Emsland-Stärke GmbH contra Hauptzollamt Hamburg-Jonas.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Sevón
• ECLI: ECLI:EU:C:2000:695
• Docket Number: C-110/99
• Date: 14 December 2000
• Procedure Type: Reference for a preliminary ruling

Judgment of the Court of 14 December 2000. - Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Agriculture - Export refunds - Goods immediately re-imported into the Community - Abuse of rights. - Case C-110/99.

European Court reports 2000 Page I-11569

Summary Parties Grounds Decision on costs Operative part

Keywords

Agriculture Common organisation of the markets Export refunds Non-differentiated refund Products immediately re-imported into the Community after completion of the customs formalities for release for home use in a non-member country Loss of right to a refund Condition Evidence of abuse Verification incumbent on national court

(Commission Regulations No 2730/79, Arts 9(1), 10(1) and 20(2) to (6), and No 568/85)

Summary

$$Articles 9(1), 10(1) and 20(2) to (6) of Regulation No 2730/79 laying down common detailed rules for the application of the system of export refunds on agricultural products, in the version resulting from Regulation No 568/85, must be interpreted as meaning that a Community exporter can forfeit his right to payment of a non-differentiated export refund if (a) the product in respect of which the export refund was paid, and which is sold to a purchaser established in a non-member country, is, immediately after its release for home use in that non-member country, transported back to the Community under the external Community transit procedure and is there released for home use on payment of import duties, without any infringement being established and (b) that operation constitutes an abuse on the part of that Community exporter.

A finding that there is an abuse presupposes an intention on the part of the Community exporter to benefit from an advantage as a result of the application of the Community rules by artificially creating the conditions for obtaining it. Evidence of this must be placed before the national court in accordance with the rules of national law, for instance by establishing that there was collusion between that exporter and the importer of the goods into the non-member country.

The fact that, before being re-imported into the Community, the product was sold by the purchaser established in the non-member country concerned to an undertaking also established in that country with which he has personal and commercial links is one of the facts which can be taken into account by the national court when ascertaining whether the conditions giving rise to an obligation to repay refunds are fulfilled.

(see para. 59 and operative part)

Parties

In Case C-110/99,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Bundesfinanzhof, Germany, for a preliminary ruling in the proceedings pending before that court between

Emsland-Stärke GmbH

and

Hauptzollamt Hamburg-Jonas,

on the interpretation of Articles 10(1) and 20(2) to (6) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317 p. 1), in the version resulting from Commission Regulation (EEC) No 568/85 of 4 March 1985 (OJ 1985 L 65, p. 5),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet and V. Skouris (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón (Rapporteur), R. Schintgen and F. Macken, Judges,

Advocate General: S. Alber,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

Emsland-Stärke GmbH, by B. Festge, Rechtsanwalt, Hamburg,

the Commission of the European Communities, by K.-D. Borchardt, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Emsland-Stärke GmbH and the Commission at the hearing on 14 March 2000,

after hearing the Opinion of the Advocate General at the sitting on 16 May 2000,

gives the following

Judgment

Grounds

1 By order of 2 February 1999, received at the Court on 31 March 1999, the Bundesfinanzhof (Federal Finance Court) referred to the Court for preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) two questions on the interpretation of Articles 10(1) and 20(2) to (6) of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1), in the version resulting from Commission Regulation (EEC) No 568/85 of 4 March 1985 (OJ 1985 L 65, p. 5, hereinafter Regulation No 2730/79).

2 Those questions were raised in proceedings between Emsland-Stärke GmbH (hereinafter Emsland-Stärke) and Hauptzollamt Hamburg-Jonas (hereinafter the HZA) concerning the right of Emsland-Stärke to non-differentiated export refunds for the export of products based on potato starch and wheat starch to Switzerland from April to June 1987.

Legal background

3 At the material time, the conditions to be met for the grant of export refunds were laid down, for all agricultural products, by Regulation No 2730/79.

4 The first subparagraph of Article 9(1) of that regulation provides:

Without prejudice to the provisions of Articles 10, 20 and 26, the refund shall be paid only upon proof being furnished that the product in respect of which customs export formalities have been completed has, within 60 days from the day of completion of such formalities:

in the cases specified in Article 5, reached its destination unaltered,

or

in other cases, left the geographical territory of the Community unaltered.

5 Under Article 10(1) of Regulation No 2730/79:

In the following circumstances payment of the differentiated or non-differentiated refund shall be conditional not only on the product having left the geographical territory of the Community but also save where it has perished in transit as a result of force majeure on its having been imported into a non-member country and where appropriate into a specific non-member country within the time-limits referred to in Article 31:

(a) where there is serious doubt as to the true destination of the product,

or

(b) where, by reason of the difference between the rate of refund on the exported product and the amount of the import duties applicable to an identical product on the day when customs export formalities are completed, it is possible that the product may be re-introduced into the Community.

In the cases referred to in the preceding subparagraph, the provisions of Article 20 (2), (3), (4), (5) and (6) shall apply.

In addition, the competent authorities of the Member States may require that additional proof be provided which shows, to their satisfaction, that the product has actually been placed on the market in the non-member country of import in the unaltered state.

6 Article 20(2) to (6) of Regulation No 2730/79 provides:

2. A product shall be considered to have been imported when the customs entry formalities for home use in the non-member country concerned have been completed.

3. Proof that these formalities have been completed shall be furnished by production of:

(a) the relevant customs document, or a copy or photocopy thereof certified as true by either the body which endorsed the original document, an official agency of the non-member country concerned or an official agency of a Member State;

or

(b) the customs entry certificate made out in accordance with the specimen in Annex II in one or more official languages of the Community and in a language used in the non-member country concerned;

or

(c) any other document endorsed by the customs authorities of the non-member country concerned on which the products are identified and which proves that they have been released for home use in that country.

4. If, however, owing to circumstances beyond the control of the exporter, none of the documents specified in paragraph 3 can be produced, or they are considered inadequate, proof that customs entry formalities for home use have been completed may be furnished by production of one or more of the following documents:

...

5. In addition, the exporter shall in all cases where this article applies produce a copy or photocopy of the transport document.

6. The Commission may, in accordance with the procedure laid down in Article 38 of Regulation No 136/66/EEC and in the corresponding articles of the other regulations on the common organisation of markets, provide in certain specific cases to be determined that the proof of importation referred to in paragraphs 3 and 4 may be furnished by production of a specific document or in any other way.

The dispute in the main proceedings and the questions referred for a preliminary ruling

7 According to the order for reference, between April and June 1987, Emsland-Stärke GmbH exported to Switzerland several consignments of a...