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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Fleischkontor Moksel GmbH v Hauptzollamt Hamburg-Jonas [2012] EUECJ C-608/10 (12 July 2012)
URL: http://www.bailii.org/eu/cases/EUECJ/2012/C60810.html
Cite as: [2012] EUECJ C-608/10
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JUDGMENT OF THE COURT (First Chamber)
12 July 2012 (*)
(Agriculture - Export refunds - Incorrect indication of the exporter in the export declaration - National legislation making entitlement to an export refund subject to the entry of the applicant as the exporter in the export declaration - Correction of the export declaration after the goods have been released)
In Joined Cases C-608/10, C-10/11 and C-23/11,
REFERENCES for a preliminary ruling under Article 267 TFEU from the Finanzgericht Hamburg (Germany), made by decisions of 9 November 2010, received at the Court on 24 December 2010 and on 10 and 17 January 2011 respectively, in the proceedings
Südzucker AG (C-608/10),
WEGO Landwirtschaftliche Schlachtstellen GmbH (C-10/11),
Fleischkontor Moksel GmbH (C-23/11)
v
Hauptzollamt Hamburg-Jonas,
THE COURT (First Chamber),
composed of A. Tizzano, President of the Chamber, M. Safjan, E. Levits, J.-J. Kasel and M. Berger (Rapporteur), Judges,
Advocate General: J. Mazák,
Registrar: C. Strömholm, Administrator,
having regard to the written procedure and further to the hearing on 2 February 2012,
after considering the observations submitted on behalf of:
- Südzucker AG and WEGO Landwirtschaftliche Schlachtstellen GmbH, by L. Harings and K. Steinke, Rechtsanwälte,
- Fleischkontor Moksel GmbH, by S. Schubert, Rechtsanwalt,
- Hauptzollamt Hamburg-Jonas, by T. Peters, acting as Agent,
- the European Commission, by B. Schima, B. Burggraaf and G. von Rintelen, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 These references for a preliminary ruling concern the interpretation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Customs Code’) and of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11), as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001 (OJ 2001 L 14, p. 22) (‘Regulation No 800/1999’).
2 The references have been made in proceedings between, on the one hand, Südzucker AG (‘Südzucker’), WEGO Landwirtschaftliche Schlachtstellen GmbH (‘WEGO’) and Fleischkontor Moksel GmbH (‘Moksel’), companies established in Germany, and, on the other hand, Hauptzollamt (Principal Customs Office) Hamburg-Jonas concerning requests for reimbursement of export refunds.
Legal context
European Union law
3 Article 2(1)(i) of Regulation No 800/1999 defines ‘exporter’ within the meaning of that regulation as follows:
‘For the purposes of this Regulation:
...
(i) “exporter” means the natural or legal person who is entitled to the refund. Where an export licence with advance fixing of the refund must or may be used, the holder or, where appropriate, the transferee of the licence shall be entitled to the refund. The exporter for customs purposes may be different from the exporter within the meaning of this Regulation ...;
...’.
4 Article 5 of that regulation states:
‘1 “Day of export” means the day on which the customs authorities accept the export declaration stating that a refund is to be applied for.
...
4. The document used on export to qualify for a refund shall include all information necessary to calculate the refund …
...
7 All persons exporting products for which they claim a refund shall be required to:
(a) lodge the export declaration with the competent customs office in the place in which the products are to be loaded for transport for exportation;
(b) inform that customs office at least 24 hours prior to commencement of the loading operations and indicate the anticipated duration of loading. ...
...
The competent customs office shall be enabled to make physical checks and identify the goods for transport to the office of exit from the customs territory of the Community.
...’.
5 Article 1 of Commission Regulation (EC) No 3122/94 of 20 December 1994 laying down criteria for risk analysis as regards agricultural products receiving refunds (OJ 1994 L 300, p. 31) provides:
‘The aim of risk analysis shall be to enable the targeting of physical checks on those products, individuals and legal entities and sectors presenting the greatest risk. It shall therefore identify the risks involved and assess the level of those risks in order to permit the selection of goods to be physically checked.
Where … the Member States use risk analysis, they may notably rely on a certain number of the following criteria to select the export declarations relating to products to be physically checked:
...
4. as regards the exporters:
- their reputation and trustworthiness,
- their financial position,
- the appearance of new exporters,
- exports without any immediately apparent economic justification,
- previous disputes, in particular cases of fraud;
...’
6 The second subparagraph of Article 24(1) of Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 2000 L 152, p. 1) provides:
‘Without prejudice to Article 2(1)(i) of Regulation … No 800/1999, the customs declaration must be made by the titular holder or, where applicable, the transferee of the licence or certificate, or their representative within the meaning of Article 5(2) of Regulation … No 2913/92.’
7 Article 4(5) of the Customs Code defines ‘decision’ as follows:
‘“Decision” means any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons; …’.
8 Article 5 of that Code states:
‘1. Under the conditions set out in Article 64(2) …, any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid down by customs rules.
2. Such representation may be:
- direct, in which case the representative shall act in the name of and on behalf of another person, or
- indirect, in which case the representative shall act in his own name but on behalf of another person.
...
4. A representative must state that he is acting on behalf of the person represented, specify whether the representation is direct or indirect and be empowered to act as a representative.
A person who fails to state that he is acting in the name of or on behalf of another person or who states that he is acting in the name of or on behalf of another person without being empowered to do so shall be deemed to be acting in his own name and on his own behalf.
…’.
9 Article 6 of that Code provides:
‘1. Where a person requests that the customs authorities take a decision relating to the application of customs rules, that person shall supply all the information and documents required by those authorities in order to take a decision.
2. Such decision shall be taken and notified to the applicant at the earliest opportunity.
Where a request for a decision is made in writing, the decision … must be notified in writing to the applicant.
...’ .
10 Under Article 10 of the Customs Code:
‘[The provisions of the Customs Code] shall be without prejudice to national rules which stipulate that decisions are invalid or become null and void for reasons unconnected with customs legislation.’
11 Article 68 of the Customs Code is worded as follows:
‘For the verification of declarations which they have accepted, the customs authorities may:
(a) examine the documents covering the declaration and the documents accompanying it. The customs authorities may require the declarant to present other documents for the purpose of verifying the accuracy of the particulars contained in the declaration;
(b) examine the goods and take samples for analysis or for detailed examination.’
12 Article 73(1) of that Code provides:
‘…the customs authorities shall release the goods as soon as the particulars in the declaration have been verified or accepted without verification. …’.
13 Article 78 of the Customs Code, entitled ‘Post-clearance examination of declarations’, provides:
‘1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods.
...
3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’
German law
14 The German Regulation on Export Refunds (Ausfuhrerstattungsverordnung) of 24 May 1996 (BGBl. 1996 I, p. 766), as amended by the first amending regulation of 27 July 2000 (BGBl. 2000 I, p. 1233), provides in Paragraph 15, entitled ‘Applicant and application’:
‘The application for a refund can be made only…
1. … by the person whose name is given for refund purposes in box 2 of the export declaration; or
2. by the person who lodged the payment declaration… .’
The disputes in the main proceedings and the questions referred for a preliminary ruling
Case C-608/10
15 By an export declaration of 31 January 2005, Südzucker declared sugar for export to Switzerland to the Hauptzollamt Heilbronn, submitting to the latter an export licence issued in its name. In box 2 of that declaration, August Toepfer & Co. KG (‘Toepfer’) was indicated as ‘consignor/exporter’. In its refund application of 26 April 2005, Südzucker stated that, as a result of an unintentional error, Toepfer’s name had been entered as exporter in that box and that in reality the exporter of the goods was not Toepfer but itself, Südzucker.
16 By decision of 30 May 2005, the Hauptzollamt Hamburg-Jonas refused Südzucker’s application for an export refund on the ground that, under Paragraph 15 of the Regulation on Export Refunds, as amended, referred to in paragraph 14 of the present judgment, such an application could be made only by the person indicated in box 2 of the export declaration.
17 Following unsuccessful objection proceedings, Südzucker brought an action on 28 August 2007 before the referring court by which it sought an order requiring the Hauptzollamt Hamburg-Jonas to grant it the export refund in accordance with its application of 26 April 2005. The Hauptzollamt Hamburg-Jonas contends that the action should be dismissed.
18 In those circumstances, the Finanzgericht Hamburg decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is the holder of an export licence entitled to the export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office (Article 5(7) of Regulation No 800/1999)?
(2) If the answer to the first question is in the affirmative:
Does Article 78(1) and (3) of the … Customs Code allow post-clearance revision of the export declaration in order to change the exporter in box 2 of the export declaration, and are the customs authorities obliged in a case such as that in the main proceedings to regularise the situation and to grant the export refund?
(3) If the answer to the second question is in the affirmative:
Can the customs authorities directly regularise the situation described in Article 78(3) of the … Customs Code in such a way that the exporter can be granted the export refund, without the need for prior correction of the export declaration?’
Case C-10/11
19 During the months of February and March 1993, WEGO placed 956 boxes of frozen beef for export to Egypt in customs warehousing with a view to obtaining an export refund payable in advance. In accordance with its request, by decisions of 26 March 1993 and 1 April 1993, the Hauptzollamt Hamburg-Jonas granted advance payment of a sum corresponding to an export refund of DEM 92 764. 85.
20 On 7 April 1993, the company IKS Versmold, with its registered office in Versmold (Germany), at the request of and on behalf of WEGO, declared to the Hauptzollamt Bielefeld 833 boxes of frozen beef from the abovementioned stocks for export to Iraq, providing that Hauptzollamt with the T5 control copy. In that form, Westfleisch Vieh- und Fleischzentrale Westfalen eG (‘Westfleisch’), established in Münster (Germany), was designated as ‘consignor/exporter’. Westfleisch was the holder of an export licence for the export of meat to Iraq. The Hauptzollamt Bielefeld undertook the customs clearance of the goods declared, as applied for. On 8 April 1993 the goods were exported.
21 By letter of 8 March 1994, sent to the Hauptzollamt Hamburg-Jonas via the Hauptzollamt Bielefeld, Westfleisch indicated that it had made a mistake when filling in box 2 of that form and that WEGO ought to appear there. The Hauptzollamt Bielefeld accepted that correction on 9 March 1994, which, however, was not immediately communicated to WEGO. On 17 March 1994 the Hauptzollamt Hamburg-Jonas released the securities provided by WEGO.
22 By decision of 10 December 1997, the Hauptzollamt Hamburg-Jonas requested repayment of the export refund in question and, by decision of 27 August 2008, it rejected the complaint lodged by WEGO against that demand for repayment. It took the view that only the person expressly named as exporter in box 2 of the export declaration was entitled to an export refund. The subsequent correction made by the Hauptzollamt Bielefeld, it stated, made no difference, as the office which was competent to make the refund was not bound by the amendment made by a customs office of export.
23 On 29 September 2008, WEGO brought an action before the referring court by which it challenged that latter decision ands sought annulment of the request for repayment. The Hauptzollamt Hamburg-Jonas contends that the action should be dismissed.
24 In those circumstances, the Finanzgericht Hamburg decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Is the Principal Customs Office responsible for paying a refund bound by the subsequent amendment made by the customs office of export to the information entered in box 2 of the export declaration or in the T5 control copy?’
Case C-23/11
25 By a payment declaration of 8 November 2001, Moksel, represented by Nordfrost Kühl- und Lagerhaus GmbH & Co. KG (‘Nordfrost’), established in Germany, placed 546 boxes of frozen beef intended for export to Russia with the Hauptzollamt Itzehoe in customs warehousing with a view to obtaining an export refund. In accordance with its request, by decision of 11 February 2002, the Hauptzollamt Hamburg-Jonas granted Moksel an advance payment by way of export refund in the amount of EUR 9 840.95.
26 On 27 December 2001, Nordfrost registered with the Hauptzollamt Itzehoe, on behalf of and as the agent of Fleischkontor Moksel GmbH (‘Moksel-Regensburg’), established in Regensburg (Germany), 544 boxes of frozen beef for export to Russia. In box 40 of the export declaration, headed ‘Summary declaration/previous document’, reference was made to Moksel’s placing of goods under the customs warehousing procedure with a view to a refund, and, in box 2 of that declaration, Moksel-Regensburg was designated as exporter. Box 44 of that declaration, headed ‘Additional information, documents produced, certificates and authorisations’, refers to an export licence, the holder of which is Moksel. The Hauptzollamt Itzehoe accepted the export declaration in question and the goods were exported on 12 January 2002.
27 By letter of 1 July 2002, Nordfrost wrote to the Hauptzollamt Itzehoe to inform it that the reference to the placing of goods under the customs warehousing procedure with a view to a refund in Moksel’s name had been written in error in the export declaration. It stated there that those goods entered had been placed in storage under Moksel’s name and should have been taken out of storage under the same name. On 4 July 2002, the Hauptzollamt Itzehoe confirmed that ‘amendment’ of the export declaration and on the same date sent to the Hauptzollamt Hamburg-Jonas an ‘amendment of a customs declaration’, stating, inter alia: ‘Amendment: Reference is made to Nordfrost’s letter of amendment … of 1 July 2002.’
28 By decision of 6 January 2003 the Hauptzollamt Hamburg-Jonas requested repayment of the export refund which had been paid in advance to Moksel, together with a supplement of 15%, in a total amount of EUR 11 273.84, on the ground that Moksel had not adduced proof, in the form of an export declaration, that the goods which it had placed under the customs warehousing procedure had left the customs territory of the European Union. The export declaration in question could not be accepted as proof of exportation, as it had been submitted in the name of Moksel-Regensburg.
29 Following unsuccessful objection proceedings, Moksel brought an action before the referring court. The Hauptzollamt Hamburg-Jonas contends that the action should be dismissed.
30 In those circumstances, the Finanzgericht Hamburg decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is the holder of an export licence entitled to an export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office (Article 5(7) of Regulation No 800/1999)?
(2) If Question 1 is answered in the affirmative:
Is the Principal Customs Office which is responsible for paying the refund bound by the subsequent amendment made by the customs office of export to the information entered in box 2 of the export declaration?
(3) If Question 2 is answered in the negative:
Is the office responsible for paying the refund entitled, in a case such as that of the dispute in the main proceedings, to take at face value the words in box 2 of the export declaration and to refuse an application for an export refund on the ground that the applicant for the refund is not the exporter of the goods covered by that application, or is the responsible office obliged, when there is a contradiction between the description of the exporter in box 2 of the export declaration and the previous document to which reference is made in box 40 and/or the holder of the export licence registered in box 44, to consult the applicant for a refund on that point and, if necessary, to amend of its own motion the words in box 2 of the export declaration?’
31 By order of the President of the Court of 10 March 2011, Cases C-608/10, C-10/11 and C-23/11 were joined for the purposes of the written and oral procedure and the judgment.
The questions referred for a preliminary ruling
The first questions in Cases C-608/10 and C-23/11
32 By its first questions in Cases C-608/10 and C-23/11, which are drafted in identical terms, the referring court asks, in essence, whether Article 5(7) of Regulation No 800/1999 must be interpreted as meaning that the holder of an export licence is entitled to an export refund only if he is registered as exporter in box 2 of the customs declaration lodged with the competent customs office.
33 In order for a useful answer to be given to those questions, it is necessary to clarify, first of all, which trader must be regarded as being the ‘exporter’ for the purposes of Regulation No 800/1999. Secondly, it is necessary to determine the relevance of the fact that the name of the exporter thus identified was or was not listed as such in the export declaration.
34 As regards, firstly, the concept of ‘exporter’ within the meaning of Regulation No 800/1999, it is necessary to point out that this is defined in Article 2(1)(i) of that regulation as being ‘the natural or legal person who is entitled to the refund’. According to settled case-law, that definition, which makes no express reference to the law of the Member States, must be interpreted autonomously (see, to that effect, judgment in Case C-98/07 Nordania Finans and BG Factoring [2008] ECR I-1281, paragraph 17 and the case-law cited).
35 Furthermore, Article 2(1)(i) of Regulation No 800/1999 provides that ‘[w]here an export licence with advance fixing of the refund must or may be used, the holder … of the licence shall be entitled to the refund’ and that the ‘exporter for customs purposes may be different from the exporter within the meaning of [Regulation No 800/1999].’
36 It follows that the question whether a person must be regarded as the exporter for the purposes of Regulation No 800/1999 does not depend on the fact that the person was or was not named in a given box of the export declaration. In other words, the person who is entitled to an export refund, that is, where appropriate, the holder of an export licence, must be considered to be the ‘exporter’ for the purposes of that regulation, even if the name of another person is written in that box, which appears to be the case in the disputes in the main proceedings.
37 Secondly, under Article 5(7)(a) of Regulation No 800/1999, the exporter is also required, in order to qualify for payment of an export refund, to ‘lodge the export declaration with the competent customs office in the place in which the products are to be loaded for transport for exportation.’ Furthermore, the second subparagraph of Article 24(1) of Regulation No 1291/2000 expressly provides that, ‘[w]ithout prejudice to Article 2(1)(i) of Regulation … No 800/1999, the customs declaration must be made by the titular holder or, where applicable, the transferee of the licence or certificate, or their representative within the meaning of Article 5(2) of [the Customs Code].’
38 The export declaration in which, under Article 5(1) of Regulation No 800/1999, it is stated that an export refund is to be applied for must, therefore, be lodged by the exporter himself or through a representative within the terms of Article 5(2) of the Customs Code. In the latter case, the representative is required, under Article 5(4), to state that he is acting on behalf of the person represented.
39 That obligation seeks, in particular, to ensure that the customs authorities may carry out a relevant risk analysis when they decide, on a case-by-case basis, whether or not they will carry out a physical check on the products declared for export. That analysis concerns in particular, under Article 1 of Regulation No 3122/94, the person of the exporter. Therefore, in order to guarantee the effectiveness of the legislation in question and not to thwart such a risk analysis, it is imperative that, when accepting the export declaration, the customs authorities are aware of the exporter’s real identity.
40 It follows that the exporter, within the meaning of Article 2(1)(i) of Regulation No 800/1999, must be clearly identifiable from the export declaration, in the sense that his name must be written in the box provided for that purpose. If the actual exporter is not referred to there, he cannot, in principle, claim payment of the export refund.
41 In that regard, it is necessary to add that the customs authorities are not obliged to examine, let alone interpret, an export declaration in order to determine whether it appears from all of the information contained in that declaration, in particular the identity of the holder of the export licence, that the person referred to as being the exporter in that declaration was mentioned by mistake.
42 It follows from Article 68 of the Customs Code, read in conjunction with Article 73(1) of that Code, that customs authorities are not obliged to verify the particulars contained in a declaration. Moreover, as the Hauptzollamt Hamburg-Jonas rightly pointed out, the export of goods which receive export refunds is of enormous dimensions. Therefore, at the time when they actually analyse the risks linked to a given instance of exportation, namely when they are informed of the commencement of loading operations under Article 5(7)(b) of Regulation No 800/1999, the customs authorities generally do not yet have all of the documents in the file and must carry out their risk analysis in a very short space of time. In those circumstances, the view cannot be taken that the customs authorities are obliged to examine closely the entries made in an export declaration in order to detect, as the case may be, possible contradictions between those entries.
43 Moreover, and contrary to what Südzucker and WEGO claimed during the hearing, Article 5(7)(a) of Regulation No 800/1999 and the second subparagraph of Article 24(1) of Regulation No 1291/2000, which seek to ensure the efficiency of physical checks carried out by the customs authorities, do not merely create ‘secondary’ obligations, the infringement of which gives rise only to less strict penalties than those provided for in the case of failure to comply with a principal obligation. On the contrary, according to settled case-law, those checks are necessary so that the objectives of the European Union legislation on export refunds may be fulfilled (see, to that effect, judgment in Case C-77/08 Dachsberger & Söhne [2009] ECR I-2097, paragraph 41 and the case-law cited).
44 In the light of the foregoing, the answer to the first questions in Cases C-608/10 and C-23/11 is that Article 5(7) of Regulation No 800/1999 must be interpreted as meaning that, in principle, the holder of an export licence is entitled to an export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office.
The second question in Case C-608/10
45 By its second question in Case C-608/10, the referring court asks, in essence, whether Article 78(1) and (3) of the Customs Code allows, for the purpose of refunds, post-clearance revision of the export declaration in order to change the name of the exporter featuring in the box provided for that purpose, and whether the customs authorities are obliged, in a case such as that in the main proceedings, to regularise the situation and to grant the export refund to the exporter.
46 In this regard, it is necessary to note, firstly, that Regulation No 800/1999 does not contain any provision concerning the possibility of a post-clearance amendment of an export declaration, that is to say, after goods have been released. However, the Court has already held that exportation, for the purposes of that regulation, is a customs procedure and that, in essence, the general provisions of the Customs Code apply to all export declarations relating to goods qualifying for export refunds, without prejudice to special rules (see judgment in Case C-353/04 Nowaco Germany [2006] ECR I-7357, paragraphs 45 to 47). The provision applicable to the facts in the main proceedings is therefore Article 78 of the Customs Code, concerning the post-clearance examination of declarations.
47 Secondly, with regard to the scope of that latter provision, the Court has already stated that its logic is to bring the customs procedure into line with the actual situation (judgment in Joined Cases C-430/08 and C-431/08 Terex Equipment and Others [2010] ECR I-321, paragraph 56). Moreover, that provision does not make a distinction between errors or omissions which are capable of correction and others which are not (see judgment in Case C-468/03 Overland Footwear [2005] ECR I-8937, paragraph 63). It follows that Article 78(3) of the Customs Code allows, in principle, amendment of an export declaration in order to correct the name of the exporter featuring in box 2 thereof.
48 As regards the question whether the customs authorities are not only authorised to regularise the situation and to grant the requested export refund to the exporter, but are also obliged to do so, the Court has already pointed out that, when the declarant seeks a revision of its declaration, its application must be examined by those authorities, at least in relation to the question whether or not there is cause to carry out such a revision, and that the revision applied for by the declarant is thus subject to the assessment of the customs authorities as regards both its principle and its result (see Terex Equipment and Others, paragraph 58 and the case-law cited). Those authorities thus enjoy broad discretion.
49 The Court has also stated that, in making that first assessment, the customs authorities are to take into account, in particular, the possibility of reviewing the statements contained in the declaration to be revised and in the application for revision. If revision is in principle possible, the customs authorities must either reject the declarant’s application by reasoned decision or carry out the revision applied for (see Terex Equipment and Others, paragraphs 59 and 60 and the case-law cited).
50 It is, however, necessary to add in that regard that the mere fact that the goods, at the time when the request for revision of the export declaration is submitted, have already left the territory of the European Union and that a physical check of those goods prior to their being exported has therefore become impossible, does not allow the conclusion to be drawn that revision of the export declaration in question is not possible. Although it is necessary, in principle, as has been stated in paragraph 43 of the present judgment, that physical checks should be carried out on a portion of the goods which are exported outside of the European Union in order that the objectives of the European Union legislation on export refunds may be fulfilled, the absence of such a check in a specific case does not necessarily prevent those objectives from being none the less fulfilled, taking account of the particular circumstances of that case.
51 The Court has thus held that, if the revision of an export declaration indicates that the objectives of the customs procedure in question are not threatened, in particular in that the goods covered by that customs procedure have actually been exported, this being a matter for the applicant to establish, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the new information available to them, even if the declarant, by his conduct, has directly affected the ability of the customs authorities to carry out controls (see, to that effect, Terex Equipment and Others, paragraphs 46 and 62).
52 The answer to the second question in Case C-608/10 is therefore that Article 78(1) and (3) of the Customs Code must be interpreted as allowing a post-clearance revision of the export declaration for the purpose of refunds, in order to change the name of the exporter featuring in the box provided for that purpose, and as meaning that the customs authorities are required:
- firstly, to examine whether a revision of that declaration must be considered to be possible in that, in particular, the objectives of the European Union legislation as regards export refunds have not been threatened and the goods in question have in fact been exported, this being a matter for the applicant to establish, as well as;
- secondly, where relevant, to take the measures necessary to regularise the situation, taking account of the new information available to them.
The third question in Case C-608/10
53 By its third question in Case C-608/10, the referring court asks, in essence, whether Article 5(7) of Regulation No 800/1999 and the customs legislation of the European Union must be interpreted as meaning that the customs authorities, in a case such as that in the main proceedings, in which the holder of an export licence has not been entered as the exporter in box 2 of the export declaration, may grant that export licence holder the export refund without prior correction of the export declaration.
54 In that regard, it must be borne in mind that the exporter, as is apparent from paragraph 40 of the present judgment, cannot, in principle, claim payment of the export refund if he is not mentioned in the appropriate box on the export declaration. However, as has been stated in paragraph 52 of the present judgment, even after granting clearance of the goods, the competent authorities have the power to correct an export refund in respect of the identity of the exporter if it appears, in particular, that the objectives of the European Union legislation concerning export refunds have not been threatened.
55 However, as the European Commission has rightly pointed out, it is necessary that the exercise of that discretion by the customs authorities should indeed be by way of a correction to the export declaration. Such an express correction is dictated by the need to guarantee the transparency and due and proper form of the customs procedure. Moreover, this conclusion follows, at least implicitly, from the case-law of the Court (see, to that effect, judgment in Case C-54/95 Germany v Commission [1999] ECR I-35, paragraph 77, and order in Case C-446/02 Gouralnik [2004] ECR I-5841, paragraph 36).
56 The answer to the third question in Case C-608/10 is therefore that Article 5(7) of Regulation No 800/1999 and the customs legislation of the European Union must be interpreted as meaning that, in a case such as the present, in which the holder of an export licence is not registered as the exporter in box 2 of the export declaration, the customs authorities cannot grant that holder the export refund without prior correction of the export declaration.
The single question in Case C-10/11 and the second question in Case C-23/11
57 By its single question in Case C-10/11 and its second question in Case C-23/11, the referring court asks, in essence, whether the customs legislation of the European Union must be interpreted as meaning that the customs office which is responsible for paying the export refund is bound by a subsequent amendment, made by the customs office of export, to the words in box 2 of the export declaration or the T5 control copy.
58 As is apparent from the orders for reference, it is in particular the question whether the amending decisions in question were properly notified to the parties which is a matter of dispute in the main proceedings. The referring court also raises the question whether those amendments constitute ‘decisions’, within the terms of Article 4(5) of the Customs Code, which could bind the Principal Customs Office which is responsible for paying the export refund.
59 In that regard, it must be noted that neither Regulation No 800/1999 or, as regards Case C-10/11, its predecessor, 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 (OJ 1987 L 351, p. 1), nor the Customs Code contain exhaustive rules as to the substantive and formal conditions which a decision must fulfil in order to be able to produce legal effects.
60 So far as the Customs Code is concerned, Article 4(5) thereof defines the concept of ‘decision’ as ‘any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons.’ On the formal level, the second subparagraph of Article 6(2) of that Code provides, in particular, that a decision must be notified in writing to the applicant if, as in the cases in the main proceedings, the request for a decision has been made in writing.
61 However, Article 6(2) of the Customs Code does not contain any rule on the procedure for notification or, more specifically, on the procedure for issuing the written decision to the applicant, or, in particular, on the question whether a decision which has not been notified to the applicant in due and proper form remains, for that reason, devoid of legal effects.
62 Moreover, Article 10 of the Customs Code expressly provides that the provisions of that Code concerning the annulment, revocation or amendment of decisions favourable to the person concerned ‘shall be without prejudice to national rules which stipulate that decisions are invalid or become null and void for reasons unconnected with customs legislation.’ Consequently, by virtue of the principle of procedural autonomy of the Member States, it is the latter which are competent to govern those aspects of the procedure. They must, however, ensure that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice, or excessively difficult, the exercise of rights conferred by the European Union legal order (principle of effectiveness) (see, to that effect, inter alia, judgment in Case C-1/06 Bonn Fleisch [2007] ECR I-5609, paragraph 41 and the case-law cited).
63 In a case such as those in the main proceedings, in which the amending decisions were not, in any event not directly, notified to the applicants, the question whether or not those decisions constitute ‘decisions’ within the terms of Article 4(5) of the Customs Code, producing legal effects, is therefore one of national law. That assessment is consequently a matter for the referring court.
64 It is only in the case where it should transpire that the amending decisions were properly adopted and have legal effects, apart from the possibility, for the persons concerned, to bring an action against those decisions, that the question would arise as to whether those decisions are binding on the customs office responsible for paying the export refund.
65 It appears, however, from the orders for reference in Cases C-10/11 and C-23/11 that the doubts expressed by the national court in that regard concern only the case in which the amending decisions adopted by the customs offices of export might be particularly seriously and manifestly flawed, while, in the absence of such a flaw, the Principal Customs Office responsible for paying the export refund would be bound by those decisions.
66 As is apparent from the answer given to the second question in Case C-608/10, in a case such as those in the main proceedings, the customs offices of export are, in principle, empowered to apply Article 78(1) and (3) of the Customs Code and to verify an export declaration in order to correct the name of the exporter featuring therein. The considerations which led to this answer are, moreover, fully capable of being transposed to the verification and amendment of a T5 control copy when, as is the case in Case C-10/11, this is used as an export declaration for the purposes of export refunds. It therefore does not appear that the amending decisions in question are, from that angle, flawed, let alone seriously and manifestly flawed.
67 In the light of the foregoing, the answer to the single question in Case C-10/11 and to the second question in Case C-23/11 is that, in a situation such as those at issue in these cases, the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is bound by a post-clearance revision, by the customs office of export, of the reference in box 2 of the export declaration, or, as the case may be, of the T5 control copy, if the amending decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of the Customs Code and by the relevant provisions of the national law concerned. It is for the referring court to determine whether those conditions have been satisfied in the disputes in the main proceedings.
The third question in Case C-23/11
68 By its third question in Case C-23/11, the referring court seeks to ascertain, in essence, whether Article 5(7) of Regulation No 800/1999 and the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the customs refund is entitled, in a case such as that in the main proceedings, and if it is not bound under national law by the revision made by the customs office of export, to take at face value the words in box 2 of the export declaration and to refuse an application for an export refund on the ground that the party applying for that refund is not the exporter of the goods referred to by that application. That court is also uncertain as to whether that same customs office is obliged, when there is a contradiction between the designation of the exporter in box 2 of the export declaration and the previous document to which reference is made in box 40 of that declaration and/or the holder of the export licence indicated in box 44 of that declaration, to consult the party applying for the refund on that point. Finally, that court is uncertain as to whether, if necessary, that customs office must amend, of its own motion, the reference in box 2 of the export declaration.
69 In this regard, it is necessary to note that, as is stated in paragraph 64 of the present judgment, in the cases in the main proceedings, it is only in a case where the revisions made by the customs offices of export do not constitute valid decisions, this being a matter for the referring court to verify, that they are not binding on the customs office responsible for paying the export refund.
70 However, in that latter case, it is necessary to bear in mind the fact that the customs authorities did not respond to the request for amendment made by Moksel. It follows, however, from Article 6(2) of the Customs Code, as well as from paragraph 50 of the judgment in Overland Footwear, that those authorities must either reject such an application by reasoned decision or carry out the revision applied for ‘at the earliest opportunity’.
71 In that context, as is apparent from paragraph 52 of the present judgment, the customs authorities must, first, examine whether the objectives of the European Union legislation as regards export refunds have not been threatened and the goods in question have in fact been exported, and, second, as appropriate, take the measures necessary to regularise the situation, taking account of the new information available to them.
72 Consequently, the customs office responsible for paying the export refund, in a case such as that in the dispute in the main proceedings, and if it is not bound by the amendment made by the customs office of export, can take the words, amended if appropriate, set out in box 2 of the export declaration, at face value only after a decision has been taken, in due and proper form, on the request for amendment lodged by Moksel.
73 Finally, concerning the question as to which customs authority is specifically responsible for ruling on the request for amendment lodged by Moksel, it must be held that that question is a matter for national law alone.
74 Also, in this case, if the Hauptzollamt Hamburg-Jonas is empowered, under German law, to carry out a check of the export declaration and, where necessary, amend it, it must in fact rule in that respect, taking account of the considerations set out in paragraphs 45 to 52 of the present judgment, and it must notify its decision, in writing, to the applicant at the earlier opportunity.
75 If, on the other hand, the Hauptzollamt Hamburg-Jonas is not competent to carry out such a check, it is the customs office of export which must do so. The question whether that latter customs authority is bound by its own prior conduct, namely the amendment which it made to the name of the exporter, without it having been the subject of a decision notified in writing, is a question of German national law.
76 In the light of all the foregoing considerations, the answer to the third question in Case C-23/11 is that Article 5(7) of Regulation No 800/1999 and the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is not entitled, in a case such as the present, and if it is not bound under national law by the revision made by the customs office of export, to take at face value the reference in box 2 of the export declaration and to refuse an application for an export refund on the ground that the party making that application is not the exporter of the goods covered by that application. By contrast, if the competent customs office grants the application for amendment and validly rectifies the exporter’s name, the customs office responsible for paying the export refund is bound by that decision.
Costs
77 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national court, the decisions on costs are a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
1. Article 5(7) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001, must be interpreted as meaning that, in principle, the holder of an export licence is entitled to an export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office .
2. Article 78(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as allowing a post-clearance revision of the export declaration for the purpose of refunds, in order to change the name of the exporter featuring in the box provided for that purpose, and as meaning that the customs authorities are required:
- firstly, to examine whether a revision of that declaration must be considered to be possible in that, in particular, the objectives of the European Union legislation as regards export refunds have not been threatened and the goods in question have in fact been exported, this being a matter for the applicant to establish, as well as ;
- secondly, where relevant, to take the measures necessary to regularise the situation, taking account of the new information available to them.
3. Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001, and the customs legislation of the European Union must be interpreted as meaning that, in a case such as Case C-608/10, in which the holder of an export licence is not registered as the exporter in box 2 of the export declaration, the customs authorities cannot grant that holder the export refund without prior correction of the export declaration.
4. In a case such as those in Cases C-10/11 and C-23/11, the customs legislation of the European Union the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is bound by a post-clearance revision, by the customs office of export, of the reference in box 2 of the export declaration, or, as the case may be, of the T5 control copy, if the amending decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of Regulation No 2913/92 and by the relevant provisions of the national law concerned. It is for the referring court to determine whether those conditions have been satisfied in the disputes in the main proceedings.
5. Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001, and the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is not entitled, in a case such as Case C-23/11, and if it is not bound under national law by the revision made by the customs office of export, to take at face value the reference in box 2 of the export declaration and to refuse an application for an export refund on the ground that the party making that application is not the exporter of the goods covered by that application. By contrast, if the competent customs office grants the application for amendment and validly rectifies the exporter’s name, the customs office responsible for paying the export refund is bound by that decision.
[Signatures]
* Language of the cases: German.
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