OPINION OF ADVOCATE GENERAL

LÉGER

delivered on 29 September 2005 ¹(1)

Case C‑274/04

ED & F Man Sugar Ltd

v

Hauptzollamt Hamburg-Jonas

(Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany))

(Agriculture – Export refunds – Reimbursement of amounts unduly received – Sanction – Conditions for imposition – Refund requested in excess of that applicable – No challenge to the demand for repayment of export refunds – Sanction challenged)

1.        Where a claim or appeal is brought before national authorities or courts against a decision imposing a sanction, may those authorities or courts check whether the exporter requested a refund in excess of that due if the decision ordering reimbursement of the amount unduly paid has become final? If that question is answered in the negative, where the legality of the reimbursement demand is based on an interpretation of Community law which has been invalidated by the Court in a judgment delivered subsequently, should a different answer be given?

2.        Those are in essence the questions referred by the Finanzgericht (Finance Court) Hamburg (Germany) in a dispute between ED & F Man Sugar Ltd (‘the claimant’) and Hauptzollamt Hamburg-Jonas (‘the Hauptzollamt’) concerning the imposition on that company of the sanction provided for in point (a) of the first subparagraph of Article 11(1) of 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. (2)

3.        In the present case the Court is called upon to explain the conditions governing decisions imposing a sanction and how such a decision relates to a demand for reimbursement under Article 11(3) of Regulation No 3665/87.

I –  Legal framework

A –    Community law

1.      The system of export refunds for agricultural products

4.        Regulation No 3665/87 establishes common detailed rules for the application of the system of export refunds and lays down in particular the substantive and procedural rules for obtaining such subsidies.

5.        Chapter 1 (‘Entitlement to refund’) of Title 2 of that regulation sets out the conditions which economic operators must meet in order to enjoy such entitlement. Among those conditions is the one laid down in Article 3(5) of the regulation, which provides:

‘The document used for export to enable products to qualify for a refund must include all information necessary for the calculation of the amount of the refund, and in particular:

(a)      a description of the products in accordance with the nomenclature used for refunds;

(b)      the net mass of the products or, where applicable, the unit of measurement to be taken into account in calculating the refund; and,

(c)      in so far as is necessary for calculating the refund, particulars of the composition of the products or the relevant reference.

…’

6.        Where an exporter wishes to obtain an advance on the refund in the event of processing of the goods or of storage prior to export, he must submit to the customs authorities a payment declaration including the description and quantity of the basic products and the rate of yield in accordance with the second subparagraph of Article 25(2) of Regulation No 3665/87.

7.        Article 5(1) of that regulation provides:

‘Payment of the differentiated or non-differentiated refund shall be conditional not only on the product having left the customs 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 12 months following the date of acceptance of the export declaration:

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

or

(b)      where … it is possible that the product may be reintroduced into the Community.

…’

8.        Article 11 of Regulation No 3665/87 provides for a system of reimbursement and sanctions to combat more effectively irregularities and fraud found in the award of export refunds. The first, third and fifth recitals in the preamble to Regulation No 2945/94 read as follows:

‘… the Community rules provide for the granting of export refunds on the basis of solely objective criteria, in particular concerning the quantity, nature and characteristics of the product exported as well as its geographical destination; … in the light of experience, measures to combat irregularities and notably fraud prejudicial to the Community budget should be intensified; … to that end, provision should be made for the recovery of amounts unduly paid and sanctions to encourage exporters to comply with Community rules;

…

… where an exporter has supplied wrong information that wrong information could lead to an undue payment of the refund if the error is not discovered, whilst, where the error is discovered it is entirely proportional to sanction the exporter for an amount in proportion to the amount which he would have received unduly if the error would not have been discovered; … in the case where the wrong information was supplied intentionally it is equally proportional to provide for a higher sanction;

…

… past experience and irregularities and notably fraud recorded in this context show that this measure is necessary and appropriate, that it will act as an adequate deterrent and that it is to be uniformly applied throughout the Member States’.

9.        The first and second subparagraphs of Article 11(1) of Regulation No 3665/87 read as follows:

‘Where it has been found that an exporter, with a view to the granting of an export refund, has requested a refund in excess of that applicable, the refund due for the relevant exportation shall be the refund applicable to the actual exportation reduced by an amount equivalent to:

(a)      half the difference between the refund requested and the refund applicable to the actual exportation;

(b)      twice the difference between the refund requested and the refund applicable, if the exporter has intentionally supplied false information.

The refund requested is deemed to be the amount calculated from the information supplied pursuant to Article 3 or Article 25(2). Where the rate of refund varies according to destination, the differentiated part of the refund requested shall be calculated from the information supplied pursuant to Article 47.’

10.      The first subparagraph of Article 11(3) of Regulation No 3665/87 provides:

‘Without prejudice to the obligation to pay any negative amount as referred to in the fourth subparagraph of paragraph 1, where a refund is unduly paid, the beneficiary shall reimburse the amounts unduly received – which includes any sanction applicable pursuant to the first subparagraph of paragraph 1, – plus the interest calculated on the basis of the time elapsing between payment and reimbursement. …’

2.      Regulation (EC, Euratom) No 2988/95

11.      In order to combat fraud against the European Communities’ financial interests more effectively, the Council adopted Regulation (EC, Euratom) No 2988/95. (3) That regulation lays down a common set of legal rules to be enacted for all areas covered by Community policies. (4) It sets out general rules relating to administrative measures and penalties concerning irregularities with regard to Community law. (5)

12.      According to the ninth recital in the preamble to that regulation, ‘measures and penalties laid down in pursuance of the objectives of the common agricultural policy form an integral part of the aid systems … [and] pursue their own ends’.

13.      The second sentence of Article 2(1) of Regulation No 2988/95 provides that those administrative checks, measures and penalties are to be ‘effective, proportionate and dissuasive so that they provide adequate protection for the Communities’ financial interests’.

14.      In addition, Article 4(1) of that regulation provides that any irregularity is to involve withdrawal of the wrongly obtained advantage, in particular by an obligation to repay the amounts wrongly received. Article 5(1) of that regulation also lists the administrative penalties which may be imposed in the event of intentional irregularities or those caused by negligence. Those penalties include, inter alia, ‘payment of an amount greater than the amounts wrongly received’. (6)

B –    National law

15.      Paragraph 48 of the Verwaltungsverfahrensgesetz (Law on Administrative Procedure) of 25 May 1976 (7) concerns withdrawal of unlawful administrative acts. It reads as follows:

‘An unlawful administrative act may, even after it can no longer be challenged, be withdrawn either wholly or in part with prospective or retroactive effect. An administrative act by which a right or a legally significant advantage has been either conferred or confirmed (an administrative act conferring a benefit) may only be withdrawn under the conditions set out in subparagraphs 2 to 4.

...’

16.      Paragraph 51 of that law, concerning reopening of the procedure, reads as follows:

‘An administrative body shall consider an application from an individual concerned requesting that an administrative act which is no longer open to challenge be set aside or declared void, if

1.      the factual or legal circumstances on which the administrative act was based have changed in favour of the individual concerned; or

2.      new evidence has come to light which would have led to a more favourable decision for the individual concerned; or

3.      in accordance with Paragraph 580 of the Zivilprozessordnung (Rules on Civil Procedure) reasons exist to reopen the procedure’.

II –  Facts and proceedings in the main action

17.      On 12 and 13 February 1998 the claimant lodged with the competent German customs authority four declarations concerning the export to Poland of 100 tonnes of white sugar in respect of which it applied for export refunds.

18.      By four decisions of 6 April 1998, the Hauptzollamt granted the defendant export refunds amounting to DEM 84 831.16.

19.      After inquiries carried out by the Zollkriminalamt Köln (Cologne Customs Investigation Service) uncovered evidence to show that white sugar which should have been exported to Poland, the Czech Republic and Switzerland had not reached the non-Member countries of destination, the Hauptzollamt concluded, from its examination of the documents produced by the claimant as proof of arrival of the goods, that those documents did not show that the products exported to Poland had been placed in free circulation, but only that they had been placed under processing arrangements.

20.      As the claimant was unable to provide the proof that the products concerned had been imported into the non-Member country of destination required under Article 5(1)(a) of Regulation No 3665/87, by four decisions of 17 April 2000, adopted in accordance with Article 11(3) of that regulation, the Hauptzollamt demanded reimbursement of the full amount of the refunds paid. The claimant reimbursed the amount demanded and did not appeal against the reimbursement decisions, which became final. Subsequently, by four decisions of 5 June 2000, the Hauptzollamt imposed a sanction on the claimant, under point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87, of DEM 42 415.60.

21.      Following rejection by the Hauptzollamt of the administrative appeal brought by the claimant against the decisions imposing a sanction, the claimant brought an action before the Finanzgericht Hamburg, in which it submitted that those decisions of the Hauptzollamt were unlawful. It argued that their legality depended on the legality of the reimbursement decisions adopted a few weeks earlier. According to the claimant, the legality of those reimbursement decisions was called into question by the interpretation of Article 5(1)(a) of Regulation No 3665/87 given by the Court in Case C-110/99 Emsland‑Stärke, (8) delivered on 14 December 2000, after the reimbursement decisions became final. In the light of that judgment, the claimant considers that the Hauptzollamt was not entitled to demand from it the proof provided for in Article 5(1)(a) of that regulation after the export refund had been paid. It claims therefore that the demand for reimbursement is unlawful and that therefore the Hauptzollamt was not entitled to impose on it the sanction provided for in point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87.

22.      For its part, the Hauptzollamt contends that the claimant should have raised earlier the objections it is raising before the Finanzgericht Hamburg by appealing against the reimbursement decisions. As those decisions have become final it follows, in its view, that the claimant requested an export refund in excess of that applicable.

III –  The questions referred for a preliminary ruling

23.      In the light of the arguments raised by the parties in the main action, the Finanzgericht Hamburg decided to stay proceedings and refer the following two questions to the Court of Justice for a preliminary ruling:

‘1.      In an appeal against a decision imposing a sanction on the basis of the first subparagraph of Article 11(1) of Regulation No 3665/87 are national authorities and courts entitled to examine whether an exporter requested a refund in excess of that applicable if the reimbursement decision under the first subparagraph of Article 11(3) of Regulation No 3665/87 became final before the decision imposing a sanction was issued?

2.      If the first question is answered in the negative: in an action to challenge a decision imposing a sanction pursuant to the first subparagraph of Article 11(1) of Regulation No 3665/87 in the circumstances set out in [the order for reference], for the purpose of giving effect to an interpretation of Community law adopted in the meanwhile, may the question be examined whether the exporter requested an export refund in excess of that applicable?’

IV –  Assessment

A –    The scope of the questions referred for a preliminary ruling

24.      Two observations must be made in order to dispel any ambiguity with regard to the meaning and scope of the questions referred for a preliminary ruling.

25.      The first concerns the bases of the reimbursement decisions and decisions imposing a sanction adopted by the Hauptzollamt under Article 11(1) and (3) of Regulation No 3665/87. In order to provide an answer which will be useful to the national court it is necessary to consider the questions in the light of the circumstances of the dispute in the main proceedings.

26.      It is clear from the order for reference that the ground given by the Hauptzollamt for reimbursement of the export refunds was the fact that the claimant was unable to provide the proof that the sugar exported to Poland had been placed in free circulation as required by Article 5(1)(a) of Regulation No 3665/87. (9)

27.       As regards the decision imposing a sanction, it appears that the Hauptzollamt considered that the conditions for imposing a sanction were met in so far as, by not challenging the demand for reimbursement, the exporter accepted by implication that it had requested an export refund in excess of that applicable. (10) Since the referring court mentions a number of times that the exporter provided correct information in its export declarations, (11) I do not consider that the basis for the decision imposing a sanction was clearly stated.

28.      The second observation relates to the assertion by the claimant that the demand for reimbursement made by the Hauptzollamt is unlawful in the light of the judgment in Emsland-Stärke, cited above, which was delivered subsequently.

29.      It should be pointed out that, although the Court held in that case that the requirement of proof that the product in question has been released into free circulation on the market in the non-Member country of import, as provided for in Article 10(1) of Regulation (EEC) No 2730/79, (12) can be imposed only prior to the grant of the export refund, (13) the Court also held that a refund must be repaid if the competent national authorities find that the export operation constitutes abuse as a result of the exporter seeking to obtain an advantage from the Community rules by creating artificially the conditions laid down for obtaining it. (14)

30.      In the light of the specific circumstances of the operation at issue in the main proceedings, I consider it is for the national court to assess, if necessary and in accordance with the national rules of procedure, the legality of the demand for reimbursement, in view of the interpretation of the relevant provision given in the meantime by the Court. (15)

31.      Having made these points, I shall take the first question first and consider the second question later, if appropriate.

B –    First question

32.      By its first question, the Finanzgericht Hamburg asks whether, in a claim or appeal against a decision imposing a sanction on the basis of the first subparagraph of Article 11(1) of Regulation No 3665/87, national authorities and courts are entitled to examine whether an exporter requested a refund in excess of that applicable if the reimbursement decision under the first subparagraph of Article 11(3) of that regulation is based on the absence of proof that the product concerned has been imported into the non-Member country of destination, as required under Article 5(1)(a) of that regulation, and became final before the decision imposing the sanction was issued.

33.      The referring court is seeking to ascertain, in essence, whether an exporter is entitled to challenge a decision imposing a sanction based on the first subparagraph of Article 11(1) of Regulation No 3665/87, where that decision has been taken following a demand for reimbursement of export refunds based on the absence of proof that the product has been marketed in the non-Member country of destination and the exporter has not objected to reimbursement.

34.      In other words, the Finanzgericht Hamburg is asking whether a decision demanding reimbursement of export refunds that has not been challenged establishes the existence of the conditions for imposing the sanction in question, provided for in the first subparagraph of Article 11(1) of Regulation No 3665/87.

35.      In my view, no such inference can be drawn and the first question should be answered in the affirmative.

36.      I consider that a decision imposing a sanction cannot be issued where, as is the situation in the present case, the economic operator has been unable to provide the proof that the product has been released into free circulation in the non-Member country of destination as required under Article 5(1) of Regulation No 3665/87.

37.      I therefore infer from this that when the reimbursement decision was adopted on account of a breach of Article 5(1) of that regulation, it was not possible to examine, as a condition for imposing a sanction, whether the exporter requested a refund in excess of that applicable. I also consider that such a condition cannot be inferred from the mere fact that the economic operator did not challenge that demand for reimbursement.

38.      I think therefore that, in a case such as that at issue in the main proceedings, national authorities and courts must be able to examine whether the conditions for imposing a sanction are met and, in particular, whether the exporter has requested a refund in excess of that applicable.

39.      I base this assessment partly on the content of the first subparagraph of Article 11(1) and the first subparagraph of Article 11(3) of Regulation No 3665/87 and partly on the objective of that regulation.

1.      The content of the first subparagraph of Article 11(1) and the first subparagraph of Article 11(3) of Regulation No 3665/87

40.      The first subparagraph of Article 11(1) of Regulation No 3665/87 provides that a sanction is to be imposed ‘[w]here it has been found that an exporter, with a view to the granting of an export refund, has requested a refund in excess of that applicable …’. That provision also states that the refund due for the relevant exportation is to be reduced by half the difference between the refund requested and the refund applicable to the actual exportation, (16) or twice the difference between the refund requested and the refund applicable, if the exporter has intentionally supplied false information. (17)

41.      Unlike a demand for reimbursement, which is intended merely to withdraw a financial advantage that has been unduly obtained, a decision imposing a sanction leads to a significant reduction in the amount of refund applicable or the payment of a financial penalty. (18) Such a sanction may therefore impose a particularly heavy burden on an undertaking, which in some cases may affect its viability. (19)

42.      In those circumstances, I consider it essential to ensure adequate legal protection for the economic operator by interpreting the wording of the first subparagraph of Article 11(1) of Regulation No 3665/87 strictly, in accordance with the principles of legality and legal certainty. As the Court has repeatedly held, the requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences for an economic operator. (20)

43.      First, it is clear from the terms used in Article 11(1) of Regulation No 3665/87 that the scope of the sanction rules is limited to a case in which it is found that ‘an exporter has requested a refund in excess of that applicable’. (21)

44.      That condition for imposing a sanction, reiterated by the national court in the questions referred for a preliminary ruling, has a particular definition.

45.      The term ‘refund requested’ is defined in the second subparagraph of the abovementioned provision as being ‘the amount calculated from the information supplied pursuant to Article 3 or Article 25(2) [of Regulation No 3665/87]’. Those articles state that the information is that contained in the document used for export to enable products to qualify for a refund and in particular a description of the products, their net mass and their composition. (22) Thus, as the Court held in Case C-385/03 Käserai Champignon Hofmeister, ‘the document or documents containing the information required by Article 3 or Article 25(2), on the basis of which the amount of the refund is calculated, constitute the request which, if that information is erroneous, triggers the application of the sanction prescribed by Article 11(1)’. (23)

46.      It is to that effect that the third recital in the preamble to Regulation No 2945/94, echoing Article 11(1) of Regulation No 3665/87, states that ‘where an exporter has supplied wrong information that wrong information could lead to an undue payment of the refund if the error is not discovered, whilst, where the error is discovered it is entirely proportional to sanction the exporter for an amount in proportion to the amount which he would have received unduly if the error [had] not … been discovered; … in the case where the wrong information was supplied intentionally it is equally proportional to provide for a higher sanction’. Thus the Community legislature imposes on the exporter, as the last participant in the chain of production, processing and export of agricultural products, an obligation to make an accurate declaration.

47.      It therefore seems to me that the scope of a sanction decision is limited to cases in which exporters have, by mistake or intentionally, supplied inaccurate information in their export declarations. In other words, I do not think that such a penalty could be imposed in a situation such as that in the main proceedings, where the economic operator has been unable to supply proof of completion of the customs formalities for importing the product into the non-Member country of destination, as required under Article 5(1) of Regulation No 3665/87. To concede the contrary would, in my view, raise a number of difficulties.

48.      First of all, as I stated above, such an interpretation would clearly conflict with the principles of legality and legal certainty. It would amount to adding provisions to the text of Article 11(1) of Regulation No 3665/87 and to giving that article a broader scope than that which the Community legislature doubtless intended. According to settled case-law ‘a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis’. (24) Therefore, if the Community legislature had wished to impose the sanction in other situations it would probably have taken care to make that clear in Article 11(1) of that regulation, since that measure is one of the basic provisions of the system introduced by that regulation.

49.      I also think that such an interpretation is likely to conflict with the principle of the proportionality of the sanction, referred to not only in the fifth recital in the preamble to Regulation No 2945/94 and in Article 2(1) of Regulation No 2988/95 but also in the case-law of the Court. (25) The Court has in fact noted on a number of occasions the difficulties exporters may encounter in obtaining the customs documents from the authorities of the non-Member country of importation, upon whom they have no means of exerting pressure. (26) To impose a sanction in that situation would in my view be inappropriate in the light of the difficulties encountered by economic operators in obtaining the proof required under Article 5(1) of Regulation No 3665/87.

50.      Lastly, that interpretation is in my view likely to have a detrimental effect on the principle of uniform application of the sanction, referred to in the fifth recital in the preamble to Regulation No 2945/94, in so far as the Court of Auditors of the European Communities found large disparities between Member States as regards verification and acceptance of proofs of arrival at destination. (27)

51.      It is therefore clear from the wording of the first and second subparagraphs of Article 11(1) of Regulation No 3665/87 that a sanction cannot be imposed in a situation where an economic operator has not supplied the proof required under Article 5(1) of that regulation. In those circumstances, I consider that the competent national authority may not examine whether the exporter requested a refund in excess of that applicable in the context of a demand for reimbursement based on infringement of Article 5(1) of that regulation.

52.      Secondly, I do not think that the conditions for imposing the sanction can be inferred from the mere fact that the economic operator did not challenge that demand for reimbursement.

53.      The fact that the demand for reimbursement has not given rise to an appeal by the exporter and the demand has become final does not mean that that economic operator requested a refund in excess of the refund applicable within the meaning of the first and second subparagraphs of Article 11(1) of Regulation No 3665/87.

54.      Furthermore, the fact that no appeal has been brought against a reimbursement decision cannot in my view automatically lead to application of a sanction decision. It should be remembered that the sanction was designed in such a way that it could be applied autonomously, irrespective of any demand for reimbursement, so it cannot be considered to be a merely ancillary measure.

55.      Thus it is clear from the terms of the first subparagraph of Article 11(1) of Regulation No 3665/87 that the competent national authority may adopt a sanction decision once it has been ‘found’ that the exporter has requested a refund in excess of that applicable.

56.      In those circumstances, a sanction may be imposed before any export refund is paid to the economic operator. As the Court has already held when called upon to interpret that provision, it is clear from the wording of the first subparagraph of Article 11(1) of Regulation No 3665/87 that ‘the Community legislature intended the sanction … to be imposed, not after the Community budget has suffered a financial loss resulting from the undue payment of an export refund, but at an earlier stage, when the exporter includes wrong information, be it only unintentionally, in the request for refund. (28)

57.      However, a sanction decision may also be adopted after an export refund has been paid. In that case there may be two possible situations.

58.      In the first, the competent national authority may find that wrong information has been supplied and decide not only to demand reimbursement of the amount unduly received but also to impose a sanction. That situation is covered expressly in the first subparagraph of Article 11(3) of Regulation No 3665/87 which, I would point out, provides that ‘where a refund is unduly paid, the beneficiary shall reimburse the amounts unduly received – which includes any sanction applicable pursuant to the first subparagraph of paragraph 1 …’. (29) The use of the words ‘which includes’ means, in my view, that reimbursement may be demanded and a sanction imposed cumulatively in that case.

59.      There is nothing in the wording of the first subparagraph of Article 11(3) of Regulation No 3665/87 to indicate how the system of reimbursement and the sanction system interrelate in those circumstances. I note only that there is nothing in the wording of that provision to indicate that a reimbursement decision has the significance of a main decision to which a sanction decision is ancillary.

60.      In that situation I therefore consider that it is for each competent national authority, given the procedural autonomy afforded to them in implementing the system of export refunds, to adopt those decisions in such a way that the rights and guarantees afforded to an exporter are protected.

61.      In the second situation the competent national authority may impose a sanction because an inaccurate declaration has been made, where a demand for reimbursement has already been made on other grounds. In those circumstances I consider that these are two separate measures and the national authorities and courts must be permitted to review their legality as such.

62.      It is clear to me that in the context of a demand for reimbursement based on infringement of Article 5(1) of Regulation No 3665/87, the content of the first subparagraph of Article 11(1) and the first subparagraph of Article 11(3) of that regulation precludes examination of whether an exporter has requested a refund in excess of that applicable, as a condition for the imposition of a sanction, or that that should be inferred merely from the fact that the exporter has not challenged that reimbursement decision.

63.      This assessment appears to me to be confirmed by the objective pursued by Regulation No 3665/87.

2.      The objective pursued by Regulation No 3665/87

64.      It is apparent from the purpose of Regulation No 3665/87, as set out in the title of, and the first, second and fifth recitals in the preamble to, Regulation No 2945/94, that its aim is to combat irregularities and fraud detected in the area of export refunds, by establishing both a system for the reimbursement of amounts unduly paid and a sanction system. (30) According to the ninth recital in the preamble to Regulation No 2988/95, the Community legislature has provided that each of those measures ‘pursue[s] its own ends’.

65.      First, it is clear from the third recital in the preamble to Regulation No 2945/94 that an administrative sanction was introduced in response to the specific concern of the Community legislature to combat more effectively irregularities and negligence which the authorities found in export declarations. As mentioned above, it is on the basis of that document that the competent national authorities examine whether there is an entitlement to a refund and calculate the amount of that entitlement. As applications for aid are too numerous to be subjected systematically to a full investigation, and it is difficult to envisage any increase in the existing checks, the Community legislature imposed an obligation on the economic operator to provide an accurate declaration, subject to a financial penalty.

66.      Secondly, it appears to me that the sanction decision was designed in such a way that it could be applied autonomously.

67.      The Community legislature found that mere reimbursement of amounts unduly paid does not protect the financial interests of the Community effectively. On the one hand, reimbursement does not prevent the Community’s financial interests from being harmed since, by definition, it can only be ordered after the refund has been paid. On the other hand, nor does it mean that economic operators are dissuaded from behaving in a manner that is rash or reprehensible.

68.      The introduction of a sanction system therefore meets both those concerns. First, it makes it possible better to safeguard the financial interests of the Community because, as I pointed out above, the sanction can be ordered from the moment the wrong information is likely to cause damage, that is to say, well before the economic operator is granted the refund.

69.      Also, as the second and fifth recitals in the preamble to Regulation No 2945/94 state, that sanction should act as a ‘deterrent’. Thus, unlike a demand for reimbursement, the imposition of a sanction is not intended to restore legality, compensate for damage or eliminate the consequences of an unlawful act; it censures conduct that infringes the law either through negligence or intentionally.

70.       In view of the purpose of Regulation No 3665/87 and the separate and autonomous objectives of the demand for reimbursement and the sanction decision, it is clear to my mind that a sanction adopted under Article 11(1) of that regulation should be regarded as a measure applying autonomously which, under the system introduced by that legislation, fully ensures protection of the financial interests of the Community. To regard a sanction decision merely as a measure that is ancillary to the reimbursement decision is therefore likely to deprive that decision of its full effect, which would infringe the objective sought by the Community legislature.

71.      I therefore consider that, in the context of a demand for reimbursement based on infringement of Article 5(1) of Regulation No 3665/87, the objective of that regulation precludes examination of whether an exporter has requested a refund in excess of that applicable, as a condition for the imposition of a sanction, or that that should be inferred merely from the fact that the exporter has not challenged that reimbursement decision.

72.      In the light of the above, I do not therefore consider that there is anything to preclude, as part of a review of the legality of a sanction decision, national authorities and courts examining whether an exporter actually requested a refund in excess of that applicable, within the meaning of the first and second subparagraphs of Article 11(1) of Regulation No 3665/87.

73.      I conclude from all these considerations that, in an appeal against a decision imposing a sanction on the basis of the first subparagraph of Article 11(1) of Regulation No 3665/87, national authorities and courts are entitled to examine whether an exporter requested a refund in excess of that applicable, if the reimbursement decision, based on the absence of proof that the product concerned was imported into the non-Member country of destination as required under Article 5(1) of that regulation, became final before the sanction decision was issued.

C –     Second question

74.      The court making the reference raised this question only in case the first question is answered in the negative. In view of the answer which I have suggested the Court should give to the first question, I do not think it is necessary to answer the second question.

V –  Conclusion

75.      In the light of the above considerations, I suggest that the Court should answer the questions referred for a preliminary ruling by the Finanzgericht Hamburg as follows:

‘In an appeal against a decision imposing a sanction on the basis of the first subparagraph of Article 11(1) of 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, as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 amending Regulation No 3665/87 as regards the recovery of amounts unduly paid and sanctions, national authorities and courts are entitled to examine whether an exporter requested a refund in excess of that applicable if the reimbursement decision, adopted under the first subparagraph of Article 11(3) of Regulation No 3665/87, as amended by Regulation No 2945/94, is based on the absence of proof that the product was imported into the non-Member country of destination as required under Article 5(1) of that regulation, and that it became final before the sanction decision was issued.’

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1 – Original language: French.

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2 – OJ 1987 L 351, p. 1, as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 amending Regulation No 3665/87 as regards the recovery of amounts unduly paid and sanctions (OJ 1994 L 310, p. 57) (hereinafter ‘Regulation No 3665/87’). That regulation was repealed by 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), adopted after the material time and not applicable to the present case.

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3 – Council Regulation of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1).

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4 – See fourth recital in the preamble to that regulation.

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5 – ‘Irregularity’, for the purposes of Article 1(2) of Regulation No 2988/95, means ‘any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure’.

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6 – See Article 5(1)(b) of Regulation No 2988/95.

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7 – BGBl. I p. 1253.

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8 – [2000] ECR I-11569.

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9 – See English version of order for reference, page 3.

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10 – Ibid., p. 4.

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11 – Ibid., pp. 8 and 9.

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12 – Commission Regulation 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 force at the time of the dispute; Article 10(1) of that regulation corresponds in essence to Article 5(1) of Regulaton No 3665/87.

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13 – See Emsland-Stärke, cited above, paragraphs 48 and 49.

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14 – Ibid., paragraphs 50 to 54.

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15 – See to that effect, Case C-453/00 Kühne & Heitz [2004] ECR I-837, in which the Court held that ‘[t]he principle of cooperation arising from Article 10 EC imposes on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court where

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– under national law, it has the power to reopen that decision;

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– the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance;

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– that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under Article 234(3) EC; and

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– the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court’.

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16 – See point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87.

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17 – Ibid., point (b).

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18 – See Articles 2, 4 and 5 of Regulation No 2988/95 for an outline of the general rules concerning measures (such as reimbursement) and administrative penalties.

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19 – See points (a) and (b) of the first subparagraph of Article 11(1) of Regulation No 3665/87.

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20 – See, in particular, Case 169/80 Gondrand Frères and Garancini [1981] ECR 1931, paragraph 17; Case 326/85 Netherlands v Commission [1987] ECR 5091, paragraph 24; Joined Cases 92/87 and 93/87 [1989] ECR 405, paragraph 22; Case C-143/93 Van Es Douane Agenten [1996] ECR I-431, paragraph 27; and Case C‑78/01 BGL [2003] ECR I-9543, paragraphs 71 to 73.

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21 – Emphasis added.

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22 – See the first subparagraph of Article 3(5) and the first subparagraph of Article 25(2) of Regulation No 3665/87.

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23 – [2005] ECR I-2997, paragraph 22.

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24 – See in particular Case 117/83 Könecke [1984] ECR 3291, paragraph 11, and Case C-210/00 Käserai Champignon Hofmeister [2002] ECR I-6453, paragraph 52.

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25 – See Case C-210/00 Käserai Champignon Hofmeister, cited above (paragraphs 59 to 68). In that case the Court accepted the proportionate nature of a sanction, adopted in accordance with point (a) of the first subparagraph of Article 11(1) of Regulation No 3665/87, which had been imposed in the case of an inaccurate declaration.

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26 – See in particular Case C-155/89 Philipp Brothers [1990] ECR I-3265, paragraph 27 and Case C‑467/01 Eribrand [2003] ECR I-6471, paragraph 41.

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27 – Special Report No 7/2001 concerning export refunds – destination and placing on the market, together with the Commission’s replies (OJ 2001 C 314, p. 1, points 9 to 13). The Court of Auditors states that a variety of documents may be accepted as proof that the customs formalities for placing on the market have been completed; as it points out, there is no harmonisation with regard to their acceptance.

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28 – See Case C-385/03 Käserai Champignon Hofmeister, cited above, paragraph 34.

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29 – Emphasis added.

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30 – See Case C-210/00 Käserai Champignon Hofmeister (paragraph 60) and Case C‑385/03 Käserai Champignon Hofmeister (paragraph 27), cited above.