61974J0055

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1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM - EXPORT REFUND - APPLICATION - CONTROL COPY - SUBMISSION TO THE COMPETENT NATIONAL AUTHORITY

( REGULATION NO 1041/67 OF THE COMMISSION, ARTICLE 5, AS AMENDED BY REGULATION NO 2586/69, ARTICLE 1; REGULATION NO 121/67 OF THE COUNCIL, ARTICLE 15 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - - DOCUMENTS ( UNTERLAGEN ) - CONTENTS - DOCUMENTS ( UNTERLAGEN ) - CONTENTS

( REGULATION NO 1041/67 OF THE COMMISSION, ARTICLE 10 )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM - EXPORT REFUND - CONTROL COPY - PROBATIVE VALUE - EXAMINATION BY THE NATIONAL AUTHORITIES

1 . THE SUBMISSION TO THE COMPETENT NATIONAL AUTHORITY FOR THE GRANT OF REFUNDS OF THE CONTROL COPY REFERRED TO IN ARTICLE 1 OF REGULATION NO 2315/69 AND ARTICLE 5 OF REGULATION NO 1041/67, AS AMENDED BY ARTICLE 1 OF REGULATION NO 2586/69, IS EQUIVALENT TO AN APPLICATION FOR A REFUND IF THIS COPY CONTAINS INFORMATION ENABLING IT TO BE SEEN THAT IT RELATES TO GOODS BENEFITING FROM THIS REFUND .

2 . THE DOCUMENTS ( UNTERLAGEN ) REFERRED TO IN ARTICLE 10 OF REGULATION NO 1041/67 MUST INCLUDE, BESIDES THE APPLICATION FOR A REFUND, ALL THE DOCUMENTS ENABLING THE WHICH THE GRANT OF REFUND IS SUBJECT ARE FULFILLED . WHICH THE GRANT OF REFUND IS SUBJECT ARE FULFILLED .

3 . SINCE THE HEADINGS PROVIDED FOR IN THE CONTROL COPY DO NOT ON THEIR OWN MAKE IT POSSIBLE TO DETERMINE IN EVERY CASE THAT ALL THESE CONDITIONS ARE FULFILLED, IT IS FOR THE NATIONAL AUTHORITIES TO DETERMINE IN EACH CASE THE PROBATIVE VALUE IN THIS RESPECT OF THE REMARKS ON THE CONTROL COPY OR THE NECESSITY FOR SUPPLEMENTARY VOUCHERS .

IN CASE 55/74

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FIRMA ROBERT UNKEL OF 87 WURTZBURG-HEIDINGSFELD, RESENSTRASSE 1

AND

HAUPTZOLLAMT HAMBURG-JONAS, 2 HAMBURG 11, HOLZBRUCKE 8

ON THE INTERPRETATION OF THE PROVISIONS OF REGULATIONS NOS 121/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ( OJ NO 11 OF 19 . 6 . 1967, P . 2283 ), 177/67/EEC OF THE COUNCIL OF 27 JUNE 1967 ( OJ NO 130 OF 28 . 6 . 1967, P . 2614 ) AND 1041/67/EEC OF THE COMMISSION OF 21 DECEMBER 1967 ( OJ NO 314 OF 23 . 12 . 1967, P . 9 ),

1 BY ORDER DATED 26 JUNE 1974, FILED AT THE COURT REGISTRY ON 25 JULY 1974, THE FINANZGERICHT HAMBURG REFERRED, UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, THREE QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATIONS NOS 121/67 OF THE COUNCIL OF 13 JUNE 1967, ON THE COMMON ORGANIZATION OF THE MARKET IN PIGMEAT ( OJ NO 177 OF 19 . 6 . 1967, P . 2283 ) AND 177/67 OF THE COUNCIL OF 27 JUNE 1967 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON PIGMEAT ( OJ NO 130 OF 28 . 6 . 1967, P . 2614 ), OF REGULATION NO 1041/67 OF THE COMMISSION OF 21 DECEMBER 1967 ON DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( OJ NO 314 OF 23 . 12 . 1967, P . 9 ), AS AMENDED BY REGULATION NO 1056/68 OF 23 JULY 1968 ( OJ L 179 OF 25 . 6 . 1968, P . 28 ), 499/69 OF 17 MARCH 1969 ( OJ L 69 OF 20 . 3 . 1969, P . 1 ) AND 2586/69 OF 22 DECEMBER 1969 ( OJ L 322 OF 24 . 12 . 1969, P . 27 ).

THE QUESTIONS RAISED RELATE TO THE FORMAL CONDITIONS AND TIME-LIMITS FOR APPLICATIONS FOR EXPORT REFUNDS OF CERTAIN AGRICULTURAL PRODUCTS IN FORCE IN APRIL 1972, THE PERIOD IN WHICH THE EXPORT IN QUESTION TOOK PLACE .

2 THE FIRST QUESTION ASKS THE COURT WHETHER THE DOCUMENT CALLED THE 'CONTROL COPY',PROVIDED FOR BY ARTICLE 1 OF REGULATION NO 2315/69 ( OJ L 295 OF 24 . 11 . 1969, P . 14 ) ON THE USE OF COMMUNITY TRANSIT DOCUMENTS, COMPLETED PURSUANT TO ARTICLE 5 OF REGULATION NO 1041/67 OF THE COMMISSION ( AS AMENDED BY ARTICLE 1 OF REGULATION NO 2586/69 ), AMOUNTS TO AN APPLICATION FOR THE GRANT OF A REFUND WITHIN THE MEANING OF ARTICLE 15 ( 2 ) OF REGULATION NO 121/67 .

3 REGULATION NO 1041/67, MADE INTER ALIA TO ENSURE THE IMPLEMENTATION OF REGULATIONS NOS 121/67 AND 177/67 OF THE COUNCIL RELATING TO THE ORGANIZATION OF THE MARKETS AND THE GRANT OF EXPORT REFUNDS ON PIGMEAT, LAYS DOWN DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS .

ARTICLE 5, IN ITS ORIGINAL FORM, PROVIDED THAT WHERE, BEFORE LEAVING THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY, A PRODUCT CROSSES COMMUNITY TERRITORY OTHER THAN THAT WHERE CUSTOMS EXPORT FORMALITIES HAVE BEEN COMPLETED, AND PENDING THE INTRODUCTION OF A COMMUNITY TRANSIT SYSTEM, PROOF THAT THE PRODUCT HAS LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY SHALL BE FURNISHED IN THE FORM OF A DOCUMENT CALLED AN 'EXIT CERTIFICATE', THE MODEL OF WHICH IS SHOWN IN THE ANNEX TO THE REGULATION .

4 THE COURT OF JUSTICE HAS RECOGNIZED IN ITS JUDGMENT OF 6 JUNE 1972 IN CASE 94/71 THAT THE EXIT CERTIFICATE, SUBMITTED TO THE COMPETENT DEPARTMENT AND ACCEPTED BY IT, SHOWED SUFFICIENTLY THE EXPORTER'S INTENTION TO CLAIM A REFUND AND THEREFORE CONSTITUTED AN APPLICATION FOR A REFUND WITHIN THE MEANING OF ARTICLE 15 OF REGULATION NO 121/67 .

5 SINCE REGULATION NO 2315/69 OF THE COMMISSION OF 19 NOVEMBER 1969 INTRODUCED A COMMUNITY TRANSIT SYSTEM, ARTICLE 5 OF REGULATION NO 1041/67 WAS AMENDED BY ARTICLE 1 OF REGULATION NO 2586/69 SO THAT PROOF THAT THE PRODUCT HAD LEFT THE TERRITORY OF THE COMMUNITY WAS NO LONGER TO BE FURNISHED BY THE PRODUCTION OF AN EXIT CERTIFICATE BUT BY THAT OF THE CONTROL COPY PROVIDED FOR BY ARTICLE 1 OF REGULATION NO 2315/69 .

ALTHOUGH THE CONTROL COPY DOES NOT ADOPT ALL THE PARTICULARS IN THE EXIT CERTIFICATE, IT CONTAINS HEADINGS FOR THE ADDITIONAL INFORMATION WHICH, ACCORDING TO ARTICLE 5 AS AMENDED OF REGULATION NO 1041/67, ARE TO BE COMPLETED WHEN IT IS A QUESTION OF PRODUCTS BENEFITING FROM REFUNDS .

6 UNDER ARTICLE 15 ( 2 ) OF REGULATION NO 121/67, EXPORT REFUNDS ON PIGMEAT ARE GRANTED ONLY ON APPLICATION BY THE PERSON CONCERNED .

ALTHOUGH, HAVING REGARD TO THE NECESSITIES OF THE PROPER FUNCTIONING OF THE COMPLEX SYSTEM OF EXPORT REFUNDS, ARTICLE 15 MUST BE INTERPRETED AS IMPLYING A WRITTEN APPLICATION, FORMALISM WHICH WOULD GO BEYOND THE NECESSITIES OF EFFICIENT CONTROL MUST BE AVOIDED .

WHEN, THEREFORE, THE COMMERCIAL OPERATOR COMPLETES THE CONTROL COPY IN ACCORDANCE WITH ARTICLE 5 ( 2 ) OF REGULATION NO 1041/67 BY CLEARLY STATING THAT THE EXPORTED GOODS ARE ENTITLED TO REFUNDS, HE SHOWS SUFFICIENTLY CLEARLY HIS INTENTION TO BENEFIT FROM THEM SO THAT THE CONTROL COPY IS EQUIVALENT TO AN APPLICATION FOR A REFUND .

THIS IS EVEN MORE SO WHEN THE CONTROL COPY CONTAINS EXPLANATORY NOTES INDICATING EXPLICITLY THE HEADING WHICH MUST BE COMPLETED WHEN IT RELATES TO THE EXPORT OF GOODS ENTITLED TO A REFUND .

7 IT IS THEREFORE RIGHT TO REPLY TO THE FIRST QUESTION THAT THE SUBMISSION TO THE COMPETENT NATIONAL AUTHORITY FOR THE GRANT OF REFUNDS OF THE CONTROL COPY REFERRED TO IN ARTICLE 1 OF REGULATION NO 2315/69 AND ARTICLE 5 OF REGULATION NO 1041/67, AS AMENDED BY ARTICLE 1 OF REGULATION NO 2586/69, IS EQUIVALENT TO AN APPLICATION FOR A REFUND IF THIS COPY CONTAINS INFORMATION ENABLING IT TO BE SEEN THAT IT RELATES TO GOODS BENEFITING FROM THIS REFUND .

IT IS FOR THE NATIONAL COURT, IN CASE OF DOUBT, TO DECIDE IN EACH CASE WHETHER THIS IS SO .

8 THE SECOND QUESTION SEEKS TO ASCERTAIN WHETHER THE APPLICATION FOR A REFUND REFERRED TO IN ARTICLE 15 OF REGULATION NO 121/67, THE PROOF OF ORIGIN OF THE GOODS REQUIRED, AS REGARDS EXPORT REFUNDS ON PIGMEAT, BY ARTICLE 6 OF REGULATION NO 177/67 AND THE DECLARATIONS RELATING TO THE REQUISITE QUALITY OF THE GOODS FOR BEING PUT INTO FREE CIRCULATION, REQUIRED BY ARTICLE 6 OF REGULATION NO 1041/67, ARE INCLUDED AMONG THE DOCUMENTS IN SUPPORT OF THE CLAIM WHICH, UNDER ARTICLE 10 OF THIS REGULATION, MUST BE LODGED WITHIN A TIME-LIMIT OF SIX MONTHS FOLLOWING THE DAY ON WHICH THE CUSTOMS EXPORT FORMALITIES WERE COMPLETED .

THIS QUESTION SEEKS TO ASCERTAIN WHETHER IT IS SUFFICIENT THAT THE APPLICATION FOR A REFUND IS LODGED WITHIN A TIME-LIMIT OF SIX MONTHS OR WHETHER THE OTHER DOCUMENTS RELATING TO THE FULFILMENT OF THE CONDITIONS ON WHICH THE REFUND DEPENDS MUST ALSO BE SO LODGED .

9 THE TERM 'DOCUMENTS' ( UNTERLAGEN ) USED IN ARTICLE 10 ( 2 ) REFERS NOT ONLY TO THE APPLICATION FOR THE REFUND BUT TO ALL THE DOCUMENTS WHICH THE COMPETENT AUTHORITY OF EACH MEMBER STATE NEEDS TO VERIFY WHETHER THE CONDITIONS TO WHICH THE GRANT OF THE REFUND IS SUBJECT ARE FULFILLED .

THIS INTERPRETATION IS CONFIRMED BY THE FACT THAT THE TIME DOES NOT START TO RUN UNTIL THE CUSTOMS FORMALITIES ARE COMPLETED .

A TIME-LIMIT OF THIS EXTENT IS NOT REQUIRED MERELY TO LODGE AN APPLICATION AND THE TIME-LIMIT IS THEREFORE FOR THE ASSEMBLY OF ALL THE EVIDENCE WHICH MAY BE REQUIRED .

10 IT IS THEREFORE PROPER TO REPLY TO THE SECOND QUESTION THAT THE DOCUMENTS ( UNTERLAGEN ) REFERRED TO IN ARTICLE 10 OF REGULATION NO 1041/67 MUST INCLUDE, BESIDES THE APPLICATION FOR A REFUND, ALL THE DOCUMENTS ENABLING THE COMPETENT AUTHORITY TO VERIFY WHETHER THE CONDITIONS TO WHICH THE GRANT OF THE REFUND IS SUBJECT ARE FULFILLED .

11 THE THIRD QUESTION ASKS WHETHER, WHEN THE DIFFERENT HEADINGS WHICH THE CONTROL COPY CONTAINS ARE COMPLETED BY THE PARTY CONCERNED, IT AMOUNTS TO THE DECLARATION AND PROOF RELATING TO THE ORIGIN OF THE GOODS AND THE QUALITY REQUIRED FOR THEM TO BE PUT INTO FREE CIRCULATION, TO WHICH CONDITIONS THE GRANT OF REFUND IS SUBJECT .

12 UNDER ARTICLES 6 AND 7 OF REGULATION NO 1041/67 A REFUND IS GRANTED, IN PARTICULAR FOR THE PRODUCTS IN QUESTION, ONLY IF THEY ARE OF COMMUNITY ORIGIN, ARE IN FREE CIRCULATION WITHIN THE COMMUNITY AND ARE OF SOUND AND FAIR MARKETABLE QUALITY .

THE HEADINGS PROVIDED FOR IN THE CONTROL COPY DO NOT ON THEIR OWN MAKE IT POSSIBLE TO DETERMINE IN EVERY CASE THAT ALL THESE CONDITIONS ARE FULFILLED .

IT IS FOR THE NATIONAL AUTHORITIES TO DETERMINE IN EACH CASE THE PROBATIVE VALUE IN THIS RESPECT OF THE REMARKS ON THE CONTROL COPY OR THE NECESSITY FOR SUPPLEMENTARY VOUCHERS .

13 THE COSTS INCURRED BY THE COMMISSION, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF THAT COURT DATED 26 JUNE 1974, HEREBY RULES :

( 1 ) THE SUBMISSION TO THE COMPETENT NATIONAL AUTHORITY FOR THE GRANT OF REFUNDS OF THE CONTROL COPY REFERRED TO IN ARTICLE 1 OF REGULATION NO 2315/69 AND ARTICLE 5 OF REGULATION NO 1041/67, AS AMENDED BY ARTICLE 1 OF REGULATION NO 2586/69, IS EQUIVALENT TO AN APPLICATION FOR A REFUND IF THIS COPY CONTAINS INFORMATION ENABLING IT TO BE SEEN THAT IT RELATES TO GOODS BENEFITING FROM THIS REFUND .

( 2 ) THE DOCUMENTS ( UNTERLAGEN ) REFERRED TO IN ARTICLE 10 OF REGULATION NO 1041/67 MUST INCLUDE, BESIDES THE APPLICATION FOR A REFUND, ALL THE DOCUMENTS ENABLING THE COMPETENT AUTHORITY TO VERIFY WHETHER THE CONDITIONS TO WHICH THE GRANT OF THE REFUND IS SUBJECT ARE FULFILLED .

( 3 ) SINCE THE HEADINGS PROVIDED FOR IN THE CONTROL COPY DO NOT ON THEIR OWN MAKE IT POSSIBLE TO DETERMINE IN EVERY CASE THAT ALL THESE CONDITIONS ARE FULFILLED, IT IS FOR THE NATIONAL AUTHORITIES TO DETERMINE IN EACH CASE THE PROBATIVE VALUE IN THIS RESPECT OF THE REMARKS ON THE CONTROL COPY OR THE NECESSITY FOR SUPPLEMENTARY VOUCHERS .