C-347/93

— for the last exports, which took place — the exports were carried out between 8 August and 20 Septem­ between 30 May 1968 and 20 Septem­ ber 1968, the refunds — amounting to ber 1968 and related to 396 tonnes of some BFR 21 million — were not paid butter; even though Boterlux in January 1969 submitted to the Belgian authorities doc­ umentation with a view to having those * Original language: Danish. refunds paid, including the forwarding

I - 3935

OPINION OF MR GULMANN — CASE C-347/93

agent's certification of export and Belgian State counterclaimed for repayment Form 61 B authenticated by customs; of the refunds that had already been paid. By judgment of 1988 the Tribunal de Première Instance, Brussels, held that the Belgian State was obliged to pay Boterlux the export refunds. While holding that under Commu­ nity law the goods in question had to have been released into free circulation in the — in a letter to the Belgian authorities country of importation, which had not been of 4 March 1969 Boterlux stated that it done, that court held that Boterlux could not had not learned until October 1968 that be held responsible for the fraudulent certificates of exit and entry were re-importation of the goods into Italy via required for exports of butter to Switzer­ Belgium. land but those documents were useless without a certificate of entry for home use which, until then, had never been mentioned;

— the butter exported to Switzerland was 4. The Belgian State appealed against that re-imported into Belgium under false judgment to the Cour d'Appel, Brussels, documentation and ultimately sold in claiming that the judgment should be over­ Italy; turned and that Boterlux should be ordered to repay the refunds that had been paid to it.

9. I would first point out that the dispute in the main proceedings concerns the question of the payment of refunds for all the exports carried out by Boterlux between June and 7. Boterlux bases its legal conception on the September 1968. That means that the rele­ submission that the refunds for the exports vant Community rules applying to exports in question were not differentiated according carried out before 29 July 1968 are set out in to the country of destination and that pursu­ Regulation No 13/64/EEC of the Council ant to the relevant Community rules there on the progressive establishment of a com­ was no basis for requiring from the exporter mon organization of the market for milk and anything more than proof that the goods had dairy products with supplementary Commu­ 3 left the geographical territory of the Com­ nity and national rules and that the relevant munity. Boterlux states that under Arti­ Community rules for the exports carried out cle 6(1) of Regulation No 876/68 of the after 29 July 1968 are in Regulation (EEC) Council non-differentiated refunds are to 'be No 804/68 of the Council of 27 June 1968 on the common organization of the market in 4 milk and milk products together with ancil-

1 — Regulation No 1041/67/EEC of the Commission of 21 December 1967 on detailed rules for the application of export refunds on products subject to a single price system (OJ, English Special Edition 1967. p. 323). 3 — Journal Officiel 1964 34, p. 549 in conjunction in particular 2 — Regulation (EEC) No 876/68 of the Council of 28 June 1968 with Regulation No 165/64 on refunds applicable to the laying down general rules for granting export refunds on export of certain dairy products to third countries Ųoiirnal milk and milk products and criteria for fixing the amount of Officiel 1964 173, p. 2744. such refunds (OJ, English Special Edition 1968(1). p. 234). 4 — OJ, English Special Edition 1968(1), p. 176.

13. In its 1971 judgment in Case 6/71 Rhei- 10. There is disagreement between Boterlux, nmühlen the Court of Justice held that the on the one hand, and the Belgian Govern­ export refunds at issue 'were intended to off­ ment and the Commission, on the other, as set the price differences' between the Com­ to whether the refunds at issue in this case munity market and the markets of non- were non-differentiated or differentiated member countries and 'that "exports to third refunds, that is refunds which are the same countries" ... presupposed that the goods for all non-member countries or refunds of were offered for sale on the market of a third an amount varying depending on the non- country, that is to say, that they must at least 5 member country to which the goods are to have been put into free circulation there'. be exported. It is not possible on the basis of the information available in these proceed­ ings to decide that issue with sufficient cer­ tainty.

14. Both before and after the adoption of Regulation No 804/68, the object of the rules

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BELGIAN STATE v BOTERLUX

on refunds in the milk sector, like that of 17. For the same reason it is immaterial other rules on export refunds, was to facili­ whether the refunds were differentiated or tate exports to non-member countries by non-differentiated. It is certainly correct that offsetting differences in prices on the Com­ the abovementioned rules only require, as a munity market and in non-member coun- condition for payment of non-differentiated tries. refunds, proof that the goods were exported 6 from the Community. Under normal cir­ cumstances it may be presumed that goods that have demonstrably been exported from the Community are also released into free circulation in a non-member country and in any event have not been unlawfully brought back into the Community. But that payment condition does not signify that a trader has an unconditional right to refunds once that The object of export refunds will not be evidentiary requirement is met — notwith­ achieved unless the exports are actually car­ standing the fact that it is otherwise estab­ ried out and exports are not actually carried lished that the goods have not in fact been out if the goods are brought back to the exported. The rule is precisely just an evi­ Community without having been released dentiary rule and the evidence normally into circulation in the non-member country. 7 required is not irrefutable.

15. It is established that exportation was not actually carried out in this case. The exporter has, therefore, not fulfilled the fundamental substantive condition for payment of the refunds. 18. That is borne out by Article 4 of Regu­ lation No 1041/67 — the 'anti-fraud provi­ sion' — under which Member States may, in certain circumstances (in practice for exam­ ple when there is suspicion of irregularities),

19. Since there is no question of evidentiary problems in this case as it is established that the goods were not released into free circu­ lation in Switzerland but in a Member State of the Community and that the fundamental substantive condition for payment of export refunds has therefore not been met, it is ulti­ 22. Those questions are as follows: mately unnecessary to take a position on the submission by Boterlux that the Belgian authorities did not call upon it either specif­ ically or in general terms to demonstrate that the goods had been released into free circu­ lation in Switzerland. (1) If the payment of refunds is subject to the products being put in free circulation in a non-member country, 'do the principles laid down in the Court's judgments in 10 Case 125/75 and in Case 6/71 11and in the judgments concerning payment of monetary compensatory amounts which may be equated with refunds

20. It follows that the reply to be given to 9 — Boterlux has pointed out that on the occasion of the import into Italy the Italian authorities demanded the import the first part of the Cour d'Appel's first duties applying to third country goods. However that fact question should be that refunds cannot be cannot alter the interpretation of the rules on export refunds which underlies my proposed answer to the paid if it may be presumed that the goods national court's question. Any problems that may arise as a result of the levy of import duties must be resolved independently of these proceedings. 10 — Case 125/75 Milch-, Fett- und Eier-Kontor v Hauptzollamt Hamburg-Jonas [1976] ECR 771. 8 — See Case 125/75 Milch-, Fett- und Eier-Kontor GmbH 11 — Case 6/71 Rheinmühlen v Einfuhr- und Vorratsstelle für [1976] ECR 771. Getreide [1971] ECR 823.

(3) Can the exporter's good faith be treated in the same way as a case of force majeure when he could have avoided the consequences of the failure to put the 24. It is unnecessary in these proceedings to products into free circulation by ensur­ examine whether there is such an express or ing through contractual means that the purchasers did not fraudulently divert the products from the required destina­ 13 14 — In Case 254/85 Irish Grain Board, cited above, the Court tion (judgment in Case 1/68 — defini­ held: 'The provisions of Community law governing the payment tion of force majeure — judgment in of monetary compensatory amounts ... must DE interpreted Case 254/85 Irish Grain Board, cited as meaning that the exporting Member State which has to pay the monetary compensatory amounts that must be above, at paragraphs 12 and 13)?' granted by the importing Member State is entitled to refuse payment where the product in question has not entered the importing Member State for home use owing to fraud on the part of the purchasers of the said product, even where the customs formalities have been completed, appropriate T 5 forms have been issued and the "exporter" or "person 12 — Case 250/80 Anklagemyndigheden v Topfer [1981] concerned" within the meaning of the regulations in ques­ ECR 2465 and Case 254/85 Irish Grain Board v Minister tion at all times acted in good faith in relation to the said for Agriculture [1986] ECR 3309. transaction.' As stated above, I consider that that case-law may be transposed to export refunds. 13 — As pointed out in the observations submitted by Boterlux, this is presumably a reference to Case 4/68 Schwarzwald- 15 — See in this respect my Opinion in Case C-12/92 Criminal milch v Einfuhr-und Vorratsstelle [1963] ECR 377. Proceedings against Huygen [1993] ECR I-6381, point 26.

17 — See Case 109/86 Theodorakis [1987] ECR 4319 in which the Court held: 'Where the failure to export goods as planned is not attrib­ utable to any fault on the part of the holder of the export licence but is due solely to non-performance by the other We have no certain information of who was party to the sales contract under -which the goods were to beexported, it is clear that although such a hindrance to the responsible for the irregularities since it is to performance of a contract may be described as a circum­ stance outside the control of the holder of the licence, it is be assumed, according to the questions none the less neither abnormal nor unforeseeable. Such an referred to the Court, that Boterlux did not event is an ordinary commercial risk inherent in commer­ cial transactions and it is for the holder of the licence, who is fully at liberty to select such trading partners as his inter­ ests in that respect may dictate, to take the appropriate pre­ cautions either by including the requisite clauses in the con­ tract in question or by effecting appropriate insurance' 16 — Case 109/86 Theodorakis v Greece [1987] ECR 4319. (paragraph 8).

I - 3942

BELGIAN STATE v BOTERLUX

Conclusion

On the basis of the foregoing I propose that the following answer be given to the questions referred to the Court:

An undertaking is not entitled to refunds where it is established that the export which forms the basis for the payment of the refunds was not carried out since the goods in question were not released into free circulation in a non-member country but were brought back into the Community.