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Judgment of the Court of 22 June 1993.

Federal Republic of Germany v Commission of the European Communities.

C-54/91 • ECLI:EU:C:1993:258 • 61991CJ0054

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Federal Republic of Germany v Commission of the European Communities.

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Keywords

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1. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision on clearance of the accounts in respect of expenditure financed by the EAGGF

(EEC Treaty, Art. 190)

2. Agriculture ° Common organization of the markets ° Export refunds ° Conditions for grant ° Lodgment of the export declaration in respect of the goods before they leave the customs territory

(Council Directive 81/177, Arts 2, 3 and 5; Commission Regulation No 3665/87, Art. 3)

3. Agriculture ° Common organization of the markets ° Export refunds ° Application of the rate in force on the date of acceptance of the export declaration ° Choice of date of acceptance by the exporter ° Not permitted

(Council Directive 81/177, Arts 2, 3 and 5(1) and (3) and 6(1))

4. Agriculture ° Common organization of the markets ° Cereals ° Sugar ° Production refunds ° Establishment by the Member States of a control procedure ° Obligation to provide for the possibility of checks on the goods

(Commission Regulations Nos 1729/78, Art. 6(1) and 2169/86, Art. 8(2))

5. Acts of the institutions ° Regulations ° Regulation laying down specific measures of supervision ° No latitude granted to Member States ° Non-implementation ° Justification ° Another system of supervision more effective ° Not permissible

Summary

1. The extent of the obligation to state the reasons on which a measure is based, laid down in Article 190 of the Treaty, depends on the nature of the measure concerned and the circumstances in which it was adopted.

A decision on clearance of the accounts in respect of the expenditure financed by the EAGGF, refusing to charge to the EAGGF part of the expenditure declared, does not require a detailed statement of the reasons on which it is based since the government concerned was closely involved in the process of drawing up of a decision and was therefore aware of the reason for which the Commission considered that the amount at issue should not be charged to the EAGGF.

2. It follows from Article 3 of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products and from Articles 2, 3 and 5 of Directive 81/177 on the harmonization of procedures for the export of Community goods, that, for the export refunds provided for by the various common organizations of the market to be available, first, an export declaration must be made in writing, so that inter alia it is possible to check that the information given by the exporter corresponds to the goods presented for export, and secondly, that declaration must be lodged before the goods have left the customs territory of the Community.

3. By virtue of Articles 2, 3, 5(1) and (3) and 6(1) of Directive 81/177, although the export declaration upon which the payment of export refunds is conditional may be lodged when, or even before, the goods are presented at the customs office, the declaration must nevertheless be accepted by the customs authorities immediately after it has been checked as regards form, content and conformity with the goods to be exported, with the result that traders are not entitled to choose the date of acceptance of the export declaration, on which the rate of the export refund which they may claim is dependent.

4. Although Article 8(2) of Regulation No 2169/86 laying down detailed rules for the control and payment of the production refunds in the cereals and rice sectors and Article 6(2) of Regulation No 1729/78 laying down detailed rules of application in respect of the production refund for sugar used in the chemical industry do not require that, in the administrative procedure followed by the national authorities for the issue to traders of the certificates entitling them to the payment of production refunds for starch and sugar, physical checks on the goods be carried out all the time, that procedure must nevertheless be designed so as to enable such inspections to be carried out.

5. Where a regulation lays down specific measures of supervision, the Member States must apply them and cannot argue, to justify their failure to implement them, that another system of supervision would be more effective.

Parties

In Case C-54/91,

Federal Republic of Germany, represented by Ernst Roeder, Ministerialrat in the Federal Ministry of the Economy, and Claus-Dieter Quassowski, Regierungsdirektor in the same Ministry, acting as Agents, with an address for service in Luxembourg at the German Embassy, 20-22 Avenue Émile Reuter,

applicant,

supported by

French Republic, represented by E. Belliard, Directeur Adjoint, Directorate for Legal Matters, Ministry of Foreign Affairs, and E. Chavance, Attaché Principal d' Administration Centrale, Ministry of Foreign Affairs, acting as Agents, with an address for service in Luxembourg at the French Embassy, 9 Boulevard Prince Henri,

intervener,

v

Commission of the European Communities, represented by Dierk Booss, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Decision C(90)2337 fin. of the Commission of the European Communities of 30 November 1990 concerning the clearance of the accounts of the Member States in respect of the expenditure financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section, for the financial year 1988, as regards certain expenditure of the Federal Republic of Germany,

THE COURT,

composed of: C.N. Kakouris, President of the Fourth and Sixth Chambers, acting for the President, M. Zuleeg, J.L. Murray (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing the oral argument from the parties at the hearing on 12 January 1993,

after hearing the Opinion of the Advocate General at the sitting on 17 February 1993,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 7 February 1991, the Federal Republic of Germany brought an action under the first paragraph of Article 173 of the EEC Treaty for partial annulment of Commission Decision 90/644/EEC of 30 November 1990 concerning the clearance of the accounts of the Member States in respect of the expenditure for 1988 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), (OJ 1991 L 350, p. 82).

2 In the contested decision, the Commission considered that, having regard to the checks carried out by its staff, some of the expenditure declared by the Federal Republic of Germany for the financial year in question did not fulfil the conditions laid down by the Community rules and could not be charged to the Guarantee Section of the EAGGF. The grounds relied on by the Commission regarding each transaction considered not to conform with the rules in question were made clear during bilateral contacts prior to the decision clearing the accounts and were then summarized in the summary report on the results of the checks for clearance of the EAGGF accounts, Guarantee Section, for 1998 (hereinafter "the summary report"), which was forwarded to the Federal Republic of Germany.

3 The application seeks partial annulment of that decision regarding the refusal to charge to the EAGGF the amounts indicated in the following paragraphs of the summary report:

(a) export refunds in the cereals and sugar sectors: DM 27 510.204 (paragraphs 3.3.1.1., 3.3.1.2, 3.3.1.3, 3.3.1.6, 4.1.13.1, 4.1.13.2, 4.1.13.3, 4.1.13.5, 4.1.13.8 of the summary report);

(b) cases of force majeure: DM 27 321.71 (paragraph 4.1.3.1 of the summary report);

(c) absence of export licences: DM 104 909.63 (paragraph 4.1.3.2 of the summary report);

(d) exports for which the declaration was presented to the customs authorities only after the goods had left Community territory: DM 18 037 338.54 (paragraph 4.1.3.3 of the summary report);

(e) quantity losses: DM 584.43 (paragraph 4.1.3.4 of the summary report);

(f) date of acceptance of the export declaration by the customs authorities: DM 262 248 (paragraph 4.1.3.5 of the summary report);

(g) placing products under customs control under the advance payment procedure: DM 12 572 054.93 (paragraph 4.1.3.6 of the summary report);

(h) Production refunds in respect of starch and sugar: DM 6 200 360.76 (paragraphs 4.2.4.1 and 4.5.1.4 of the summary report).

4 By order of 9 July 1991, the French Republic was granted leave to intervene in support of the applicant.

5 In the course of the proceedings, the Federal Republic of Germany indicated that it was abandoning its action with regard to the following paragraphs of the summary report: (b), (e), (f) ° only as regards DM 10 445 of the contested reduction of DM 262 248.64 ° and (g).

6 Furthermore, as regards paragraph (a) in respect of export refunds in the sugar and cereals sectors (paragraphs 3.3.1.1, 3.3.1.2, 3.3.1.3, 3.3.1.6, 4.1.13.1, 4.1.13.2, 4.1.13.3, 4.1.13.5, 4.1.13.8 of the summary report), on which paragraph the French Republic also focused its observations, it appears from correspondence exchanged in the written procedure that the parties have reached an agreement. The matter is therefore settled as regards that part of the application.

7 Reference is made to the report for the hearing for a fuller account of the facts of the case, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Absence of export licences (paragraph 4.1.3.2 of the summary report)

8 The Federal Republic of Germany contests the statement contained in the summary report according to which, for the sale of intervention cereals for export to the Soviet Union, a tolerance margin was wrongly allowed. In that connection, the applicant first stated that it had no knowledge of that fact and criticized the Commission for failing adequately to state the reasons for its decision on that point. Following the explanations given by the Commission in its defence, it recognized that an export licence had been drawn up wrongly allowing a tolerance margin; however, it added that the error had been rectified subsequently.

9 For its part, the Commission maintains, first, that the matter in question was brought to the attention of the German authorities on several occasions. It then points out that it was only as a result of the letter annexed to the applicant' s reply that it learned that no prohibited tolerance margin had in fact been calculated. It therefore considers that that argument cannot be taken into account in view of the late stage at which it was put forward.

10 In considering this plea as to inadequacy of the statement of reasons, it must be borne in mind that the Court has consistently held (in particular in Case 327/85 Netherlands v Commission [1988] ECR 1065, paragraph 13) that the extent of the duty to state the reasons on which a decision is based, laid down in Article 190 of the EEC Treaty, depends on the nature of the act in question and on the context in which it was adopted.

11 In the present case, it is common ground that the German Government was closely involved in the process of drawing up the contested decision and was therefore aware of the reason for which the Commission considered that the amount at issue should not be charged to the EAGGF. It is apparent from the documents before the Court that the objections made by the Commission against the operation in question were brought to the attention of the German authorities on several occasions. In particular, by letter of 23 May 1990, the Commission indicated that it considered the tolerance of 1 500 000 kg mentioned on Licence No 231 95 065 to be unjustified.

12 In those circumstances, having regard to the particular context in which decisions on the clearance of EAGGF accounts are drawn up, the statement of reasons for the contested decision must be considered sufficient.

13 As regards the evidence produced in the course of the proceedings by the Federal Republic of Germany in order to justify the contested operation, it must be noted first that Article 1(3) of Commission Regulation (EEC) No 1723/72 of 26 July 1972 on making up accounts for the European Agricultural Guidance and Guarantee Fund, Guarantee Section, provides that the Commission may set a deadline for the additional information requested of the Member States to be forwarded. If that information is not forwarded within the prescribed period, the Commission is to adopt its decision on the basis of the information in its possession at the deadline, except where the late submission of information is justified by exceptional circumstances. As regards the Commission' s power to set a deadline, the first recital in the preamble to Regulation No 422/86 (OJ 1986 L 48, p. 31) refers to the need for rapid scrutiny of the accounts and states that the Commission must take account of the progress made on clearance of the accounts.

14 Furthermore, it is common ground that in this case the deadline mentioned in Article 1(3) of Regulation No 1723/72 was set by the Commission at 30 June 1990. Since the German Government has not claimed the existence of exceptional circumstances, it follows that the additional information produced after that date must be regarded as out of time.

15 The plea in law concerning this part of the contested decision must therefore be rejected.

Exports for which the declaration was presented to the customs authorities only after the products had left Community territory (paragraph 4.1.3.3 of the summary report)

16 The Federal Republic of Germany disputes the Commission' s statement that the export refunds were granted even though the export declarations were not lodged with the customs authorities until after the products had left the territory of the Community and that, consequently, it was not possible to check the exports. The applicant maintains in that connection that the German customs authorities were informed and that when the control copies were submitted slightly late the intervention or storage cereals had already undergone customs checks.

17 The Commission contends, on the other hand, that, having regard to the Community rules, all export declarations must be made in writing in order, in particular, to ensure that the information given by the exporter corresponds to the goods to be exported. In its view, it is common ground that in this case the declarations in question were not submitted in writing before the departure of the goods from the customs territory of the Community.

18 In that connection, with respect to the export declarations contested by the Commission, in particular those accepted on 30 March 1988, it is apparent from the report of the Oldenburg principal customs office of 4 May 1990 (annexed to Chapter IV of the Commission' s defence), the terms of which have not been challenged by the Federal Republic of Germany, that the five copies recording the inspection at issue were not completed until the day following departure of the vessel, at a time when the goods in question had not undergone any inspection. Moreover, in that report it is merely assumed that the requisite declaration was drawn up before commencement of loading operations.

19 It is also apparent from the abovementioned report that, as regards the export declarations of 25 January 1988, the vessel in question left port on 2 January 1988, whereas the control copy was not recorded and issued until 25 January 1988. It is also apparent that the official responsible for customs clearance did not inspect the exported goods and that the principal customs office merely took it for granted that an oral or telephone declaration in respect of the goods had been made in due time with a view to the completion of customs formalities. Finally, it is apparent from the report that a partial consignment of wheat and a consignment of rye were not transshipped for the purpose of weighing but that a weighing certificate was nevertheless drawn up by a member of the auxiliary customs staff.

20 In view of the foregoing, it must be borne in mind that pursuant to Article 2 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), "the export from the customs territory of the Community of the goods ... shall be conditional upon the lodging at a customs office ... of an export declaration". According to Article 3 of that directive, the "declaration shall be made in writing on a form corresponding to the appropriate official model". Article 5 of the same directive provides that "the goods to be exported shall be presented at any Community customs office" but that the latter "may authorize the declaration to be lodged before the declarant is in a position to present the goods".

21 Furthermore, pursuant to 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 document used "must include all information necessary for the calculation of the amount of the refund". Pursuant to Article 3(6), the goods must be placed under customs control from the time of acceptance of the export declaration until they leave the customs territory of the Community.

22 It is apparent from the foregoing provisions that, as the Commission contends, an export declaration must be made in writing, in order in particular to ensure that the information given by the exporter corresponds to the goods to be exported. It also follows from those provisions that although the declaration may be lodged before the goods are presented, it may not be lodged after they have left the customs territory.

23 That was not the position in this case, however, where it was merely taken for granted, without any proof thereof, that the customs authorities had been informed of the operation in question before the goods left the customs territory of the Community.

24 As regards the applicant' s argument that no inspection was necessary since the cereals involved were from intervention stocks, it need merely be stated that Community law contains no provision derogating from the abovementioned rules.

25 It follows that the plea in law concerning this part of the contested decision must be rejected.

Date of acceptance of the export declaration by the customs authorities (paragraph 4.1.3.5 of the summary report)

26 The Federal Republic of Germany maintains that the Commission' s objection to the fact that the German customs administration allows traders to choose the date of acceptance of the declaration, and as a result the rate of the export refund, has no basis in Community law.

27 According to the applicant, the Community rules do not specify the day to be taken into account for that purpose. The date may be at the beginning, during or at the end of the period of loading of the vessel, provided that all the documents can be submitted at any time during that period as well as all the goods concerned.

28 In that connection, it must be borne in mind that Directive 81/177 makes acceptance of the export declaration subject to two conditions. First, the customs office must have an export declaration accompanied by all the relevant documents (Articles 2 and 3). Secondly, the goods must be presented to the customs office (Article 5(1)). Moreover, Article 5(3) of that directive states that the competent authorities must be notified in the manner required of the presence of the goods to be exported at that customs office or at another place designated by those authorities. Finally, Article 6(1) of the directive provides that declarations which comply with the conditions laid down are to be accepted forthwith by the customs authorities, in accordance with the procedures laid down in each Member State.

29 It is clear from the foregoing provisions, taken together, that whilst the export declaration may be lodged upon presentation of the goods or even beforehand, acceptance of the declaration must nevertheless take place immediately after verification of the declaration as regards form, content and conformity with the goods to be exported.

30 Consequently, traders are not entitled to choose the date of acceptance of the export declaration since acceptance must take place without delay when the abovementioned verification is carried out.

31 The plea in law concerning this part of the contested decision must therefore be rejected.

Production refunds in respect of starch and sugar (paragraphs 4.2.4.1 and 4.5.1.4 of the summary report)

32 The Federal Republic of Germany contests, first of all, the Commission' s statement that the procedure followed by the German administration, whereby companies may lodge applications for a refund certificate for starch and sugar only after those products have been processed, since the necessary guarantees cannot be provided until after processing, renders physical inspection of the goods impossible and, as a whole, constitutes an infringement of Commission Regulation (EEC) No 2169/86 of 10 July 1986 laying down detailed rules for the control and payment of the production refunds in the cereals and rice sectors (OJ 1986 L 189, p. 12), and of Commission Regulation (EEC) No 1729/78 of 24 July 1978 laying down detailed rules of application in respect of the production refund for sugar used in the chemical industry (OJ 1978 L 201, p. 26).

33 The applicant interprets the abovementioned regulations as not requiring any specific physical inspection of the goods and leaving it to each Member State to examine how the checks were carried out. In that connection, the German Government opted for the procedure of customs registration, which constitutes a form of administrative supervision.

34 The Federal Republic of Germany further states that physical checks, considered necessary by the Commission only for production refunds, are liable to hinder the continuity and regularity of production by encouraging the Community sugar refining and starch industry to have ever more frequent recourse to the corresponding industry in non-member countries where controls are less strict.

35 The Commission contends, on the other hand, that although the abovementioned regulations do not require physical checks to be carried out all the time, it is nevertheless clear that a procedure must be set up so as to enable such inspection to be carried out.

36 As regards the requirement of physical checks on the goods, it must be borne in mind that pursuant to Article 8(1) of Regulation No 2169/86 and Article 6(2) of Regulation No 1729/78, the manufacturer must, as part of a control procedure, provide certain information in order to claim the production refund. Article 8(2) of Regulation No 2169/86 provides with regard to that control procedure that "the competent authority shall then establish that the starch has been used for the manufacture of the approved products in accordance with the information stated on the certificate. This will normally be achieved using administrative controls but should be supported by physical controls where these are considered necessary". Pursuant to Article 6(1) of Regulation No 1729/78, the "Member States shall designate the authorities responsible for control of the processing of basic products".

37 It follows that whilst those provisions do not require that physical checks be carried out all the time as part of the relevant administrative procedure, that procedure must nevertheless be designed so as to enable such inspection to be carried out. However, the German administrative procedure at issue makes it impossible to carry out any physical checks on goods.

38 Finally, as regards the applicant' s argument regarding the appropriateness of the system of checks provided for the relevant Community rules, suffice it to note that the Court has consistently held (in particular in Case 819/79 Germany v Commission [1981] ECR 21, paragraph 21, and in Case C-28/89 Germany v Commission [1991] ECR I-581, paragraph 9) that where a regulation lays down specific measures of supervision, the Member States must apply them and it is unnecessary to examine the merits of their view that another system of supervision is more effective.

39 In those circumstances, the plea in law concerning this part of the contested decision must be rejected.

40 It follows from all the foregoing considerations that the action must be dismissed.

Decision on costs

Costs

41 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Federal Republic of Germany has been unsuccessful, it must be ordered to pay the costs.

42 As regards the costs in respect of the part of the application concerning the export refunds in the cereals and sugar sectors, on which it is unnecessary to give a decision, having regard to the agreement reached by the parties, the Federal Republic of Germany requests that the Commission be ordered to pay them on the ground that the refunds were properly made ab initio. The Commission opposes that request, contending that the applicant did not dispel its doubts as to the propriety of the refunds in question until completion of the additional review which it was authorized to carry out, having failed to do so when Decision 90/644 was adopted.

43 Under Decision 90/644, the Commission reserved the right to examine its refusal to charge certain expenditure to the EAGGF if the Member State concerned carried out an additional review of the costs at issue and produced evidence to dispel any doubts as to the propriety of the refunds declared. Consequently, although the Commission by Decision 91/583/EEC of 31 October 1991 amending Decision 90/644 (OJ 1991 L 314, p. 47) charged the amounts in question to the EAGGF, it did so on the basis of fresh information deriving from the additional review which it was authorized to carry out.

44 In those circumstances, the applicant' s request must be refused. Consequently, pursuant to Article 69(6) of the Rules of Procedure, the Federal Republic of Germany must be ordered to pay those costs as well.

Operative part

On those grounds,

THE COURT

hereby:

1. Dismisses the action;

2. Orders the Federal Republic of Germany to pay the costs;

3. Orders the French Republic, the intervener, to bear its own costs.

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