Fleisch-Winter GmbH & Co. KG v Hauptzollamt Hamburg-Jonas.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Juhász
• ECLI: ECLI:EU:C:2005:732
• Docket Number: C-309/04
• Date: 01 December 2005
• Procedure Type: Reference for a preliminary ruling

Case C-309/04

Fleisch-Winter GmbH & Co. KG

v

Hauptzollamt Hamburg-Jonas

(Reference for a preliminary ruling from the Bundesfinanzhof)

(Export refunds – Condition for grant – Beef and veal – Regulation (EEC) No 3665/87 – Bovine spongiform encephalopathy – Export ban – Sound and fair marketable quality – Export declaration – National application for a payment – Sanction)

Summary of the Judgment

1. Agriculture – Common organisation of the markets – Export refunds – Conditions for grant – Products of sound and fair marketable quality – Meaning – Meat which could not be marketed under normal conditions – Not included – Meat subject to an export ban from a certain Member State – National administration having evidence that the product originates in that Member State – Exporter’s obligations regarding proof

(Commission Regulation No 3665/87, Art. 13)

2. Agriculture – Common organisation of the markets – Export refunds – Information issued in accordance with the provisions for calculating the refund requested and the document used to qualify for a refund – Confirmation that the products are of sound and fair marketable quality in the request for payment – Not included – Effect of such a confirmation before the national court

(Commission Regulation No 3665/87, Arts 3, 11(1), subpara. 2, and 13, first sentence)

1. Article 13 of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 2945/94, must be interpreted as meaning that it precludes beef that is subject to a ban laid down by Community law on exports from one Member State to other Member States and non-member countries from being regarded as being of ‘sound and fair marketable quality’, and that it requires, for the purpose of the payment of refunds, the exporter to show that the exported product does not originate in a Member State from which exports are banned, where the national administration has evidence that the product is subject to an export ban.

First, since such meat cannot be marketed in normal conditions, it does not satisfy those quality requirements. Secondly, in so far as the exporter, by lodging an application for a refund, continues to assert either expressly or impliedly that the conditions for the grant of a refund are satisfied, including that it is of ‘sound and fair marketing quality’, it is for the exporter, according to the rules of evidence of national law, to prove that that condition is in fact satisfied if the declaration is questioned by the national authorities.

(see paras 20, 25, 32, 35, 37-38, operative part 1)

2. The assurance in a national request for payment, referred to in Article 47 of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 2945/94, that a product is of ‘sound and fair marketable quality’ within the meaning of the first sentence of Article 13 of Regulation No 3665/87, as amended by Regulation No 2945/94, is not part of the information provided pursuant to the combined provisions of the second subparagraph of Article 11(1) and Article 3 of that regulation, which deals with the refund requested and the document used in order to qualify for a refund. However, it may be regarded by the national court as evidence for the purpose of determining the exporter’s position.

The request for a refund, within the meaning of Article 11(1) of Regulation No 3665/87, is not submitted by lodging an application for payment, within the meaning of Article 47, because it does not constitute the legal basis of entitlement to such payment. Furthermore, it is the documents referred to in Article 3(5) of that regulation, namely the export declaration or any other document used during export, which are capable of forming the legal basis of a refund and triggering the system of checks of the request for refund which may lead to the application of a sanction, in accordance with Article 11(1).

(see paras 40-41, 43, operative part 2)

JUDGMENT OF THE COURT (First Chamber)

1 December 2005 (*)

(Export refunds – Condition for grant – Beef and veal – Regulation (EEC) No 3665/87 – Bovine spongiform encephalopathy – Export ban – Sound and fair marketable quality – Export declaration – National application for a payment – Sanction)

In Case C-309/04,

REFERENCE for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany), made by decision of 20 April 2004, received at the Court on 21 July 2004, in the proceedings

Fleisch-Winter GmbH & Co. KG

v

Hauptzollamt Hamburg-Jonas,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues, E. Juhász (Rapporteur) and E. Levits, Judges,

Advocate General: P. Léger,

Registrar: K. Sztranc, Administrator,

having regard to the written procedure and further to the hearing on 7 July 2005,

after considering the observations submitted on behalf of:

– Fleisch-Winter GmbH & Co. KG, by U. Schrömbges and J. Vagt, Rechtsanwälte,

– the Hauptzollamt Hamburg-Jonas, by G. Seber, acting as Agent,

– the Commission of the European Communities, by T. van Rijn and F. Erlbacher, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 3, 11 and 13 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 (OJ 1994 L 310, p. 57) (‘Regulation No 3665/87’).

2 That reference was made in proceedings between Fleisch-Winter GmbH & Co. KG (‘Fleisch-Winter’) and the Hauptzollamt Hamburg-Jonas (German customs authority) (‘the Hauptzollamt’) concerning the claim for reimbursement of an advance payment of an export refund together with a financial penalty and the refusal of a refund requested.

Community law

3 Regulation No 3665/87 provides in the ninth and 16th recitals in the preamble:

‘Whereas products should be of a quality such that they can be marketed on normal terms;

…

… to enable exporters to finance their transactions more easily, Member States should be authorised to advance all or part of the amount of the refund as soon as the export declaration is accepted, subject to the provision of security to guarantee repayment of the amount advanced if it should later be found that the refund ought not to have been paid’.

4 Article 3 of Regulation No 3665/87 provides:

‘1. The day of export means the date on which the customs authority accepts the export declaration in which it is stated that a refund will be applied for.

2. The date of acceptance of the export declaration shall determine:

(a) the rate of the refund where the refund is not fixed in advance;

(b) any adjustments to be made to the rate of the refund where it is so fixed.

3. Any other act having the same effect in law as the acceptance of the export declaration shall be deemed to be equivalent to such acceptance.

4. The day of export shall be used to establish the quantity, nature and characteristics of the product exported.

5. The document used for export to enable products to qualify for a refund must include all information necessary for the calculation of the amount of the refund, and in particular:

(a) a description of the products in accordance with the nomenclature used for refunds;

(b) the net mass of the products or, where applicable, the unit of measurement to be taken into account in calculating the refund; and,

(c) in so far as is necessary for calculating the refund, particulars of the composition of the products or the relevant reference.

If the document mentioned in this paragraph is the export declaration, this document must also include these references and the “reference refund code”.

6. At the time of such acceptance, or of such equivalent act, the products shall be placed under customs control until they leave the customs territory of the Community.’

5 Article 11(1) of Regulation No 3665/87 provides for sanctions where the exporter has applied for a refund in excess of that applicable. The second subparagraph provides that the refund applied for is deemed to be the amount calculated from the information supplied pursuant to Article 3 or Article 25(2).

6 Under Article 13 of Regulation No 3665/87:

‘No refund shall be granted on products which are not of sound and fair marketable quality, or on products intended for human consumption whose characteristics or condition exclude or...