Hauptzollamt Hamburg-Jonas v LFZ Nordfleisch AG.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Sevón
• ECLI: ECLI:EU:C:1999:550
• Docket Number: C-217/98
• Date: 11 November 1999
• Procedure Type: Reference for a preliminary ruling

61998C0217

Opinion of Mr Advocate General La Pergola delivered on 11 November 1999. - Hauptzollamt Hamburg-Jonas v LFZ Nordfleisch AG. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Agriculture - Common organisation of the markets - Beef and veal - Export refund - Withdrawal of the application for advance payment - Effect on the security. - Case C-217/98.

European Court reports 2000 Page I-01619

Opinion of the Advocate-General

I - Legal and factual background to the dispute in the main proceedings and the question referred to the Court under Article 177 of the EC Treaty (now Article 234 EC)

1 By order of 7 April 1998, received at the Court Registry on 12 June 1998, the Bundesfinanzhof asked this Court to give a preliminary ruling on the interpretation of Article 33(1) 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 (1) in conjunction with the first paragraph of Article 29 of Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products. (2) The question raised in these proceedings is the following:

`Is the second paragraph of Article 33(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1997 in conjunction with the first paragraph of Article 29 of Commission Regulation (EEC) No 2220/85 of 22 July 1985 to be interpreted as meaning that the additional amount of 20% of the export refund concerned is to be levied even where the goods placed in customs warehousing with a view to advance payment of the refund pursuant to Article 5 of Council Regulation (EEC) No 565/80 of 4 March 1980 in conjunction with Articles 25 and 26 of Regulation (EEC) No 3665/87 are not exported - as originally planned - but are put back into free circulation in the Community directly following warehousing and the application for payment (Article 29(2) of Regulation (EEC) No 3665/87) is withdrawn?'

2 In essence, the national court is asking the Court to define the precise scope of the duty to make repayment imposed on a trader who, after submitting to the national authorities an application for advance payment of an export refund, withdraws that application before they have given their decision on it in order to return the goods into the customs territory of the Community, but nevertheless receives the advance payment of the export refund originally applied for. More specifically, the Bundesfinanzhof seeks to ascertain whether, in the circumstances referred to here, an additional amount of 20% is to be added to the sum which the exporter is required to repay in accordance with Article 33 of Regulation No 3665/87 (see paragraph 6 below) where the sum payable in respect of the quantity exported is less than the advance payment.

3 Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products (3) (OJ 1980 L 62, p. 5), as amended by Council Regulation (EEC) No 2026/83 of 18 July 1983 (OJ 1983 L 199, p. 12), provides for and regulates the possibility of facilitating finance for exports by means of the payment of a sum equal to the refund even before the undertaking concerned has produced evidence that the transaction has been duly completed - that is to say, evidence that the goods have left the Community customs territory and been imported into a non-member country - just as soon as the goods intended for export have been brought under the customs warehousing or free zone procedure (see Articles 4 and 5). Since, plainly, advance payment does not alter the conditions which give rise to the trader's entitlement to the refund, the Community legislature has imposed the requirement that the trader should lodge appropriate security. That security ensures that the exporter will reimburse a sum equal to the amount already received, plus an additional amount if it is later established that the right to a refund never in fact came into existence or where the products or goods placed under the warehousing or free zone procedure were not actually exported within the prescribed period (Article 6 of Regulation No 565/80).

4 The detailed rules for the actual application of Regulation No 565/80 were laid down in Title 2, Chapter 3 of Regulation No 3665/87. In order to be eligible for advance payment of the export refund in respect of goods previously stored (or processed), the exporter concerned must lodge with the customs authorities a payment declaration containing all the particulars necessary for determining the refund (description of the goods and their net mass and, where necessary, their composition and use or destination, see Article 25). On the other hand, before that declaration is accepted, (4) the exporter is required to lodge security equal to the amount calculated in accordance with Article 29(3), (5) and any positive monetary compensatory amount, plus 20% (Article 31(1). (6)

5 At the time of acceptance of the payment declaration the goods intended for export are to be placed under customs control until they leave the customs territory of the Community (see Article 26). (7) By virtue of Article 32(1) of Regulation No 3665/87 goods under the customs control or free zone procedure must leave that territory in the unaltered state within 60 days from the date on which they are no longer subject to that procedure, that is to say, at the latest eight months after acceptance of the payment declaration. The goods may remain under a customs warehousing or free zone procedure, even in a Member State other than that in which the declaration was accepted, for a maximum period of 6 months (see Article 28(5) and (6)). The export declaration is to be notified by the undertaking concerned to the authorities of the Member State which accepted the payment declaration by the last day of that six-month period (see Article 30(1)). Actual payment of the refund by the national authorities to the exporter is therefore conditional on presentation of a written application for payment (Article 29(1) and (2)).

6 An export refund, the beneficiary's entitlement to which is subsequently established, is set off against the amount previously paid to the beneficiary, subject to the exporter's right to any balance. In accordance with Article 33(2) of Regulation No 3665/87, the security is released in full where the exporter produces proof that (i) the time-limits laid down in Articles 28(5) and 32(1) have been complied with (see paragraph 5 above) and (ii) the products exported give entitlement to the refund of an amount higher than or equal to that paid to the exporter in advance.

In the other situation (advance payment of an amount greater than that payable in respect of the amount which is actually subsequently exported, especially in the case of non-compliance with the time-limits laid down by Regulation No 3665/87) it is, on the contrary, the trader who must refund the difference, subject to adjustment of the refund by means of the application of a percentage reduction varying in relation to the length of time by which the operator has exceeded the time-limits. The difference between the amount already paid and the amount actually payable is then increased by 20% (save in cases of force majeure, see Article 33(2) and (4)). To that end, in accordance with Article 33(1), the competent authority is to initiate without delay the procedure for forfeiture of the caution laid down in Article 29 of Regulation No 2220/85 (see footnote 2 above). (8)

7 The facts giving rise to this dispute have been described by the national court as follows. In July 1990 LFZ Nordfleisch AG (`Nordfleisch'), the respondent in the main proceedings, applied to the German customs authorities for about 70 tonnes of beef to be placed in storage under customs rules with a view to export. The relevant payment declarations were produced by Nordfleisch on 24, 25 and 27 July 1990. After the security provided for by Article 31 of Regulation No 3665/87 had been lodged, Nordfleisch presented to the customs authorities applications for advance payment of the export refunds for the goods in question on 1 August 1990. However, between 2 and 6 August 1990 Nordfleisch withdrew its applications, having decided not to export the goods but to return them into the customs area of the Community. (9) The company thus requested and received from the German authorities, for each of the applications withdrawn, a copy of information sheet INF 3. (10) However, on 24 August 1990 the Hauptzollamt Hamburg-Jonas (`the Hauptzollamt') also decided to grant Nordfleisch the refunds originally applied for, paying it a total sum of DEM 237 150.02. Lastly, by decision of 6 November 1990 the Hauptzollamt claimed repayment of that sum and ordered Nordfleisch to pay the additional 20% pursuant to Article 33 of Regulation No 3665/87.

8 Since it did not regard itself as bound to pay the additional sum, Nordfleisch, which on the other hand has no objection to repaying the sum wrongly paid to it by the authorities, challenged the abovementioned decision before the Finanzgericht (Finance Court) Hamburg. Upholding...