C-27/94

NETHERLANDS v COMMISSION

OPINION OF ADVOCATE GENERAL ALBER delivered on 19 May 1998 *

A — Introduction 3. In its October 1993 Summary Report, the Commission gave as its reason for refusing funding the fact that the customs documents were only accepted by the Netherlands cus- toms office in Terneuzen on 27 November 1989, whereas the ship left the customs terri- tory of the Community on 25 November. According to that report, the Netherlands 1. This is an action by the Kingdom of the authorities stated that the export documents Netherlands relating to an export refund in were submitted at the weekend. Because the respect of cereals amounting to over H F L 3 customs office which was in fact competent million which was disallowed by the Com- was closed at the weekend, another office ' mission on the ground that the goods left the dealt with the matter and took samples for customs territory before the declaration was later analysis, although no such analysis was made and that no inspections could therefore ever carried out. The competent office then have been carried out. The case also turns on accepted the documents on Monday, 27 the question whether the plaintiff produced November 1989. However, the Lloyd's reg- the necessary evidence to show that it acted ister of ship movements makes it clear that properly in due time. the ship did not call at Terneuzen but left Community territory direct from Ghent. Because the export declaration was accepted after shipment and departure of the ship, and there was no firm evidence that the goods had been declared to the competent customs B — Facts and submissions of the parties office in order to enable any (physical) inspec- tions to take place, it was not possible to pay the export refund.

place in 1991. It related principally to the cleared for customs on 25 November 1989, Netherlands authority responsible for pay- and that the procedure was completed on 27 ment, namely the Hoofdproduktschap voor November. These details were provided by Akkerbouwprodukten (Central Board for the competent official in December 1989 in Agricultural Products, hereinafter 'the HPA'). response to a query from the HPA. The results of that inspection were set out in a report dated 14 January 1992. The various dates of shipment and departure of the ship on the one hand, and the declaration on the other, were also set out in that report. According to the report, that gave rise to uncertainty as to •whether the goods -were declared for export in due time, that is to say, 7. According to the plaintiff, the competent prior to departure, and as to the question authorities took all necessary steps to comply whether customs would in the circumstances with the Community provisions. It argues have been able to inspect them. The Commis- that, as the competent customs office is nor- sion (the E A G G F 2) accordingly asked the mally closed at the weekend, another customs plaintiff for further information to dispel that office in Terneuzen accepted the goods on 25 uncertainty. November and also took samples. The docu- ments were then left with the competent office, which completed the matter on the next working day, Monday, 27 November, but in doing so did not, due to an oversight, state on the form the actual day of acceptance, namely 5. The Commission subsequently reiterated 25 November but 27 November. its request for further information or evidence on several occasions, which led to an exchange of correspondence 3 between the Commission and the Netherlands authorities. In the end, the Commission fixed 15 December 1992 as the deadline for submission of the documents and evidence sought. 8. In addition, the plaintiff gives comprehen- sive details in support of its claim that the ship was in fact in Terneuzen on 25 November.

10. The plaintiff disagrees and has therefore brought an action seeking 11. The plaintiff first of all disputes that Article 8(2) of Regulation (EEC) N o 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy 4 by the Commission applies. It argues that it was not guilty of the slightest irregularity or — annulment of Commission Decision omission. There can be no doubt that the 93/659/EC of 25 November 1993, pub- Netherlands authorities fulfilled their obliga- lished in the Official Journal of 8 December tions under Article 8(1) of Regulation N o 1993 (OJ 1993 L 301, p. 13), on the clear- 729/70. They ensured in this case that the ance of the accounts presented by the export declaration was drawn up in compli- Member States in respect of the expendi- ance with all the requirements arising under ture for 1990 of the European Agricul- the Community legislation, and in particular tural Guidance and Guarantee Fund Articles 3, 4 and 47 of Commission Regula- (EAGGF), Guarantee Section, to the extent tion (EEC) N o 3665/87 of 27 November 1987 that the decision disallows HFL laying down common detailed rules for the 3 317 344.26 of the export refund in respect application of the system of export refunds of cereals; and on agricultural products. 5

— an order requiring the Commission to pay the costs.

12. The Commission, on the other hand, does not regard this as the decisive question. In its view, the important issue is rather whether the necessary evidence to support the plain- The Commission contends tiff's claim was submitted 'in due time', which in this case means by the deadline of 15 December 1992 set by the Commission.

'Refunds on exports to third countries, granted in accordance with the Community rules within the framework of the common organi- sation of agricultural markets, shall be financed under the terms of Article 1(2)(a).' Article 3(2) provides:

Article 1(2)(a), to which reference is made, provides:

'The date of acceptance of the export declara- tion shall determine:

'The Guarantee Section shall finance:

(a) the rate of the refund where the refund is not fixed in advance; (a) refunds on exports to third countries;

» ...'

— recover sums lost as the result of irregu- larities or negligence

16. Article 47 contains provisions on the pro- cedure for payment of the refund.

6 — Emphasis added. ...'

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18. The first sentence of Article 8(2) provides: been no doubt that the goods were declared to the customs authorities before the ship set sail.

21. That conclusion does not necessarily follow. As the plaintiff stated, those notes 19. It is appropriate to start by examining were added following a query from the HPA. whether it is not the case that sufficient evi- The HPA was therefore aware of their con- dence was already available, before expiry of tent. the time-limit on 15 December 1992, that the export declaration was accepted by the cus- toms authorities before the ship put to sea. In that connection, the plaintiff refers to the HPA's records. At the time when the Com- mission carried out its inspection in 1991, it would have been possible to have sight of the 22. However, in this case that is of no con- form filled out by the customs authorities sequence. What is important is whether the with the manuscript notes made by the com- form bearing the customs official's manu- petent customs official (the form is annexed script annotations was submitted to the Com- to the application as Annex 15). It is apparent mission in due time. The Commission denies from those notes that the export declaration was accepted on 25 November 1989, the goods cleared for customs the same day and the 7 — Annex 13, like Annex 15, comprises the customs office form processing of the documents completed on 27 relating to the clearance of the goods in dispute here How- ever, the competent customs official's notes only appear on November 1989. O n that basis, there can have the form at Annex 15.

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that it was. It maintains that the form (Annex in Annexes 2 and 3 to the application). These, 15 to the application) only reached it on 19 however, only contain clarificatory statements July 1993 by fax. by the competent authorities.

24. For that reason, no conclusions can be drawn from a further entry on that form. The word 'conform' (in conformity) has been entered in manuscript under the heading 'Inspection by the departures office' and there is an official stamp dated 27 November 1989. This section of the form does not serve to show that the export declaration had already been accepted on 25 November. Nor, there- fore, can it be concluded that an inspection 27. The plaintiff considers those letters to be had already been carried out on 25 November official statements made under oath. H o w - leading to the entry 'category: in conformity'. ever, that is not apparent from the text of the letters. They cannot therefore be viewed as satisfactory evidence. In that connection, ref- erence should be made to the case-law of the Court of Justice on clearance of the EAGGF's accounts. According to that case-law, when the Commission refuses to charge expendi- ture to the E A G G F on the ground that it was 25. The plaintiff also refers to its letters of 25 incurred as a result of breaches of Commu- June and 17 July 1992 to show that it did nity rules for which a Member State can be provide the necessary evidence within the held responsible, it is for that State to show prescribed period (those letters can be found that the conditions for obtaining the financing

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refused by the Commission are fulfilled. 8 As is practically impossible for ships of the size regards the question whether a Member State of the MS Stankov to put to sea direct from carried out the necessary inspections, it is not Ghent; they have to pass through the Ter- sufficient for that State to claim that it did so neuzen locks.) That alone, however, cannot without producing evidence to that effect. 9 prove that the relevant customs formalities were also completed on that day.

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competent authority was in a position to take 35. In considering the question whether the such samples at all. The question is not whether plaintiff's letter of 14 December 1992 might there was a duty to inspect (which there was have enabled the plaintiff to meet the deadline not), but whether there was an opportunity of 15 December 1992, it should be noted that to inspect. the letter did not contain any further evi- dence but merely declared that certain docu- ments would be forwarded later.

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38. The imposition of such a deadline is made 40. Under Article 1(3) of Regulation N o possible by Article 1(3) of Regulation (EEC) 1723/72, therefore, the Commission is to make N o 1723/72 on making u p accounts for the a decision on the basis of the information EAGGF. 10 That provides: available to it when the deadline expires. As Article 4(1) of Regulation N o 3665/87 indi- rectly suggests, the export declaration must 'Additional information may be forwarded to be accepted before the goods leave the cus- the Commission up to a deadline to be fixed toms territory. The necessary proof for this by the Commission, taking into account in — which is also referred to in Article 4(1) — particular the amount of work necessary to was not adduced, since there was no evidence supply the information concerned. In the case that the customs declaration had been accepted of failure to submit the aforementioned infor- on 25 November 1989 when the deadline mation within the period fixed, the Commis- expired. sion shall take its decision on the basis of those elements of information in its posses- sion at the deadline, except in cases where the late submission of information is justified by exceptional circumstances.'

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automatically assumed that the Commission a statement of reasons. Firstly, the Commis- relied on Article 2 in adopting its decision. sion's decision was, according to the plaintiff, adopted on the basis of incorrect facts. Even if this had been the case (the opposite has been shown to be true in the foregoing), it would not result in infringement of Article 190, which merely requires decisions to be 43. In that connection, the Commission reasoned. Whether the reasons given are right rightly refers to the fifth recital in the pre- or wrong cannot be examined under Article amble to its decision, which makes express 190. reference to Articles 2 and 3 of Regulation N o 729/70 in relation to refunds on exports to third countries.

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ties were aware of the reasons for the Com- have been clear to the plaintiff. In addition, mission's subsequent decision. Furthermore, the plaintiff could, in the course of its exten- it is clear from the report of 14 January 1992 sive correspondence with the Commission, that there were doubts as to whether the have asked the latter for further details as to goods had been declared for export in due the evidence required of it. time and whether customs were able to inspect the products. That is why supplementary documentation was requested. The summary report of October 1993 states as a reason for rejection of funding the fact that the export 51. Therefore, there does not appear to have declaration was accepted after the goods had been any infringement of Article 190 of the left the customs territory and that there was EC Treaty either. no firm evidence that the goods had been declared to customs to enable any inspections to be carried out. Furthermore, the Commis- sion contends that in a telex dated 12 November 1992 it requested more specific Costs evidence that the declaration had indeed been made on 25 November 1989 and that samples had been taken.

52. Under Article 69(2) of the Rules of Pro- cedure of the Court of Justice, the unsuc- 50. The reasons why funding ought to have cessful party is to be ordered to pay costs if been and indeed ultimately was refused and they have been applied for in the successful the evidence required of it must therefore party's pleadings.

E — Conclusion

53. I therefore p r o p o s e t h a t the C o u r t should: