C-27/92

MÖLLMANN-FLEISCH

OPINION OF ADVOCATE GENERAL GULMANN delivered on 17 December 1992 *

Mr President, ities have been completed shall be furnished Members of the Court, by production of (a) the relevant customs document ... or (b) the customs entry certif- icate ...'. 1. The Finanzgericht Hamburg has referred a question for preliminary ruling to the Court in order to enable it to determine whether a German company, Möllmann- 2. It emerges from the order for reference Fleisch, is entided to obtain an export refund that: for the exportation of a consignment of beef to Egypt. — according to an undated Egyptian cus- toms entry certificate which the national A variable refund is at issue, that is to say, a court considers that it is appropriate to refund whose rate depends on the country of rely upon, the goods exported arrived at destination, and it appears from the applica- their destination and underwent the req- ble Community provisions that it is not uisite customs processing; enough for a finding to be made that the goods have been exported outside the Com- munity, it must also be found that 'the prod- uct has been imported into a non-member — the goods were re-shipped to the C o m - country for which the refund is prescribed' munity where they were placed in a (see Article 20(1) of Commission Regulation bonded warehouse and subsequently (EEC) N o 2730/79 laying down common exported to another country by the Ger- detailed rules for the application of the sys- man company; tem of expon refunds on agricultural prod- ucts 1). — the reason for which the goods had to be shipped back to the Community is at Under Article 20(2) of that regulation, 'a issue in so far as it relates to the signifi- product shall be considered to have been cance to be attached to documents which imported when the customs entry formalities may perhaps substantiate the argument for home use ... have been completed', and that the goods underwent a health under Article 20(3), 'proof that these formal- inspection, the result of which was nega- tive.

'... Proof of importation into a non-member country [is] ... to be regarded as not having — '... the system of variable export refunds been provided is intended to gain and maintain access for Community exports to the markets of — if there is reason to doubt that the goods the non-member countries concerned and specified in the customs entry certificate the variation in the refund is based on the have actually reached the market of the desire to take account of the particular non-member country, characteristics of each import market in which the Community wishes to play a part'; — or [whether it is] ... necessary to prove the contrary, namely that the goods have not been imported'. — '... if it sufficed, in order to qualify for payment of the refund at a higher market The Finanzgericht refers to the Court's judg- rate, for the goods simply to be ment in Hauptzollamt Hamburg-Jonas v unloaded, without reaching the market of Dimex, 2 in which the Court held in para- the territory of destination, the raison graph 10 that the completion of the customs d'être of the system of varying the refund formalities is only 'normally sufficient to would be disregarded'; ensure that the goods have actual access to the market of the territory of destination'. According to the Finanzgericht, it is there- fore clear that the customs document consti- — that is the reason why the relevant provi- tutes only rebuttable evidence of importation sion in the case cited (which in the mate- and it is in that context that the national rial respect corresponds to Article 20 of court wishes the Court to reply to the ques- Regulation N o 2730/79) 'makes payment tion as to the factual and legal circumstances of the variable refund subject to the com- in which the evidence of actual importation pletion of customs formalities for entry constituted by the customs entry certificate into free circulation in the non-member may be regarded as having been rebutted. country, since the completion of those formalities is normally sufficient to ensure that the goods have actual access to the market of the territory of destina- 2 — Case 89/93 Hauptzollamt Hamburg-Jonas v Dimex [1984] ECR 2815 tion', and

— the provision of the regulation which the customs documents referred to in Article 'permits the competent authorities to 20(3) should constitute primary evidence of require other documents when they con- the completion of those formalities. sider, in view of the particular circum- stances in the country of destination, that proof of completion of customs formali- ties is insufficient shows that such proof amounts only to rebuttable evidence that Importance is attached to the documents the objective of the variable export referred to in Article 4 where the customs refunds has in fact been attained', (my document or the customs entry certificate emphasis) cannot be presented or where those docu- ments are considered inadequate. In my opinion, contrary to that which the plaintiff in the main proceedings avers, there are no factors either in the wording of the regu- lation or in Hauptzollamt Hamburg-Jonas v Dimex which enable such evidential weight The Court therefore held that the comple- to be conferred on the customs entry certif- tion of customs formalities only normally icate that, where such a certificate has been constitutes a guarantee that the goods in produced, the onus invariably falls on the question had access to the market of destina- customs authorities to prove that the goods tion. In addition, Article 20(4) of Regulation were not imported. N o 2730/79, just as the relevant provision in Hauptzollamt Hamburg-Jonas v Dimex, provides that the customs authorities have the option of requiring documents other than those referred to in paragraph 3, for example, certificates of unloading and bank Such an interpretation of the relevant provi- documents 'if ... [the documents] are consid- sions would be contrary to the objective of ered inadequate'. There is no doubt in this variable refunds, namely to gain and main- context that the customs entry certificate tain access for Community exports to the submitted in this case amounts, as the Finan- markets of the countries in question. zgericht also maintains, only to rebuttable evidence that the objective of the variable export refunds has in fact been attained (see, in that regard, paragraph 11 of the judgment in Hauptzollamt Hamburg-Jonas v Dimex). The Court held in paragraph 16 of the judg- ment in Hauptzollamt Hamburg-Jonas v Dimex that:

Under normal circumstances, production of apply where no real doubts have emerged as the customs entry certificate certainly consti- to whether the goods obtained actual access tutes sufficient basis for presuming that the to the market in the country of destination goods were imported as provided for in the in order to be marketed in that country. It Community legislation; however, having may certainly be considered, for example, regard to the meaning of the concept of that real doubts will exist where the court 'importation', it is also certain that there may which has to assess the evidence is faced with very well be circumstances which show, documents which it interprets as showing despite the delivery of a customs entry cer- that the goods were not regarded as accept- tificate, that importation as provided for in able by the customs authorities of the the Community regulations has not taken importing State on health grounds and where place. The presumption of importation it may actually be considered that the goods which is normally raised by the customs have been shipped back to the Community. entry certificate will consequently only

7. I therefore p r o p o s e that t h e C o u r t give the following answer t o the question referred b y the national court:

P r o o f of i m p o r t a t i o n furnished b y t h e p r o d u c t i o n of t h e c u s t o m s e n t r y certificate referred to in Article 20 (3) of R e g u l a t i o n ( E E C ) N o 2 7 3 0 / 7 9 is r e b u t t a b l e a n d c a n n o t be c o n s i d e r e d t o have b e e n p r o v i d e d w h e r e t h e r e are real d o u b t s w h e t h e r the g o o d s in q u e s t i o n h a d actual access t o t h e m a r k e t in t h e c o u n t r y of d e s t i n a t i o n in o r d e r t o b e m a r k e t e d in t h a t c o u n t r y .