—

VAEX Varkens- en Veehandel BV, by T. Linssen, advocaat,

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the Netherlands Government, by B. Koopman and M. Bulterman, acting as Agents,

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the Council of the European Union, by E. Karlsson and B. Driessen, acting as Agents,

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the European Commission, by H. Kranenborg and D. Triantafyllou, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation and, as the case may be, the validity of the regulatory framework applicable to export refunds for agricultural products, namely, first, Commission Regulation (EC) No 612/2009 of 7 July 2009 on laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 2009 L 186, p. 1), and, secondly, Commission Regulation (EC) No 376/2008 of 23 April 2008 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 2008 L 114, p. 3) and Commission Regulation (EC) No 382/2008 of 21 April 2008 on rules of application for import and export licences in the beef and veal sector (OJ 2008 L 115, p. 10).

2

The request has been made in proceedings between VAEX Varkens- en Veehandel BV (‘VAEX’), a company established in the Netherlands, and the Productschap Vee en Vlees (‘the PVV’), concerning a refusal to pay an export refund and the forfeiture of the security lodged in order to obtain an export licence.

3

Recitals 15, 21 and 27 in the preamble to Regulation No 376/2008 are worded as follows:

...

4

Article 7 of that regulation provides as follows:

‘1.   The import or export licence shall constitute authorisation and give rise to an obligation respectively to import or to export under the licence, and, except in cases of force majeure, during its period of validity, the specified quantity of the products or goods concerned.

...

2.   An export licence fixing the export refund in advance shall give rise to an obligation to export the specified quantity of the relevant product under the licence and, except in cases of force majeure, during its period of validity.

Where exports of products are subject to presentation of an export licence, the export licence with advance fixing of the refund shall determine the right to export and entitlement to the refund.

...’

5

Pursuant to Article 22 of that regulation:

‘1.   For the purpose of determining their period of validity, licences and certificates shall be considered to have been issued on the day on which the application for them was lodged, that day being included in the calculation of such period of validity. However, licences and certificates may not be used until their actual issue.

2.   It may be specified that a licence or certificate is to become valid on its actual day of issue, in which case that day shall be included in the calculation of its period of validity.’

6

Article 23 of that regulation provides as follows:

‘1.   Copy No 1 of the licence or certificate shall be submitted to the customs office which accepted:

...

...

2.   Copy No 1 of the licence or certificate shall be presented, or held at the disposal of the customs authorities, at the time of acceptance of the declaration referred to in paragraph 1.’

7

Article 24 of Regulation No 376/2008 stipulates:

‘1.   Notwithstanding Article 23, a Member State may allow the licence or certificate to be:

...

6.   Where the products exported are not subject to the production of an export licence but the export refund has been fixed by means of an export licence fixing in advance the export refund, if, as the result of an error, the document used during export to prove eligibility for a refund makes no mention of this Article and/or the number of the licence or certificate, or if the information is incorrect, the operation may be regularised provided the following conditions are met:

8

Article 34(2) of that regulation states:

‘Subject to the application of Articles 39, 40 or 47, where the obligation to import or export has not been met the security shall be forfeit in an amount equal to the difference between:

...’

9

Recitals 4 and 10 in the preamble to Regulation No 612/2009 are worded as follows:

...

10

Pursuant to Article 3 of that regulation:

‘... [E]ntitlement to the refund is acquired:

11

Article 4(1) of that regulation provides as follows:

‘Entitlement to the refund shall be conditional upon the presentation of an export licence with advance fixing of the refund, except in the case of exports of goods.

...’

12

Under Article 5(1) and (2) of that regulation, the ‘day of export’ means the day on which the customs authorities accept the export declaration stating that a refund is to be applied for. The date of acceptance of the export declaration is to determine, inter alia, the rate of refund applicable, any adjustments to be made and the quantity, nature and characteristics of the product exported.

13

In accordance with Article 5(7), third subparagraph, of Regulation No 612/2009, the competent customs office must be able to make physical checks and identify the goods for transport to the office of exit from the customs territory of the Community.

14

Recital 9 in the preamble to Regulation No 382/2008 is worded as follows:

‘... [N]otification of decisions on export licence applications should be made only after a reflection period enabling the Commission to assess the quantities applied for and the relevant expenditure and if appropriate take particular action on the applications in question ...’

15

Article 9 of that regulation provides as follows:

‘Without prejudice to Article 5(1) of [Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 2000 L 152, p. 1)], all exports of beef and veal products for which an export refund is claimed shall require presentation of an export licence with advance fixing of the refund, in accordance with the provisions of Articles 10 to 16 of this Regulation.’

16

Article 10 of Regulation No 382/2008 states:

‘1.   The period of validity of licences for exports of products for which a refund is claimed and which are subject to the issuing of an export licence with advance fixing of the refund, calculated from the date of issue within the meaning of Article 23(2) of Regulation (EC) No 1291/2000, shall be:

...’

17

Article 78 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Customs Code’), provides as follows:

‘1.   The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods.

2.   The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said document and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be produced.

3.   Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’

18

On 15 October 2009, VAEX requested the PVV to issue an export licence for a consignment of heifers to be exported to Russia. With a view to obtaining that licence, VAEX lodged security in the amount of EUR 6 448. On 15 and 16 October 2009, the PVV sent VAEX documents headed ‘Statements of changes in the lodging of securities and fixed assets’, referring to the export licences bearing, respectively, the provisional numbers 100308 and 100315.

19

According to VAEX, during a telephone conversation on 19 October 2009 concerning the export licence applied for, one of the PVV’s employees confirmed use of the licence number 100315 in respect of an export declaration to be made the next day. The PVV however disputes that such information was provided by telephone.

20

On 20 October 2009, VAEX submitted an export declaration relating to the consignment of heifers concerned. That declaration included an application for an export refund on the basis of an export licence with the number 100315. The customs authorities accepted that export declaration the same day.

21

On 21 October 2009, the PVV issued the export licence with the number 100344 for the purposes of the export VAEX had requested. On 22 October 2009, that consignment of heifers left the customs territory of the European Union, arriving at its destination on 26 October 2009.

22

By decision of 6 July 2010, the PVV rejected the application for an export refund submitted by VAEX and ordered that the security lodged in order to obtain that export licence be forfeited.

23

The complaint brought by VAEX against that decision was rejected by the PVV on the ground that the export had not been carried out during the period of validity of the licence in question.

24

VAEX brought proceedings before the College van Beroep voor het bedrijfsleven (Administrative Appeal Court for Economic Matters) seeking the grant of the refund applied for and the release of the security lodged.

25

That court considers that the outcome of the dispute depends on whether payment of the export refund is conditional on the export declaration having been made during the period of validity of the export licence.

26

The referring court notes that both the legislation applicable to refunds and that relating to export licences may be given an interpretation either favourable to or, on the contrary, unfavourable to VAEX’s line of argument, which is that the refund is payable if the export was made during the period of validity of the export licence.

27

Furthermore, should the applicable legislation preclude post-clearance regularisation enabling the export refund applied for by VAEX to be granted, the referring court expresses doubts as to whether such legislation is valid in the light, in particular, of the application of the principle of proportionality.

28

In those circumstances, the College van Beroep voor het bedrijfsleven decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

29

By its first question, the referring court asks, in essence, whether the provisions of Regulation No 612/2009 and of Regulations Nos 376/2008 and 382/2008 preclude, as a general rule, the payment of an export refund and the release of the security lodged in that connection when the exporter concerned did not have a valid export licence at the date the export declaration was accepted, even though the actual export of the goods concerned took place during the period of validity of an export licence issued to it.

30

It must be noted in that regard that Article 4(1) of Regulation No 612/2009 provides that entitlement to the refund is conditional upon the presentation of an export licence to the competent customs authority.

31

Given that Article 4 of Regulation No 612/2009 is included in the part of the general provisions of that regulation relating to entitlement to refunds, it must be observed that the Court has held, so far as concerns Article 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 (OJ 1987 L 351, p. 1), the content of which corresponds to Article 5 of Regulation No 612/2009 and which is part of the same general provisions, that the information referred to in Article 3 of Regulation No 3665/87 is used not only in the calculation of the exact amount of the refund but rather, and above all, to ascertain whether a right to that refund exists or not and to trigger the system of checks of the request for refund (judgment in Dachsberger & Söhne, C‑77/08, EU:C:2009:172, paragraph 24 and the case-law cited).

32

So far as concerns the checks to be carried out, Article 5(7) of Regulation No 612/2009 provides that the competent customs office must be able to make physical checks on the goods in respect of which export refunds have been applied for and to identify the goods for transport to the office of exit from the customs territory of the European Union.

33

Those checks are necessary in order that the objectives of the EU legislation on export refunds may be fulfilled (see, to that effect, judgments in Dachsberger & Söhne, EU:C:2009:172, paragraph 41 and the case-law cited, and Südzucker and Others, C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 43).

34

Therefore, the presentation of the export licence constitutes an essential element of the system of checks on applications for refunds.

35

Regulation No 612/2009 does not, however, contain any details as regards the procedure for the presentation of the export licence. Those details are contained in Regulation No 376/2008 and, so far as concerns specifically the beef and veal sector, Regulation No 382/2008.

36

Thus, according to recital 15 in the preamble to Regulation No 376/2008, the export licence confers the right to export and so it must therefore be presented at the time the export declaration is accepted.

37

In accordance with Article 7 of that regulation, the export licence constitutes authorisation and gives rise to an obligation to export, during its period of validity, the specified quantity of the products or goods concerned.

38

So far as concerns the period of validity of an export licence, it is apparent from Article 22(1) of Regulation No 376/2008 that licences are considered to have been issued on the day on which the application for them was lodged, but they may not be used until their actual issue. According to Article 22(2) of that regulation, it is nevertheless possible to derogate from that rule by providing that the licence is to become valid on its actual day of issue, that possibility having in particular been confirmed in Article 10(1) of Regulation No 382/2008.

39

As is apparent from recital 27 in the preamble to Regulation No 376/2008 and recital 9 in the preamble to Regulation No 382/2008, in some sectors of the common organisation of the agricultural markets there is a period of reflection before export licences are issued, in order to allow the European Commission to assess the market situation, the quantities applied for and the relevant expenditure and if appropriate to take particular action on the applications in question.

40

Under Article 23(1) of Regulation No 376/2008, the export licence must be submitted at the customs office that accepted the export declaration. In accordance with Article 23(2) of that regulation, that licence must be presented, or held at the disposal of the customs authorities, at the time of acceptance of the export declaration.

41

It follows from the foregoing that a valid export licence must, in principle, be presented by the exporter at the time of the acceptance of the export declaration by the competent customs office. That conclusion may not, as a rule, be called into question by the fact that, when the goods in question were actually exported, that exporter had an export licence covering those goods.

42

Having regard to all the foregoing considerations, the answer to the first question is that the provisions of Regulation No 612/2009 and of Regulations Nos 376/2008 and 382/2008 must be interpreted as precluding, as a rule, the payment of an export refund and the release of the security lodged in that connection when the exporter concerned did not have a valid export licence at the date the export declaration was accepted, even though the actual export of the goods concerned took place during the period of validity of the export licence issued to it.

43

By its second question, the referring court asks, in essence, whether, in circumstances such as those at issue in the main proceedings, the provisions of Regulation No 612/2009 and of Regulations Nos 376/2008 and 382/2008 preclude post-clearance regularisation enabling the exported quantity to be entered on the export licence, the export refund to be paid on the basis of that licence and, as the case may be, the security lodged to be released.

44

In that regard, as regards the facts at issue in the main proceedings, it is not disputed that the export declaration was accepted the day before the export licence was actually issued. However, the goods at issue in the main proceedings were in fact exported after that licence was issued and during its period of validity.

45

In addition, the order for reference does not contain any evidence that the period of reflection referred to in paragraph 39 above was not observed or that, with the exception of the incorrect rendering of the export licence number, the accuracy of the information in the export declaration was called into question as a result of the physical checks made by the competent authorities.

46

In those circumstances, it is necessary, as the Commission suggested in its written observations, to ascertain whether the irregularity vitiating the file submitted to the competent authorities may be rectified post-clearance.

47

In this connection, first, while Regulation No 612/2009 contains no provision enabling that irregularity to be rectified, Article 24(6) of Regulation No 376/2008 provides for a possibility of regularisation, notably when the authority responsible for payment of the refund is in possession of the valid export licence on the date of acceptance of the export declaration.

48

That is not precisely the case in the dispute in the main proceedings.

49

However, the Court has previously held that exportation, for the purposes of Regulation No 612/2009, is a customs procedure and that the general provisions of the Customs Code apply to all export declarations relating to goods qualifying for export refunds, without prejudice to special rules (see, to that effect, judgment in Nowaco Germany, Case C‑353/04, EU:C:2006:522, paragraphs 45 to 47). A post-clearance regularisation of the export declaration could therefore be based on Article 78 of the Customs Code (see, to that effect, judgment in Südzucker and Others, EU:C:2012:444, paragraph 46).

50

In the second place, with regard to the scope of Article 78 of the Customs Code, the Court has already stated that its rationale is to bring the customs procedure into line with the actual situation (judgment in Terex Equipment and Others, Cases C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 56). Moreover, that article does not distinguish errors or omissions that can be corrected from other situations of the same kind that cannot (judgments in Overland Footwear, C‑468/03, EU:C:2005:624, paragraph 63, and Südzucker and Others, EU:C:2012:444, paragraph 47). The words ‘incorrect or incomplete information’ must be interpreted as covering both clerical errors or omissions and errors of interpretation of the applicable law (judgments in Overland Footwear, EU:C:2005:624, paragraph 63, and Terex Equipment and Others, EU:C:2010:15, paragraph 56).

51

It follows that, should the exporter, in circumstances such as those at issue in the main proceedings, ask the customs authorities to regularise its export declaration, to the effect that that declaration should be deemed to have been made at a later date when the exporter did have a valid export licence, Article 78 of the Customs Code as a rule allows such regularisation.

52

Thus, on the basis of Article 78(1) of that code, the customs authorities ‘may’, on their own initiative or at the request of the declarant, amend the date of the declaration and, consequently, the date of its acceptance.

53

However, the customs authorities, in the assessment they make on that occasion, are to take into account, in particular, the possibility of reviewing the statements contained in the declaration to be amended and in the application for amendment (judgments in Overland Footwear, EU:C:2005:624, paragraph 47, and Terex Equipment and Others, EU:C:2010:15, paragraph 59).

54

Thus, if the amendment indicates that the objectives of the legislation at issue are not threatened, particularly in that the goods for which the export declaration was submitted were actually exported and sufficient evidence available to the competent authorities allows the connection between the quantity exported and the licence actually covering the export to be established, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the information available to them (see, to that effect, judgments in Overland Footwear, EU:C:2005:624, paragraph 52, and Terex Equipment and Others, EU:C:2010:15, paragraph 62).

55

Consequently, the answer to the second question is that the provisions of Regulation No 612/2009 and of Regulations Nos 376/2008 and 382/2008, read in conjunction with Article 78 of the Customs Code, must be interpreted as not precluding, as a rule, post-clearance regularisation of the export declaration, enabling the exported quantity to be entered on the export licence, the export refund to be paid on the basis of that licence and, as the case may be, the security lodged to be released.

56

In view of the answer proposed to the second question, there is no need to answer the third question.

57

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules: