Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - EXPORT REFUNDS - VARIED REFUND - CONDITIONS FOR GRANT - ARRIVAL AT DESTINATION OF GOODS - MEANS OF PROOF - BILL OF LADING - INSUFFICIENT PROOF
( REGULATION NO 876/68 OF THE COUNCIL , ART . 6 ( 2 ); REGULATION NO 1041/67 OF THE COMMISSION , ART . 8 ( 1 ))
2 . AGRICULTURE - COMMON AGRICULTURAL POLICY - EXPENDITURE RESULTING FROM AN INCORRECT APPLICATION OF COMMUNITY LAW - FINANCING BY THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND - CONDITION - ERROR ATTRIBUTABLE TO A COMMUNITY INSTITUTION
( REGULATION NO 729/70 OF THE COUNCIL )

1 . A VARIED EXPORT REFUND IS PAYABLE PROVIDED IT IS PROVED THAT THE PRODUCT HAS REACHED THE DESTINATION FOR WHICH THE REFUND WAS FIXED WHICH IMPLIES THAT THE GOODS MUST HAVE BEEN CLEARED THROUGH CUSTOMS AND PUT INTO FREE CIRCULATION AT THE DESTINATION .

A DOCUMENT SUCH AS A BILL OF LADING EVEN BEARING THE WORDS ' ' FREIGHT REPAID ' ' AND IN WHICH THE DECLARATIONS ARE IDENTICAL TO THOSE OF THE EXPORT LICENCE CANNOT CONSTITUTE PROOF OF THE ARRIVAL OF GOODS AT THEIR DESTINATION WITHIN THE MEANING OF THE RELEVANT COMMUNITY RULES .

2 . WHEN CLEARING ACCOUNTS PRESENTED BY THE MEMBER STATES IN RESPECT OF THE EXPENDITURE FINANCED BY THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND THE COMMISSION IS NOT OBLIGED TO ACCEPT AS CHARGEABLE THE EXPENDITURE INCURRED ON THE BASIS OF AN INCORRECT APPLICATION OF COMMUNITY LAW UNLESS THAT INCORRECT APPLICATION MAY BE ATTRIBUTED TO AN INSTITUTION OF THE COMMUNITY .

IN CASE 820/79
KINGDOM OF BELGIUM , REPRESENTED BY THE MINISTER FOR FOREIGN AFFAIRS , HIMSELF REPRESENTED FOR THE PURPOSE OF THE PROCEEDINGS BY ROBERT HOEBAER , A DIRECTOR AT THE MINISTRY OF FOREIGN AFFAIRS , FOREIGN TRADE AND CO-OPERATION WITH THE DEVELOPING COUNTRIES , ACTING AS AGENT , ASSISTED BY GEORGES VANDERSANDEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY , RESIDENCE CHAMPAGNE , 4 RUE DES GIRONDINS ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY GIANLUIGI CAMPOGRANDE , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY FRANCOIS LAMOUREUX , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF COMMISSION DECISION NO 79/893/EEC OF 12 OCTOBER 1979 CONCERNING THE CLEARANCE OF THE ACCOUNTS PRESENTED BY THE KINGDOM OF BELGIUM IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND , GUARANTEE SECTION , EXPENDITURE FOR 1973 ( OFFICIAL JOURNAL 1979 , L 278 , P . 9 ) IN SO FAR AS THE COMMISSION DID NOT RECOGNIZE AS CHARGEABLE TO THE FUND A SUM OF BF 29 008 562 RELATING TO VARIED EXPORT REFUNDS FOR MILK AND MILK PRODUCTS PAID BY THE APPLICANT IN ACCORDANCE WITH ARTICLE 8 ( 1 ) OF REGULATION NO 1041/67 OF THE COMMISSION OF 21 DECEMBER 1967 ON DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 323 ),

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 19 DECEMBER 1979 THE KINGDOM OF BELGIUM BROUGHT AN ACTION UNDER ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION NO 79/893/EEC OF 12 OCTOBER 1979 CONCERNING THE CLEARANCE OF THE ACCOUNTS PRESENTED BY THE KINGDOM OF BELGIUM IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND , GUARANTEE SECTION , EXPENDITURE FOR 1973 ( OFFICIAL JOURNAL , L 278 , P . 9 ) IS VOID IN SO FAR AS THE COMMISSION DID NOT RECOGNIZE AS CHARGEABLE TO THE FUND THE SUM OF BF 29 008 562 CONCERNING VARIED EXPORT REFUNDS ON MILK AND MILK PRODUCTS PAID BY THE APPLICANT .

2 BY ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 OF THE COUNCIL OF 28 JUNE 1968 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON MILK AND MILK PRODUCTS AND CRITERIA FOR FIXING THE AMOUNT OF SUCH REFUNDS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 234 ) A VARIED EXPORT REFUND IS PAYABLE PROVIDED IT IS PROVED THAT THE PRODUCT HAS REACHED THE DESTINATION FOR WHICH THE REFUND WAS FIXED . FOR THE APPLICATION OF THAT PROVISION ARTICLE 8 ( 1 ) OF REGULATION NO 1041/67 OF THE COMMISSION OF 21 DECEMBER 1967 ON DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 323 ), AS AMENDED BY REGULATION NO 1056/68 OF THE COMMISSION OF 23 JULY 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 343 ) AND BY REGULATION NO 499/69 OF THE COMMISSION OF 17 MARCH 1969 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( I ), P . 114 ) PROVIDES THAT THE PARTY CONCERNED MUST SUBMIT ONE COPY OF THE TRANSPORT DOCUMENT AND , AT THE DISCRETION OF THE COMPETENT NATIONAL AUTHORITIES , ONE OR MORE OF THE FOLLOWING DOCUMENTS CERTIFYING ARRIVAL IN THE COUNTRY OF DESTINATION OR FOR THE USE IN QUESTION :
' ' A COPY OF THE CUSTOMS OR PORT DOCUMENT MADE OUT IN THE COUNTRY OF DESTINATION , A CERTIFICATE ISSUED BY THE OFFICIAL SERVICES OF ONE OF THE MEMBER STATES ESTABLISHED IN THAT COUNTRY , A CERTIFICATE BY AN INTERNATIONAL CONTROL AND SURVEILLANCE COMPANY . THE COMPETENT NATIONAL AUTHORITIES MAY RECOGNIZE OTHER DOCUMENTS AS EQUIVALENT AND MAY REQUIRE ADDITIONAL FORMS OF PROOF . THEY SHALL FORTHWITH SO INFORM THE COMMISSION WHICH SHALL WITHOUT DELAY INFORM THE OTHER MEMBER STATES THEREOF ' ' .

3 THE FIRST SUBMISSION ACCUSES THE COMMISSION OF HAVING INFRINGED ARTICLE 8 ( 1 ) OF THE SAID REGULATION NO 1041/67 BY REFUSING IN THE CONTESTED DECISION TO RECOGNIZE THE VALIDITY OF DOCUMENTS SUBMITTED BY THE APPLICANT AS PROOF AS TO ARRIVAL AT THEIR DESTINATION OF THE GOODS IN QUESTION .

4 IT IS APPARENT FROM THE PAPERS PLACED BEFORE THE COURT THAT THE BELGIAN AUTHORITIES AGREED TO PAY VARIED REFUNDS ON THE PRODUCTION OF A BILL OF LADING THE DECLARATIONS IN WHICH ARE IDENTICAL TO THOSE OF THE EXPORT LICENCE SUBJECT TO THE DUAL REQUIREMENT THAT THE BILL OF LADING IS A CIF BILL OF LADING BEARING THE WORDS ' ' FREIGHT PREPAID ' ' AND THAT IT IS ISSUED BY A SHIPPING AGENT RECOGNIZED BY THE COMPAGNIE MARITIME ANVERSOISE .

5 THE APPLICANT MAINTAINS THAT SUCH A BILL OF LADING IS NOT ONLY A TRANSPORT DOCUMENT BUT THAT BY SHOWING THAT THE COSTS OF TRANSPORT HAVE BEEN PAID BEFORE THE GOODS ARE EXPORTED IT GUARANTEES THAT THEY WILL BE EXPORTED TO THE AGREED DESTINATION . THE ADDITIONAL REQUIREMENT CONCERNING THE INVOLVEMENT OF A SHIPPING AGENT RECOGNIZED BY THE COMPAGNIE MARITIME ANVERSOISE IS BOUND UP WITH THE FACT THAT THAT BODY WARRANTS TO THE EXPORTER THAT THE GOODS WILL ARRIVE AT THE DESTINATION .

6 IT SHOULD BE RECALLED THAT THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 2 JUNE 1976 ( CASE 125/75 MILCH- , FETT- UND EIER-KONTOR GMBH V HAUPTZOLLAMT HAMBURG-JONAS ( 1976 ) ECR 771 ) THAT IN ORDER THAT THE VARIED REFUND MAY BE PAID IT IS NECESSARY FOR THE GOODS TO HAVE BEEN CLEARED THROUGH CUSTOMS AND PUT INTO FREE CIRCULATION AT THE DESTINATION . IT WENT ON TO ADD THAT ONLY OBJECTIVE CRITERIA MAY BE TAKEN INTO ACCOUNT IN ANSWERING THE QUESTION WHETHER GOODS HAVE REACHED THAT DESTINATION .

7 IN THOSE CIRCUMSTANCES THE COMMISSION WAS RIGHT IN TAKING THE VIEW THAT A BILL OF LADING EVEN BEARING THE WORDS ' ' FREIGHT PREPAID ' ' CANNOT CONSTITUTE PROOF OF THE ARRIVAL OF GOODS AT THEIR DESTINATION WITHIN THE MEANING OF THE COMMUNITY RULES .

8 THE SITUATION IS NOT CHANGED BY THE FACT THAT SUCH A BILL OF LADING IS ISSUED BY A SHIPPING AGENT RECOGNIZED BY THE COMPAGNIE MARITIME ANVERSOISE AS THE APPLICANT HAS NOT BEEN ABLE TO DEFINE THE SCOPE OF THE OBLIGATION WHICH IT SAYS IS INCUMBENT ON THAT ASSOCIATION OR ON A SHIPPING AGENT RECOGNIZED BY IT TO WARRANT THAT THE GOODS WILL ARRIVE AT THEIR DESTINATION .

9 THE FIRST SUBMISSION MUST ACCORDINGLY BE REJECTED .

10 THE SECOND SUBMISSION ACCUSES THE COMMISSION OF DELAY IN REACTING AND OF SHOWING A LACK OF CARE . THE APPLICANT SAYS THAT IN ACCORDANCE WITH ARTICLE 8 ( 1 ) OF REGULATION NO 1041/67 IT NOTIFIED THE COMMISSION IN 1968 AND IN 1971 OF THE DOCUMENTS CONSIDERED TO BE ' ' EQUIVALENT ' ' WITHIN THE MEANING OF THAT PROVISION ; THE COMMISSION SIMPLY RELAYED THAT INFORMATION TO THE OTHER MEMBER STATES WITHOUT EVINCING ITS INTENTION TO REFUSE TO ACCEPT THE DOCUMENTS RECOGNIZED BY THE BELGIAN AUTHORITIES . IT WAS NOT UNTIL 1976 THAT THE COMMISSION MADE ITS ATTITUDE CLEAR .

11 IT FOLLOWS FROM THE CONSIDERATION RELATING TO THE FIRST SUBMISSION THAT THE PRACTICE FOLLOWED BY THE BELGIAN AUTHORITIES OF ACCEPTING UNDER CERTAIN CONDITIONS BILLS OF LADING AS PROOF OF THE ARRIVAL OF GOODS AT THEIR DESTINATION ARISES FROM AN INCORRECT INTERPRETATION OF COMMUNITY LAW . IN SUCH A CASE THE COMMISSION IS NOT OBLIGED TO CHARGE EXPENDITURE INCURRED ON THAT BASIS TO THE FUND UNLESS THE INCORRECT APPLICATION OF COMMUNITY LAW MAY BE ATTRIBUTED TO A COMMUNITY INSTITUTION . THE COURT TAKES THE APPLICANT ' S SECOND SUBMISSION AS CONTENDING THAT THE INCORRECT INTERPRETATION OF THE PROVISIONS IN QUESTION MAY BE ATTRIBUTED TO THE COMMISSION ' S CONDUCT .

12 THE APPLICANT HAS ADMITTED THAT AT A MEETING OF THE EXPERT GROUP ON TRADE MECHANISMS IN JANUARY 1972 THE OFFICERS OF THE COMMISSION FORMALLY CONTESTED THE VALIDITY OF A FREIGHT PREPAID BILL OF LADING UNDER THE COMMUNITY RULES AND THAT AT ITS 300TH MEETING ON 23 AUGUST 1973 THE MANAGEMENT COMMITTEE FOR MILK AND MILK PRODUCTS UNANIMOUSLY UPHELD THE ARGUMENT OF THE COMMISSION ' S REPRESENTATIVE TO THE EFFECT THAT AS REGARDS THE MEASURES OF CONTROL PROVIDED FOR BY REGULATION NO 1041/67 IN THE CASE OF THE GRANT OF VARIED REFUNDS MEMBER STATES SHOULD REQUIRE PROOF ESTABLISHING THAT THE GOODS HAVE BEEN PUT INTO FREE CIRCULATION IN THE COUNTRY OF DESTINATION .

13 IT IS TRUE , AS THE APPLICANT SUBMITS , THAT THE ADOPTION OF THOSE VIEWS BY THE COMMISSION ' S OFFICERS MAY NOT BE REGARDED AS THE OFFICIAL VIEWS OF THE COMMISSION AS AN INSTITUTION OF THE COMMUNITY . NEVERTHELESS , PARTICULARLY IN VIEW OF THE UNEQUIVOCAL TERMS IN WHICH THE COMPETENT OFFICERS OF THE COMMISSION GAVE THEIR OPINION ON THE PRACTICE OF THE BELGIAN AUTHORITIES , ONLY A CLEAR INDICATION OF A CONTRARY OPINION ON THE PART OF THE COMMISSION AS AN INSTITUTION COULD HAVE ALLOWED THE BELGIAN GOVERNMENT TO BELIEVE THAT THAT INSTITUTION HAD APPROVED THE PRACTICE AT ISSUE .

14 NO EVIDENCE OF ANY INDICATION OF A CONTRARY OPINION HAS BEEN ADDUCED BY THE APPLICANT ; IN PARTICULAR MERE RELAYING TO OTHER MEMBER STATES , UNDER ARTICLE 8 ( 1 ) OF REGULATION NO 1041/67 , OF INFORMATION GIVEN BY THE BELGIAN GOVERNMENT ABOUT THE DOCUMENTS WHICH IT REGARDED AS EQUIVALENT TO THOSE REFERRED TO IN THAT PROVISION DOES NOT AMOUNT TO SUCH AN INDICATION .

15 CONSEQUENTLY THE APPLICANT HAS NOT ESTABLISHED THAT THE INCORRECT APPLICATION OF THE PROVISIONS OF ARTICLE 8 OF REGULATION NO 1041/67 BY THE BELGIAN AUTHORITIES SHOULD BE ATTRIBUTED TO THE COMMISSION .

16 IT FOLLOWS THAT THE APPLICATION MUST BE REJECTED .

17 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO BEAR THE COSTS ; AS THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . REJECTS THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .