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

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - EXPORT REFUNDS - CONDITION OF PAYMENT - PRODUCTS TO LEAVE THE TERRITORY OF THE COMMUNITY WITHIN A SPECIFIED TIME - SEA TRANSPORT WITH TRANSHIPMENT IN A COMMUNITY PORT - PORT OF DEPARTURE FROM THE COMMUNITY - CONCEPT - PORT OF FIRST LOADING
( COMMISSION REGULATION NO 2730/79, ART . 9*(1 )*)

AS REGARDS THE PAYMENT OF EXPORT REFUNDS THE FIRST PORT OF LOADING IS TO BE REGARDED AS THE PORT FROM WHICH THE PRODUCTS LEAVE THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY FOR THE PURPOSES OF ARTICLE 9*(1 ) OF REGULATION NO . 2730/79 IF THE PRODUCTS ARE TO BE TRANSHIPPED IN ANOTHER COMMUNITY PORT, WITH THE RESULT THAT ONCE IT IS ESTABLISHED THAT THE PRODUCTS CONCERNED LEFT THE FIRST PORT OF LOADING WITHIN 60 DAYS OF THE DAY OF COMPLETION OF CUSTOMS EXPORT FORMALITIES NO OTHER DOCUMENT PROVING DEPARTURE FROM THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY IS NECESSARY FOR THE PURPOSES OF THE PAYMENT OF THE REFUND .

IN CASE 337/85
IRELAND, REPRESENTED BY LOUIS J . DOCKERY, CHIEF STATE SOLICITOR, ACTING AS AGENT, ASSISTED BY EOGHAN P . FITZSIMONS, SENIOR COUNSEL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY, 28 ROUTE D' ARLON,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY D . GRANT LAWRENCE, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, ALSO A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION FOR A DECLARATION THAT COMMISSION DECISION NO 85/458/EEC OF 28 AUGUST 1985 ON THE CLEARANCE OF THE ACCOUNTS PRESENTED BY IRELAND IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1981 ( OFFICIAL JOURNAL 1985, L*267, P.*30 ) IS VOID,
THE COURT
COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, O . DUE, J . C . MOITINHO DE ALMEIDA AND G . C . RODRIGUEZ IGLESIAS ( PRESIDENTS OF CHAMBERS ), T.*KOOPMANS, U . EVERLING, K . BAHLMANN, Y . GALMOT AND T . F . O' HIGGINS, JUDGES,
ADVOCATE GENERAL : J . L . DA CRUZ VILACA
REGISTRAR : S . HACKSPIEL, ACTING AS ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 3 DECEMBER 1986,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 26 FEBRUARY 1987,
GIVES THE FOLLOWING
JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13 NOVEMBER 1985, IRELAND BROUGHT AN ACTION PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION NO 85/458/EEC OF 28 AUGUST 1985 ON THE CLEARANCE OF THE ACCOUNTS PRESENTED BY IRELAND IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1981 ( OFFICIAL JOURNAL 1985, L*267, P.*30 ) IS VOID IN SO FAR AS THE COMMISSION FAILED TO CHARGE TO THE FUND THE SUM OF IRL*2*281*956.15 FOR THE PAYMENT OF EXPORT REFUNDS RELATING TO EXPORTS TO THIRD COUNTRIES .
2 THE COMMISSION DID NOT CHARGE THE AMOUNT OF IRL*2*281*956.15 TO THE FUND, ON THE GROUND THAT IT RELATED TO OPERATIONS WHERE THE PRODUCTS LEFT IRELAND WITHIN 60 DAYS OF COMPLETION OF THE CUSTOMS EXPORT FORMALITIES BUT, OWING TO TRANSHIPMENT OPERATIONS IN ANOTHER COMMUNITY PORT, DID NOT FINALLY LEAVE COMMUNITY TERRITORY UNTIL AFTER THE 60-DAY PERIOD HAD ELAPSED .
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE BACKGROUND TO THE CASE, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
4 THE DISPUTE TURNS ESSENTIALLY ON THE INTERPRETATION OF ARTICLE 9*(1 ) 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 ( OFFICIAL JOURNAL 1979, L*317, P.*1 ), WHICH PROVIDES AS FOLLOWS : "... 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 DATE OF COMPLETION OF SUCH FORMALITIES ... LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY UNALTERED ...".
5 IRELAND ARGUES ESSENTIALLY THAT THAT PROVISION MUST BE INTERPRETED IN THE LIGHT OF THE OPINION DELIVERED ON REGULATION NO 1041/67, THE PREDECESSOR OF REGULATION NO 2730/79, BY THE COMMITTEE ON COMMUNITY TRANSIT AT ITS 33RD MEETING, HELD ON 17 AND 19 JULY 1973 . THE COMMITTEE CONSIDERED THAT "DEPARTURE FROM THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY FOR THE PURPOSE OF REGULATION NO 1041/67, IN CONNECTION WITH THE GRANT OF REFUNDS, TAKES PLACE AT THE FIRST PORT OF LOADING ". IRELAND CONSIDERS THAT IN THE CASE OF TRANSHIPMENT IN ANOTHER COMMUNITY PORT THE PRODUCTS SHOULD BE DEEMED TO HAVE LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY AT THE PORT OF LOADING WHERE THE CUSTOMS EXPORT FORMALITIES WERE CARRIED OUT . IN THIS CASE, THE PRODUCTS IN QUESTION LEFT THE PORT OF LOADING IN IRELAND WITHIN THE 60-DAY PERIOD LAID DOWN BY THE REGULATION AND HENCE THE REQUIREMENTS FOR THE PAYMENT OF THE REFUND ARE MET .
6 THE COMMISSION CONSIDERS THAT THE OPINION OF THE COMMITTEE ON COMMUNITY TRANSIT MUST NOT HAVE THE EFFECT OF CIRCUMVENTING OR INVALIDATING ARTICLE 9*(1 ) OF REGULATION NO 2730/79, WHICH PROVIDES THAT, IN PRINCIPLE, THE PRODUCTS MUST ACTUALLY LEAVE THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY WITHIN 60 DAYS, NO DISTINCTION HAVING TO BE MADE AS BETWEEN THE VARIOUS MODES OF TRANSPORT . IN THE ABSENCE OF REASONS LINKED TO TRANSPORT WARRANTING AN EXTENSION OF THAT PERIOD, THE COMMISSION CANNOT ACCEPT THE FINANCING OF EXPENDITURE INCURRED BY THE NATIONAL ADMINISTRATION . IN ANY EVENT, IN THIS CASE THE IRISH EXPORTERS EXCEEDED THE 60-DAY PERIOD FOR REASONS NOT LINKED TO TRANSPORT .
7 IT MUST BE OBSERVED IN THE FIRST PLACE THAT, UNDER ARTICLE 2*(1 ) OF REGULATION NO 729/70, THE COMMISSION COULD ONLY REFUSE TO FINANCE THE EXPENDITURE IF IT DID NOT ACCORD WITH COMMUNITY RULES RELATING TO THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS . UNDER ARTICLE 9*(1 ) OF REGULATION NO 2730/79 PAYMENT OF THE REFUND IN RESPECT OF SUCH EXPENDITURE IS CONDITIONAL 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, LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY UNALTERED .
8 IN THIS CASE, THE MATTER IN DISPUTE IS SIMPLY WHETHER ARTICLE 9*(1 ) OF REGULATION NO 2730/79 MUST BE INTERPRETED AS MEANING THAT, WHERE GOODS ARE EXPORTED TO THIRD COUNTRIES BY TRANSHIPMENT AND THE CUSTOMS EXPORT FORMALITIES WERE COMPLETED IN THE FIRST PORT OF LOADING, THE PRODUCTS IN QUESTION ARE TO BE REGARDED AS HAVING LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY UPON THEIR LEAVING THAT PORT .
9 IN THAT CONNECTION IT MUST BE OBSERVED IN THE FIRST PLACE THAT ARTICLE 9*(1 ) OF REGULATION NO 2730/79 CONTAINS NO EXPRESS REFERENCE TO TRANSHIPMENT .
10 CONSEQUENTLY, THE INTERPRETATION OF THAT PROVISION AS REGARDS THE TIME AT WHICH THE GOODS ARE DEEMED TO HAVE LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY IN CASES OF TRANSHIPMENT MUST BE BASED ON THE SPECIFIC CONDITIONS IN WHICH SUCH TRANSHIPMENT OCCURS .
11 THOSE CONDITIONS INCLUDE THE CIRCUMSTANCES IN WHICH THE LONG-DISTANCE TRANSPORTATION BY SEA OF PRODUCTS FROM PERIPHERAL MEMBER STATES TAKES PLACE . THE INTERPRETATION OF ARTICLE 9 OF REGULATION NO 2730/79 MUST TAKE INTO ACCOUNT THE FACT THAT SEA TRANSPORT FROM THE PERIPHERAL MEMBER STATES OFTEN TAKES PLACE VIA A PORT OF TRANSHIPMENT SINCE THE TYPE OF SEA TRANSPORT INVOLVED REQUIRES PORT FACILITIES WHICH ARE MORE SOPHISTICATED THAN THOSE AVAILABLE IN SUCH COUNTRIES .
12 IT WAS PRECISELY IN ORDER TO TAKE THAT SPECIAL SITUATION INTO ACCOUNT THAT THE COMMITTEE ON COMMUNITY TRANSIT DELIVERED THE AFOREMENTIONED OPINION, ACCORDING TO WHICH, FOR THE PURPOSES OF THE GRANT OF REFUNDS, DEPARTURE FROM THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY SHOULD BE REGARDED AS TAKING PLACE AT THE FIRST PORT OF LOADING .
13 THEREFORE, IN VIEW OF THE SPECIAL REQUIREMENTS OF SUCH SEA TRANSPORT, IT IS AT THE FIRST PORT OF LOADING THAT THE CUSTOMS FORMALITIES REFERRED TO IN ARTICLE 3 OF REGULATION NO 2730/79, THAT IS TO SAY THE ACCEPTANCE BY THE CUSTOMS AUTHORITY OF THE DECLARATION BY WHICH THE EXPORTER STATES HIS INTENTION TO EXPORT THE PRODUCTS IN QUESTION, TAKE PLACE, AND IT IS THERE THAT THE PRODUCTS ARE PLACED UNDER CUSTOMS CONTROL UNTIL SUCH TIME AS THEY ACTUALLY LEAVE THE COMMUNITY .
14 THE MAIN EFFECT OF THOSE CUSTOMS FORMALITIES IS THAT IN CASES SUCH AS THE ONE IN POINT THE PRODUCTS IN QUESTION LOSE THEIR COMMUNITY STATUS AND MAY NO LONGER BE REIMPORTED INTO THE COMMUNITY MARKET WITHOUT PAYING THE RELEVANT IMPORT LEVY . CONSEQUENTLY, ONCE THEY HAVE LEFT THE FIRST PORT OF LOADING THE PRODUCTS ARE NO LONGER IN FREE CIRCULATION WITHIN THE COMMON MARKET .
15 IN THOSE CIRCUMSTANCES IT MUST BE HELD THAT THE DEPARTURE OF THE PRODUCTS FROM THAT PORT TO A PORT OF TRANSHIPMENT FOR THE PURPOSE OF EXPORTATION BY SEA TO A THIRD COUNTRY MAY BE EQUATED TO THE FINAL DEPARTURE OF THOSE PRODUCTS FROM THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY .
16 THE COMMISSION ARGUES THAT THE DEPARTURE OF THE PRODUCTS FROM THE TERRITORY OF THE COMMUNITY MUST BE DETERMINED ONLY BY THEIR DEPARTURE FROM THE PORT OF TRANSHIPMENT SO AS TO PREVENT CERTAIN EXPORTERS FROM PLACING PRODUCTS IN INTERMEDIATE STORAGE IN A PORT OF TRANSHIPMENT SOLELY IN ORDER TO BENEFIT OVER A LONGER PERIOD FROM THE ADVANCE FIXING OF THE EXPORT REFUND AND HENCE OBTAINING AN UNJUSTIFIED ADVANTAGE OVER OTHER EXPORTERS .
17 THAT ARGUMENT CANNOT BE ACCEPTED . THE INTERPRETATION UPHELD HAS PRECISELY THE EFFECT OF OVERCOMING THE PARTICULAR DISADVANTAGES SUFFERED BY EXPORTERS LOCATED IN CERTAIN MEMBER STATES . MOREOVER, THE 60-DAY PERIOD APPLIES TO ALL EXPORTERS IRRESPECTIVE OF THE MEANS OF TRANSPORT WHICH THEY USE .
18 ON ALL THOSE GROUNDS IT MUST BE HELD THAT AS REGARDS THE PAYMENT OF EXPORT REFUNDS THE FIRST PORT OF LOADING IS TO BE REGARDED AS THE PORT FROM WHICH THE PRODUCTS LEAVE THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY FOR THE PURPOSES OF ARTICLE 9*(1 ) OF REGULATION NO 2730/79 IF THE PRODUCTS ARE TO BE TRANSHIPPED IN ANOTHER COMMUNITY PORT, WITH THE RESULT THAT NO OTHER DOCUMENT PROVING DEPARTURE FROM THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY IS NECESSARY FOR THE PURPOSES OF PAYMENT OF THE REFUND .
19 IN THIS CASE IT IS UNCONTESTED THAT THE PRODUCTS CONCERNED LEFT THE FIRST PORT OF LOADING IN IRELAND WITHIN 60 DAYS OF THE DAY OF COMPLETION OF THE CUSTOMS EXPORT FORMALITIES BEFORE SUBSEQUENT TRANSHIPMENT AND HENCE THE PAYMENTS COMPLIED WITH ARTICLE 9*(1 ) OF REGULATION NO 2730/79 .
20 IN THOSE CIRCUMSTANCES, COMMISSION DECISION NO 85/458/EEC OF 28 AUGUST 1985 ON THE CLEARANCE OF THE ACCOUNTS PRESENTED BY IRELAND IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1981, MUST BE DECLARED VOID IN SO FAR AS IT DID NOT RECOGNIZE AS CHARGEABLE TO THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND THE AMOUNT OF IRL*2*281*956.15 FOR THE PAYMENT OF EXPORT REFUNDS IN RESPECT OF EXPORTS TO THIRD COUNTRIES . IT IS THEREFORE UNNECESSARY TO CONSIDER THE OTHER ARGUMENTS PUT FORWARD BY IRELAND .

COSTS
21 UNDER ARTICLE 69*(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY' S PLEADING . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS,
THE COURT
HEREBY :
( 1 ) DECLARES THAT COMMISSION DECISION NO 85/458/EEC OF 28 AUGUST 1985 ON THE CLEARANCE OF THE ACCOUNTS PRESENTED BY IRELAND IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1981, IS VOID IN SO FAR AS IT DID NOT RECOGNIZE AS CHARGEABLE TO THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND THE AMOUNT OF IRL*2*281*956.15 FOR THE PAYMENT OF EXPORT REFUNDS IN RESPECT OF EXPORTS TO THIRD COUNTRIES;
( 2 ) ORDERS THE COMMISSION TO PAY THE COSTS .