1 BY ORDER DATED 13 NOVEMBER 1975 RECEIVED AT THE COURT ON 17 DECEMBER 1975 THE FINANZGERICHT HAMBURG HAS REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS FOR A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLE 4 OF REGULATION NO 1041/67/EEC OF THE COMMISSION OF 21 DECEMBER 1967 LAYING DOWN DETAILED RULES FOR EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( OJ ENGLISH SPECIAL EDITION 1967 , P . 323 ).
THESE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF PROCEEDINGS RELATING TO THE AMOUNT OF THE EXPORT REFUND APPLICABLE TO A CONSIGNMENT OF GERMAN INTERVENTION BUTTER WHICH WAS UNLOADED IN CASABLANCA AND THEN RE-FORWARDED TO A POLISH PORT WHERE IT WAS TO BE DELIVERED TO A CZECHOSLOVAKIAN PURCHASER .
THE DEFENDANT IN THE MAIN ACTION PAID IN RESPECT OF THIS EXPORT THE BASIC AMOUNT OF REFUND APPLICABLE ON THE DAY OF EXPORT FOR ALL THIRD COUNTRIES WHEREAS THE PLAINTIFF IN THE MAIN ACTION HAD OBTAINED AN EXPORT LICENCE CONTAINING AN ADVANCE FIXING OF THE REFUND FOR MOROCCO , ALGERIA AND TUNISIA , DESTINATIONS WHICH GIVE RISE TO A HIGHER REFUND .
2 THE FIRST QUESTION ASKS WHETHER ARTICLE 4 ( 1 ) OF REGULATION NO 1041/67/EEC IN THE VERSION IN FORCE IN 1971 , WHEREBY IN CERTAIN CASES , INTER ALIA BY REASON OF THE NATURE OF THE EXPORTED PRODUCTS OR OF EXPORT MARKETS , MEMBER STATES MAY REQUIRE PROOF NOT ONLY THAT THE PRODUCT HAS LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY , BUT ALSO THAT THE PRODUCT IN QUESTION HAS BEEN IMPORTED INTO A THIRD COUNTRY , MUST BE INTERPRETED TO THE EFFECT THAT THE DESTINATIONS OF THE PRODUCTS AS MENTIONED IN ARTICLE 4 OF REGULATION NO 876/68 IN RESPECT OF WHICH AN EXPORT REFUND HAS BEEN VARIED MAY ALSO BE REGARDED AS A THIRD COUNTRY .
IF THE ANSWER IS IN THE AFFIRMATIVE THE SECOND QUESTION ASKS WHETHER THE REQUIREMENT LAID DOWN IN ARTICLE 4 ( 1 ) OF REGULATION NO 1041/67 ' THAT THE PRODUCT IN QUESTION HAS BEEN IMPORTED INTO A THIRD COUNTRY ' MEANS THAT THAT PRODUCT MUST HAVE BEEN RELEASED INTO FREE CIRCULATION IN ACCORDANCE WITH THE CUSTOMS REGULATIONS OR WHETHER IT IS SUFFICIENT FOR THE GOODS , WHICH HAVE BEEN SHIPPED , TO BE UNLOADED IN A PORT AT A DESTINATION OUTSIDE EUROPE AND AFTER STORAGE AND TRANSHIPMENT TO BE TRANSPORTED TO A THIRD COUNTRY WITHIN EUROPE .
IF THE ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE THE THIRD QUESTION ASKS WHETHER THE SUBORDINATE CLAUSE IN THE FIRST SENTENCE OF ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 , WHEREBY ' WHERE ARTICLE 4 APPLIES , THE REFUND SHALL BE PAID UNDER THE CONDITIONS LAID DOWN IN PARAGRAPH ( 1 ), PROVIDED IT IS PROVED THAT THE PRODUCT HAS REACHED THE DESTINATION FOR WHICH THE REFUND WAS FIXED ' , MUST BE INTERPRETED TO THE EFFECT THAT THE GOODS MUST HAVE BEEN RELEASED INTO FREE CIRCULATION THERE IN ACCORDANCE WITH THE CUSTOMS REGULATION OR WHETHER IT IS SUFFICIENT FOR THE GOODS , WHICH HAVE BEEN SHIPPED , TO BE UNLOADED IN A PORT AT A DESTINATION OUTSIDE EUROPE AND AFTER STORAGE AND TRANSHIPMENT TO BE TRANSPORTED TO A THIRD COUNTRY WITHIN EUROPE .
IF THE ANSWER TO THE SECOND OR THIRD QUESTION IS IN THE AFFIRMATIVE THE FOURTH QUESTION ASKS WHETHER THE REQUIREMENTS THAT THE PRODUCT SHALL HAVE BEEN IMPORTED INTO A THIRD COUNTRY ( ARTICLE 4 ( 1 ) OF REGULATION NO 1041/67 ) AND THAT THE GOODS SHALL HAVE REACHED THEIR ' DESTINATION ' ( ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 ) ARE ALSO FULFILLED IF THE GOODS WERE , BY VIRTUE OF THE RELEVANT CONTRACTS OF SALE , ALREADY DESTINED ULTIMATELY , BEFORE COMPLETION OF THE CUSTOMS EXPORT FORMALITIES WITHIN THE MEANING OF ARTICLE 1 ( 2 ) OF REGULATION NO 1041/67 , NOT FOR THE DESTINATION OUTSIDE EUROPE LAID DOWN IN ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 BUT FOR ANOTHER THIRD COUNTRY IN EUROPE WITH A LOWER REFUND RATE AND WERE IN FACT TRANSPORTED THENCE IN ACCORDANCE WITH THE DETOUR VIA THE THIRD COUNTRY OUTSIDE EUROPE WHICH WAS STIPULATED BY THE EXPORT LICENCE .
THE FIFTH QUESTION ASKS WHETHER IT IS OF IMPORTANCE WITH REGARD TO THE INTERPRETATION OF ARTICLE 4 ( 1 ) OF REGULATION NO 1041/67 AND OF ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 WHICH WERE REFERRED TO IN THE SECOND , THIRD AND FOURTH QUESTIONS :
( A ) WHETHER THE APPLICANT EXPORTER WAS AWARE AT THE RELEVANT DATE THAT THE GOODS WOULD ULTIMATELY BE SHIPPED TO THE THIRD COUNTRY IN EUROPE ; OR
( B ) WHETHER ONE OF THE PURCHASERS AND SELLERS OF THE GOODS WHO WERE PARTIES TO THE CONTRACTS OF SALE AND PURCHASE WAS RESIDENT AT THE DESTINATION OUTSIDE EUROPE OR IN THE COUNTRY OF SUCH DESTINATION OR HAD A BRANCH THERE .
3 SINCE THESE QUESTIONS MAINLY RAISE THE PROBLEM OF THE OBJECTIVE OF THE SYSTEM OF REFUNDS , IT IS FITTING TO GIVE A GENERAL ANSWER TO THEM .
4 ARTICLE 17 ( 1 ) OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OJ ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ) PROVIDES THAT : ' . . . TO ENABLE THE PRODUCTS LISTED IN ARTICLE 1 TO BE EXPORTED . . . ON THE BASIS OF THE PRICES FOR THOSE PRODUCTS IN INTERNATIONAL TRADE , THE DIFFERENCE BETWEEN THOSE PRICES IN THE COMMUNITY MAY BE COVERED BY AN EXPORT REFUND . '
THE SECOND SENTENCE OF ARTICLE 17 ( 2 ) PROVIDES THAT THE REFUND ' MAY BE VARIED ACCORDING TO USE OR DESTINATION ' .
THE SAME PROVISION IS MADE IN ARTICLE 4 OF REGULATION NO 876/68 OF THE COUNCIL OF 28 JUNE 1968 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON MILK AND MILK PRODUCTS AND CRITERIA FOR FIXING THE AMOUNT OF SUCH REFUNDS ( OJ ENGLISH SPECIAL EDITION 1968 ( I ), P . 234 ) ' WHERE THE WORLD MARKET SITUATION OR THE SPECIFIC REQUIREMENTS OF CERTAIN MARKETS MAKE THIS NECESSARY ' .
ARTICLE 6 ( 2 ) OF THE SAME REGULATION PROVIDES : ' WHERE ARTICLE 4 APPLIES , THE REFUND SHALL BE PAID UNDER THE CONDITIONS LAID DOWN IN PARAGRAPH ( 1 ), PROVIDED IT IS PROVED THAT THE PRODUCT HAS REACHED THE DESTINATION FOR WHICH THE REFUND WAS FIXED ' .
5 THE REASON WHY THE REFUND VARIES ACCORDING TO THE DESTINATION OF THE PRODUCTS IS , ACCORDING TO THE FOURTH RECITAL TO REGULATION NO 876/68 , THAT ' MARKETS IN THE COUNTRIES OF DESTINATION ARE AT VARYING DISTANCES FROM COMMUNITY MARKETS AND SPECIAL CONDITIONS APPLY TO IMPORTS IN CERTAIN COUNTRIES OF DESTINATION ' .
IT FOLLOWS FROM ARTICLE 4 AND THE RECITALS IN THE PREAMBLE TO THE AFOREMENTIONED REGULATION THAT THE AMOUNT OF THE REFUND DEPENDS ON THE CONDITIONS OF THE MARKET WHICH THE PRODUCT IN QUESTION MUST ENTER AND AS A RESULT ON THE ACTUAL IMPORT OF THE PRODUCT INTO THE GIVEN COUNTRY OF DESTINATION .
THE VARIATION IN THE REFUND TAKES PLACE BY REASON OF THE DESIRE TO TAKE ACCOUNT OF THE PECULIAR CHARACTERISTICS OF EACH IMPORT MARKET ON WHICH THE COMMUNITY WISHES TO PLAY A PART .
6 IF IT SUFFICED FOR THE GOODS SIMPLY TO BE UNLOADED TO QUALIFY FOR PAYMENT OF THE REFUND AT A HIGHER RATE , THE RAISON D ' ETRE OF THE SYSTEM OF VARYING THE REFUND WOULD BE DISREGARDED AND ABUSE WOULD BE MADE POSSIBLE TO THE DETRIMENT OF COMMUNITY INTERESTS .
IT IS THEREFORE NECESSARY FOR THE GOODS TO HAVE BEEN CLEARED THROUGH CUSTOMS AND PUT INTO FREE CIRCULATION AT THE DESTINATION .
ONLY OBJECTIVE CRITERIA CAN BE TAKEN INTO ACCOUNT IN ANSWERING THE QUESTION WHETHER GOODS HAVE REACHED THE MARKET AT THEIR DESTINATION .
7 THE PLAINTIFF IN THE MAIN ACTION HAS RAISED DOUBTS AS TO THE VALIDITY AND INTERPRETATION OF ARTICLE 4 OF REGULATION NO 1041/67 .
HOWEVER IT IS CLEAR THAT IN THE CONTEXT OF THE SAID REGULATION THE EXPRESSION ' THE MEMBER STATES ' MUST BE UNDERSTOOD TO MEAN THE AGENCY OF EACH MEMBER STATE ENTRUSTED WITH PAYING THE EXPORT REFUNDS .
FURTHER , HAVING REGARD TO THE DIFFICULTY OF SETTING OUT EXHAUSTIVELY THE EVIDENCE WHICH MAY BE REGARDED AS SUFFICIENT PROOF THAT EXPORTATION TO A THIRD COUNTRY HAS TAKEN PLACE , THE COMMISSION HAS NOT EXCEEDED ITS POWERS IN AUTHORIZING THE MEMBER STATES TO REQUIRE THE PROOF REFERRED TO IN THE SAID ARTICLE 4 .
COSTS
8 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED ITS OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND AS THE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION 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 FINANZGERICHT HAMBURG BY ORDER OF THAT COURT DATED 13 NOVEMBER 1975 HEREBY RULES :
( 1 ) ARTICLE 4 ( 1 ) OF REGULATION NO 1041/67 IS A PROVISION OF GENERAL APPLICATION AND APPLIES IN ALL CASES WHERE THERE IS A REFUND , EVEN IF THE REFUND HAS BEEN VARIED ACCORDING TO THE DESTINATION ;
( 2 ) THE SAID ARTICLE MUST BE INTERPRETED IN CONFORMITY WITH ARTICLE 6 OF REGULATION NO 876/68 AND , WHERE THE REFUND IS VARIED , MEANS THAT THE GOODS MUST HAVE BEEN GIVEN CUSTOMS CLEARANCE AND PUT INTO FREE CIRCULATION AT THE DESTINATION ;
( 3 ) ONLY OBJECTIVE CRITERIA CAN BE TAKEN INTO ACCOUNT IN ANSWERING THE QUESTION WHETHER GOODS HAVE REACHED THE MARKET AT THEIR DESTINATION SO THAT IT IS NOT NECESSARY TO ASCERTAIN WHETHER THE EXPORTER WHO MADE THE APPLICATION KNEW AT THE DATE IN QUESTION THAT THE GOODS WOULD ULTIMATELY BE TRANSPORTED TO ANOTHER COUNTRY .
