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

The relevant provisions

(1) Without prejudice to paragraph 2, C sugar not carried forward pursuant to Article 27, C isoglucose and C inulin syrup may not be disposed of on the Community's internal market and must be exported in the natural state before 1 January following the end of the marketing year in question.

Articles 8, 9, 17 and 20 shall not apply to this sugar, and Articles 9, 17 and 20 shall not apply to this isoglucose or this inulin syrup.

(2) Exceptionally, and to the extent necessary to guarantee the Community's sugar supplies, it may be decided that Article 20 shall apply to C sugar. In that event it shall be decided at the same time that the entire quantity of the C sugar in question may finally be disposed of on the internal market without the amount laid down in paragraph 3 being levied.

(3) Detailed rules for the application of this Article shall be adopted in accordance with the procedure laid down in Article 41.

These rules shall provide in particular for the levying of a charge on the C sugar, C isoglucose and C inulin syrup referred to in paragraph 1 in respect of which proof of its export in the natural state within the prescribed period was not furnished at a date to be determined.

(1) The products referred to in Article 26(1) of Regulation (EEC) No 1785/81 shall be considered to have been exported if:

(a) without prejudice to the other provisions of this Regulation, the proof referred to in Article 2 is in the possession of the competent agency of the Member State of production, whichever the Member State of export of the C sugar, C isoglucose or C inulin syrup may have been;

(b) the export declaration in question is accepted by the Member State of export before 1 January following the end of the marketing year during which the C sugar, C isoglucose or C inulin syrup was produced;

(c) the C sugar, C isoglucose or C inulin syrup or a corresponding quantity within the meaning of Article 2(3) has left the customs territory of the Community not later than 60 days after the 1 January referred to in point (b);

(d) the product has been exported without either refund or levy as white sugar or raw sugar that has not been denatured or as syrups obtained prior to sugar in solid form and falling within CN codes 1702 60 90 and 1702 90 99, such as isoglucose in its natural state or inulin syrup in its natural state.

Except in cases of force majeure, if any of the conditions provided for in the first subparagraph are not fulfilled, the quantity of C sugar, C isoglucose or C inulin syrup concerned shall be considered to have been disposed of on the internal market.

...

(a) an export licence issued pursuant to Article 3 of Commission Regulation (EEC) No 2630/81 of 10 September 1981 laying down special detailed rules for application of the system of import and export licences in the sugar sector (OJ 1981 L 258, p. 16) to the manufacturer by the competent agency of the Member State referred to ...;

(b) the documents referred to in Articles 30 and 31 of Regulation (EEC) No 3183/80 required for the release of the security;

(c) a statement by the manufacturer to the effect that the C sugar, C isoglucose or C inulin syrup was produced by him.

The Member State concerned shall levy on quantities which, within the meaning of Article 1(1), have been disposed of on the internal market, a charge for C sugar per 100 kilograms of white or raw sugar as appropriate ... equal to the sum of:

- the highest import charges applicable to the product concerned during the period comprising the marketing year during which the C sugar ... concerned was produced and the six months following that marketing year

and

- ECU 1.21.

(1) For C sugar, C isoglucose and C inulin syrup produced for export in accordance with Article 26(1) of Regulation (EEC) No 1785/81, Section 20 of the licence application and of the licence shall contain at least one of the following indications:

...

- for export under Article 26(1) of Regulation (EEC) No 1785/81

...

(2) Section 22 of the licence shall contain at least one of the following indications:

...

- for export without refund or levy . . . (quantity for which the licence is issued) kg

...

(3) Paragraph 1 shall not apply to C sugar when, in accordance with Article 26(2) of Regulation (EEC) No 1785/81, it is subject to the export levy referred to in Article 20 of that Regulation.

(4) Article 8(4) of Regulation (EEC) No 3719/88 shall not apply to the export licences for C sugar, C isoglucose and C inulin syrup.

An export licence for C sugar, C isoglucose and C inulin syrup may be issued only after the manufacturer in question has provided the competent body with proof that the quantity for which the licence is requested, or an equivalent quantity, has actually been produced in excess of the A and B quotas of the undertaking concerned ....

The import or export licence shall constitute authorisation and give rise to an obligation respectively to import or to export under the licence, and, except in case of force majeure, during its period of validity, the specified quantity of the relevant product ....

Extracts from licences or certificates shall have the same legal effects as the licences or certificates from which they are extracted, within the limits of the quantity in respect of which such extracts are issued.

(1) On application by the titular holder of the licence or certificate or by the transferee, and on submission of copy No 1 of the document, one or more extracts therefrom may be issued by the competent agencies of Member States.

...

The agency issuing the extract shall, on copy No 1 of the licence or certificate, attribute the quantity for which the extract has been issued, increased by the relevant tolerance. The word extract shall be entered beside the attributed quantity shown on copy No 1 of the licence or certificate.

(2) No further extract may be made from an extract of a licence or certificate.

...

For the purpose of determining their period of validity, licences or certificates shall be considered to have been issued on the day on which the application for them was lodged, that day being included in the calculation of such period of validity.

Copy No 1 of the licence or certificate shall be submitted to the office where:

...

(b) in the case of an export licence or of a certificate of advance fixing of the refund, the declaration relating to: - export from the Community [is accepted]

...

(1) Entries made on licences, certificates or extracts may not be altered after their issue.

(2) Where the accuracy of entries on the licence, certificate or extract is in doubt, such licence, certificate or extract shall, on the initiative of the party concerned or of the competent authorities of the Member State concerned, be returned to the issuing agency.

If the issuing agency considers a correction to be required, it shall withdraw the extract or the licence or certificate as well as any extracts previously issued and shall issue without delay either a corrected extract or a corrected licence or certificate and the corrected extracts corresponding thereto. On such further documents, which shall include the entry licence (or certificate) corrected on ... or extracts corrected on ..., the former attributions shall be reproduced, as appropriate, on each copy.

Where the issuing agency does not consider it necessary to correct the licence or certificate or the extract, it shall enter thereon the endorsement verified on ... in accordance with Article 24 of Regulation (EEC) No 3719/88 and apply its stamp.

Whereas, in the interest of sound administration, licences or certificates and extracts therefrom may not be amended after issue; whereas, however, in cases of doubt relating to an error attributable to the issuing agency or to obvious inaccuracies and concerning the items appearing on the licence or certificate or extract, a procedure should be introduced whereby inaccurate licences or certificates or extracts may be withdrawn and corrected documents issued.

Article 30

(1) Fulfilment of a primary requirement shall be shown by production of proof:

...

(b) for exports, of acceptance of the declaration referred to in Article 22(1)(b) relating to the product concerned; furthermore:

(i) in the case of either export from the customs territory of the Community, or supplies treated as exports within the meaning of Article 34 of Regulation (EEC) No 3665/87, proof shall be required that the product has, within 60 days from the day of acceptance of the export declaration, unless prevented by force majeure, as the case may be, either, in the case of supplies treated as exports, reached its destination or, in other cases, left the customs territory of the Community ...

...

Article 31

(1) The proof required under Article 30 shall be furnished as follows:

...

(b) in cases as referred to in Article 30(1)(b) and (2) and subject to the provisions of paragraph 2, by production of copy No 1 of the licence or certificate and, where appropriate, of copy No 1 of the extract or extracts of the licence or certificate, endorsed as provided for in Article 22 or Article 23.

(2) Furthermore, in the case of export from the Community or of supplies to a destination specified in Article 34 of Regulation (EEC) No 3665/87 or the placing of products under the arrangements provided for in Article 38 of that Regulation, additional proof shall be required.

Such additional proof:

(a) shall be left to the choice of the Member State concerned where the following operations take place within that Member State:

(i) the licence or certificate is issued; and

(ii) the declaration referred to in Article 22(1)(b) is accepted; and

(iii) the product ...: - leaves the customs territory of the Community ...

...

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

The first shipment at issue

The second shipment at issue

Following the third extract, there were a further 57 extracts taken from the head licence which extinguished the quantity thereon. On 11 September 1997, [British Sugar] was issued with an extract for 298.2 tonnes (the 46th extract and the amount for which [it] applied). Though one consignment of 140 tonnes was shipped under this extract on 10 October 1997 (i.e before the last day of validity of the head licence and extract), a second consignment of 158.2 tonnes was not exported until 3 December 1997 (i.e 3 days after the last day of validity of the head licence and extract).

Customs, acting as the Respondent's agent, attributed the licence extract with 158.2T and One hundred and fifty-eight thousand, two hundred kilograms (i.e. 158.2 tonnes) by placing its stamp and signature on it.

A Form C88 in respect of this consignment of 298.2 tonnes was endorsed by Customs by its stamp in the top right-hand corner and, on the reverse, on the right-hand side half way down and in the bottom right-hand corner. Customs also ticked box A1 on the reverse, marked Satisfied that the goods specified have left the UK ... for export to a non-member country.

Levying of the charge payable pursuant to Article 3(1) of Regulation No 2670/81

(1) In circumstances where:

(a) a trader has exported a quantity of C sugar which exceeds the amount for which export was authorised by the licence concerned; and/or

(b) a trader has exported C sugar after the expiry of the validity of the licence authorising the said export; and

(c) even if, as a matter of fact, the relevant C sugar left the Customs territory of the Community;

has the proof required by the first indent of Article 2(2) of Regulation No 2670/81 been furnished in relation to that export, or that element of the relevant export, which was not covered by a valid licence?

(2) In the circumstances described in paragraph 1(a) above, is the answer to the above question different in circumstances where:

(a) the trader presented to the customs authority a customs declaration form (C88) amended in manuscript to reflect the amount actually exported; and

(b) the customs authority has endorsed the relevant licence extract against the trader's entry in the actual amount exported?

(3) Is the answer to question 1 above different on the assumption that the circumstances were as follows:

(a) the trader intended to apply for an extract for 2 900 tonnes;.

(b) owing to an error on the part of the trader, a licence extract was issued for 2.9 tonnes and this [sic] 2.9 tonnes was [sic] recorded in the records of both the Intervention Board and the trader;

(c) the licence extract was attributed, with the authority of the trader, by the trader's agent, accurately to record the trader's intention of exporting 2 900 tonnes;

(d) that licence extract was subsequently endorsed by H.M. Customs & Excise to certify the export of 2 900 tonnes of sugar;

(e) the sugar was subject to a Form C88 export licence for 2 900 tonnes, which was subsequently attributed and endorsed by H.M. Customs & Excise;

(f) 2 900 tonnes of sugar were in fact exported;

(g) licence extracts were subsequently applied for, and granted, on the basis that only 2.9 tonnes had earlier been authorised for export;

(h) each subsequent licence extract was duly attributed and endorsed and all sugar tonnages so noted were in fact exported;

(i) in the result, 2 897.1 tonnes of sugar were exported in excess of the volume authorised in the original licence?

(4) Does Article 24 of Regulation No 3719/88 enable the competent authority to withdraw the extract or the licence or certificate as well as any extracts previously issued and require the competent authority to issue without delay a corrected licence or extract or any attribution thereto in circumstances where:

(a) there is no obvious or manifest error on the face of the licence or extract itself and where there has been no error on the part of the issuing agency; and/or

(b) the amendment is sought to be made after the expiry of the validity of the relevant extract or head licence?

(c) does it make a difference if the trader intended to apply for a licence extract (from a licence already issued) in respect of a quantity greater than that for which he called off [sic]?

(5) If the answers to the above questions are negative, do the provisions of Article 24 of Commission Regulation 3719/88 infringe the Community law principles of proportionality and/or equality in that the absence of any power to amend the head licence, licence extract or attributes thereto may, in the circumstances referred to above, lead to the imposition of a fine under Article 3 of Commission Regulation No 2670/81?

(6) (a) Does the national court and/or the national authority have a discretion to vary (downwards) the amount of the penalty to be imposed under Article 3 of Commission Regulation No 2670/81?

(b) If so, are there any factors in this case which the Court regards as relevant to the exercise of that discretion?

(7) In the circumstances referred to in paragraphs 33 to 35 above [reproduced in paragraph 38 above], is a penalty under Article 3 of Regulation No 2670/81 properly levied?

Consideration of the first three questions

Consideration of the fourth question

Consideration of the fifth question

Consideration of the sixth question

Concerning the seventh question

Costs