Opinion of the Advocate-General

Opinion of the Advocate-General

1. An exporter who obtains export refunds is, as a rule, required to supply, in support of his export declaration, the documents and information required to establish entitlement to a refund and the amount of that refund.

2. The question in this case is whether an exporter, who is unable to supply, at the request of the competent national authorities, documentary evidence of the conditions of manufacture of the goods exported, may use evidence of a different kind to prove that his declaration is accurate.

3. That, essentially, is the question raised by the Finanzgericht Hamburg (Finance Court, Hamburg, Germany) in a dispute between Heinrich Schulze GmbH & Co. KG i.L. (‘Schulze’ or the ‘plaintiff’) and the Hauptzollamt Hamburg-Jonas (the ‘Hauptzollamt’ or the ‘defendant’) concerning the grant of export refunds applied for in relation to the export of gingerbread to a number of third countries.

4. This case gives the Court the opportunity to clarify the scope of the obligation to supply documents and information, which is incumbent upon an exporter under the third subparagraph of Article 7(1) of Regulation (EC) No 1222/94. (2)

I – The relevant Community legislation

A – The rules concerning the grant of export refunds for agricultural products

1. Regulation (EEC) No 3665/87

5. Regulation (EEC) No 3665/87 (3) lays down the common rules governing export refunds on agricultural products. In accordance with Article 2(1)(a) of that regulation, it covers not only agricultural products listed in Annex II to the EC Treaty (now, after amendment, Annex I EC), but also agricultural goods exported in the form of goods not listed in that annex.

6. Chapter 1, ‘Entitlement to refund’, of Title II of the regulation dealing with ‘Exports to non-member countries’ contains the provisions which establish entitlement to refund. Under the first subparagraph of Article 3(5)(c) of that regulation, 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, particulars of the composition of the products or the relevant reference.

2. Regulation No 1222/94

7. Regulation No 1222/94 lays 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, the basic products of which are listed in the regulations establishing the common organisations of the market in the milk and milk products, eggs, rice, sugar and cereals sectors.

8. According to the first subparagraph of Article 1(1), the regulation applies, inter alia, to the basic products listed in Annex A, as well as to products derived from the transformation thereof and listed in Annex B or C. (4)

9. Article 3 of the regulation lays down the methods of calculating the amount of the refund. That figure is determined on the basis of the quantity of basic products actually used in the manufacture of the exported goods. (5) Pursuant to the second subparagraph of Article 3(2) of the regulation, those quantities must be determined for each type of goods for which a refund is granted.

10. However, the third subparagraph of Article 3(2) of the regulation provides for a simplified procedure to which the 11th recital in the preamble to the regulation refers. Under that provision, in particular, ‘in the case of regular exports relating to goods manufactured by a particular undertaking, under clearly defined technical conditions and having constant characteristics and quality, the quantities may, by agreement with the competent authorities, be determined … from the manufacturing formula for the goods in question …’.

11. Article 7 of Regulation No 1222/94 also lays down the procedures for the grant of a refund. It provides, in particular, as indicated by the 10th recital to the regulation, for a system of verification based on the principle of a declaration by the exporter.

12. The first subparagraph of Article 7(1) of the regulation first provides that Regulation No 3665/87 is applicable. It further specifies all of the information which the exporter must provide in the document used for export. The exporter is required either to declare the quantities of basic products which have actually been used in the manufacture of the exported goods, or to refer to the composition of the goods concerned, if this has been determined in accordance with the simplified procedure provided for in the third subparagraph of Article 3(2) of Regulation No 1222/94.

13. Furthermore, according to the third subparagraph of Article 7(1) of the regulation, ‘the party concerned shall, in support of his declaration, supply the competent authorities with all documents and information which the latter consider relevant’.

14. In addition, under the fourth subparagraph of Article 7(1) of the regulation, the competent national authorities are authorised to use ‘any appropriate means’ to verify the accuracy of the export declaration.

15. The first subparagraph of Article 7(2) of Regulation No 1222/94 provides: ‘[w]here the party concerned does not draw up the declaration referred to in paragraph 1 or does not provide satisfactory information in support of his declaration, he shall not be entitled to a refund.’

16. Finally, it is necessary to set out the content of the 10th and 11th recitals to the regulation, in connection with Articles 3 and 7 thereof.

17. According to the 10th recital to the regulation, ‘[w]hereas it is necessary to provide for a notification system based on the principle that the exporter should declare to the competent authorities, each time that exportation takes place, the quantities of products used in the manufacture of the goods exported; whereas it is for the competent authorities to take any measures they consider necessary to verify the accuracy of such declaration’.

18. The 11th recital to Regulation No 1222/94, for its part, states that ‘[w]hereas many goods, manufactured by an undertaking under clearly defined technical conditions and having constant characteristics and quality, follow a regular export pattern; whereas to ease export formalities a simplified inspection procedure should be adopted for such goods whereby the manufacturer communicates to the competent authority such information as the latter considers necessary concerning the conditions of manufacture of the goods’.

B – The rules on verification

19. Pursuant to Article 1, first indent, of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, (6) the Code is to apply to trade between the Community and third countries. Consequently, it covers exports of agricultural products in respect of which export refunds have been granted.

20. Article 14 of the Code provides, in particular, that ‘for the purposes of applying customs legislation, any person directly or indirectly involved in the operations concerned for the purposes of trade in goods shall provide the customs authorities with all the requisite documents and information, irrespective of the medium used, and all the requisite assistance at their request and by any time-limit prescribed’.

II – Facts and main proceedings

21. In 1996, Schulze exported gingerbread to several third countries and applied for export refunds for the basic products that gingerbread contained. In support of its application, the plaintiff referred, in the various requests for refund which it submitted, to the manufacturing formulae determined in agreement with the competent national authorities under the simplified procedure provided for in the third subparagraph of Article 3(2) of Regulation No 1222/94.

22. In May 1997, the production facilities and offices of the plaintiff suffered serious fire damage. In July 1997, Schulze ceased production.

23. In October 1999, the Hauptzollamt reviewed the manufacturing formulae the plaintiff had provided. That review established that the internal documents required to verify the accuracy of each of the formulae had been destroyed by the fire.

24. The defendant took the view that Schulze had been unable to furnish the information and documents required under Article 7(1) of Regulation No 1222/94 for the purpose of verifying the manufacturing formulae and demanded, on 28 August 2000, on the basis of Article 11(3) of Regulation No 3665/87, (7) repayment of the export refunds paid to the plaintiff totalling DEM 26 174.84.

25. In response to Schulze’s appeal against that demand for repayment, the Hauptzollamt took the view that the plaintiff had failed to meet its obligation to provide evidence under Article 7 of Regulation No 1222/94 and, consequently, rejected the appeal. According to the Hauptzollamt, Schulze could not rely on force majeure since neither Article 11(3) of Regulation No 3665/87 nor Article 7 of Regulation No 1222/94 authorised a derogation of that nature.

26. The plaintiff appealed against that decision before the Finanzgericht Hamburg. It bases that appeal, in particular, on the contention that the demand for repayment may not be founded on Article 11(3) of Regulation No 3665/87 since that provision relates solely to cases in which the export refund has been unduly paid. But Schulze considers that, in this case, the refunds were properly paid, given the authorisation, obtained in accordance with the third subparagraph of Article 3(2) of Regulation No 1222/94, to apply a simplified procedure to determine the manufacturing formulae.

III – The questions referred

27. In its order for reference, the Finanzgericht points out that the grant of the refund for the goods covered by Regulation No 1222/94 is not only subject to proof that the products were actually exported but also to the provision of the documents concerning the quantities of basic products actually used. In the absence of such documents, the national court considers that the refund cannot be payable and must, in that case, be repaid in accordance with Article 11(3) of Regulation No 3665/87.

28. In this case, the national court first expresses doubt as to whether it is open to the plaintiff to rely on force majeure and whether it may be permitted to provide the evidence required under Article 7(1) of Regulation No 1222/94 in a form other than documentary form. After drawing attention to the Court’s case-law on force majeure, (8) it first points out that no provision of Regulation No 1222/94 governs the consequences of a situation of that nature. It then notes that, in the light, in particular, of the Court’s judgment in First City Trading and Others , an exporter can rely on force majeure only in relation to a decision to impose a penalty. (9) The exporter is thus still required to repay the export refunds which it has been granted.

29. The Finanzgericht points out, however, that Schulze found itself in an ‘emergency situation’, and, according to that court, this justifies an exception to the requirement of documentary evidence. In that connection, the Finanzgericht notes that Article 7(1) of Regulation No 1222/94 does not absolutely require that the exporter should provide documentary evidence concerning the manufacturing process in the form of documents relating to production. Furthermore, it makes the point that, under the 10th recital to that regulation, it is ultimately for the competent national authorities to take the measures they consider necessary to verify the accuracy of exporters’ declarations.

30. For the reasons set out above, the Finanzgericht Hamburg had doubts concerning the interpretation of the third subparagraph of Article 7(1) of Regulation No 1222/94; it therefore decided to stay proceedings and refer to the Court of Justice the following questions for a preliminary ruling:

‘(1) Can the documentary evidence provided for in the third subparagraph of Article 7(1) of Regulation No 1222/94 be disregarded and the exporter permitted to adduce evidence as to the products actually used in the manufacture of the exported goods by means of other types of evidence if the exporter cannot (is no longer able to) adduce the documents relating to production by reason of force majeure?

(2) Does the incidence of force majeure also lead to a reduction in the standard of proof in the sense that the exporter merely has to produce prima facie evidence of or plausibly demonstrate the products actually used in the manufacture of the exported goods?’

IV – Analysis

A – The first question

31. By its first question, the national court is essentially asking the Court of Justice whether the third subparagraph of Article 7(1) of Regulation No 1222/94 must be interpreted as meaning that where the exporter is unable to provide documentary evidence of the conditions of manufacture of the goods exported, it may use other types of evidence to prove that its export declaration is accurate.

32. The defendant considers that this question should be answered in the negative. It takes the view, first, that the grant of export refunds for goods which are not covered by Annex II to the Treaty is based on ascertaining in detail the nature and quantity of basic products used. Consequently, it maintains that no other type of evidence can replace the documentary evidence for which the third subparagraph of Article 7(1) provides.

33. It contends, second, that the existence of a situation of force majeure is without effect on the obligation incumbent upon the party concerned to supply the documents and information concerning the manufacture of the goods exported. In that connection, the defendant claims that the repayment procedure, provided for in Article 11(3) of Regulation No 3665/87, makes no mention of situations of force majeure. It also points out that the force majeure clause has never been recognised by the Court as a general principle of Community law and, since it constitutes an exception to the general rule that legislative provisions must be scrupulously complied with, it must be strictly interpreted and applied. Finally, the defendant contends that the force majeure clause itself is incompatible with the objective pursued by Article 7(1) of Regulation No 1222/94, that is to say protecting the Community’s financial interests.

34. I cannot endorse that analysis.

35. Indeed, I consider that if an exporter is completely unable to provide documentary evidence in support of its export declaration, the third subparagraph of Article 7(1) of Regulation No 1222/94 does not preclude it from proving the accuracy of its declaration, to the satisfaction of the competent national authorities, using another type of evidence provided for under the rules of domestic law.

36. Before I consider the types of evidence provided for by the third subparagraph of Article 7(1), I should first clarify the scope of the obligation that that provision lays down in cases where the exporter has made use, as in this case, of the simplified procedure set out in the third subparagraph of Article 3(2) of Regulation No 1222/94.

37. It should be borne in mind that a feature of the export refunds scheme is, in particular, that Community aid is granted only on condition that the exporter makes the application. Where the exporter decides, on its own initiative, to obtain a refund, the Court takes the view that ‘it must provide the relevant information necessary to establish its entitlement to the refund and to determine its amount’. (10)

38. Under the first subparagraph of Article 3(5)(c) of Regulation No 3665/87 which, as I have said, is applicable to the refunds at issue, (11) 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, particulars of the composition of the products or the relevant reference.

39. In the context of Regulation No 1222/94, and pursuant to the third subparagraph of Article 7(1) thereof, entitlement to a refund is also subject to the declaration by the party concerned of the quantity of basic products actually used or a reference to the composition of the goods exported, as determined in the context of the simplified procedure.

40. Under the third subparagraph of Article 7(1) of the regulation, entitlement to a refund is also subject to the exporter furnishing the competent national authorities with the documents and information relating to the conditions of manufacture of the exported goods.

41. That requirement is designed to enable the authorities to verify the accuracy of the export declaration and thus establish that the exporter is entitled to a refund and determine the amount of that refund.

42. In my view, that requirement applies similarly where the party concerned makes use, as in this case, of the simplified procedure provided for in the third subparagraph of Article 3(2) of Regulation No 1222/94. (12)

43. On the one hand, the 11th recital to the regulation clearly indicates that this procedure, adopted in the interests of administrative simplicity, requires the supply to the competent national authorities of the information they consider necessary.

44. On the other hand, the third subparagraph of Article 7(1) of the regulation makes no distinction according to whether the exporter declared, at the time of export, the quantity of basic products actually used or simply referred to the composition of the goods, as determined under the simplified procedure.

45. Finally, the verification carried out by the competent national authorities by reference to the documents and information the exporter has supplied is designed, in particular, to establish that, in the particular consignment , the goods exported are indeed composed of the quantities of agricultural products determined as standard under that simplified procedure.

46. Consequently, even if the exporter has determined the composition of the goods exported in agreement with the competent national authorities, I consider that it is still required to supply all of the documents and information which those authorities consider relevant.

47. In my view, to determine the form of the documents and information that the exporter must provide at the request of those authorities, we must refer to the wording of the third subparagraph of Article 7(1) of Regulation No 1222/94. The wording of that provision must be read in conjunction with the 10th and 11th recitals to the regulation.

48. According to the wording of the third subparagraph of Article 7(1), the exporter is to provide documentary evidence. In my view, that must be interpreted as referring to all of the documents which relate to the manufacture of the exported goods and make it possible to ascertain the quantities of basic products used in their manufacture. This could include, for instance, invoices or chemical analyses made by the undertaking by way of quality controls.

49. However, it is also apparent from that wording that it does not impose any particular restriction on the form of the documents or information which the party concerned is required to produce.

50. In fact, it merely stipulates that the exporter must supply ‘ all documents and information which [the competent authorities] consider relevant’. According to the 11th recital to Regulation No 1222/94, the information in question consists in all the information which the competent national authority ‘considers necessary concerning the conditions of manufacture of the goods’.

51. Even if it is true, as the defendant points out, that the grant of the export refunds at issue requires that the nature and quantity of the products used be accurately determined and that documentary evidence seems to provide the best way of doing this, the fact remains that the regulation does not stipulate that documentary evidence is the only acceptable type of evidence.

52. It is also interesting to note that, under Article 14 of the Community Customs Code, (13) any person involved in a verification procedure carried out by the customs authorities of a Member State must provide all the documents and all the information the latter consider to be necessary, irrespective of the medium used .

53. In the light of those factors, I therefore consider that the third subparagraph of Article 7(1) of Regulation No 1222/94 permits various forms of evidence.

54. Moreover, it is clear from the wording of the third subparagraph of Article 7(1), read in conjunction with the 10th and 11th recitals to the regulation, that it is ultimately for the competent national authorities to assess whether it is necessary for them to obtain documents or information in support of the exporter’s declaration. It is also for those authorities to determine the most appropriate means of evidence, in the light of the circumstances of the individual case. (14)

55. We should not lose sight of the fact that, according to settled case-law, in the absence of Community rules on this subject, the national authorities must base their decision on national law. It must, however, be borne in mind that the means of evidence provided for under domestic legislation may not undermine either the scope or the effectiveness of Community law. That case-law therefore clearly indicates that those means must not be less favourable than those governing similar domestic procedures (principle of equivalence) nor render virtually impossible or excessively difficult the implementation of Community legislation (principle of effectiveness). Such procedural rules would affect the exercise of rights conferred by the Community legal system. (15)

56. Moreover, it is clear from the first subparagraph of Article 7(2) of Regulation No 1222/94 that it is for the competent national authorities to assess whether the evidence the exporter supplies is ‘satisfactory’.

57. In the light of the foregoing, I therefore consider that, in circumstances in which an exporter is unable to supply, in support of its export declaration, documentary evidence concerning the conditions of manufacture of the exported goods, the third subparagraph of Article 7(1) of Regulation No 1222/94 must be interpreted as not precluding that exporter from adducing, to the satisfaction of the national authorities, any other type of evidence provided for under the rules of domestic legislation, always provided that those rules undermine neither the scope nor the effectiveness of Community law.

B – The second question

58. By its second question, the national court is, basically, seeking to establish whether, if an exporter is affected by a situation of force majeure, (16) preventing it from supplying the documentary evidence the competent national authorities have asked for, this results in a lowering of the standard of proof required by the third subparagraph of Article 7(1) of Regulation No 1222/94.

59. In my view, the answer to that question emerges from the considerations set out above.

60. It should be pointed out, by way of a preliminary remark, that export refunds constitute Community aid, enjoyment of which is, of necessity, subject to the condition that the goods for which it is granted correspond to what was declared on export or determined in the context of the simplified procedure.

61. As we have seen, the third subparagraph of Article 7(1) of Regulation No 1222/94 does not preclude proof of the accuracy of an export declaration being furnished using a type of evidence other than documentary evidence. However, whatever the form or medium of the evidence the exporter supplies, it must enable the competent national authorities to establish that the requirements laid down by the Community rules have been met.

62. In those circumstances, I consider that the fact that an exporter is unable to supply the competent national authorities with documentary evidence concerning the conditions of manufacture of the goods exported in no way has the effect of lowering the standard of proof required by the third subparagraph of Article 7(1).

63. Even assuming that documentary evidence cannot be supplied because a situation of force majeure has arisen, that, in my view, has no impact on that conclusion. (17)

64. Indeed, Regulation No 3665/87, which, as I have said, is applicable in this case, (18) provides exhaustively for the consequences of force majeure in relation to export refunds. (19) In First City Trading and Others , for example, the Court held that the provisions of the regulation concerning force majeure merely enable the recipient of Community aid to be exempted from having to pay penalties. However, they do not enable the exporter to be exempted from having to repay sums unduly received. (20)

65. In the light of the foregoing, I therefore consider that the opportunity the third subparagraph of Article 7(1) of Regulation No 1222/94 affords an exporter to prove the accuracy of its export declaration by means of evidence other than documentary evidence in no way reduces the standard of proof required by that provision, even in circumstances in which the existence of a situation of force majeure is established.

V – Conclusion

66. In the light of the above considerations, I therefore propose that the Court should give the following answers to the questions referred by the Finanzgericht Hamburg:

(1) In circumstances in which an exporter is unable to supply, in support of his export declaration, documentary evidence concerning the conditions of manufacture of the exported goods, 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 [now, after amendment, Annex I EC], and the criteria for fixing the amount of such refunds, must be interpreted as not precluding that exporter from adducing, to the satisfaction of the national authorities, any other type of evidence provided for under the rules of domestic legislation, always provided that those rules undermine neither the scope nor the effectiveness of Community law.

(2) The opportunity the third subparagraph of Article 7(1) of Regulation No 1222/94 affords an exporter to prove the accuracy of his export declaration by means of evidence other than documentary evidence in no way reduces the standard of proof required by that provision, even in circumstances in which the existence of a situation of force majeure is established.

(1) .

(2)  – Commission Regulation 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 [now, after amendment, Annex I EC], and the criteria for fixing the amount of such refunds (OJ 1994 L 136, p. 5).

(3) – Commission Regulation of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 (OJ 1994 L 310, p. 57; ‘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). Since it postdates the facts of the case, the latter regulation does not apply to the main proceedings.

(4)  – Gingerbread falls within Annex B to Regulation No 1222/94 (CN code 1905 20).

(5)  – Under the first subparagraph of Article 3(2) of Regulation No 1222/94, ‘the products used unprocessed in the manufacture of exported goods shall be considered as actually used’.

(6)  – OJ 1992 L 302, p. 1; the ‘Community Customs Code’.

(7)  – Article 11(3) of Regulation No 3665/87 provides that ‘… where a refund is unduly paid, the beneficiary shall reimburse the amounts unduly received …’.

(8)  – In its order for reference, the Finanzgericht cites Case C-124/92 An Bord Bainne Co-operative and Compagnie Inter-Agra [1993] ECR I-5061; Case C-12/92 Huygen and Others [1993] ECR I-6381; Case C-263/97 First City Trading and Others [1998] ECR I-5537; and Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453.

(9)  – Paragraph 46.

(10)  – Case C-309/04 Fleisch-Winter [2005] ECR I-10349, paragraph 31.

(11)  – See the first sentence of the first subparagraph of Article 7(1) of Regulation No 1222/94.

(12)  – That procedure, as we have seen, enables the exporter to determine the composition of the goods exported in agreement with the competent national authorities. The goods concerned are, in particular, goods which follow a regular export pattern and have consistent characteristics and quality.

(13)  – As I have pointed out, the Community Customs Code is applicable to the refunds at issue.

(14)  – Although the Commission regulates the common procedures for the application of export refunds for agricultural products, it is in fact for the Member States to ensure, pursuant to Article 10 EC, that Community regulations, particularly those concerning the common agricultural policy, are implemented within their territory. See, in particular, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraph 17.

(15)  – See, in particular, Case C-212/94 FMC and Others [1996] ECR I-389, paragraphs 49 to 52 and the case-law cited therein.

(16)  – I would point that, according to settled case-law, the concept of ‘force majeure’ adopted in the agricultural regulations is not limited to that of ‘absolute impossibility’ but must be construed in the sense of unusual circumstances outside the control of the importer or exporter, the consequences of which could have been avoided only at an excessive loss, despite all diligence being shown (see, in particular, Case 4/68 Schwarzwaldmilch [1968] ECR 377, 385 and 386; Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 23; Case 25/70 Köster [1970] ECR 1161, paragraph 38; Case C-347/93 Boterlux [1994] ECR I-3933, paragraph 34; and Case C-208/01 Parras Medina [2002] ECR I-8955, paragraphs 18 and 19. See also An Bord Bainne Co-operative and Compagnie Inter-Agra (cited in footnote 8), paragraph 11, and Huygen and Others (cited in footnote 8), paragraph 31. See also Commission communication C(88) 1696 concerning ‘force majeure’ in European agricultural law (OJ 1988 C 259, p. 10).

(17)  – It should be borne in mind that it is for the national court to determine whether, in the light of the circumstances of the case, the fire which destroyed the plaintiff’s premises constitutes a situation of force majeure (see, to that effect, Parras Medina (cited in footnote 16), paragraph 22).

(18)  – See the first subparagraph of Article 7(1) of Regulation No 1222/94.

(19)  – First City Trading and Others (cited in footnote 8), paragraph 33.

(20)  – Ibid., paragraph 46.