Avis juridique important

Judgment of the Court of 8 June 1994. - Elliniko Dimosio v Ellinika Dimitriaka AE. - Reference for a preliminary ruling: Dioikitiko Efeteio Athinon - Greece. - Export refund system - Post-Chernobyl regulation. - Case C-371/92. European Court reports 1994 Page I-02391

Summary Parties Grounds Decision on costs Operative part

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1. Agriculture ° Common organization of the markets ° Export refunds ° Application of Community regulations by the authorities of the Member States ° Interpretation by the Commission ° No binding effect

2. Agriculture ° Common organization of the markets ° Export refunds ° Conditions for granting ° Sound and fair marketable quality ° No Community regulations setting maximum permitted levels of radioactivity for the export of contaminated foodstuffs to non-member countries ° Application by analogy of the standards in force for imports of the same products from non-member countries ° Whether permissible

(Commission Regulations No 2730/79, Art. 15, and No 3665/87, Art. 13)

3. Agriculture ° Common organization of the markets ° Export refunds ° Conditions for granting ° Sound and fair marketable quality ° Assessment on the day of export

(Commission Regulation No 3665/87, Arts 3 and 13)

4. Customs union ° Export procedures ° Subsequent correction of declarations ° Correction relating to facts which could no longer be checked by the customs authorities ° Not permissible

(Council Directive 81/177, Art. 7(1)(a))

1. The application of Community provisions on export refunds is a matter for the national bodies appointed for that purpose. All the Commission can do is to draw the attention of the Member States to the Community rules which they must apply and, in cooperating with the Member States at the administrative level, give them its interpretation as to the application of those rules. That interpretation has, however, no binding force and neither the competent authorities of the Member States nor, still less, individuals, can be bound by it.

2. At a time when the only rules in existence at Community level as regards compliance with maximum radioactivity levels for foodstuffs were those relating to the import of certain groups of agricultural products from non-member countries, the competent authorities in the Member States were justified in applying by analogy those rules to exports of agricultural products to non-member countries, pursuant to Article 15 of Regulation No 2730/79 and Article 13 of Regulation No 3665/87. It was for the Member States themselves to set, for the grant of refunds on the export of agricultural products to non-member countries, maximum radioactivity levels for the purpose of determining whether agricultural products intended for export to non-member countries were "products of sound and fair marketable quality" within the meaning of those provisions, and that application by analogy of the maximum levels in force for imports, which ensured equal treatment for products whether imported or exported, as recommended by the Commission, cannot be challenged.

3. Article 13 of Regulation No 3665/87 must be applied in conjunction with Article 3(1) and (4) of that regulation and construed as prohibiting the granting of export refunds for products which are not of sound and fair marketable quality on the day of export, as defined in Article 3(1).

4. The conditions to which Article 7(1)(a) of Directive 81/77 on the harmonization of procedures for the export of Community goods subjects the correction of customs declarations must be strictly interpreted in order to prevent abuse. Where rectification is requested by the exporter after the goods have been released from the customs office, it may be permitted only if it relates to details which the customs authority can check as being correct without the goods being present. That is not the case where the correction is intended to mix into a single batch various batches of one product with different characteristics, one part of which did not satisfy certain requirements, so that the single batch did satisfy them, since the fact that the goods in the various batches were mixed after loading cannot ensure that the resulting mixture was sufficiently homogenous to comply, in its entirety, with the requirements in question. It is of no consequence in that respect that a third party carried out a check, since the customs authorities have exclusive competence in that area.

In Case C-371/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Diikitiko Efetio (Administrative Court of Appeal), Athens for a preliminary ruling in the proceedings pending before that court between

Elliniko Dimosio (Greek State)

and

Ellinika Dimitriaka AE

on the interpretation of the provisions of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1), as codified by Commission Regulation (EEC) No 3665/87 of 27 November 1987 (OJ 1987 L 351, p. 1),

THE COURT,

composed of: O. Due, President, J.C. Moitinho de Almeida, M. Diez de Velasco, D.A.O. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet, G.C. Rodríguez, M. Zuleeg (Rapporteur), P.J.G. Kapteyn, Judges,

Advocate General: W. Van Gerven,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Ellinika Dimitriaka A.E., by Fausto Capelli, of the Milan Bar, and Ilias Chaliakopoulos, of the Athens Bar;

- the Greek Government, by Nikolaos Mavrikas, Legal Adviser to the Judicial Council of State, and Panagiotis Athanasoulis, Legal Agent for the Judicial Council of State, acting as Agents;

- the Commission of the European Communities, by Xenophon A. Yataganas, of its Legal Service, acting as Agent;

having regard to the Report for the Hearing,

after hearing the oral observations of Ellinika Dimitriaka, the Greek Government and the Commission at the hearing on 8 December 1993,

after hearing the Opinion of the Advocate General at the sitting on 19 January 1994,

gives the following

Judgment

1 By order of 19 March 1992 received at the Court on 23 September 1992, the Diikitiko Efetio Athinon (Administrative Court of Appeal, Athens) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Commission Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1979 L 317, p. 1), as codified by Commission Regulation (EEC) No 3665/87 of 27 November 1987 (OJ 1987 L 351, p. 1).

2 Those questions were raised in proceedings brought by Ellinika Dimitriaka against the Hellenic State concerning the conditions for obtaining refunds on the export of durum wheat to South Korea.

3 Article 15 of Regulation No 2730/79, as codified by Article 13 of Regulation No 3665/87 provides:

"No refunds 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."

4 Following the accident at the Chernobyl nuclear power-station on 26 April 1986, the Commission sent a telex, dated 24 July 1986 and signed by the Director-General for Agriculture, informing the Permanent Representations of the Member States of its view on compliance with the conditions required for intervention buying and for obtaining export refunds. That telex message (No VS-S-1/1187/86/D1/GG/G8) is worded as follows:

"The Member States should note that Community rules on intervention buying provide as a general rule that the products must be of sound and fair marketable quality or must not contain substances liable to harm human health. Furthermore, any agricultural product whose characteristics make it unmarketable may not be the object of a contract of sale either.

As far as products for which an export refund is claimed are concerned, it should be borne in mind that, in accordance with the provisions of Article 15 of Regulation No 2730/79 (OJ 1979 L 317, p. 1), refunds are to be granted on products which are of sound and fair marketable quality and whose characteristics or condition do not exclude their use for human consumption.

Having regard to the foregoing and in the light of Council Regulation No 1707/86 (OJ 1986 L 146, p. 87), products which do not comply with the maximum levels of radioactivity laid down in Article 3 of the regulation cannot be considered to have fulfilled either the conditions for intervention buying or those for qualifying for export refunds. Consequently, the financial costs relating thereto will not be borne by the EAGGF."

5 Council Regulation No 1707/86 of 30 May 1986 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power-station, cited above, authorized certain groups of agricultural products, including durum wheat, to be imported into the Community from non-member countries, subject to compliance with definite maximum radioactive levels. Article 3 of the regulation sets the maximum levels as follows:

"the accumulated maximum radioactive level in terms of caesium-134 and -137 shall be:

- 370 Bq/kg for milk falling within headings No 04.01 and No 04.02 of the Common Customs Tariff and for foodstuffs intended for the special feeding of infants during the first four to six months of life (...);

600 Bq/kg for all other products concerned."

6 The principle set out in the abovementioned telex, according to which no export refunds may be granted where the respective maximum levels of 370 and 600 Bq/kg applicable to imports are exceeded, was confirmed by Commission Regulation No 3494/88 of 9 November 1988, amending various regulations, in particular Regulation No 3665/87 laying common detailed rules for the application of the system of export refunds on agricultural products (OJ 1988 L 306, p. 24). Article 3 of that regulation adds the following paragraph to Article 13 of Regulation No 3665/87:

"No refunds shall be granted if the products display radioactivity in excess of the maximum levels permitted under Community regulations. The levels applicable to products (...) contaminated as a result of the accident at the Chernobyl nuclear power-station shall, irrespective of their origin, be those fixed in Article 3 of Council Regulation (EEC) No 3955/87".

7 In April and May 1988 55 000 tonnes of durum wheat were loaded on to a ship on behalf of the company Ellinika Dimitriaka for export to South Korea. The cargo consisted of 25 000 tons of durum wheat produced in Greece, which displayed a radioactive contamination level of 1078 Bq/kg, and two batches of 24 500 tonnes and 5 500 tonnes of durum wheat originating in France which were either of sound quality or hardly contaminated at all by radioactivity.

8 Since the Greek wheat was too radioactive to comply with the requirements set out by the Commission in its telex of 24 July 1986, the batches of Greek and French wheat were mixed together on board. Following analysis carried out by the Wirtschaftskammer Weser-Ems on the basis of samples taken from the ship' s holds by the British monitoring company Caleb Brett at the request of Ellinika Dimitriaka, it was apparent that the mixture of durum wheat exported displayed radioactive contamination after loading of 470 Bq/kg, that is to say, a level of contamination within the limits laid down in Community rules on the importation of agricultural products from non-member countries into the Community.

9 The wheat was not, however, exported under a single customs declaration covering the entire load, but under four, the first relating to a batch of 14 000 tonnes of unmixed Greek durum wheat (declaration 502/88), the second to 7 000 tonnes of French wheat (declaration 530/88), the third to a mixture of 28 500 tonnes of durum wheat consisting of 17 500 tonnes of French wheat and 11 000 tonnes of Greek wheat (declaration 536/88), while the fourth related to the remaining 5 500 tonnes of French wheat (declaration 643/88).

10 For that reason, the competent Greek authorities treated the export of the 55 000 tonnes of durum wheat in question not as the delivery of a single mixed product but as the delivery of two separate batches of wheat, the Greek and the French. In accordance with the principle set out in the abovementioned Commission telex of 24 July 1986, the Greek authorities applied the level of 600 Bq/kg laid down for agricultural products imported from non-member countries in the same way in respect of those products exported from the Community to non-member countries. Consequently, they paid the refunds on the 30 000 tonnes of French wheat exported to South Korea but refused to pay them on the 25 000 tonnes of Greek wheat which had been mixed with the French.

11 Ellinika Dimitriaka then asked the Commission to intervene. The Commission informed the Greek Government that it was prepared to agree that the EAGGF should bear the cost of granting the full export refunds for both the French and Greek wheat, on condition, however, that the Greek authorities agreed, in return, to correct the customs declarations made by Ellinika Dimitriaka in order to make them comply with the provisions of Council Directive 81/177/EEC of 24 February 1981 on the harmonization of procedures for the export of Community goods (OJ 1981 L 83, p. 40).

12 The Greek authorities did not, however, accept the Commission' s proposal. They informed the Commission that it was not possible under either Directive 81/177/EEC or the Greek law implementing the directive for the four original customs declarations to be replaced by a single document.

13 After it had exhausted all the administrative procedures, Ellinika Dimitriaka brought the matter before the Administrative Court of First Instance, Athens, which gave judgment for the company and ordered the Greek State to pay it the export refunds which it had claimed and to release the securities which it had lodged in respect of the export of the durum wheat in question.

14 The Greek State appealed against that judgment to the Diikitiko Efetio Athinon which stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

"1. Is the Commission' s telex of 24 July 1986, according to which the maximum permitted levels of radiation laid down in Regulation (EEC) No 1707/86 for imports of products into the Community also apply to exports of those products to non-member countries, valid and binding on the Member States?

2. In the absence of any express provision, does the power to interpret Article 15 of Regulation (EEC) No 2730/79 (now Article 13 of Regulation (EEC) No 3665/87), which was in force at the material time, and to subject exports to rules similar to those applying to imports on what is meant by products of sound, fair and marketable quality, belong to the Commission or to the competent authorities of the Member States, or, conversely, with regard to refunds, in order for a national authority to decide that the exporter is not entitled to Community aid under Article 13 of Regulation (EEC) No 3665/87, must there be a binding Community provision defining precisely the circumstances in which no refunds can be granted? More specifically, was the adoption of Regulation (EEC) No 3494/88 essential in order for exports of products contaminated with radiation above the level laid down for imports of the same products to be refused refunds?

3. If it is accepted that a prohibition on the granting of refunds may, by way of interpretation, be imposed where the products are not sound in accordance with the criteria laid down for imports of the same products into the Member States, is the only evidence concerning the characteristics of the cargo the customs export declaration on the date of its acceptance by the customs authority pursuant to Article 3 of Regulation (EEC) No 3665/87, and is it consequently immaterial, for the purposes of the payment of Community aid, that the cargo was subsequently mixed inside the holds of the ship and made indivisible, in order to prevent the product exported from exceeding the maximum permitted levels of radioactivity or, on the contrary, does the mixing make it necessary to alter the export declarations after they have been accepted by the customs authority?

4. Do the provisions of Article 3 of Regulation (EEC) No 3665/87 relate exclusively to the calculation of the export refunds and do they not affect Article 13 of Regulation (EEC) No 3665/87, according to which the abovementioned Community aid is refused where the products exported are not of sound quality, with the consequence that it is unnecessary to correct the abovementioned declarations?"

Question 1

15 The first question asked by the national court is whether the Commission' s telex of 24 July 1986 setting maximum levels of radioactivity for exports of products to non-member countries is valid and binding on the Member States.

16 It is not in dispute that the application of Community provisions on export refunds is a matter for the national bodies appointed for this purpose (judgment in Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1299).

18 Having regard to the legal nature of such an interpretation, correct or not, the question of its validity does not arise.

19 The answer to the first question must therefore be that the Commission' s telex of 24 July 1986 setting maximum levels of radioactivity for exports of products to non-member countries is not an act which is binding on the Member States.

Question 2

20 In its second question the national court seeks, essentially, to ascertain whether, in the absence of relevant binding Community provisions, the competent authorities in the Member States were justified, when the exports in question took place, in applying by analogy to such exports the measures which had been adopted for the import of agricultural products from non-member countries, pursuant to Article 15 of Regulation No 2730/79 and Article 13 of Regulation No 3665/87.

21 It should first be noted that at the time of the Chernobyl accident there was, at the Community level, in effect a legal vacuum with regard to the rules establishing maximum levels of radioactive contamination for foodstuffs. That legal vacuum in the law was only gradually filled by the Community rules on maximum radioactivity levels, that is to say, by Regulation No 1707/86 concerning imports of certain groups of agricultural products from non-member countries into the Community and by Regulation No 3494/88 concerning exports of those products to non-member countries.

22 It follows that at the time of the exports in question, the only rules in existence as regards compliance with maximum radioactivity levels were those relating to the import of certain groups of agricultural products, including durum wheat, from non-member countries. By contrast, no Community provisions had been adopted in that respect for the export of the same products.

24 The Greek authorities made use of that power by applying by analogy the maximum levels already in force for imports of agricultural products into the Community to exports of agricultural products to non-member countries. That manner of proceeding cannot be called in question, since the principle of equal treatment for imports and exports was already to be found in paragraph 2 of Commission Recommendation 86/156/EEC of 6 May 1986 addressed to the Member States concerning the coordination of national measures taken in respect of agricultural products as a result of radioactive fallout from the Soviet Union (OJ 1986 L 118, p. 28) and in the abovementioned Commission telex of 24 July 1986.

25 The answer to the second question must therefore be that, in the absence of binding Community provisions, the competent authorities in the Member States were justified, when the exports in question took place, in applying by analogy to exports of agricultural products to non-member countries the measures adopted for the import of such products from non-member countries, pursuant to Article 15 of Regulation No 2730/79 and Article 13 of Regulation No 3665/87.

Question 4

26 In its fourth question, which should be answered before the third question is considered, the national court asks whether Article 3 of Regulation No 3665/87 applies also in the circumstances referred to in Article 13 of that regulation, namely where the products exported are not "of sound and fair marketable quality" and for that reason no refund may be granted.

27 Article 3 of Regulation No 3665/87 provides:

"1. The day of export means the date on which the customs authority accepts the export declaration in which it is stated that a refund will be applied for.

2. The date of acceptance of the export declaration shall determine:

(a) the rate of the refund (...);

(b) any adjustments to be made to the rate of the refund (...).

3. Any other act having the same effect in law as the acceptance of the export declaration shall be deemed to be equivalent to such acceptance.

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 (...).

If the document mentioned in this paragraph is the export declaration, this document must also include those 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."

28 As expressly stated in Article 3(4), that article requires "the quantity, nature and characteristics of the product exported" to be established. That is precisely the question dealt with in Article 13 of Regulation No 3665/87, namely the characteristics or condition of the products.

29 Article 3 is part of the general provisions of Regulation No 3665/87. Article 13 of Regulation No 3665/87 must therefore be applied in conjunction with Article 3(1) and (4) of that regulation and be construed as prohibiting the granting of export refunds for products which were not of sound and fair marketable quality on the day of export.

30 The answer to the fourth question must therefore be that Article 3 of Regulation No 3665/87 is also applicable in the circumstances mentioned in Article 13 of that regulation, namely where the products exported are not "of sound and fair marketable quality" and where, therefore, no refund may be granted.

Question 3

31 In its third question the national court seeks essentially to ascertain whether, in circumstances such as those in point in the main proceedings, the conditions governing the subsequent correction of customs declarations have been satisfied.

"1. The declarant shall, at his request, be authorized to correct declarations (...) subject to the following:

(a) the correction shall be requested before the goods are released from the customs office or place designated for that purpose, unless the request relates to details which the customs authority can check as being correct without the goods being present;

(b) the correction may no longer be allowed where the request is made after the customs authority has informed the declarant that it intends to examine the goods or that it has itself established that the particulars in question are incorrect;

(c) the correction shall not result in the application of the declaration to goods other than those to which it originally related.

2. The customs authority may allow or require that the corrections referred to in paragraph 1 be made by the lodging of a new declaration intended to replace the original declaration. In that event, the date for determining the export duties relating to the goods in question and for the application of any other export provisions shall be that of the acceptance of the original declaration."

33 It is not disputed that in the case which gave rise to the main proceedings no correction of the declarations was requested "before the goods [were] released from the customs office or place designated for that purpose". In accordance with Article 7(1)(a) of Directive 81/177/EEC, a correction could therefore be authorized only if the request to correct the declarations related to details which the customs authority could check as being correct without the goods being present.

34 At the hearing the Commission considered that that was the situation in the case in the main proceedings. The Greek authorities, which checked the radioactivity of the various batches of Greek and French durum wheat, could have calculated the radioactivity of the mixture of those batches by using a mathematical method taking into account the average radioactivity of each batch of durum wheat, and could thus have checked, without the goods being present, that the details provided in support of the request for correction of the declarations were correct.

35 That argument cannot be accepted. As the Commission itself correctly pointed out, the conditions to which Article 7(1)/a) subjects the correction of customs declarations must be strictly interpreted in order to prevent abuse. If the Community were to allow a refund for a mixture of different batches of durum wheat merely on the basis of mathematical considerations, without checking whether the mixing had actually taken place, there would be nothing to ensure that the separate batches had been sufficiently mixed to remain, in their entirety, within the maximum levels of radioactivity.

36 The Ellinika Dimitriaka considers that, having regard to the special circumstances of the exportation in question, the refusal to apply Article 7 of Directive 81/177 does not seem to be justified and is disproportionate. It claims that it has been sufficiently established in the main proceedings that the mixing was properly carried out in the ship' s holds, as moreover the Stilida customs authority expressly acknowledges in a letter of 12 June 1989. Furthermore, following analysis carried out at the company' s request, the accuracy of which is not disputed, it appeared that, after loading, the durum wheat mixture exported displayed a radioactivity level of 470 Bq/kg, that is to say a level of contamination lower than the maximum levels laid down by Community rules on imports of agricultural products from non-member countries into the Community.

37 That argument also must be rejected.

38 It fails to take account of the fact that the possibility of making subsequent corrections to customs declarations is conditional on the national authorities checking that the new or amended details of the product exported are correct as against the original customs declarations.

39 Competence in that respect is conferred by the Community legislation exclusively on the national customs authorities and cannot therefore be put on the same plane as checks carried out at a trader' s request by bodies which have not been empowered for this purpose by the competent national authorities. The exclusive competence of the national customs authorities is intended to prevent any kind of abuse.

40 It follows that the answer to the third question must be that, in circumstances such as those in point in the main proceedings, the conditions governing the subsequent correction of customs declarations are not satisfied.

Costs

41 The costs incurred by the Greek Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Diikitiko Efetio Athinon by order of 19 March 1992, hereby rules:

1. The Commission' s telex of 24 July 1986 setting maximum levels of radioactivity for exports of products to non-member countries is not an act which is binding on the Member States.

2. In the absence of binding Community provisions, the competent authorities in the Member States were justified, when the exports in question took place, in applying by analogy to exports of agricultural products to non-member countries the measures adopted for the import of such products from non-member countries, pursuant to Article 15 of Regulation (EEC) No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products, and Article 13 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.

3. Article 3 of Regulation (EEC) No 3665/87 is also applicable in the circumstances mentioned in Article 13 of that regulation, namely where the products exported are not "of sound and fair marketable quality" and where, therefore, no refund may be granted.

4. In circumstances such as those in point in the main proceedings, the conditions governing the subsequent correction of customs declarations are not satisfied.