OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 6 March 2007 ¹(1)

Case C‑1/06

Bonn Fleisch Ex- und Import GmbH

v

Hauptzollamt Hamburg-Jonas

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

(Exports – System of export refunds on agricultural products – Article 47(3) of Regulation (EEC) No 3665/87 – Furnishing of proof of export of products – Production of equivalent proof – Recognition by the authorities of their own motion as equivalent proof of documents not accompanied by an express request for them to be regarded as equivalent)

I –  Introduction

1.     This request for a preliminary ruling concerns, first, the problem of whether the competent national authorities in a procedure for the grant of export refunds under Article 47(3) 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) (‘Regulation No 3665/87’) are obliged of their own motion to regard other documents as equivalent if for reasons beyond his control the exporter is unable to produce the T5 control copy and, second, the question of whether an exporter can also make a request that other documents be regarded as equivalent under Article 47(3) of that regulation by implication.

2.     The issues relating to the interpretation of Article 47(3) of Regulation (EEC) No 3665/87 arise in connection with proceedings pending before the Finanzgericht Hamburg (Finance Court, Hamburg) between Bonn Fleisch Ex- und Import GmbH (‘Bonn Fleisch’) and Hauptzollamt Hamburg-Jonas (Principal Customs Office, Hamburg-Jonas, ‘the Hauptzollamt’) concerning the lawfulness of demands for the return of advance payment of an export refund because of alleged failure to export the goods from the customs territory of the Community to Russia within the 60-day time-limit.

II –  Legal framework

A –    Community law

3.     Regulation (EEC) No 3665/87, which was amended inter alia by Commission Regulation No 1829/94 and, most recently, by Commission Regulation (EC) No 604/98, laid down the common implementing rules for exports of agricultural products in respect of which refunds are paid. That regulation was repealed and replaced by Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds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, (3) which has been in force since 1 July 1999.

4.     Article 4(1) of Regulation No 3665/87 provides:

‘Without prejudice to the provisions of Articles 5 and 16, the refund shall be paid only upon proof being furnished [that] the products for which the export declaration was accepted have, within 60 days from the date of such acceptance of the export declaration, left the customs territory of the Community in the unaltered state.’

5.     Article 6(1) of Regulation No 3665/87 provides:

‘If, before leaving the customs territory of the Community, a product for which the customs declaration has been accepted crosses Community territory other than that of the Member State where that declaration was accepted, proof that the product has left the customs territory of the Community shall be furnished by production of the original of the T5 control copy referred to in Article 1 of Regulation (EEC) No 2823/87.’

6.     Article 47 of Regulation No 3665/87, which is part of Title 4, ‘Procedure for payment of the refund’, provides:

‘1. The refund shall be paid only on application by the exporter and shall be paid only by the Member State in whose territory the export declaration was accepted.

…

2. Except in cases of force majeure, the documents relating to payment of the refund or release of the security must be submitted within 12 months following the date of acceptance of the export declaration.

3. Where the T5 control copy referred to in Article 6 is not returned to the office of departure or relevant centralising body within three months of its issue owing to circumstances beyond the control of the exporter, the latter may submit to the competent agency a reasoned request that other documents be regarded as equivalent.

The supporting documents to be submitted with the request must include:

(a)      where a control copy has been issued to furnish proof that the products have left the customs territory of the Community:

–      the transport document, and

–      a document which shows that the product has been presented at a customs office in a third country or one or more of the documents referred to in Article 18(1), (2) and (4);

…

The provisions of paragraph 4 shall apply for the production of equivalent proof.

4. Where the documents required under Article 18 cannot be submitted within the period referred to in paragraph 2, although the exporter has acted with all due diligence to obtain them and communicate them within such period, he may be granted further time for the production of these documents.

5. Requests for the treatment of other documents as equivalent, as referred to in paragraph 3, whether or not supporting documents are attached, and requests for extension of time referred to in paragraph 4 must be submitted within the period referred to in paragraph 2.’

7.     The first indent of Article 54(1) of Regulation No 800/1999 provides that Regulation No 3665/87 is to continue to apply to exports covered by export declarations accepted prior to the entry into force of that regulation.

B –    National law

8.     The German Ausfuhrerstattungsverordnung (Export Refund Regulation) of 24 May 1996 (4) (‘the AEVO’) provides as follows with regard to export refunds.

9.     Paragraph 1 of the AEVO provides that the provisions of the AEVO are to apply to the implementation of legal instruments of the European Community which have been adopted in relation to export refunds in the context of the common organisation of markets and rules on trade.

10.   Under Paragraph 3(1) of the version of the AEVO applicable before Regulation No 800/1999 came into force, the document to be used as the document for the purposes of Article 3(5) of Regulation No 3665/87, as amended from time to time, is the single administrative document notified for that purpose by the Bundesministerium der Finanzen (Federal Finance Ministry) in the Vorschriftensammlung Bundesfinanzverwaltung – Amtsblatt des Bundesministeriums der Finanzen – (VSF) as ‘Export declaration (additional page) for EC export refunds’ (export declaration for refund purposes).

11.   Paragraphs 4(1) and (2) of the version of the AEVO applicable before Regulation No 800/1999 came into force read as follows:

‘1. Confirmation that the consignment of goods has left the customs territory of the Community (exit confirmation) shall be given in the export declaration for refund purposes by the customs office of exit, as designated under Article 793(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended from time to time, within the territory in which this regulation applies.

2. In the case of consignments of goods for which the export declaration has been accepted in another Member State of the European Union, the exit confirmation shall be given in the T5 control copy by the competent customs office of exit within the territory in which this regulation applies.’

III –  Material facts, main proceedings and questions referred for a preliminary ruling

A –    Facts

12.   Legal proceedings are pending before the Finanzgericht Hamburg between Bonn Fleisch and the Hauptzollamt concerning the lawfulness of the decisions ordering Bonn Fleisch to make repayment.

13.   In December 1997 and January 1998, referring to the later exporting of the goods to Russia, Bonn Fleisch had beef and veal placed in customs warehousing with a view to obtaining an export refund and, in accordance with its application, received an export refund totalling EUR 47 597.81 by way of an advance payment under four decisions to grant a refund dated 21 and 23 January 1998.

14.   Bonn Fleisch lodged the export declaration for the beef and veal on 8 April 1998.

15.   The transport document was endorsed with confirmation of clearance at the forwarding railway station in Mukran on 9 April 1998. In the oral proceedings before the Court, Bonn Fleisch stated that according to the letter from the Mukran customs office dated 13 October 2000 the goods for export had been duly received at that customs office.

16.   On an unspecified date the Hauptzollamt Stralsund, under which the Mukran customs office comes, sent the export declaration to the Hauptzollamt Hamburg-Jonas by post. However, it has been established that this export declaration required for the export refund cannot be found in the Hauptzollamt’s administrative records. In the oral proceedings before the Court it was presumed that this document had been lost whilst passing through official channels.

17.   According to the Russian customs import document, the beef and veal exported by Bonn Fleisch was put into free circulation in Russia on 20 May 1998.

18.   On 13 July 1998 Bonn Fleisch submitted to the Hauptzollamt both the transport document endorsed with the confirmation of clearance of 9 April 1998 and the Russian customs import document stamped with the date 20 May 1998.

19.   The Hauptzollamt informed Bonn Fleisch on the telephone on 21 July and 18 November 1999 that it had not received the export declaration containing export confirmation.

20.   On 23 June 2000 the Hauptzollamt issued four notices demanding the return of the export refund paid by it in advance, together with a supplement of 20%, on the grounds that Bonn Fleisch had not proved that the goods for which the refund had been paid had been exported from the customs territory of the Community within the prescribed 60 days by way of an export declaration stamped with export confirmation. Bonn Fleisch lodged objections to those four notices. It argued that the export declaration was automatically forwarded to the Hauptzollamt through the internal customs administration procedure. Furthermore, Regulation No 3665/87 did not impose any obligation on the exporter to submit the export declaration to the Hauptzollamt.

21.   During the further course of the objection procedure Bonn Fleisch pointed out in a letter to the Hauptzollamt of 2 November 2000 that it had submitted the transport document and customs import document on 13 July 1998 – and therefore within the 12-month period under Article 47(2) of Regulation No 3665/87. The filing of that documentation also impliedly constituted an application to treat those documents as equivalent proof that the goods had been exported from the customs territory of the Community, should the export declaration not have reached the files. As a precaution, Bonn Fleisch applied at the same time for the transport document and customs import document lodged on 13 July 1998 to be regarded as equivalent documents.

22.   On 13 December 2001 that application was dismissed as out of time, having regard to Article 47(5) of Regulation No 3665/87. It was stated in the grounds for that dismissal that an application for other documents to be regarded as equivalent must be the subject of an express application and the Hauptzollamt was not obliged to regard other documents as equivalent of its own motion. Bonn Fleisch objected to that notice and the notices of 23 June 2000, but its objection was rejected in an objection decision of 20 February 2003. Bonn Fleisch brought proceedings challenging that rejection in the Finanzgericht Hamburg by application of 20 March 2003.

B –    Main proceedings and questions referred for a preliminary ruling

23.   The national court is assuming in reliance on Article 4(1) of Regulation No 3665/87 that the export of the products within 60 days from the date of acceptance of the export declaration is a substantive condition and that both the burden of proof and responsibility for submitting evidence of export lie with the exporter.

24.   The national court states with regard to the burden of proof that under Article 6 of Regulation No 3665/87, where a product for which a refund is sought crosses Community territory other than that of the Member State of export before leaving the customs territory of the Community (transit or indirect export), proof of export is to be furnished by production of the duly completed original of the T5 control copy. However, the Community legislature has not stipulated in what manner proof of export is to be furnished in the case of direct exports – as in the main proceedings. The German legislature has therefore rectified this legislative omission in Paragraph 4(1) of the AEVO, according to which confirmation of a consignment of goods having left the customs territory of the Community is to be given in the export declaration for refund purposes.

25.   The national court also points out that one feature of this case is the fact that Bonn Fleisch submitted both the transport document and the Russian customs import document with its letter of 13 July 1998, and thus within the 12-month time-limit under Article 47(2) of Regulation No 3665/87. It says that it is clear beyond doubt from these documents that the goods for which the refund had been paid had left the customs territory of the Community within those 60 days. Both documents could, in principle, potentially be regarded as equivalent documents within the meaning of Article 47(3) of Regulation No 3665/87. The national court is therefore inclined towards the view that in certain circumstances the recognition of other documents as equivalent can also be considered by the competent authority of its own motion.

26.   In the opinion of the national court Article 47(3) of Regulation No 3665/87, which forms part of Title 4 of that regulation, ‘Procedure for payment of the refund’, constitutes a rule of procedural law only and not a substantive condition of entitlement. It does not follow from this provision that the regarding of other documents as equivalent of an authority’s own motion is ruled out a limine.

27.   In the opinion of the referring court an application for other documents to be regarded as equivalent can only be made expressly. According to the national court, however, that does not preclude the possibility in a particular case of an implied or precautionary request being assumed, if a corresponding intention on the part of the exporter is clear from the circumstances of the case as a result of the production of equivalent documents showing that the goods for which a refund has been paid were exported from the customs territory of the Community in due time.

28.   Since it was uncertain as to the interpretation of Article 47(3) of Regulation No 3665/87, the Finanzgericht Hamburg decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

1.      Is the competent authority entitled and obliged of its own motion to regard other documents as equivalent under Article 47(3) of Regulation No 3665/87?

2.      Can a request for other documents to be regarded as equivalent under Article 47(3) of Regulation No 3665/87 also be made by implication and as a precaution?

IV –  Analysis

A –    First question referred for a preliminary ruling

1.      Submissions of the parties

29.   Bonn Fleisch considers that the first question should be answered in the affirmative. According to Bonn Fleisch, an answer in the affirmative follows from the wording, spirit and purpose of Article 47(3) of Regulation No 3665/87. It cannot be concluded from the wording of this provision that an application by the exporter is the only way in which other documents can be regarded as equivalent in the customs procedure. In the light of the 50th recital in the preamble to Regulation No 3665/87, the objective of Article 47(3) is to safeguard the exporter against risks connected with the administrative handling of the control copy of which it is unaware, which are beyond its control and on which it can exert no influence.

30.   The Hauptzollamt recommends that the first question should be answered in the negative. It takes the view that there is no general obligation on the competent authority to examine whether documentation submitted might constitute equivalent documents within the meaning of Article 47(3) of Regulation No 3665/87. It argues that an express application is required in order for such an examination to take place.

31.   The Hellenic Republic is of the opinion that the authority responsible for payment can of its own motion treat other documents as equivalent if they have been submitted by the exporter within the 12-month period under Article 47 of Regulation No 3665/87 and if the substantive conditions for a refund are satisfied. In such a case it is clear and explicit from the circumstances of the case that a request is being made for the documentation submitted to be regarded as equivalent.

32.   The Commission takes the view that Article 47(3) of Regulation No 3665/87 cannot be applied by analogy to the case of direct export. At the hearing before the Court the Commission explained that in the case of indirect export an exporter comes into contact with at least two systems of administrative law in different Member States. As, in the case of indirect exports, the administrations of more than one Member State and therefore also more than one system of administrative law are involved, the purpose of Article 47(3) of Regulation No 3665/87 is to forestall any difficulties that might arise in the course of cross-border administrative procedures.

33.   In the opinion of the Commission, however, the Community legislature had not considered it necessary to make provision for corresponding standardisation of national procedural rules in the case of direct export. With a direct export there is no cross-border factor, so that the relevant rules fall within national procedural autonomy, with the result that under German law Paragraph 4(1) of the AEVO applies. Nor is such an interpretation altered by the new Regulation No 800/1999.

34.   If the Court should nevertheless come to the conclusion that Article 47(3) of Regulation No 3665/87 also applies by analogy to direct exports the Commission considers, in the alternative, that in the light of the general principle of legality of administrative actions errors on the part of the authorities should not have detrimental consequences for the economic operator, and the exporter should instead have an opportunity of also proving in some other way that the products have been exported. The competent authority therefore has to start the procedure for the documents to be regarded as equivalent of its own motion, make the exporter aware of the absence of the national document, or extend the deadline for submission of the documents.

2.      Opinion of the Advocate General

a)      Application ratione materiae of Article 47(3) of Regulation No 3665/87 to direct exports

35.   Although, according to recent case-law, provisions governing payment procedure are considered to be administrative formalities, (5) they have to be taken just as seriously as substantive-law requirements. Failure to comply with these formalities, in the same way as non-compliance with rules of substantive law, can lead to the export refund being reduced or even completely lost. (6)

36.   Article 47(3) of Regulation No 3665/87 refers to Article 6 of the regulation with regard to control copy T5. Under Article 6(1) the scope of application of the T5 control copy is confined ratione materiae to indirect exports.

37.   It is an essential factual element of an indirect export that, before leaving the customs territory of the Community, the product for which a customs declaration has been accepted crosses Community territory other than that of the Member State where that declaration was accepted. 

38.   Article 47(3) of Regulation No 3665/87 does not address direct exports. (7) It can clearly be concluded from the facts in this case that the beef and veal was exported to Russia direct from Germany. The products did not cross any Community territory other than that of the Member State where the customs declaration was accepted.

39.   The question is therefore whether the application of Article 47(3) of Regulation No 3665/87 must be rejected in the case of direct exports or whether Article 47(3) of that regulation applies also by analogy to direct exports.

40.   The silence of Article 47(3) of Regulation No 3665/87 as regards direct exports does not, however, indicate that there is a lacuna in the legislation. There are different procedures under administrative procedural law for the handling of direct exports, on the one hand, and indirect exports, on the other, where the facts are not the same. In the case of direct exports the exporters have contact only with the customs authorities of one Member State – i.e. the customs office of departure and the customs office of exit are situated in the same Member State.

41.   In the case of indirect exports, however, economic operators come into contact not only with the system of administrative law in the State of origin but also with at least one other administrative-law system in another Member State. The uniform control copy T5 is handled both by a foreign customs office of exit – i.e. the customs office of exit in another Member State – and by the competent authority in the State of origin. That customs office of exit does not hand the T5 control copy to the exporter but forwards it to the relevant centralising body in the State of origin. (8) It must therefore be assumed that the spirit and purpose of Article 47(3) of Regulation No 3665/87 is to prevent the occurrence of administrative difficulties that economic operators might encounter in the course of administrative procedures extending to more than one Member State.

42.   The Commission is therefore right to observe that Article 47(3) of Regulation No 3665/87 does not apply by analogy to the direct export of products.

b)      Whether the competent authority is entitled and obliged of its own motion to regard other documents as equivalent

43.   This question relates only to evidence of export and not to the substantive rules on exports. I note that, according to legal opinion, in order for an export refund to be paid the exporter must not only duly satisfy the necessary substantive requirements but also comply with the rules relating to payment procedure. (9)

44.   According to the third recital (10) the award of export refunds is closely coupled with the furnishing of proof that the products have been exported from the Community. The underlying principle is therefore the exportation of products from the customs territory of the Community.

45.   In the case of indirect export proof is furnished by presenting the T5 control copy. That proof is the original proof of export, furnished by the confirmation from the customs office of exit. (11) However, as it is possible for that control copy to be lost when passing through official channels at customs offices in the various Member States in circumstances that are beyond the exporter’s control, Regulation No 3665/87 provides for the possibility, available to the exporter in accordance with the 50th recital (12) in the preamble to the regulation, of other documents being recognised as equivalent, so as to protect him from harmful consequences that might follow from faulty official action on the part of the customs authorities. The exporter can therefore adduce proof of export in the recognition procedure, that is, by communicating the transport document and the non-member country’s customs import document (13) within the 12-month period. It should be noted that both the application and the recognition of other documents as equivalent are, however, conditional on the substantive conditions of export being met.

46.   If it is established from evidence other than formal proof that the substantive requirements for entitlement to an export refund are met, reliance on an absence of formal proof such as the T5 control copy should be considered pure formalism and should therefore be considered unacceptable. (14)

47.   The substantive conditions for entitlement to an export refund have been laid down by the Community legislature. Article 4(1) of Regulation No 3665/87 provides that two substantive requirements for entitlement to an export refund have to be proven – namely, first, acceptance of the export declaration and, second, the fact that the goods exported have left the customs territory of the Community in their unaltered state within 60 days of the date of that acceptance.

48.   In the case of direct export Germany requires proof of compliance with the substantive rules on export claims to be furnished by way of a national export document. In such a case the relevant national document is forwarded by the national customs office of exit direct to the national centralising body, which in the present case is the Hauptzollamt. This means that the documents are removed from the exporter’s sphere of influence in the case of direct export as well.

49.   The present case is one in which the national legislature in the German AEVO makes reference to the content of Community legislation (15) in the context of a purely domestic situation, i.e. in the case of a direct export. Although the questions in this case relate to direct exports, so that Article 47(3) of Regulation No 3665/87 is not relevant, the problems of interpretation that the national court asks to be resolved thus relate essentially to the system of export refunds covered by Regulation No 3665/87.

50.   Where questions submitted by national courts concern the interpretation of a provision of Community law, the Court is, in principle, according to settled case-law, obliged to give a ruling. Neither the wording of Article 234 EC nor the aim of the procedure established by that article indicates that the framers of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State. (16)

51.   Where domestic legislation adopts the same solutions as those adopted in Community law in order, in particular, to avoid discrimination or any distortion of competition, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply. (17)

52.   The competent centralising body, in this case the Hauptzollamt, has jurisdiction over the procedure for other documents to be regarded as equivalent. It is an administrative procedure. (18) In that respect this case is to be distinguished from Joined Cases C‑430/93 and C‑431/93 in which the Court was dealing with questions of national judicial procedure. (19)

53.   In van Schijndel the question was whether a court has to apply Community legislation of its own motion and in so doing abandon the passive role assigned to it by going beyond the ambit of the dispute defined by the parties themselves and/or by relying on facts and circumstances other than those on which the party to the proceedings with an interest in the application of those provisions bases his claim. (20) However, this case-law cannot be applied to the present case, as these are administrative proceedings on customs law that are governed by rules that differ from those applicable in judicial proceedings.

54.   Unless expressly provided to the contrary, an administrative procedure can be instituted either of an authority’s own motion or on an application being submitted. (21) Academic writers have clearly stated that the institution of an administrative procedure of an authority’s own motion is precluded only where that administrative procedure can be instituted only upon an application being made by one of the parties. (22) For this reason I would concur with the view of the national court that the recognition of other documents as equivalent of an authority’s own motion is not precluded a limine.

55.   Even if the administrative procedure is initiated on an application filed by one of the parties, it is for the competent administrative authority to examine, based on the principle of official inquiry, whether the facts relevant to the decision are actually correct. (23) The principle of production of evidence (Beibringungsgrundsatz) typical of civil procedure, which means that it is for the parties to adduce evidence of the facts of the case, in the manner and to the extent desired by them, thus configuring its subject-matter and binding the Court, which is required to rule secundum allegata et probata partium (i.e. according to the arguments put forward and evidence adduced by the parties (24)), does not apply in administrative proceedings on customs law. Rather, there is an obligation on the authority to establish the relevant facts. (25) It also determines the nature and scope of the inquiries, and, in particular, whether and what evidence should be used. The parties can apply for evidence to be taken. The authority is not bound by those applications, however; it may reject the parties’ calls for evidence to be admitted and may also adduce other evidence. It may not proceed one-sidedly, however, but is obliged to consider and have regard to all circumstances of significance to the particular case. (26)

56.   The question of initiating the procedure for other documents to be regarded as equivalent has to be examined from this viewpoint.

57.   One feature of the export refunds scheme is, in particular, that Community aid is granted only on condition that the exporter makes the application. (27) Since the scheme is based on voluntary declarations which the exporter submits if he has decided on his own initiative to claim a refund, he must provide the relevant information necessary to establish his entitlement to the refund. (28) The second sentence of Paragraph 16(1) of the AEVO similarly provides that an applicant must furnish the relevant information necessary to establish and prove its entitlement to the refund. However, that duty to adduce evidence does not affect the obligation on the competent customs office to examine facts of relevance to the decision of its own motion.

58.   Relevant information for the purposes of this case-law means the transport document and the non-member country’s customs import document where, for reasons beyond the exporter’s control, the T5 control copy or relevant national customs document are not in the administrative file. With the help of those documents it is easy to prove that the products have left the customs territory of the Community and that they have been produced to a customs office in a non-member country. The substantive requirements for an export refund are satisfied in such cases. Once those documents have been forwarded, the competent authority can therefore start the procedure for other documents to be regarded as equivalent of its own motion. Even where documentation is processed in bulk it can be concluded from the exporter submitting the relevant documents that in the normal course of events he is attempting to adduce proof of export.

59.   This does not, however, mean that exporters may submit incomplete applications.

60.   There is no Community legislation governing the concept of proof in the case of direct export. Any type of evidence admissible under German procedural law in similar proceedings is thus in principle admissible. Consequently, in a situation such as that at issue in the main proceedings, it is for the national authorities to determine, according to the principles of their national law on evidence, whether in the specific case before them direct export has been proved to their satisfaction. (29) The transport document endorsed with confirmation of clearance dated 9 April 1998 and the Russian customs import document stamped with the date 20 May 1998 do, in my opinion, constitute evidence capable of proving that the substantive requirements of a refund claim were satisfied.

61.   I would concur with the view expressed by the Greek Government in this respect, namely that the proof that is to be regarded as equivalent has to be submitted within the imperative time-limit of 12 months following the date of acceptance of the export declaration pursuant to Article 47(2) of Regulation No 3665/87.

62.   For this reason I propose that the answer to the first question referred by the national court should be that Article 47(3) of Regulation No 3665/87 does not apply to the direct export of products. However, the competent national authorities may of their own motion initiate the procedure for other documents to be regarded as equivalent in the case of direct export, where at least the following conditions are fulfilled:

–       the national export document cannot be produced for reasons beyond the exporter’s control;

–       the evidence adduced must be submitted within the period of 12 months following the date of acceptance of the export declaration pursuant to Article 47(2) of Regulation No 3665/87;

–       the documents submitted must prove beyond doubt that the substantive requirements for payment of the export refund are satisfied. Such proof beyond doubt may be adduced by submitting the transport document and the non-member country’s customs document.

B –    Whether a request that other documents be regarded as equivalent can also be made by implication and as a precaution

1.      Submissions of the parties

63.   Bonn Fleisch argues that a request that other documents be regarded as equivalent can also be made by implication and as a precaution. Article 47(3) of Regulation No 3665/87 does not state in what form such a request has to be made. It is therefore necessary only that the exporter’s request for other documents to be regarded as equivalent should be sufficiently clear. In the opinion of Bonn Fleisch this means that Regulation No 3665/87 does not preclude the possibility of a request being made by implication and as a precaution.

64.   The Hauptzollamt argues that an application is generally required in order for other documents to be regarded as equivalent. Although in a particular case a statement made in connection with the forwarding of documents can be interpreted as a request for recognition by implication, the true intention of the party making that statement must be clearly ascertainable taking normal commercial practice into account and based on the principle of good faith. No such intention is apparent in this case, however. First, it could not be concluded from the forwarding of the transport document and the non-member country’s customs document that this also meant that a request was being submitted for them to be regarded as equivalent documents. It should also be noted that the export refund procedure is a procedure on a large scale in which statements can only be construed on the basis of justified criteria. In the opinion of the Hauptzollamt, therefore, the assumption that a request is submitted by implication and as a precaution merely by forwarding the corresponding documents should be rejected.

65.   The view taken by Greece is that, provided that it is clear from the documents submitted that the aim pursued by the regulation is achieved, the fact that the exporter has not submitted an express or formal request for other documents to be regarded as equivalent cannot, in a case in which the substantive requirements for the award of export refunds are satisfied, result in such refunds being denied to the exporter. It should not be forgotten that an exporter cannot have precise knowledge of the date on which the T5 control copy is returned to the customs office of exit or to the paying office. For these reasons the possibility of an exporter submitting an application for other documents to be regarded as equivalent as a precaution, in order to safeguard his interests if the T5 control copy should not be returned, should not be precluded.

66.   The Commission recalls that in its opinion Article 47(3) of Regulation No 3665/87 does not apply to the direct export of products.

2.      Opinion of the Advocate General

67.   It can be concluded from the submissions of the parties that the theoretical possibility of a request for other documents to be regarded as equivalent being made by implication is not contested by the parties. The parties are in dispute as to the requirements that have to be satisfied in order for the authority to treat an applicant’s action as a request made by implication and as a precaution.

68.   However, even an implied request for other documents to be regarded as equivalent constitutes a declaration of intent, the content of which must be ascertained by interpretation. Under Community law, reference has to be made to general legal principles when interpreting declarations of intent. Details of the general legal principles governing interpretation of declarations of intent are to be found in Chapter 5, ‘Interpretation’, of the work Principles of European Contract Law. (30) This work covers the common basic features of contract law in the Member States.

69.   It must be possible, in the context of submission of a request by implication, for the content of the request to be ascertained from the circumstances surrounding its submission.

70.   Under the laws of the Member States a combination of both subjective and objective methods is predominantly applied when establishing intent. (31)

71.   The subjective element requires, first, that it be possible to establish the aim pursued by the party in its declaration of intent. In the present case the subjective element is to be found in the application for payment of an export refund. Where an exporter applies for an export refund, it is not outside the normal course of events for him also to have submitted along with that application, a maiori ad minus, all interlocutory applications required for the grant of the export refund. The procedure for other documents to be regarded as equivalent is an interlocutory procedure within the procedure for payment of an export refund, in which an answer is given to the preliminary question of whether the proof required for the export refund has indeed been furnished. Interlocutory procedures of this kind cannot be initiated expressly or by implication without a corresponding main procedure. It is therefore a fundamental prerequisite for the subjective element of the request to be accepted that a procedure for the payment of an export refund is pending and that the procedure for other documents to be regarded as equivalent is initiated within the export refund procedure that is pending.

72.   The additional objective element makes accepted commercial practice – i.e. what is customary in the trade or what appears to an objective observer to be reasonable in the light of accepted practice – part of the interpretation. (32)

73.   The interlocutory procedure is required where the national export document or T5 control copy does not reach the competent office’s administrative file for reasons beyond the exporter’s control. The first objective element is therefore the fact that the national export document or T5 control copy is not in the administrative files of the competent office for reasons beyond the exporter’s control.

74.   Compliance with the 12-month period within which the request for other documents to be regarded as equivalent must be submitted is another objective element, which derives from Article 47(5) of Regulation No 3665/87. For this reason a request by implication must be made within that period.

75.   In this context proof, first, that the products left the customs territory of the Community in their unaltered state within 60 days of the date of acceptance of the export declaration and, second, that the products were presented to the customs office of a non-member country must be considered as capable of proving compliance with the substantive requirements for entitlement to a refund.

76.   If at least these four requirements are met, it would appear reasonable to an objective observer or third party, in the light of accepted practice, for an exporter to have applied for other documents to be regarded as equivalent by implication and as a precaution in the context of the export refund.

77.   For this reason I propose that the answer given by the Court to the second question should be that a request that other documents be regarded as equivalent in the case of a direct export to which Article 47(3) of Regulation No 3665/87 does not apply can also be made by implication and as a precaution, where the following conditions are fulfilled:

–       an application for payment of an export refund has been made pursuant to Article 47(1) of Regulation No 3665/87;

–       the national export document is not in the administrative file of the competent office for reasons beyond the exporter’s control;

–       the evidence submitted was lodged within the period of 12 months following the date of acceptance of the export declaration pursuant to Article 47(2) of Regulation No 3665/87;

–       the evidence submitted proves that the products left the customs territory of the Community in their unaltered state within 60 days of the date of acceptance of the export declaration and that the products have been presented to the customs office of a non-member country.

V –  Conclusion

78.   On the basis of the foregoing considerations, I propose that the Court answer the questions referred by the Finanzgericht Hamburg as follows:

(1)      In the case of a direct export to which Article 47(3) 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 does not apply, the competent national authorities may of their own motion initiate the procedure for other documents to be regarded as equivalent, where at least the following conditions are fulfilled:

–       the national export document cannot be produced for reasons beyond the exporter’s control;

–       the evidence adduced must be submitted within the period of 12 months following the date of acceptance of the export declaration pursuant to Article 47(2) of Regulation No 3665/87;

–       the documents submitted must prove beyond doubt that the substantive requirements for payment of the export refund are satisfied. Such proof beyond doubt may be adduced by submitting the transport document and the non-member country’s customs document.

(2)      In the case of a direct export to which Article 47(3) of Regulation No 3665/87 does not apply, a request that other documents be regarded as equivalent can also be made by implication and as a precaution, where at least the following conditions are fulfilled:

–       an application for payment of an export refund has been made pursuant to Article 47(1) of Regulation No 3665/87;

–       the national export document is not in the administrative file of the competent office for reasons beyond the exporter’s control;

–       the evidence submitted was lodged within the period of 12 months following the date of acceptance of the export declaration pursuant to Article 47(2) of Regulation No 3665/87;

–       the evidence submitted proves that the products left the customs territory of the Community in their unaltered state within 60 days of the date of acceptance of the export declaration and that the products have been presented to the customs office of a non-member country. Such proof can be furnished by submitting the transport document and the non-member country’s customs document.

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1 – Original language: German.

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2 – OJ 1987 L 351, p. 1.

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3 – OJ 1999 L 102, p. 11.

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4 – BGBl. I, p. 766.

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5 ­– Case C‑385/03 Käserei Champignon Hofmeister [2005] ECR I‑2297, paragraph 26.

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6 – See Reiche, K., in ‘Das Zahlungsverfahren der Ausfuhrerstattung’, ZfZ (2006), p. 110, commenting on the judgment in Käserei Champignon Hofmeister (cited in footnote 5). The author then goes on to analyse the interaction between substantive-law and procedural-law aspects in the procedure for payment of export refunds.

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7 ­– According to Reiche, loc. cit., p. 111, direct export means that the product is exported to a non-member country directly from the territory of the Member State of export.

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8 – See Reiche, loc. cit., p. 111, who refers to Article 912 and 912c(4) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1). Article 912c(4) of that regulation provides: ‘The office of destination shall return the original of the T5 control copy to the address shown in box B (“Return to …”) of the T5 form once all the required formalities have been completed and annotations made.’

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9 – Reiche, loc. cit., p. 110.

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10 – The third recital in the preamble to Regulation No 3665/87 reads as follows: ‘Whereas the general rules laid down by the Council provide for the refund to be paid upon proof being furnished that the products have been exported from the Community; …’.

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11 – Reiche, loc. cit., p. 111.

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12 – The 50th recital in the preamble to Regulation No 3665/87 reads as follows; ‘Whereas it may happen that by reason of circumstances beyond the control of the exporter the control copy cannot be produced although the product has left the customs territory of the Community or has reached a particular destination; whereas such a situation may impede trade; whereas in such circumstances other documents should be recognised as equivalent.’

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13 – Reiche, loc. cit., p. 111. The author points out that it is normally possible during the course of the recognition procedure for proof of export to be furnished by way of the non-member country’s customs import document and the duplicate of the transport document.

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14 – Reiche, loc. cit., p. 116, who concludes from his analysis of the interaction between substantive-law and procedural-law aspects of the payment procedure that the submission of formal proof should not be confused with substantive-law rules on refunds.

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15– Similar to Case C‑231/89 Gmurzynska-Bscher [1990] ECR I‑4003, paragraph 25. In that case the Court found that it had jurisdiction to interpret Community law in a case in which Community law was made applicable by the laws of a Member State, even though it was outside the scope defined by Community law. The Court said in that case that neither the wording of Article 177 of the Treaty (now Article 234 EC) nor the object of the procedure which it provides for indicates that the draughtsmen of the Treaty intended to exclude from the Court’s jurisdiction references to the Court for a preliminary ruling in relation to a provision of Community law in the special case where the national law of a Member State refers to the substance of that provision to determine the rules applicable to a purely domestic matter in that State.

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16 – Case C‑3/04 Poseidon Chartering [2006] ECR I‑2505, paragraph 15. In that case originating in the Netherlands the Court was interpreting Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17). The directive was implemented in Netherlands law by Articles 428 to 445 of the Civil Code (Burgerlijk Wetboek). Article 7:428(1) of the Civil Code states: ‘An agency contract is a contract in which one party, the principal, confers authority on the other party, the commercial agent, to act as intermediary, for remuneration, whether or not for a fixed period, in the negotiation of contracts which the commercial agent may conclude in the name of and on behalf of the principal, without being subordinated to the principal.’ In that case the Court ruled that the concept of a commercial agent for the purposes of the directive also encompassed a contract concluded with an intermediary with authority to negotiate a contract for services and not just a contract for the sale or purchase of goods. It said that although the directive did not therefore directly govern the situation in issue, the fact remained that, in implementing the provisions of the directive in national law, the national legislature had decided to treat those two situations in the same way.

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17 – Poseidon Chartering (cited in footnote 16, paragraph 16) and Case C‑130/95 Giloy [1997] ECR I‑4291, paragraph 21.

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18 – Reiche, loc. cit., p. 113. The author refers in his assessment to Paragraph 25 of the Law on Administrative Procedure (Verwaltungsverfahrensgesetz) of 25 May 1976 (BGBl. 1976 I, p. 1253).

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19 – Joined Cases C‑430/93 and C‑431/93 van Schijndel [1995] ECR I‑4705. In those cases the Court faced the question of the power of a national court or tribunal to consider of its own motion the compatibility of a rule of domestic law with Community law. In paragraph 22 of that judgment it ruled that Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in the application of those provisions bases his claim.

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20 – Van Schijndel (cited in footnote 19, paragraph 16).

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21 – See Thienel, R., Verwaltungsverfahrensrecht, Vienna 2004, p. 138; Wollf, Decker, A., Studienkommentar VwGO und VwVG, Munich 2005, p. 566 and 567; Maurer, H., Allgemeines Verwaltungsrecht, 15th edition, Munich 2005, p. 489.

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22 – See Thienel, loc. cit., p. 138.

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23 – See Thienel, loc. cit., p. 170.

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24 – In the Opinion delivered by Advocate General Ruiz-Jarabo Colomer in Case C‑106/03 P Vedial v OHIM [2004] ECR I‑3573, points 29 and 31, he also favours, in principle, the application of the principle of production of evidence in administrative actions before the Office for Harmonisation in the Internal Market (Trade Marks and Designs). In his view, that application will depend on the extent to which the parties actually determine the scope of the dispute.

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25 – See Thienel, loc. cit., p. 171.

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26 – Maurer, loc. cit., p. 490. The author stresses that the principle of inquiry is of fundamental importance in administrative proceedings as a decision there essentially depends on proper and correct determination of the facts material to the decision.

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27 – Opinion delivered by Advocate General Léger in Case C‑120/05 Schulze [2006] ECR I‑10745, point 37. The Advocate General made that statement in connection with the interpretation of the third subparagraph of Article 7(1) of Commission Regulation (EC) No 1222/94 of 30 May 1994 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds (OJ 1994 L 136, p. 5).

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28 – Judgment in Case C‑309/04 Fleisch-Winter [2005] ECR I‑10349, paragraph 31. This case concerns the interpretation of Articles 13 and 11 of Regulation No 3665/87 as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 amending Regulation (EEC) No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as regards the recovery of amounts unduly paid and sanctions (OJ 1994 L 310, p. 57).

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29 – In Joined Cases C‑310/98 and C‑406/98 Met-Trans and Sagpol [2000] ECR I‑1797, paragraphs 29 and 30, the Court stated with regard to establishing an infringement of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1) that it is for the national authorities to determine, according to the principles of their national law on evidence, whether, in the specific case before them, and in the light of all the circumstances, the place where the offence or irregularity was committed has been proved to their satisfaction; for example, it is for them to determine whether, for instance, particular testimony is to be admitted or not, and whether it should be considered to have probative force.

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30 – Lando, O., Beale, H., Principles of European Contract Law, Parts I and II, The Hague 2000, p. 287 et seq. Ferreri, S., ‘Chapter 5’, Interpretation, in Antoniolli, L., Venezian, A., Principles of European Contract Law and Italian Law, The Hague 2005, p. 251 et seq.

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31 – Lando, Beale, a. a. O., Parts I and II, p. 288, according to which ‘following the majority of laws of EU Member states, the general rules on interpretation combine the subjective method, according to which pre-eminence is given to the common intention of the parties, and the objective method which takes an external view by reference to objective criteria such as reasonableness, good faith etc’.

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32 – Similarly, Lando, Beale, loc. cit., Parts I and II, p. 289.