with a higher ash flour remains an export of milled wheat, content, account would still have to be with the result that the substantive interest in taken of the provisions of the Common export is identical, irrespective of whether Customs Tariff. The notes at present in the degree of that interest depends only on force on Chapter 11 (see 2(A)(b)) indicate

that milled wheat products do not come Court, applying Regulation No 1957/69, 33 under that chapter (and are consequently which preceded Regulation N o 798/80, not 'wheat flour' within the meaning of No ruled as follows: 11010000 = position 1101 A prior to the introduction of the combined nomenclature) if they have an ash content greater than 2.5% (2500 mg/100 g). The two types of flour at issue in the present cases, however, come within all those limits. This confirms ' . . . a trader who has undertaken, pursuant the point of view here being taken. to Article 3(2) of Regulation N o 1957/69, to export mixed cereal feedingstuff with a cereal content exceeding 65% by weight, but who has in fact, owing to circumstances in which no blame attaches to him, exported mixed cereal feedingstuff containing only between 50 and 65% by weight of cereal, is obliged under Article 6(1) and (5) of the said regulation, even where the deposit has already been released, to repay the difference between the refund paid in advance and the refund which he should 40. (bb) Further confirmation for this view have obtained for the products actually is also to be found in the Court's judgment exported, that difference to be increased by in Piange Kraftfutterwerke,31 which featured 20%.' more prominently in the written than in the oral procedure. The Court there had to decide on a case in which exported mixed cereal feedingstuffs contained less cereal (63.9% by weight) than had been indicated in the payment declaration (more than 65% 41. It must be acknowledged that the by weight); by reason of that difference, the present situation differs from that. in the trader had received through advance case just mentioned. The main issue in payment a comparatively higher refund, Piange Krafifutterwerke concerned the level since the rate provided for by the relevant of the supplement (additional amount) to be regulation on rates of refund applicable reimbursed rather than the date to be used when the payment declaration was for the calculation of the amount due to the submitted was higher for feedingstuffs with exporter. In the present situation, the a cereal content greater than 65% than that position is exactly the opposite: the only applicable to feedingstuffs with a cereal issue in dispute is the determinant date and content between 50 and 65% by weight. 32 the question in the reference is not In particular, the Court had to address the concerned with the level of the supplement. question whether the authorities could in such a case demand reimbursement of the supplement calculated on the total amount paid in advance or only on the amount which was not due. In this connection the 42. Despite this, I can identify a certain 31 — Case 288/85 Hauptzollamt Hamburg-Jonas v Piange similarity between the two cases resulting KraMuocrwcrkc GmbH & Co. [1987] ECR 611. 32 — S«e Commission Regulation No 1136/77 (OJ 1977 L 135, p. 14). 33 — OJ, English Special Edition 1969 (II), p. 417.

from the application of the rules on advance explained, the determinant date under that payment. It must be pointed out in this system is no longer applicable in the case regard that Regulation N o 1957/69, envisaged under Article 10(4)(a); in that applicable at the time of the Phnge Kraßfut- case, however, the additional amount (as terwerke case, had already established a part of the security) is also due in full. In connection between the obligation to repay the cases referred to in Article 10(4)(b) and in full the refund granted (which, according (c), on the other hand, the date of the to the general scheme of the rules system of advance payment continues to applicable, also means that the determinant apply with regard to the amount to be left date can no longer be that provided for to the trader and the latter is required to within the framework of the system of repay the additional amount only on a pro advance payment) 34 and the obligation also rata basis. The only difference between the to pay the full supplement. In the case of regulation here applicable and Regulation merely partial repayment (which means, so No 1957/69 lies in the fact that the far as concerns the amount remaining due provision on partial repayment is not to the trader, that the determinant date for restricted to differences in quantities, but is the system of advance payment continues to wider in scope; it covers cases in which apply), it follows that the supplement may ' . . . entitlement to refund covers a smaller be reclaimed only in the amount of the amount. . . '. portion which remains repayable. This follows from Article 6(1) and (5) of Regu- lation No 1957/69. According to Article 6(1) and the conditions there laid down (failure to furnish proof of compliance with time-limits in respect of processing or exportation), repayment of 'the refund paid increased by 20%' was due. Article 6(3), 44. In its judgment in Piange Kraftfut- however, provided that the repayment terwerke, the Court extended the scope (in specified in Article 6(1) was required only in respect of the supplement) by basing itself proportion to the quantities of products or on the objectives of the regulation. In this goods in respect of which the proof referred regard, it ruled as follows (paragraph 18): to in Article 6(1) had not been furnished.

46. As I have already mentioned, the Court whether fault was attributable to him. The was required only to examine the calcu- final sentence of paragraph 11 states that: lation of the supplement, not the method for calculating the amount to which the trader was entitled as a refund. However, I cannot imagine that the Court intended to suppress the connection between those two matters 'It is not therefore necessary in order to without giving any indication, no matter claim repayment that the trader should have how minimal, in the key passage of its been guilty of fraud or of mistakes attrib- judgment. The formula used by the Court in utable to fault on his part.' indicating that the amount of the reduced refund is the amount of 'the refund which he should have obtained for the products actually exported' 35 also argues against the suggestion that the Court intended to 49. Secondly, for the reasons already dissociate the two aspects. indicated, the passage does not justify the conclusion that failure to comply with the conditions concerning 'the characteristics of the product exported' and 'the method of exportation' results in repayment of the total amount paid in advance (in addition to the supplement). 47. The Commission, nevertheless, has also referred to paragraph 11 of the judgment in Piange Kraftfutterwerke, in which the Court stated that: 50. That judgment, which incidentally concerns a situation in which (just as in the present cases) the difference between the product actually exported and that indicated on the payment declaration was merely a difference of degree and not a substantive 'The grant of the refund constitutes an difference in respect of the interests of the advantage for the trader which is justified if Community, thus confirms the view which I certain conditions concerning the charac- am here taking. teristics of the product exported and the method of exportation are fulfilled.'

payment declaration, with the result that if use or destination of products set out in the information and the products do not Article 2(4) of Regulation No 798/80. correspond it follows that there has not been a proper submission of a payment declaration in respect of those products. Applying this logic to the present case, the Commission considers, in view of Article 2(2)(a) of Regulation No .798/80, that the nomenclature of the two products, as apparent from Regulations N o 162/67 and N o 1633/80, is different and that it was in 54. That argument fails to convince me. It any event necessary to indicate accurately is pursuant to Article 10(4) of Regulation the ash content pursuant to Article 2(2)(c) No 798/80 that the legal effects of of Regulation N o 798/80, under which departures from the contents of a payment particulars of the composition of the declaration relevant to the level of refund products are required in so far as these are require to be determined. According to the necessary for determining the refund; wording of that provision, the fact that the according to the Commission, it follows discrepancy relates to the product is by itself from Regulation N o 1633/80 that the no argument for applying Article 10(4)(a). refund is linked to the ash content. In order for it to be possible to accept the views expressed by the Commission, such a result would have to follow from the objectives and construction of the provision, bearing in mind the interests at issue. As I have already explained, however, those considerations simply do not lead to the conclusion drawn by the Commission.

indicated in the payment declaration (expon that it will be necessary to increase to State Y). inspections at the time of export if the customs authorities are required to deal with the possibility that the applicant may export different goods, contrary to his undertaking, without forfeiting his rights 56. The Commission submits a related under the customs control procedure. argument in claiming that the Court has held 3 6 that the obligation to furnish accurate information in a payment declaration may be regarded as an essential obligation, failure to comply with which can justify the full loss of entitlement to the benefit obtainable from the transaction.

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this type of inspection during the period for the Hauptzollamt and, if necessary, the prior to this date.40 national court involved to determine whether, in the context of the obligatory recalculation, the authorities are bound by the declaration in which they stated that they would not be seeking payment of the 60. It would seem obvious that the supplement. competent authorities of the Community and the Member States have an interest in ensuring that irregularities which are rela- tively difficult to monitor should attract more serious legal consequences than those which easier to control. However, account can be taken of such an interest when applying the relevant legal provisions only if 62. 2. On this basis, I can confine myself to those provisions provide a basis for so a few observations with regard to the doing. Article 10(4) of Regulation No second variant. In view of the fact that 798/80, however, provides no such basis. Article 10(4)(a) of Regulation No 798/80, This, moreover, represents in my opinion as already explained, is not applicable, the crucial distinction vis-a-vis the recourse might at most be had to Article Metelmann case, in which the Court had to 10(4)(c). However, that provision is also not interpret the term 'unaltered' as used in applicable as it presupposes that the amount Article 9(1) of Regulation No 2730/79, the paid in advance is higher than that actually purpose of which is evidently to facilitate due to the exporter.42 Under the second customs inspections. In this interpretation variant, the amounts will be identical since the Court, quite logically, attached decisive the rate applicable to the plaintiffs in Case importance to the aspects relating to C-5/90 was a single rate for exports to the inspections. USSR, irrespective of the ash content of the flour.

64. 3. The third variant (under which the 66. I. The first objection to the imposition plaintiffs in Case C-5/90 had first obtained of a zero rate for exports to the USSR is advance payment at the rate provided for that this amounts to an embargo measure the USSR and had subsequently obtained an adopted by reason of the Soviet intervention additional payment after exportation for in Afghanistan. Such a measure, it is flour with a higher ash content exported to claimed, is not permissible within the other third countries) presents a slightly context of the fixing of export refunds as different picture. While neither Article neither Article 16 of Regulation No 10(4)(a).nor (c) of Regulation No 798/80 is 2727/75 nor Articles 2 or 4 of Regulation here applicable, the total amount granted No 2746/75 allows a rate (ECU 0) to be exceeds the amount due by reason of the fixed for reasons unconnected with differences in rates according to the ash Community law on the common organ- content of the flour. In such a case, it ization of the markets. follows from the decision in Ferwerda4i that, in the absence of Community rules on repayment, it is necessary to apply rules of national law on recovery of payments made in error. 67. The Commission, on the other hand, takes the view that such a measure is covered by the relevant legal bases in two separate respects.

The second question in Case C-5/90

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8 August 1990 and to the Court's contributed to the objectives of Article 39 of judgments in Edeka ĄS and Faust. 49 the Treaty (stabilization of markets, including the world market). If that measure had not been adopted, the probable result would have been not only an appreciable disruption of trade but also retaliatory measures on the part of the United States or 69. Secondly, it argues that the suspension at least measures which could have had. a of refunds is also justified by the objective considerably disruptive effect on the of harmonious development of world trade. Community market. In this connection, the Commission cites the conclusions of the General Affairs Council of 15 January 1980, according to which:

47 — OJ 1990 L 213, p. 1. 48 — Judgment in Case 245/81 Edeka Zentrale AG v Germany [1982] ECR 2745. 72. Article 2(b) provides that account must 49 — Judgment of the Court in Case 52/81 Firmi Werner Faust v Commission [1982] ECR 3745. be taken of:

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'the aims of the common organization of be replaced by deliveries from the the market in cereals, which are to ensure Community. My view is that such an equilibrium and the natural development of objective is legitimate in the light of the prices and trade on this markei. 50 criteria just mentioned, since unaltered continuation of deliveries (on the basis of conditions of refund applicable to 'other third countries') would have upset the competitive equilibrium of the different countries of supply which had determined the situation of the world market prior to 73. Those provisions are consistent with the United States embargo and which, by Article 7 of the regulation, which provides disrupting trade patterns, had placed in for the possibility of varying the refund doubt what had previously been regarded as according to destination. This is permissible a 'natural development' of 'trade'. in cases 'where the world market situation or the specific requirements of certain markets make this necessary'.

50 — My emphasis. 52 — See, for example, Commission Regulation N o 229/80 of '51 — Article 2(a) makes it clear that the reference is to the 31 January 1980 (OJ 1980 L 26, p. 49), which fixed a Community market and the world market. [Translator's negative corrective amount (ECU -30 per tonne) for note: the English version of Article 2(b) refers simply to exports of common wheat flour to the USSR. 'this market', whereas the other language versions refer to 53 — See Bulletin of the European Communities 1-1980, markets in the plural]. paragraph 2.1.36.

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78. Under Community law, the pursuit of an objective other than that in respect of which a power has been conferred may 81. It follows from the above that there are result in the invalidity of a measure on no grounds for declaring Regulation No grounds of misuse of powers. However, the 1633/80 invalid, with regard to the matter Court has refused to recognize the existence complained of, on the basis of the objectives of misuse of powers in cases where it was pursued by the Commission. argued that the contested measure was pursuing a separate and possibly unlawful aim in addition to its objectively justified purpose. 54 82. II. It has also been argued that the contested regulation infringes Article 190 of the EEC Treaty inasmuch as no reasons are given for the choice of the zero rate. 79. If, therefore, no criticism could be levelled at the measure in respect of the objective which it pursued, it is still not entirely clear that it was appropriate for attaining that objective. Admittedly, the 83. Although no specific reasons are in fact Commission did explain, in response to a given, this argument fails to convince me. question put by the Court, that in view of the difference at the material. time between the price on the world market and that in the Community (as evidenced by the rates of refund provided for other third countries) products exported at the 84. The Court has consistently held that the Community price would have had no statement of the reasons on which regu- prospect of being purchased for the USSR lations are based is not required to specify the often very numerous and complex matters of fact or of law dealt with in the 54 — See judgment in Case 1/54 France v High Authority [1954-1956] ECR 1. regulations, provided that the latter fall

87. With regard to the present case, it must be held in this regard that the Commission 85. It must be noted in this regard that the had adopted as early as January 1980 the preamble to Regulation No 1633/80 refers first measures designed to prevent exports of to Article 2 5 7 and Article 4 5 8 of Regulation agricultural products (including wheat flour) No 2746/75, which set out the criteria for to the USSR and that these measures fixing the rates of refund. The second undoubtedly coincided in time with the phrase of the second recital in the preamble USSR intervention in Afghanistan in to Regulation No 1633/80 specifies that: December 1979 and the reactions of the United States already referred to. 6 2 Beginning with Regulation (EEC) No 289/80 of 7 February 1980, 63 the Commission began to set increasingly lower rates for exports of wheat flour to the USSR than for exports to other third ' . . . [Article 2 of Regulation No 2746/75] countries; initially (until Regulation (EEC) provides that it is also important to ensure No 1006/80) 64 the difference was ECU 30 equilibrium and the natural development of per tonne, a figure which was subsequently prices and trade on cereal markets . . . '. increased to between ECU 31 and more than ECU 46 per tonne. 65 It was not until Regulation (EEC) No 1480/80 66 that a rate of ECU 0 was set for all categories of wheat flour.

86. Admittedly, this is a stereotype formula which also features in the parallel regu- lations applicable to other periods, although it is not possible- there to identify any 88. It follows from the foregoing that the measure comparable to that contested in this reasons on which the disputed measure was case. 59 Account must, however, be taken in based were capable of being identified from this regard of the fact that a statement of the context of earlier similar legal measures

1. If an exporter has undertaken in a payment declaration made pursuant to Article 2 of Regulation (EEC) N o 798/80 to export flour with an ash content of 0 to 520 mg/100 g and has, on the basis of that information, received advance payment of an amount greater than that which he would have received, on the basis of the applicable rates, if the ash content indicated in the payment declaration corresponded to that of the flour which was in fact later exported, the ash content of which was between 521 and 600 mg/100 g, that exporter is required — if the minimum surcharge is applied — to repay the amount provided for in Article 10(4)(c) of Regulation No 798/80, as amended by Regulation N o 3445/80.

2. If the indication of an ash content lower than the actual ash content of the flour exported has resulted neither in the payment of an amount greater than that which would have been due under the advance payment procedure nor in the payment of an amount greater than the total amount due in respect of export refunds, the exporter is not required to repay the amounts granted, whether in full or in part.

3. If the indication of a lower ash content than that of the flour exported has not resulted in the payment of an amount greater than that due under the advance payment procedure but has, however, resulted in the payment of an amount

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greater than the total amount due in respect of export refunds, the exporter is required to repay the excess amount in accordance with national rules on recovery of amounts wrongly paid.