Opinion of Advocate General Ćapeta delivered on 13 January 2022.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
ECLIECLI:EU:C:2022:14
Date13 January 2022
Celex Number62020CC0415

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 13 January 2022(1)

Joined Cases C415/20, C419/20 and C427/20

Gräfendorfer Geflügel- und Tiefkühlfeinkost Produktions GmbH (C415/20)

F. Reyher Nchfg. GmbH & Co. KG vertr. d. d. Komplementärin Verwaltungsgesellschaft F. Reyher Nchfg. mbH (C419/20)

v

Hauptzollamt Hamburg (C415/20 and C419/20)

and

Flexi Montagetechnik GmbH & Co. KG

v

Hauptzollamt Kiel (C427/20)

(Requests for a preliminary ruling from the Finanzgericht Hamburg (Finance Court, Hamburg, Germany))

(Reference for a preliminary ruling – Reimbursement of sums levied by a Member State in breach of EU law – Payment of interest – Customs union – Article 241 of Regulation (EEC) No 2913/92 (Community Customs Code) – Article 116(6) of Regulation (EU) No 952/2013 (Union Customs Code) – Limitation on the payment of interest in the event of reimbursement of customs duties – Principle of effectiveness – National measures providing for the payment of interest from the time when proceedings are brought before the courts)






I. Introduction

1. These three requests for a preliminary ruling submitted by the Finanzgericht Hamburg (Finance Court, Hamburg, Germany) concern the interpretation of EU law regarding the right of persons to payment of interest established in the Court’s case-law as a remedy arising under EU law. They relate to three different situations involving claims for the payment of interest on sums unduly levied in breach of EU law in connection with, first, the late payment of export refunds on agricultural products and the repayment of financial penalties wrongly imposed in relation to such refunds, second, the reimbursement of anti-dumping duties and, third, the reimbursement of import duties.

2. The questions raised by the present cases provide the Court with the opportunity to explain and develop its case-law on the right to payment of interest, and in particular to address the question of in which situations of infringement of EU law such a right arises as a matter of EU law. Additionally, the Court is called upon to clarify the conditions under which limitations may be put on the right to payment of interest by both EU law and national law.

II. Legal framework

A. EU law

3. Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2) was repealed and replaced by Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code), (3) which was itself repealed and replaced by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code. (4)

4. Article 241 of the Community Customs Code provided:

‘Repayment by the competent authorities of amounts of import duties or export duties or of credit interest or interest on arrears collected on payments of such duties shall not give rise to the payment of interest by those authorities. However, interest shall be paid:

– where a decision to grant a request for repayment is not implemented within three months of the date of adoption of that decision,

– where national provisions so stipulate.

…’

5. Article 116(6) of the Union Customs Code states:

‘Repayment shall not give rise to the payment of interest by the customs authorities concerned.

However, interest shall be paid where a decision granting repayment is not implemented within three months of the date on which that decision was taken, unless the failure to meet the deadline was outside the control of the customs authorities.

In such cases, the interest shall be paid from the date of expiry of the three-month period until the date of repayment. The rate of interest shall be established in accordance with Article 112.’

B. German law

6. According to the referring court, the relevant German law is the Abgabenordnung (Tax Code) (BGBl. 2002 I, p. 3866), in the version applicable to the disputes in the main proceedings (‘the AO’).

7. Paragraph 3 of the AO states:

‘…

(3) Import and export duties pursuant to Article 5(20) and (21) of the [Union Customs Code] shall be taxes within the meaning of this Code. …

(4) “Ancillary tax payments” are … interest pursuant to Paragraphs 233 to 237, … interest on import and export duties pursuant to Article 5(20) and (21) of the Union Customs Code …

…’

8. According to Paragraph 233 of the AO:

‘Interest shall be charged on claims arising from the tax debtor-creditor relationship (Paragraph 37) only to the extent that this is legally prescribed. …’

9. Paragraph 236 of the AO provides:

‘(1) Subject to the provisions of subparagraph 3 below, where an assessed tax is reduced or a tax rebate granted by final and binding judicial ruling or as a result of such a ruling, interest shall accrue on the amount to be refunded or rebated from the date proceedings commence to the date of payment. …

…’

10. Additionally, in Case C‑415/20, the relevant legislation includes the Gesetz zur Durchführung der gemeinsamen Marktorganisationen und der Direktzahlungen (Law implementing the common organisation of markets and direct payments) (BGB1. 2017 I, p. 3746), in the version applicable to the dispute in the main proceedings (‘the MOG’).

11. Paragraph 14 of the MOG states:

‘1. Amounts due for the repayment of a benefit or the breach of any other obligation shall bear interest at the basic rate plus five percentage points from the day on which they become due. Any duty not paid in time shall bear interest at the basic rate plus five percentage points from the date on which it falls due. The first and second sentences shall apply subject to the provisions and acts referred to in Paragraph 1(2).

2. Amounts due in respect of a benefit or intervention shall bear interest from the date of referral to the court, in accordance with Paragraphs 236, 238 and 239 of the AO. They shall not otherwise give rise to the payment of interest.’

III. Facts, main proceedings and questions referred

A. Case C415/20

12. According to the order for reference, Gräfendorfer Geflügel- und Tiefkühlfeinkost Produktions GmbH (‘Gräfendorfer’) is a German company which exports poultry carcasses to third countries.

13. In the period between January and June 2012, the Hauptzollamt Hamburg (Principal Customs Office, Hamburg, Germany) refused to grant Gräfendorfer export refunds on the ground that the poultry carcasses were not of fair marketable quality, since they had not been fully plucked or had too many giblets (offal). On the basis of relevant EU law, (5) the Principal Customs Office, Hamburg also imposed penalties on Gräfendorfer because it had applied for a larger export refund than that to which it was entitled.

14. Thereafter, in actions brought by persons other than Gräfendorfer, (6) the Finanzgericht Hamburg (Finance Court, Hamburg) ruled, on the basis of the Court’s judgment of 24 November 2011, Gebr. Stolle, (7) that the presence of a small number of feathers was not prejudicial to an export refund and that a total of up to four giblets was permissible. Consequently, the Principal Customs Office, Hamburg allowed the administrative complaint brought by Gräfendorfer, granting it the export refunds claimed and reimbursing it for the penalties imposed.

15. By letter of 16 April 2015, Gräfendorfer submitted an application to the Principal Customs Office, Hamburg for payment of interest on the late payment of export refunds and on the refunded penalties. By decision of 22 July 2015, the Principal Customs Office, Hamburg rejected that application. It also rejected, by decision of 18 April 2018, Gräfendorfer’s administrative complaint against its decision of 22 July 2015.

16. On 23 May 2018, Gräfendorfer brought an action challenging that rejection before the referring court. In support of its action, it relies on EU law and the right to payment of interest arising from the Court’s case-law. The Principal Customs Office, Hamburg submits, inter alia, that its refusal, at the time, to grant the export refunds was not contrary to EU law, but in accordance with the applicable EU legislation and national case-law; it was only the result of the Court’s judgment and the referring court’s subsequent decisions that Gräfendorfer was entitled to the grant of export refunds and, in such a situation, it cannot claim interest on the corrected amount. The Principal Customs Office, Hamburg invoked in that respect the Court’s judgment of 18 January 2017, Wortmann. (8)

17. The referring court indicates that there is no provision of EU legislation or national law applicable to the dispute in the main proceedings which makes it possible to uphold Gräfendorfer’s claims for interest on either the late payment of export refunds or the refunded penalties. Therefore, the outcome of the dispute depends on whether those claims can be based on the right to payment of interest under EU law, as set out in the Court’s case-law.

18. Since it was uncertain whether the right to payment of interest based on EU law arises in a situation of infringement of EU law such as the one in that case, the Finanzgericht Hamburg (Finance Court, Hamburg) decided to stay the main proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Does the requirement under EU law for Member States to repay, with interest, duties levied in breach of EU law also apply where the reason for the repayment is not a finding by the Court of Justice of the European Union that a provision of EU law has been breached, but that the Court of Justice has interpreted a (sub)heading of the Combined Nomenclature?

(2) Do the principles relating to a claim to interest established by the Court of Justice of the European Union also apply to the payment of export refunds refused by the Member State authority in breach of EU law?’

B. Case C419/20

19. According to the order for reference, F. Reyher Nchfg. GmbH & Co...

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