Case C-353/04

Nowaco Germany GmbH

v

Hauptzollamt Hamburg-Jonas

(Reference for a preliminary ruling from the Bundesfinanzhof)

(Regulations (EEC) Nos 1538/91 and 3665/87 – Community Customs Code – Export refunds – Conditions for granting – Sound and fair marketable quality – Customs procedure – Export declaration – Physical check – Sample – Tolerated number of defective units – Uniform quality – Rights and obligations of the exporter and of the customs authority – Poultrymeat)

Summary of the Judgment

1. Agriculture – Common organisation of the markets – Export refunds – Conditions for granting

(Commission Regulations Nos 3665/87, Art. 13, and 1538/91, Arts 6 and 7)

2. Agriculture – Common organisation of the markets – Export refunds – Conditions for granting

(Council Regulations Nos 386/90 and 2913/92, Arts 1 and 70; Commission Regulations Nos 1538/91 and 2221/95)

3. Agriculture – Common organisation of the markets – Export refunds – Conditions for granting

(Council Regulation No 2913/92, Art. 70(1), first subpara.; Commission Regulation No 1538/91, Art. 7(3) to (5))

4. Agriculture – Common organisation of the markets – Export refunds – Conditions for granting

(Council Regulation No 2913/92, Art. 70)

1. For the purpose of establishing whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’, Regulation No 1538/91 introducing detailed rules for implementing Regulation No 1906/90 on certain marketing standards for poultry, as amended by Regulation No 1000/96 – which lays down minimum quality requirements and tolerance margins – in particular Articles 6 and 7, applies.

(see para. 39, operative part 1)

2. Article 70 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 82/97 on the partial examination of goods covered by the same declaration, applies, subject to the proper conduct of the examination referred to therein, where it is necessary to establish whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’.

That article is one of the general customs provisions which apply to all export declarations relating to goods qualifying for export refunds, without prejudice to special rules. However, no special rule of the specific legislation applicable to the monitoring carried out at the time of export of agricultural products receiving refunds precludes the application of Article 70 of the Customs Code.

(see paras 47-53, operative part 2(a))

3. The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 82/97, does not apply if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91 introducing detailed rules for implementing Regulation No 1906/90 on certain marketing standards for poultry.

The first subparagraph of Article 70(1) of the Customs Code is a general provision which provides that, where only part of the goods covered by a declaration are examined, the results of the partial examination are to be taken to apply to all the goods covered by that declaration. That legal fiction relating to uniform quality does not apply only to examinations carried out on the basis of the customs legislation, but is also relevant as regards checks carried out pursuant to the legislation concerning the system of export refunds on agricultural products and that concerning marketing standards for poultrymeat. Article 7(3) to (5) of Regulation No 1538/91 sets out the tolerable number of defective units in relation to the size of the batch and the size of the sample. If the minimum number of samples has not been taken, it is impossible to check compliance with those tolerance margins.

(see paras 55-57, 59, operative part 2(b))

4. Where several samples are taken from export consignments that were declared as a single unit and examination of part of those samples reveals that they are of sound and fair marketable quality, while examination of another part of those samples reveals that they are not, it is for the national administrative and judicial authorities to establish the facts by taking into account all of the evidence. Such evidence may include available samples but also other information, in particular the examination account produced in accordance with Community legislation by the customs officer who carried out the physical checks. In the event that the facts cannot be conclusively established for the purpose of entitlement to the refund, it is for the national court to assess the exporter’s conduct and that of the customs authority by establishing the extent to which each has, or has not, exercised its rights and fulfilled its obligations and to draw the appropriate conclusions concerning entitlement to the export refund.

(see paras 24, 68, operative part 3)

JUDGMENT OF THE COURT (First Chamber)

7 September 2006 ( * )

(Regulations (EEC) Nos 1538/91 and 3665/87 – Community Customs Code – Export refunds – Conditions for granting – Sound and fair marketable quality – Customs procedure – Export declaration – Physical check – Sample – Tolerated number of defective units – Uniform quality – Rights and obligations of the exporter and of the customs authority – Poultrymeat)

In Case C-353/04,

REFERENCE for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Federal Finance Court) (Germany), made by decision of 22 July 2004, received at the Court on 16 August 2004, in the proceedings

Nowaco Germany GmbH

v

Hauptzollamt Hamburg-Jonas,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, J. N. Cunha Rodrigues, E. Juhász (Rapporteur), M. Ilešič and E. Levits, Judges,

Advocate General: P. Léger,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 20 October 2005,

after considering the observations submitted on behalf of:

– Nowaco Germany GmbH, by C. Bittner and U. Schrömbges, Rechtsanwälte,

– the Hauptzollamt Hamburg-Jonas, by S. Plenter, acting as Agent,

– the Commission of the European Communities, by J. Schieferer and F. Erlbacher, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 23 February 2006,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997 L 17, p. 1) (‘the Customs Code’), and of Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Council Regulation (EEC) No 1906/90 on certain marketing standards for poultry (OJ 1991 L 143, p. 11), as amended by Commission Regulation (EC) No 1000/96 of 4 June 1996 (OJ 1996 L 134, p. 9) (‘Regulation No 1538/91’).

2 The reference was made in the context of proceedings between Nowaco Germany GmbH (‘Nowaco’) and the Hauptzollamt Hamburg-Jonas (Hamburg-Jonas Principal Customs Office, ‘the Hauptzollamt’) concerning entitlement to export refunds and the amount thereof.

Community legal context

3 The ninth recital in the preamble to 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) states:

‘… products should be of a quality such that they can be marketed on normal terms’.

4 Article 3(4) to (6) of that Regulation provides:

‘4. The day of export shall be used to establish the quantity, nature and characteristics of the product exported.

5. 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:

(a) a description of the products in accordance with the nomenclature used for refunds;

(b) the net mass of the products or, where applicable, the unit of measurement to be taken into account in calculating the refund; and,

(c) in so far as is necessary for calculating the refund, particulars of the composition of the products or the relevant reference.

If the document mentioned in this paragraph is the export declaration, this document must also include these references and the reference refund code.

6. At the time of such acceptance, or of such equivalent act, the products shall be placed under customs control until they leave the customs territory of the Community.’

5 Article 13 of that Regulation provides that ‘[n]o refund shall be granted on products which are not of sound and fair marketable quality, or on products intended for human consumption whose characteristics or condition exclude or substantially impair their use for that purpose’.

6 Article 1 of the Customs Code provides as follows:

‘Customs rules shall consist of this Code and the provisions adopted at Community level or nationally to implement them. The Code shall apply, without prejudice to special rules laid down in other fields

– to trade between the Community and third countries,

…’

7 Pursuant to Article 4(16)(h) of the Customs Code, exportation is one of the customs procedures.

8 Article 69 of that Code provides:

‘1. Transport of the goods to the places where they are to be examined and samples are to be taken, and all the handling necessitated by such examination or taking of samples, shall be carried out by or under the responsibility of the declarant. The costs incurred shall be borne by the declarant.

2. The declarant shall be entitled to be present when the goods are examined and when samples are taken. Where they deem it appropriate, the customs authorities shall require the declarant to be present or represented when the goods are examined or samples are taken in order to provide them with the assistance necessary to facilitate such examination or taking of samples.

3. Provided that samples are taken in accordance with the provisions in force, the customs authorities shall not be liable for payment of any compensation in respect thereof but shall bear the costs of their analysis or examination.’

9 Article 70 of the Customs Code provides:

‘1. Where only part of the goods covered by a declaration are examined, the results of the partial examination shall be taken to apply to all the goods covered by that declaration.

However, the declarant may request a further examination of the goods if he considers that the results of the partial examination are not valid as regards the remainder of the goods declared.

2. For the purposes of paragraph 1, where a declaration form covers two or more items, the particulars relating to each item shall be deemed to constitute a separate declaration.’

10 The wording of Article 71 of the Customs Code is as follows:

‘1. The results of verifying the declaration shall be used for the purposes of applying the provisions governing the customs procedure under which the goods are placed.

2. Where the declaration is not verified, the provisions referred to in paragraph 1 shall be applied on the basis of the particulars contained in the declaration.’

11 Article 247 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 (OJ 1993 L 253, p. 1, ‘the Regulation implementing the Customs Code’) provides:

‘1. Where the customs authorities verify the declarations and accompanying documents or examine the goods, they shall indicate, at least in the copy of the declaration retained by the said authorities, or in a document attached thereto, the basis and results of any such verification or examination. In the case of partial examination of the goods, particulars of the consignment examined shall also be given.

Where appropriate, the customs authorities shall also indicate in the declaration that the declarant or his representative was absent.

2. Should the result of the verification of the declaration and accompanying documents or examination of the goods not be in accordance with the particulars given in the declaration, the customs authorities shall specify, at least in the copy of the declaration retained by the said authorities, or in a document attached thereto, the particulars to be taken into account for the purposes of the application of charges on the goods in question and, where appropriate, calculating any refunds or other amounts payable on exportation, and for applying the other provisions governing the customs procedure for which the goods are entered.

3. The findings of the customs authorities shall indicate, where appropriate, the means of identification adopted.

They shall be dated and bear the particulars needed to identify the official issuing them.

4. Where the customs authorities neither verify the declaration nor examine the goods, they need not endorse the declaration or attached document referred to in paragraph 1.’

12 Pursuant to Articles 2 and 3 of Council Regulation (EEC) No 386/90 of 12 February 1990 on the monitoring carried out at the time of export of agricultural products receiving refunds or other amounts (OJ 1990 L 42, p. 6), as amended by Council Regulation (EC) No 163/94 of 24 January 1994 (OJ 1994 L 24, p. 2) (‘Regulation No 386/90’), Member States are to carry out physical checks on goods at the time the customs export formalities are completed and before authorisation is given for the goods in question to be exported, on the basis of documents submitted in support of the export declaration, and to scrutinise the documents in the payment application file. According to that regulation, without prejudice to any specific provisions which require more extensive checks, the physical checks must take the form of spot checks conducted frequently and without prior warning. In any event, they must relate to a representative choice of not less than 5% of the export declarations in respect of which applications are submitted for export refunds. Specific provisions govern the procedures according to which this 5% rate must be achieved.

13 The eighth recital in the preamble to Commission Regulation (EC) No 2221/95 of 20 September 1995 laying down detailed rules for the application of Council Regulation (EEC) No 386/90 (OJ 1995 L 224, p. 13) provides:

‘… [the] customs code ... [applies] to exports of all industrial or agricultural products; … special provisions may have to be adopted in the case of agricultural products qualifying for export refunds’.

14 Article 5 of that Regulation provides:

‘1. For the purposes of Article 2(a) of Regulation (EEC) No 386/90 “physical check” shall mean verification that the export declaration, including documents submitted in support thereof, and the goods correspond as regards quantity, nature and characteristics.

…

The customs office of export must be mindful of the provisions of Article 13 of Regulation (EEC) No 3665/87.

…

4. If the rate of refund depends on a particular content, the customs office of export shall take, as part of the physical check, representative samples for analysis of the ingredients by a competent laboratory.’

15 Article 7(1) and (2) of that Regulation provides:

‘1. Each customs office of export shall apply measures to ensure that achievement of the check rate of 5% can be verified at any time.

The measures must show, per sector:

– the number of export declarations which are taken into account for the physical checks,

and

– the number of physical checks carried out.

2. The competent customs officer must produce a detailed examination account on each physical check carried out.

The examination account shall bear the date and the name of the competent officer. It must be kept at the customs office of export or at another office for three years from the year of export in such a way that it can be readily consulted.’

16 The first indent of Article 1(3) of Council Regulation (EEC) No 1906/90 of 26 June 1990 on certain marketing standards for poultry (OJ 1990 L 173, p. 1) provides:

‘This Regulation shall not apply:

– to poultrymeat for export from the Community’.

17 Article 6 of Regulation No 1538/91 provides:

‘1. Poultry carcases and cuts covered by this Regulation shall meet the following minimum requirements in order to be graded into classes A and B:

…

– free of protruding broken bones,

…’

18 Article 7(1) of that Regulation provides that decisions arising from failure to comply with Article 6 may only be taken for the whole of the batch which has been checked in accordance with the provisions of Article 7. In accordance with Article 7(3), a sample is to be drawn at random from each batch. According to the table set out in that paragraph, if a batch has 501 to 3 200 units, the number of samples is 50, while it is 80 if a batch includes more than 3 200 units. Article 7(4) provides that, in the checking of a batch of Class A poultrymeat, the tolerable number of defective units is respectively 7 and 10 in respect of the said batches. If the defect is one of those referred to in Article 6(1), such as ‘protruding broken bones’, the tolerable number is reduced to 3 and 4 respectively. Regarding Class B poultrymeat, pursuant to Article 7(5) the tolerable number is doubled.

The main proceedings and the questions referred for a preliminary ruling

19 In December 1997 and February 1998, Nowaco declared for export two consignments of frozen chicken consisting respectively of 2 647 and 2 750 boxes (in total 43 996 kg). The Zollamt (German Customs Office) examined the goods, taking a sample and a reserve sample.

20 It was found that some of the chickens in the two samples taken in 1997 had protruding broken thigh bones. In the case of the consignment declared in February 1998, only the first sample contained chickens with protruding broken bones in the left wing, while the reserve sample did not contain defects.

21 The Hauptzollamt therefore fixed the export refund for the two consignments at DEM 0. Ruling on the action brought by Nowaco against that decision, the Finanzgericht (Finance Court), with respect to the consignment of February 1998, ordered the Hauptzollamt to pay the applicant half of the export refund due. The Finance Court dismissed the remainder of the action, taking the view that the goods were not of sound and fair marketable quality, in so far as they did not comply with the marketing standards laid down by Regulation No 1538/91, according to which, in order to be graded into Classes A and B, poultry carcases and cuts must at least be free from protruding broken bones.

22 In the view of the Finance Court, the Hauptzollamt should not have refused the export refund for the whole of the consignment declared in February 1998. The scope of the legal fiction set out in Article 70(1) of the Customs Code had to be altered to the effect that 50% of the consignment was composed of products of sound and fair marketable quality declared by the applicant.

23 The two parties to the main proceedings brought an appeal on a point of law before the Federal Finance Court against the judgment of the Finance Court. Nowaco submits that it is entitled to a full export refund in respect of both the December 1997 and the February 1998 consignments. The Hauptzollamt argues that, as regards the latter consignment, the Finance Court should have fixed the quantity eligible for a refund at 48.1%, based on the relative weights of the first and of the reserve sample.

24 It is in those circumstances that the Federal Finance Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) For the purposes of establishing whether a product in respect of which an export refund is sought is of [sound and] fair marketable quality, does Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Council Regulation (EEC) No 1906/90 on certain marketing standards for poultry apply?

(2) In the event that the reply to Question 1 is in the affirmative:

(a) Does Article 70 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code apply where it is necessary to determine whether a product in respect of which an export refund is sought is of [sound and] fair marketable quality?

(b) Does the legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation (EEC) No 2913/92 also apply if only one random sample of the goods has been examined, where the pertinent Community provisions permit defects in the goods up to a certain limit and accordingly require and expressly prescribe examination of a specific number of samples to establish whether that limit has been observed?

(3) In the event that the replies to Questions 2(a) and (b) are also in the affirmative:

What is the effect of the aforementioned legal fiction relating to uniform quality where several samples are taken from export consignments that were declared as a single unit and examination of part of those samples reveals that they are of [sound and] fair marketable quality, while examination of another part of those samples reveals that they are not?’

The questions referred

Question 1

25 In the order for reference, the Federal Finance Court asks whether Regulation No 1538/91 applies for the purposes of establishing the ‘sound and fair marketable quality’ of goods, such as those at issue in the main proceedings, given the exclusionary rule contained in Article 1(3) of Regulation No 1906/90. In any case, the Federal Finance Court takes the view that, if Regulation No 1538/91 applies, not only its Article 6, but also its Article 7, which lays down the tolerable numbers of defective units, must be taken into consideration. Moreover, the referring court asks whether that Regulation, in the event that it applies, allows tolerance margins for goods other than those which are prepackaged.

26 Concerning the applicability of Regulation No 1538/91, it should be recalled that its purpose is to define the detailed rules for implementing Regulation No 1906/90 which expressly provides, in the first indent of Article 1(3), that it does not apply to poultrymeat for export from the Community. Nowaco infers that the marketing standards laid down in the combined provisions of Regulations Nos 1538/91 and 1906/90 do not establish a condition of ‘sound and fair marketable quality’.

27 The Court has already held, in relation to Regulation No 1041/67/EEC 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, English Special Edition 1967, p. 323), that the requirement of ‘sound and fair marketable quality’ constitutes a general objective condition for the grant of a refund and that a product which could not be marketed within the Community ‘under normal conditions’ would not meet these requirements as to quality (see, to that effect, Case 12/73 Muras [1973] ECR 963, paragraph 12, Case C-409/03 SEPA [2005] ECR I-4321, paragraph 22 and Case C-309/04 Fleisch‑Winter [2005] ECR I‑10349, paragraph 20).

28 The Court has also held that the fact that the marketability of a product in ‘normal conditions’ is an aspect inherent in the concept of ‘sound and fair marketable quality’ is indeed clearly apparent from the rules relating to export refunds for agricultural products inasmuch as, from Regulation No 1041/67 onwards, all the relevant regulations have adopted the concept of ‘sound and fair marketable quality’ as well as the criterion of the product’s marketability ‘in normal conditions’. As regards Regulation No 3665/87, it is the ninth recital which refers to that requirement (see SEPA , paragraphs 23 and 26, and Fleisch-Winter , paragraph 21).

29 Regulation No 3665/87 was replaced, from 1 July 1999, 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), which provides in the first and second subparagraphs of Article 21(1) that no refund is to be granted on products which are not of ‘sound and fair marketable quality’ on the date on which the export declaration is accepted, and that products are to be deemed to meet that requirement ‘if they can be marketed on the Community's territory in normal conditions’. The Court held that that provision confirmed the existing legal position (see, to that effect, SEPA , paragraph 27).

30 It follows, as the Advocate General correctly pointed out in paragraphs 32 and 33 of his Opinion, that Article 13 of Regulation No 3665/87 must be interpreted as meaning that, to be considered of ‘sound and fair marketable quality’ and therefore qualify for export refunds, a product exported from the Community to a third country must be marketable on the Community’s territory ‘in normal conditions’, and must therefore meet the quality requirements governing its marketing in the Community for human consumption.

31 Under Article 6 of Regulation No 1538/91, in order to qualify for inclusion in Class A or B and, therefore, to be marketed for human consumption in the Community, poultry carcases and cuts must meet a number of quality requirements and, in particular, be free from protruding broken bones. According to Article 7 of that Regulation, the presence of such broken bones is tolerated if the number of defective products does not exceed a ceiling set depending on the size of the batch. In that case, a batch of poultrymeat which contains products with protruding broken bones the number of which does not exceed the tolerance margin laid down can be marketed without restriction in the Community.

32 There is no doubt that the said provisions, which lay down the minimum conditions which poultrymeat must meet to qualify as marketable within the Community ‘in normal conditions’, constitute quality requirements which that meat must satisfy for its ‘sound and fair marketable quality’ to be established within the meaning of Article 13 of Regulation No 3665/87.

33 The ‘sound and fair marketable quality’ of poultrymeat for export must therefore be assessed on the basis of the requirements of Community legislation, of which Articles 6 and 7 of Regulation No 1538/91 form part. In addition, Nowaco arrives, in a subsidiary plea, at the same conclusion by submitting that in so far as the marketing standards laid down for Class B are respected, poultrymeat qualifying for an export refund is of ‘sound and fair marketable quality’ within the meaning of Article 13 of Regulation No 3665/87.

34 As regards Article 7 of Regulation No 1538/91, it must be pointed out that it supplements Article 6 of that Regulation and that it is on the basis of those two articles that it can be ascertained whether batches of poultrymeat, such as those at issue in the main proceedings, having regard to any protruding broken bones in the carcases which are detected in the said batches, are marketable in the Community ‘in normal conditions’.

37 An interpretation which permitted the subsidising of exports of products which did not meet the marketing standards applying within the Community would mean that there was inconsistency in the Community system of export refunds, as the Court has already stated in paragraph 31 of SEPA .

39 Therefore, the answer to Question 1 is that, for the purpose of establishing whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’, Regulation No 1538/91, which lays down minimum quality requirements and tolerance margins, in particular Articles 6 and 7 thereof, applies.

40 It should be added that the reply which it is appropriate to give to the Federal Finance Court’s other question, that is, whether the Regulation permits tolerance margins for goods other than those which are prepackaged, does not affect the reply given in paragraph 39 of this judgment.

42 Apart from a comparison of the wording of the different linguistic versions of Regulation No 1538/91, an analysis of the structure and history of that Regulation also shows that use of the term ‘unit’ in the Table in Article 7(3) thereof is preferable. It should be recalled that it is Article 8 of Regulation No 1538/91 which concerns prepackages and that the German version of Article 7 of that Regulation, before its amendment by Article 1(4) of Commission Regulation (EEC) No 2891/93 of 21 October 1993 (JO 1993 L 263, p. 12), did not mention prepackages. It is beyond doubt that that amendment concerned only tolerance margins and not the products concerned.

43 Second, even if it were necessary to read in Article 7 of Regulation No 1538/91 the term ‘prepackage’ instead of ‘unit’, that is, to accept a wording according to which the tolerance margins laid down relate to prepackages, it is appropriate to apply the analysis of the referring court and that of the Advocate General set out in paragraphs 45 and 46 of his Opinion, according to which those tolerance margins should also be applied by analogy to non-prepackaged products. If such tolerance margins apply where poultrymeat is intended for consumers, that is for those most deserving of protection, it seems logical to also make them applicable when that meat is sold to intermediaries.

Question 2

Question 2(a)

44 First, it should be recalled that, in accordance with the first indent of Article 1, the Customs Code is to apply to trade between the Community and third countries, without prejudice to special rules laid down in other fields. The provisions of that Code and those of its implementing regulation constitute general rules for many sectors and activities falling within the scope of trade between the Community and third countries.

45 Moreover, in accordance with the definition given in Article 4(16) of that Code, by ‘customs procedure’ is meant release for free circulation, transit, customs warehousing, inward processing, processing under customs control, temporary admission, outward processing and exportation. The latter is therefore a customs procedure.

46 Finally, regarding the structure of the Customs Code, it should be pointed out that Article 70 is part of Section 1 (Placing of goods under a customs procedure) of Chapter 2 (Customs procedures) of Title IV (Customs-approved treatment or use), while the rules relating to each of the customs procedures are in the other sections of that chapter.

47 It follows that Article 70 is one of the general customs provisions which apply to all export declarations relating to goods qualifying for export refunds, without prejudice to special rules.

48 It is appropriate, therefore, to determine whether the specific legislation, applicable in the case in the main proceedings, contains such provisions.

49 First, it does not follow from Regulation No 3665/87 that Article 70 of the Customs Code should not be applied in the system of export refunds on agricultural products. On the contrary, it is apparent from Article 3(6) of that Regulation, according to which at the time of the export declaration, or of any other act having the same effect in law, the products are to be placed under customs control until they leave the customs territory of the Community, that the Customs Code applies.

50 Second, concerning the monitoring carried out at the time of export of agricultural products receiving refunds, Regulation No 386/90 merely supplements the general customs provisions by laying down, in Articles 2 and 3, in particular, that Member States must carry out physical checks on goods at the time the customs export formalities are completed and before authorisation is given for the goods in question to be exported, and that the physical checks must take the form of spot checks conducted frequently and without prior warning.

51 Nor does it follow from Regulation No 2221/95 laying down detailed rules for the application of Regulation No 386/90 that it precludes the application of Article 70 of the Customs Code. It is true that the eighth recital in the preamble to Regulation No 2221/95 states that special provisions may have to be adopted in the case of agricultural products qualifying for export refunds. However, none of the provisions of that Regulation, even if they may be considered as special, gives rise to non-application of the Customs Code.

52 Third, as was established in paragraph 39 of this judgment, certain provisions of Regulation No 1538/91 also apply for the purposes of establishing the ‘sound and fair marketable quality’ of a product in respect of which a refund is sought. Those rules are also special rules within the meaning of Article 1 of the Customs Code. Likewise, they do not preclude the application of Article 70 of that Code, but constitute detailed rules for its implementation.

53 Having regard to the above, the answer to Question 2(a) is that, in circumstances such as those in the main proceedings, Article 70 of the Customs Code applies, subject to the proper conduct of the examination referred to therein, where it is necessary to establish whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’.

Question 2(b)

56 That legal fiction relating to uniform quality does not apply only to examinations carried out on the basis of the customs legislation, but is relevant, as may also be seen from the reply given to Question 2(a), as regards checks carried out pursuant to the legislation concerning the system of export refunds on agricultural products and that concerning marketing standards for poultrymeat. For the legal fiction relating to uniform quality to be applied, it is necessary that the conditions and operation of the examination satisfy the criteria laid down by the said legislation.

57 Article 7(3) to (5) of Regulation No 1538/91 sets out the tolerable number of defective units in relation to the size of the batch and the size of the sample. If the minimum number of samples has not been taken, it is impossible to check compliance with those tolerance margins.

58 It follows that, in the event that it is not possible to check compliance with those tolerance margins because of the insufficient size of the sample taken, the results of the examination of that sample may not be extrapolated to the whole of the batch and cannot therefore be valid in respect of the latter.

59 In those circumstances, the answer to Question 2(b) is that the legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of the Customs Code does not apply if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91.

60 In view of the Court’s reply to Question 2(b), it is not necessary to reply to Question 3.

61 However, it should be recalled that it is for the Court to provide the national court with all those elements for the interpretation of Community law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its questions (see, to that effect, inter alia, Case C-241/89 SARPP [1990] ECR I-4695, paragraph 8; Case C-315/92 Verband Sozialer Wettbewerb (‘Clinique’) [1994] ECR I-317, paragraph 7; Case C-87/97 Consorzio per la tutela del formaggio Gorgonzola [1999] ECR I-1301, paragraph 16; and Case C-456/02 Trojani [2004] ECR I‑7573, paragraph 38).

62 In the context of the present case, it is appropriate to examine in particular the rights and obligations as well as the responsibility of the exporter and those of the national customs authorities as regards examination of products exported with Community aid.

63 Community legislation provides for a sort of cooperation between the exporter and the national customs authority, in order to correctly monitor exports qualifying for refunds.

64 According to Article 69(2) of the Customs Code, the declarant is entitled to be present when the goods are examined and when samples are taken. The second subparagraph of Article 70(1) of that Code provides that the declarant may request a further examination of the goods if he considers that the results of the partial examination are not valid as regards the remainder of the goods declared.

65 The Court has already stated, in paragraph 35 of Case C‑309/04 Fleisch-Winter , that in so far as the exporter, by lodging an application for a refund, continues to assert either expressly or impliedly that the product in question is of ‘sound and fair marketable quality’, it is for the exporter, according to the rules of evidence of national law, to prove that that condition is, in fact, satisfied if a declaration is questioned by the national authorities. In the case in the main proceedings, even if the size of the samples taken was insufficient, the result of the customs checks and the decisions of the Hauptzollamt show that the national customs authorities did question the exporter’s declaration.

66 On the other hand, Community legislation also imposes specific obligations on the said authorities. In particular, the third subparagraph of Article 5(1) provides that the customs office of export must be mindful of the ‘sound and fair marketable quality’ of the product qualifying for the export refund. It is also beyond doubt that the national customs authorities must automatically apply the relevant Community legislation, including the rules on the taking of samples.

67 It is true that neither Regulation No 386/90 or Regulation No 2221/95 require each batch to be physically checked, but, if physical checks of a batch do take place, they must take place in accordance with Community legislation, including the rules on the taking of samples.

68 It must therefore be held that, in circumstances such as those of the case in the main proceedings, it is for the national administrative and judicial authorities to establish the facts by taking into account all of the evidence. Such evidence may include available samples but also other information, in particular the examination account produced in accordance with Community legislation by the customs officer who carried out the physical checks. In the event that the facts cannot be conclusively established for the purpose of entitlement to the refund, it is for the national court to assess the exporter’s conduct and that of the customs authority by establishing the extent to which each has, or has not, exercised its rights and fulfilled its obligations and to draw the appropriate conclusions concerning entitlement to the export refund.

Costs

69 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 (First Chamber) hereby rules:

1. For the purpose of establishing whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’, Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90, as amended by Commission Regulation (EC) No 1000/96 of 4 June 1996, which lays down minimum quality requirements and tolerance margins, in particular Articles 6 and 7, applies.

2. (a) In circumstances such as those of the main proceedings, Article 70 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, applies, subject to the proper conduct of the examination referred to therein, where it is necessary to establish whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’.

(b) The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation No 2913/92, as amended by Regulation No 82/97, does not apply if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91.

3. In circumstances such as those of the case in the main proceedings, it is for the national administrative and judicial authorities to establish the facts by taking into account all of the evidence. Such evidence may include available samples but also other information, in particular the examination account produced in accordance with Community legislation by the customs officer who carried out the physical checks. In the event that the facts cannot be conclusively established for the purpose of entitlement to the refund, it is for the national court to assess the exporter’s conduct and that of the customs authority by establishing the extent to which each has, or has not, exercised its rights and fulfilled its obligations and to draw the appropriate conclusions concerning entitlement to the export refund.

[Signatures]

* Language of the case: German.