Case C-99/12
Eurofit SA
v
Bureau d’intervention et de restitution belge (BIRB)
(Request for a preliminary ruling from the tribunal de première instance de Bruxelles)
‛Request for a preliminary ruling — Agriculture — Common organisation of the markets — Regulation (EEC) No 3665/87 — Export refunds — Misappropriation of goods intended for export — Exporter’s obligation to reimburse refunds — Failure of the competent authorities to provide information regarding the reliability of a contractor who is suspected of fraud — Force majeure — Absence’
Summary — Judgment of the Court (Sixth Chamber), 18 July 2013
EU law — Principles — Force majeure — Concept — Abnormal and unforeseeable circumstances, outside the control of the person relying on them, with inevitable consequences, in spite of the exercise of all due care — Assessment based on the regulatory context — Area of export refunds
(Commission Regulation No 3665/87, as amended by Regulation No 2945/94, Arts 5 and 11)
Agriculture — Common organisation of the markets — Export refunds — Conditions for granting — Importation of the product into the country of destination — Article 5 of Regulation No 3665/87 — Conditions under which applicable — Exceptions — Cases of force majeure — Restrictive interpretation
(Commission Regulation No 3665/87, as amended by Regulation No 2945/94, Art. 5(1), first para., and (3))
Agriculture — Common organisation of the markets — Export refunds — False declaration — Financial penalty imposed on the exporter — Strict liability regardless of fault on the part of the exporter — Increase in the event of an intentional act by the exporter
(Commission Regulation No 3665/87, as amended by Regulation No 2945/94, Art. 11(1), first para.)
Agriculture — Common organisation of the markets — Export refunds — False declaration resulting from the fraudulent conduct of the contractor — Penalty — Inapplicability in exceptional cases — Scope — Failure of the competent authorities to provide information regarding the reliability of a contractor — Included — No effect on the reimbursement obligation by the exporter of export refunds unduly paid
(Commission Regulation No 3665/87, as amended by Regulation No 2945/94, Art. 11(1), third para.)
See the text of the decision.
(see paras 31-34)
See the text of the decision.
(see paras 35-37)
See the text of the decision.
(see paras 38-40)
The failure by the competent customs authorities to inform the exporter of the existence of a likelihood of fraud committed by the exporter’s contractor does not constitute a case of force majeure for the purposes of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 2945/94, and, in particular, the first indent of the third subparagraph of Article 11(1) thereof. While such a failure is liable to constitute an exceptional case within the meaning of the second indent of the third subparagraph of Article 11(1) of Regulation No 3665/87, it cannot, however, release that exporter from its obligation to reimburse export refunds unduly received, that exporter being exempted only from having to pay sanctions due under that article.
In that context, the provisions of the second indent of the third subparagraph of Article 11(1) of that regulation release exporters only from the payment of the sanctions, but not from the reimbursement of the refunds paid in advance. It is not possible to add a new exception, based in particular on the absence of fault on the part of the exporter, to the exhaustive list contained in the third subparagraph of Article 11(1) of the regulation at issue. Even if the fault or error committed by the exporter’s contracting partner is apt to constitute a circumstance beyond his control, they are none the less an ordinary commercial risk, including in the event of a criminal conviction of that contracting partner for falsification of documents in respect of export refunds, and cannot be considered to be unforeseeable in the context of commercial transactions. The exporter is fully at liberty to select his trading partners and it is up to him to take the appropriate precautions, either by including the necessary clauses in the contracts which he concludes with them or by effecting appropriate insurance.
(see paras 42, 43, 49, operative part)
Case C-99/12
Eurofit SA
v
Bureau d’intervention et de restitution belge (BIRB)
(Request for a preliminary ruling from the tribunal de première instance de Bruxelles)
‛Request for a preliminary ruling — Agriculture — Common organisation of the markets — Regulation (EEC) No 3665/87 — Export refunds — Misappropriation of goods intended for export — Exporter’s obligation to reimburse refunds — Failure of the competent authorities to provide information regarding the reliability of a contractor who is suspected of fraud — Force majeure — Absence’
Summary — Judgment of the Court (Sixth Chamber), 18 July 2013
EU law — Principles — Force majeure — Concept — Abnormal and unforeseeable circumstances, outside the control of the person relying on them, with inevitable consequences, in spite of the exercise of all due care — Assessment based on the regulatory context — Area of export refunds
(Commission Regulation No 3665/87, as amended by Regulation No 2945/94, Arts 5 and 11)
Agriculture — Common organisation of the markets — Export refunds — Conditions for granting — Importation of the product into the country of destination — Article 5 of Regulation No 3665/87 — Conditions under which applicable — Exceptions — Cases of force majeure — Restrictive interpretation
(Commission Regulation No 3665/87, as amended by Regulation No 2945/94, Art. 5(1), first para., and (3))
Agriculture — Common organisation of the markets — Export refunds — False declaration — Financial penalty imposed on the exporter — Strict liability regardless of fault on the part of the exporter — Increase in the event of an intentional act by the exporter
(Commission Regulation No 3665/87, as amended by Regulation No 2945/94, Art. 11(1), first para.)
Agriculture — Common organisation of the markets — Export refunds — False declaration resulting from the fraudulent conduct of the contractor — Penalty — Inapplicability in exceptional cases — Scope — Failure of the competent authorities to provide information regarding the reliability of a contractor — Included — No effect on the reimbursement obligation by the exporter of export refunds unduly paid
(Commission Regulation No 3665/87, as amended by Regulation No 2945/94, Art. 11(1), third para.)
See the text of the decision.
(see paras 31-34)
See the text of the decision.
(see paras 35-37)
See the text of the decision.
(see paras 38-40)
The failure by the competent customs authorities to inform the exporter of the existence of a likelihood of fraud committed by the exporter’s contractor does not constitute a case of force majeure for the purposes of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 2945/94, and, in particular, the first indent of the third subparagraph of Article 11(1) thereof. While such a failure is liable to constitute an exceptional case within the meaning of the second indent of the third subparagraph of Article 11(1) of Regulation No 3665/87, it cannot, however, release that exporter from its obligation to reimburse export refunds unduly received, that exporter being exempted only from having to pay sanctions due under that article.
In that context, the provisions of the second indent of the third subparagraph of Article 11(1) of that regulation release exporters only from the payment of the sanctions, but not from the reimbursement of the refunds paid in advance. It is not possible to add a new exception, based in particular on the absence of fault on the part of the exporter, to the exhaustive list contained in the third subparagraph of Article 11(1) of the regulation at issue. Even if the fault or error committed by the exporter’s contracting partner is apt to constitute a circumstance beyond his control, they are none the less an ordinary commercial risk, including in the event of a criminal conviction of that contracting partner for falsification of documents in respect of export refunds, and cannot be considered to be unforeseeable in the context of commercial transactions. The exporter is fully at liberty to select his trading partners and it is up to him to take the appropriate precautions, either by including the necessary clauses in the contracts which he concludes with them or by effecting appropriate insurance.
(see paras 42, 43, 49, operative part)